Study Notes: Constitution (Fall)

Sources and Principles of Constitutional Law

Written: British North American Act (1867) Constitution Act (1982) Amending Formulas Other Texts Judicial Decisions

Interpretation of written texts/statutes. What was the intended meaning of the original framers? Means of filling in gaps in the constitution and then principles are applied to society. Common law: Judge-made law as cases come before the court. This law becomes a precedent, but can evolve over time. Royal Prerogative: Unwritten powers open to the Crown unless extinguished. Example: Decision of when to go to war. Conventions: A practice or custom that develops overt time and becomes obligatory and binding in law. However, courts

do not provide a remedy (there are no legal remedies) for persons or groups that do not follow a convention or custom. The courts can make a recommendation, but have no real force.

Federalism Separation or Division of Powers: Different jurisdictions have different powers With different orders or levels of government and conflicts that can arise, there must be some level of power that can override

conflict and make a decision in the overall interest of society. Individual Representation

Democracy Has individual and institutional aspects. Democracy provides a voice for the individual but is also an entity that words as a

group. Individuals can freely contribute and act in the system and then institutions, both public and private act for united interests or needs.

Example: Quebecois may all vote in favour of secession, making them on unified front, but because this is decision that affects the rest of Canada, other Canadians must also have a voice and thus, will contribute to the decision.

Democracy is not written in the constitution but was thought to be so fundamental for the operation of Canada that it is implied and fits into the idea o a constitutionally binding unwritten principle.

Democracy is written in the Charter (s.1) and democratic rights for individuals are clearly laid out.

The Constitution and Rule of Law Rule of Law

- Law is supreme. No person or body, including the government is above the law.- Government can only act under the law. They do not have rights past what the law states.- System of legal rules with binding authority.- Positive Law: Maintain peace, order and good government.

Constitutionalism - Of all law, the constitution is the supreme law. Any law inconsistent has no force or effect.- Particular application of “rule of law” principle that is the overlying meaning of governance.- Available principle with both written statutes as well as unwritten custom or convention is an implicit and

assumed fundamental principle for Canadian governance and function.

Reference re Secession of Quebec – 1988 SCC

Facts:

In this case the Federal Government asked the Supreme Court for an opinion on the constitutionality of Quebec secession. The National Assembly of Quebec refused to recognize the jurisdiction of the court. The Supreme Court appointed council for Quebec to argue for them. In the Patriation Reference the Court held that even though Quebec did not sign the C.A. 1982 they are still bound by it. The Federal government argued that the Constitution does not allow a province to unilaterally secede. Counsel for Quebec argued the right to self determination (based on notions of democracy.)

Issue:

Does the Constitution of Canada allow Quebec to unilaterally secede from Canada? How will international law respond to secession? Ratio:

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Constitutional Principles: Federalism: a response to the social and political realities at the time of confederation (diversity, minorities). Federal and

Provincial powers set out in s. 91 and 92 of C.A 1867. Democracy: not simply majority rule also includes respect for minorities and minority opinions. Individual democratic

rights enshrined in the C.A 1982, which protects the right of individuals to participate in democratic process. Institutional democracy is a system of majority rule. Without notions of democracy we would have trouble with the concept of sovereignty.

Constitutionalism and the Rule of Law: notion that the Constitution is the supreme law of Canada (s. 52 C.A. 1982). Any laws that are in contrast to the Constitution are invalid. Before 1982, constitutionalism was an implied part of our constitutional structure. Everybody, including the government is bound to follow the rule of law. The rule of law stresses the importance on an independent judiciary. The rule of law includes the system of rules which bind us. Actions of the government, in order to achieve legitimacy, must arise out of the rule of law. The constitution isn’t easily amended: it is a document that must reflect changes in social context. The notion of Constitutionalism forms a framework for democratic government.

Protection of Minorities: the Constitution protects minority rights. If Quebec secedes what happens to minorities such as aboriginals, religious minorities, and language minorities in the province. Protection of minority interests can be found in the C.A. 1867 and the creation of the Federal state.

The court was compelled to reach the decision that the unilateral secession of Quebec was unconstitutional. However, the notion of democracy requires that the rest of Canada actually open negotiations with Quebec on secession, if a clear majority in the province of Quebec voted in favour of secession.

The principles the court discusses are broad enough to apply to other provinces if they chose to secede. Unilateral secession is not constitutionally possible. In order to secede from the country, negotiations between the province and the rest of Canada are required. The court does not discuss the role of the court and the separation of powers. The court recognizes that it has certain functions to perform in the context of the dispute and that Parliament has its own role.

Federal government wanted advice on whether it would be constitutional for Quebec to separate from Canada. Did it have the right to unilaterally (without the consent from the rest of Canada) succeed? Was there a conflict between Canadian and International standards of secession?

Concerning the Nova Scotia request for secession, New Brunswick relied on the confederation of Nova Scotia for their own confederation. Their separation would greatly affect NB.

Confederation was based on cooperation and compromise. Each member of confederation went through the same process and certain concessions were made by all to make the federation. In particular, Quebec gained language rights as well as religious affirmation.

SC regards this reference as not just an issue of separation but as an amendment to the Constitution, as secession would affect the very framework and thus require certain amending processes. Obviously an amendment cannot happen unilaterally. If Quebec could get a clear majority in support of secession, the rest of Canada would have the responsibility to negotiate with Quebec.

Although Quebec did not agree with the Patriation of the CA, by convention they are bound to this rule. Quebec never officially signed on to the CA, but at the time of this question, it has no legal bearing. Convention trumps past fact.

Unwritten principles are essential in deciding as case as such. They do not hold as much significance as written text, but they are essential in combination. These principles allow judges to actually work with the written text. Unwritten texts provide certainty and legal predictability. Unwritten principles may change over time.

What Does the Quebec Secession Reference Stand For? Certain unwritten principles to the constitution, federalism, constitutionalism and rule of law, democracy and protection of

minorities. Constitution is the supreme law and shows how unwritten principles work with written. A clear majority and a clear question are necessary before the provinces are required to negotiate secession. Quebec cannot unilaterally separate. Separation of Powers: Judicial branch has a certain role to play when deciding this type of question, but the executive and

other branches have a large practical role to play.

Clarity Act (2000) Separation from political matters such as “what is a clear majority.” Courts can use this Act when deciding case or reference

questions. Will only answer “clear” questions that are specific to the constitution, and not questions that can be handled by the

provinces.Supremacy of the Constitution

Paramountcy

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When a provincial and federal legislation comes into conflict with each other, the federal legislation prevails.

Laws Inconsistent with the Constitution

Section 52 works in two ways:

1. Constitutional law is the supreme law. When legislation comes into conflict with the constitution, it has no force or effect.2. Constitutional remedies. Anyone who’s rights have been infringed may apply to a court of competent jurisdiction to obtain an

appropriate remedy. (Charter – s.24(1))

Law Society of Upper Canada v. Skapinker – 1984 SC

Facts:

Skapinker was a South African citizen who wanted to be a member of the Ontario Bar. He had met all the requirements except having Canadian citizenship. He challenged the constitutional validity of this requirement under s.6(2)(b) of the Charter: Mobility Rights.

6(2) Every citizen of Canada and every person who has the status of a permanent resident of Canada has the right,

(b) to pursue the gaining of a livelihood in any province.

Ratio:

The charter is part of the constitution and this is the supreme law of Canada. Any law that is inconsistent has no force or effect.

Difference between ordinary legislation and the constitution. The Constitution is broad in both scope and language whereas statutes are more specific.

The Constitution is a living tree. It is up to the courts to flush out the meaning of the constitution, due to its broadness, as well as allow continued growth.

Looked at American case law for reference. At the time of Skapinker, the CA 1982 was relatively new. American courts had more practice dealing with constitutional matters of their own.

The significance of the case relates to the protection of minorities. It is to prevent the majority rule from trampling minority issues such as freedom to choose religion, language, education, etc.

Protection of Aboriginal rights was not actually recognised until 1982 in s.35, although historical protection (little or otherwise) was implied.

Reference Canada Assistance Plan – 1967

Facts:

The Canada Assistance Plan was an agreement with the provinces to contribute towards social programs. It was a focus on contributing to “have not” provinces versus “have” provinces. It had a procedure for alteration or termination, but Canada terminated it under the Government Expenditures Restraint Act (1991) which did not follow procedure. BC, Alberta Challenged the unilateral cancellation.

Issue:

Did Canada have the authority to cancel contributions and did Canada follow the correct procedure? Yes, but did not follow the correct procedure.

Ratio: (?)

Although the correct procedure was not followed, the Act is still effective. S.42(1) of the Interpretation Act holds that every act shall be so construed as to reserve to Parliament the power of repealing or amending it and of revoking, restricting or modifying any power, privilege or advantage thereby vested in or granted to any person. This is the concept of parliamentary sovereignty. Parliament had the power to restrict or revoke any of its legislation. (Interpretation Act – s.42) This agreement cannot be viewed in the realm of an ordinary contract. Even if a certain provision was stipulated in the original agreement, under the notion of Parliamentary sovereignty,

Parliament has the power to enact other legislation that can cause a change on that Act.

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Parliament is allowed to unilaterally change their position on ordinary legislation. It is not bound by something like an amending formula like in the constitution.

Rule of Law

Overview of the Rule of Law Preamble of the Constitution Act 1982 Sense of order and hierarchy (Procedural Concept) Creation and maintenance of an actual order of positive laws which preserves and embodies the more general principle of

normative order. Relationship between the state and individuals governed by law. Procedural Concept v. Obligation: Are rules only recognised because they are procedural and authorized or are people

obligated under justness to follow the law? Example: Authorization of torture is inconsistent with the rule of law, regardless of the authorization.

Unimpeded Access to the Courts An action taken to prevent, impeded or obstruct access to the courts and thus justice, are contrary to the rule of law and

constitutes criminal contempt.

Consistency and Application of the Law Consistency in decision-making and the rule of law cannot be absolute in nature, regardless of context or however valid the

objective, because administrative bodies have relative autonomy from the courts, they generate a degree of inconsistency. Thus, proactive efforts from all institutions and individuals are required to maintain the rule of law (fair procedures, equitable treatment, responsiveness to the public, etc.)

Cornerstones of the administrative system are built according to the rule of law.

Developing the Rule of Law Conflict between the rule of law, as the law applies, and rule of law, according to morality. Caution to the judiciary to use open-ended concepts like the rule of law to overturn statutes.

Requires a body of positive law. Requires that laws are constitutional. Laws must be passed according to certain procedures (Procedural Validity) Context of law must be fundamentally just. Arbitrary rule is contrary to the rule of law. Rules must be consented to. The rule of law has procedural and substantive content. Procedural certain rules regarding passing and enacting laws. The

Manitoba language rights case is an example of the procedural requirements. Substantive content of the law must be fundamentally just. What kinds of rules do we consent to be ruled by.

Roncarelli v. Duplessis – 1959 SC

Facts:

A owned a restaurant and held a liquor licence. When he went to renew his licence, his application was cancelled and banned for life. A was also a member of the Jehovah Witness and had paid bail for members that were proselytizing. The government was trying to crack down on this religion by denying certain privileges of the province. The AG, Duplessis, supported the revocation of the liquor licence. Roncarelli sued under the Quebec Civil Code that Duplessis was ultra vires his jurisdiction.

Issue:

Was the revoking of A’s licence done in good faith? No. Was Duplessis acting ultra vires his jurisdiction? Yes.

Ratio: (Rand, J.)

1. Use of Discretion The Court held that there is no such thing as “absolute and untrammeled discretion” of government officials as they must

act in accordance with how the statute was intended to operate. The considerations that were brought to bear in coming to this decision could not be arbitrary and that they have to have a bearing on Roncarelli’s fitness to hold a liquor license. The fact that Mr. Roncarelli was a Jehovah’s Witness had no bearing on his ability to own and operate his establishment. Justice Rand found that Mr. Duplessis acted with malice when he ordered the liquor license of Mr. Roncarelli to be cancelled as he was intentionally setting out to punish him and virtually destroy his livelihood.

2. Improper Influence

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Finally, Justice Rand also found that Mr. Duplessis was completely acting outside of his duties as Attorney General as “he was under no duty in relation to the appellant and his act was an intrusion upon the functions of a statutory body” (the Commission). His duty as Attorney General should have been limited to giving legal advice on the validity of such a revocation and not to actually direct the Commission on how to proceed.

3. The Rule of Law Everyone is bound by the law, including public officers. If people could make arbitrary decisions our system of

governance would disintegrate. Government acts must flow from the law.

Everyone, including the Government and public officials, is bound by the rule of law.

Posting of bail came from his own income, which the province inferred came from his business and liquor licence. Quebec Civil Article 1053 covers claims of government officials acting outside their jurisdiction. It allows people to seek

damages against the person who gave the authority to make the decision. Revoking of the licence was outside the jurisdiction and was not done in good faith. Roncarelli has a right to damages. Grounds for cancelling any permit must be within the statute. The commission may cancel any permit at its discretion, but

cannot exert any personal discretion. The revocation must be regarding something under the act or must have a valid connection to the act.

AG’s (Duplessis) main function is to advice the government regarding legal questions only. He is not there to issue ultimatums of directives. Powers that are discretionary cannot be exercised arbitrarily.

Revocation of the licence was so far out of scope from the law that it was regarded as a disintegration of the rule of law. All acts or actions must be authorized by law.

Reference Manitoba Language Rights – 1984 S.23 of the Manitoba Act (1870) requires all acts of the legislature to be in English and French. It is a constitutional duty to

protect substantive rights of all Manitobans to equal access to the law. There is a high duty of the court to insure legislatures do not transgress the limits of their constitutional mandate and engage

in illegal exercises of power. Failing to publish legislation in both languages leads to inconsistency and thus, invalidity. Until Manitoba publishes their acts in both languages (as per s.23) they have no force or effect. However, because nullifying any acts before this ruling would create chaos, the law in English will continue to have the same

validity as if they were validly constructed in the first place.

1985 Manitoba ignored all “unconstitutional” decisions regarding their enactment of the legislation in English only, contrary to the

Manitoba Act and Constitution Act, in which the Manitoba Act is entrenched. Anything created after 1980 (when the legislature stopped producing laws in French) have no force or effect. Declaring everything invalid would undermine the rule of law. Rule of law must mean two things:

1. The law is supreme over officials of government as well as private individuals and preclusive to the influence of arbitrary power.

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

In this case the second aspect of rule of law is of concern. Declaring everything from 1890 to have no force or effect would destroy the positive law, as well s the rights and obligations of citizens under this law.

Doctrine of Necessity: To prevent chaos, the legislation since 1890 will be viewed as temporarily valid during the period where unilateral legislation is made bilingual. This rule of law will not be compromised. Any laws that aren’t change within the next period will be deemed invalid. Any new laws after this judgement that aren’t bilingual will be invalid.

Both a violation of the rule of law to write laws in English only, as well as declare all English-only laws invalid. This problem violates the law in two ways.1. Laws are unconstitutional in English only and so are invalid.2. Invalid laws make no law in society. The rule of law becomes dissolved, as it is not possible for invalid laws to stand as

valid. Individuals charged with something would be free to challenge the validity of the law. Doctrine of Necessity: Where a government acts in a way that is illegal but does so out of necessity or emergency, those

actions will be considered valid. De Facto Doctrine: Conduct of government officials that act in good faith while laws are invalid, the later declaration of

those actions being invalid will not hold. Example: All contracts and licences will still hold. The Rule of Law and prevention of anarchy requires these laws to stay.

Separation of Powers

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Executive and Judiciary: independent and specialized in function and in staffing (no one person may hold membership in more than one.)

“Power will check power” – Montesquieu. Executive Power: S.96 CA Legislature: S.17 – 52 CA – Controlled by Cabinet through Constitutional convention. Superior Courts: S.96 – 101 Governor General: Controlled by responsible ministers of the Crown. Also controlled through Constitutional convention.

Judicial Interpret and apply the law. Provincial – s.92(14) Superior – s96 – 100

Legislative Make law. Legislature, House of Commons

Executive Execute the law. Cabinet, Privy Council Office, Prime Minister’s office (by convention) Governor General, Lieutenant Governor

All levels have different degrees of function and specialization. This allows for efficiency. Allow for accountability and prevents bodies from stepping outside of their jurisdiction. Not a rigid separation; there is some overlap. Examples

Members of the House of Commons are part of or are members of the Cabinet. They fill a dual role; one as an MP and the other as a cabinet minister.

The executive through the Governor General appoint judges. The Attorney General is a member of cabinet but is elected to sit in the legislature and works with the judicial. Judges make law in terms of common law as well as advise the government on law. Reference cases come from the government to the judicial and can affect how laws are made at a legislative level.

R. Power – 1994 SC

Facts:

Power was charged with impaired driving causing death and two counts of impaired driving causing bodily harm. At trial, the judge said Power’s right to counsel under s.10(b) of the Charter was violated because he was not advised of the specific charges. The judge excluded the breathalyser as evidence and the Crown called no more. The judge directed the jury to return an acquittal. The Crown appealed. The CA dismissed the appeal because the Crown should have entered further evidence of impairment but it chose not to and the trial did not proceed. The CA said this was an abuse of process. The Crown appeals to the SC, claiming the CA erred in not ordering a new trial.

Issue:

Did the CA err in not ordering a new trial? Yes.

Ratio: (L’Heureux – Dubé)

S.686 of the CC does not confer any discretion on the CA other than the discretion to dismiss or allow an appeal. As a matter of law, principle and policy, the CA is not empowered to inquire into prosecutorial discretion. In criminal cases, courts have residual discretion to remedy an abuse of the courts process, but only in the clearest of cases. It requires overwhelming evidence that the proceedings under scrutiny are unfair to the point that they are contrary to the interest of justice. Only then should the courts interfere to prevent abuse of process.

In this case, and by applying this principle, it is evident that the prosecution did not meet this high threshold to constitute as abuse of process. The actions were not prompted by bad faith or improper motive, although he may have acted in poor judgement by not entering other evidence. S.686 allows the court to consider when the Crown has acted unreasonably, but does not invade prosecutorial discretion or speculate the path of the prosecution and foster rulings on that basis. It is contrary to the rule of law and justice. Independent power and discretion is necessary in the judicial system (between judges and the Crown or the judicial and executive. Without, cases may not be invited, heard and decided on a fair and equal balance. The CA’s interference with prosecutorial discretion is contrary to jurisprudence. A judge should not act in the realm of the executive and these lines must not

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be blurred. There is neither a need, nor a justification to interpret s.686 to extend discretion of the courts in this manner, nor do the facts of this case point towards this need.

Power charged with drunk driving. Was not given due process because he was not advised of the specific charges. Section 24 (2) allows the courts to exclude evidence if it was gathered in violation of charter rights. Crown figured it had the

grounds for an appeal. There was an error by the trial judge. Also said that the crown should not be able to retry the case because it didn’t introduce

any other evidence. SCC discussed prosecutorial discretion and S.686(4). 686 – where there is a crown appeal and a error was found at the trial

level the crown can retrial or guy can be found guilty. Appeal judge said no. SCC set up a test. The crowns discretion can only be overruled by the crown when there is an abuse of process. This is a very high threshold. SCC said that the actions of the crown were not perfect. The crown could have acted better, its actions were even unreasonable but the majority felt that unreasonable was too low a standard for the courts interference. Act has to be deliberate and in bad faith.

If the courts start telling the crown what they could do on one hand and then being an impartial spectator on the other it would have a negative impact on the public perception of court impartiality. The AG’s office had to prosecute in the interest of the public and therefore the courts should not be interfering with that.

The court interfered with the process of the crown and violated the rule of law. Judges are also bound by the rule of law and the appeal judges went beyond their scope. Discretionary powers of the crown are separate from the judiciary. Interference with these powers will violate the rule of law.

Where there is conspicuous evidence of improper motives or bad faith or of an act so wrong that it violates the conscience of the community, such that it would genuinely be unfair and indecent to proceed then and only then should the courts intervene to prevent an abuse of process which could bring the administration of justice into disrepute.

Section 686(4) of the Criminal Code does not give the Court of Appeal the power to inquire into prosecutorial discretion. Interfering with prosecutorial discretion threatens the separation of powers. There must be substantial grounds, as set out in the above test, in order for the courts to be justified in their interference with prosecutorial discretion.

Douglas College v. Douglas/Kwantlen Faculty Association – 1990 SC

Facts:

A unionized work place had a collective work agreement which had a mandatory retirement clause for faculty at the age of 65. A member of the faculty disputed this clause and took the case to arbitration.

Issue:

Whether an administrative tribunal is competent to decide questions of constitutionality? Yes.

Ratio: (Lamer, J.)

While separation of powers exists, it is not defined in the Canadian system and there is nothing in the separation of powers between the legislative, executive and judicial functions to prevent a tribunal from exercising jurisdiction in this way. However, it does remind us that important judicial functions should not lightly be delegated to administrative agencies, especially when they are not adequately designed. The government can dismiss members of the tribunal at any time, or even do away with the entire tribunal. Tribunals are appointed by the legislature and thus there are concerns over impartiality of those sitting on the tribunals. Members of the judiciary are appointed and are not answerable to the public. The democratic underpinnings of Canadian society may be threatened if we allow the Legislative Branch, which is answerable to the public, to decide matters of constitutionality.

Mandatory retirement at the college. Argued discrimination. Disputes in union situations are sent to a tribunal. Question in this case was whether the tribunals competent to discuss constitutional issues including charter issues. Argued that the mandatory retirement age was contrary to S.15 of the charter. But the charter only applies to government

action. Was the tribunal entitled to rule on the constitutionality of the collective agreement? Yes, because they were given power by

statute. Also, there is flexibility in the system to allow the tribunals to decide these cases. If given by statute the authority to determine legal issues then this includes the constitution.

Canada does not have a rigid separation of powers so quasi-judicial boards are allowed to make these decisions. There can be overlaps between the executive and the judiciary.

Amax Potash Ltd. v. Saskatchewan – 1977 SC

Facts:

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Saskatchewan collected tax from Amax under the Potash Reserve Tax Regulations (1974). Amax sought a declaration that the regulations were ultra vires and that the tax money should be repaid. Saskatchewan argued that under s.5(7) of the Proceedings Against the Crown Act prevented taxes from being repaid, even if they were ultra vires. S.5(7) provided that no proceedings could be taken against the Crown, even if the statute authorizing the Act was beyond the powers of the province.

Issue:

Whether s.5(7) is ultra vires by barring the repayment of taxes taken under a statute provision beyond the provincial jurisdiction? Yes.

Ratio:

Courts will not question the wisdom of enactments which, by the terms of the Constitution Act are written in the competence of the legislature, but it is the duty of the courts to insure legislatures do not transgress the limits of their mandate and engage in illegal exercises of power. The Crown gets its sovereignty/ immunity from the preamble of the constitution of 1867 s. 52(1). Crown immunity states that the Crown cannot be sued unless it consents. S.5(7) of the Act has much broader implications than mere Crown immunity. In this case, it is concerning tax and therefore, affects the division of powers. It also questions the right of a province or government to violate the constitution. If a statue is found to be ultra vires, legislation and acts done pursuant to that invalid law must equally be ultra vires. If a state cannot take by unconstitutional means, it cannot retain by unconstitutional means.

Saskatchewan government tried to defend s.5(7) of the Crown Proceedings Act by saying the state is sovereign and it is not up to the judiciary to interfere with the legislative will. If people don’t like this, it will show in the elections. Courts say this is against the rule of law.

Parliamentary sovereignty has some limits. A legislature cannot enact laws outside its scope of power. The act is attempting to validate and act that is already impermissible under the Constitution. The act is ultra vires, so taxes

collected under the act are unconstitutional. The Crown cannot claim Crown immunity for something as such. Government must act within its means. Parliamentary sovereignty is not unlimited. The separation of powers provides a system of checks and balances.

R v. Lippé et al. – 1991 SC

Facts:

R brought a motion of evocation, certiorari and prohibition before the Quebec superior court. They submitted that certain provisions of the Cities and Towns Act and Municipal Courts Act violated their right to a fair hearing before an independent and impartial tribunal guaranteed under s.11(d) of the Charter. Municipal judges were part-time and allowed to practice privately. R said these two occupations were incompatible and could allow public pressure or pressure from clients to influence decisions, especially if the person before the judge was from his/her firm. They felt judges needed to be free from the influence of other participants in the judicial system.

Issue:

Whether allowing part-time judges to practice law violates the right to a fair hearing in S.11(d) of the Charter? No.

Ratio: (CJ)

Judicial independence has traditionally required that the courts be independent of the government, however the government is not limited to only the executive and legislative branches. It is any person or body that can exert pressure on the judiciary through state authority. This can include the Canadian Judicial Council, any Bar society, and any person on the judiciary with authority over judges. A system that allows for part-time judges is not idea, but the Constitution does not always guarantee the ideal. Thus, there must be a test for Institutional Impartiality.

1. Having regard for a number of facts including the nature of the occupation and the parties who appear before this type of judge, will there be a reasonable apprehension of bias in the mind of a fully informed person, in a substantial number of cases?

2. If no, allegations of an apprehension of bias cannot be brought on an institutional level, but must be dealt with on a case by case basis. If yes, the occupation is incompatible with the function of a judge and one must look to safeguards. Are there safeguards in place that will protect against the occurrence of bias?

A truly informed person will have knowledge of the safeguards to prevent partiality. If these safeguards have rectified these problems, the tribunal meets the requirement of impartiality. In this case, a judge practising law would give rise to a reasonable

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apprehension of bias in a substantial number of cases. In respect to safeguards, a judge must excuse himself if hearing a case would violate the duty to remain impartial, which is imposed by an oath in the Cities and Towns Act. He is also under a code of ethics. It is trusted that municipal judges take this oath seriously, as it is enforced by the Courts of Justice Act. These combined, alleviate the apprehension of bias.

Does the practice of law present an issue where independence and impartiality is concerned? Impartiality: Freedom from bias. Courts test for a reasonable apprehension. If impartiality arises at a case by case level but

not an institutional level, impartiality is dealt with case by case. If at an institutional level, the court must turn to safeguards governing a possible bias. (Code of ethics, oath of office, recusal at conflict of interest, and the existence of other judges)

Independence: Separation from government or any body that can exert pressure overt the judiciary. Sources of judicial independence and impartiality:

S.11(d) of the Charter – but only applies to offences. S.23 of the Quebec Charter. S.96 – 101 – Separation of the judiciary and executive, but only applies to superior courts. Procedural aspects of the Rule of Law. Unwritten principle of judicial independence.

Reference Provincial Judges – 1997 SC

Facts:

PEI enacted the Public Service Reduction Act and reduced salaries of judges and others paid from the public purse. Numerous accused challenged the constitutionality of their proceedings, alleging that as a result of the salary reduction, the court had lost its status as an independent and impartial tribunal. LG of PEI referred the question of whether judges still enjoyed sufficient financial security in s.11(d). Also questioned were the three elements of judicial independence of the provincial court; financial security, security of tenure and administrative independence.

An Alberta, three challenged the constitutionality of provincial trials after judges’ salaries were cut by 5% pursuant to the Payment of Provincial Judges Amendments Regulations and s.17(1) of the Provincial Court Judges Act. Three also attacked the changes to judicial pension plans and constitutionality of the AG to designate a court’s sitting days and judges’ place of residence. MacDonald, J. also put at issue the process for disciplining provincial court judges and the grounds for removal.

Manitoba also reduced salaries in the public sector, including judges. Provincial judges, through their association, alleged that it infringed on their judicial independence as protected by s.11(d) The also argued that salary reduction was unconstitutional as it suspended the Judicial Compensation Committee, a body created by the Provincial Court Act, whose task was to report salaries to the legislature. Also alleged was that government interference with independence by ordering the withdrawal of court staff and personnel on unpaid days of leave, which shut the courts down on those days. Finally, they accused the government of exerting power of the association to desist from launching this challenge.

Ratio:

Valente v. The Queen (1985) was the first decision in which the SC gave meaning to s.11(d) guarantee of judicial independence and impartiality. The court held that s.11(d) encompassed a guarantee, inter alia, of financial security for the courts and tribunals which come in the scope of that provision. For judges to be independent, their salaries must be secured by law and not he subject to arbitrary interference by the executive. The question which arises here is what the content of the collective or institutional dimension of financial security for judges of provincial courts is, which was not at issue in Valente.

In Beauregard v. Canada, the court rejected a constitutional challenge to federal legislation establishing a contributory pension scheme for superior court judges. It was argued that the pension scheme amounted to a reduction in salaries and so contravened judicial independence. The court found that there had been no salary reduction but the judgement has been taken to stand for the proposition that salary reductions which are “non discriminatory” are not unconstitutional. Four questions arise from Beauregard.

1. What kinds of salary reductions are consistent with judicial independence? Only those that apply to all citizens equally.2. Do the same principles that apply to salary reductions also govern increases and freezes?3. Does Beauregard apply to the interpretation of s.11(d) which protects a range of courts and tribunals including provincial

judges?4. Does the Constitution impose some substantive limits on the extent of permissible reductions for the judiciary?

Requirements of Judicial Independence

1. Independent, effective and objective commissions which must regularly review proposed changes to judicial remuneration in advance.

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2. Government must justify decisions to depart from the commission recommendations according to a standard of simple rationality.

3. The judiciary may never negotiate with the executive or the legislature over remuneration. However, the judiciary may express concerns or make representations to governments regarding judicial remuneration.

From express terms, s.11(d) is a right of limited application; it only applies to persons accused of offences. However, there is no doubt that appeals can and should be resolved on that basis. Beyond statutes, constitutional judicial independence is an unwritten principle, in the sense that it is exterior to the particular sections of the Constitution Act. The specific provisions of the CA 1867 to 1982 merely elaborate that principle in the institutional apparatus which they create or contemplate. Since well before the Charter, judicial independence has been protected. S.99 guarantees security of tenure of superior judges, s.100 concerns financial security of judges in superior, district and count courts, and s.96 guarantees the core jurisdiction of superior, district and count courts against legislative encroachment. However, there are gaps in the range of courts protected, specifically with s.99 only protecting tenure of superior judges. Also, sections 96 to 100 do not apply to provincially appointed courts. These gaps are somewhat offset by s11(d) but really only extend protection to bodies that exercise jurisdiction over offences.

The only way to explain the interpretation of these unwritten texts is by a deeper set of unwritten understandings. This idea is based largely on the interpretation of s.52 of the Constitution. The lost of constitutional documents is not exhaustive and is implied in many ways within the preamble. Ideas such as parliamentary democracy, paramountcy, the constitutionalisation of legislative powers and the interdependence between democratic governance and freedom of political speech are implied. The same approach applies to judicial independence. In Beauregard, the preamble of the Constitution and in particular, the reference to “a constitution similar to that of the UK” was “textual recognition” of the principle of judicial independence. S.11(d) as part of the Constitution flows in this manner also.

Is there an implication for judicial independence with the government can control the salaries of judges? There is a gap of protection for provincial judges exercising civil jurisdiction. The courts must turn to the unwritten principles

of the Constitution. Courts extend s.11(d) to cover both superior and inferior courts in all matters at hand. Some reluctance to do this, as the

written aspect also has high merit. Without financial security, judges might be more likely to accept bribes or other forms of influence. Really not a security for

the judiciary but a method of ensuring judicial independence for public interest and rule of law. In salary reductions, the government should be able to justify changes, as well as put proposed changes before a salary

commission. If the government chooses not to follow the recommendations of the salary commission, they must have a valid reason.

Important to see whether salary reductions are across the board for the entire public sector or just for judges. The latter ma be a political move rather than a budget concern.

Vriend v. Aberta – 1998 SC

Facts:

Vriend’s employment was terminated after he disclosed that he was a homosexual. He attempted to file a complaint with the Alberta Human Rights Commission for discrimination, but the Commission said he could not make a complaint under the Individual’s Rights Protection Act because it did not include sexual orientation as a prohibited ground for discrimination. The trial judge found that sexual orientation was an unjustified violation of s.15 of the Charter and ordered it to be read into s.2(1), 3, 4, 7(1), 8(1) and 10 of the IRPA as a prohibited ground of discrimination. The CA allowed most of Alberta’s appeal. Vriend appealed to the SC.

Issue:

Was s.15 of the Charter violated? Yes. Was it justified under s.1? No.

Ratio: (Cory, J.)

The notion of judicial deference should not be used to completely immunize certain kinds of legislative decision from Charter scrutiny. This issue is not a battle between the legislature and judiciary. It is the Constitution, which must be interpreted by the judiciary, what may limit the legislature. And this does not just apply to positive acts, but omissions also. It is the court’s position to determine if the challenge is justified.

(Iaccobucci)

As rights and freedoms are not absolute, the government can sometimes justify the qualification or infringement of these constitutional rights under s.1. Disputes over these rights must be settled in the courts. Allowing such a process also keeps each

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branch of government accountable to each other. Democratic values and principles under the Charter demand that legislators and the executive take all democratic attributes into account and if they fail to do so, the courts should stand ready to intervene. This is the principle that applies to this case. Sexual orientation is now read in the Charter and other statutes.

CA: Controversial issues should not be open to the decision of the judiciary; it should be a legislative matter. SC: The role of the courts is to intervene when another branch has acted unconstitutionally. Judicial review is not

undemocratic. The judiciary is not bound by anyone other than the Constitution and it is the responsibility to over-turn the legislative will if it is unconstitutional.

In the event that the courts go get out of control, there is always s.33, where the court’s power becomes checked.

Division of Powers – General

Division of Powers1. Looks at the Pith and Substance of a subject matter.2. Classification of legislation.

Courts determine under which head of power the legislation fits (s.91 or 92). Courts also look at the powers in other levels of government to see if their powers encroach or infringe upon the level of

power in question. Which powers are exclusive to each level?

Exclusivity Doctrine

Exclusivity Doctrine1. Characterization

Look at the validity of the law (intra vires or ultra vires) Look at the pith and substance of the law to determine its meaning or true purpose.

2. Classification Determine which head of power the law fits under (prima facie basis) Determine whether this is any intrusion into other jurisdictions. Is it incidentally effecting another jurisdiction or is it

a case for the ancillary powers doctrine where one or two provisions seem to be particularly intrusive?

Incidental effects apply to both levels of government. Same procedures used to characterise and classify

Ancillary Powers Doctrine1. Whether there is an intrusion?2. If so, is the Act as a whole valid?3. If so, is there a sufficient connection between the intrusive provision and the Act?

If there is a high level of intrusion, it must be shown that the provision is necessary for the Act. If there is a low level of intrusion, there must be a rational explanation for its function.

Citizens Insurance Company v. Parsons, Queens Insurance Company v. Parsons – 1981

Facts:

R contended that the Ontario Act related to matters coming within the class of subjects described in s.92(13), Property and Civil Rights in the province. The Act deals with insurance policies for property in Ontario and prescribes certain conditions which are to form part of such contracts. It was argued that it came legitimately within s.92(13). A contends that civil rights meant only such rights as flowed form the law, and gave as an instance the status of persons. The language of the Act does not give a narrow interpretation of civil rights. The words are sufficiently large to embrace, and in their fair and ordinary meaning it applies to contracts. Contracts are not addressed to any particular class of subjects in s.91.

Ratio:

As soon as an attempt is made to construe general terms in which classes or subjects are described in s.91 and 92, both sections and others in the Act must be looked at to ascertain whether language of a general nature must not, by necessary implication or reasonable intendment, be modified and limited. In s.91, there is no class including contracts and only bills of exchange and promissory notes are mentioned. If a narrow construction of civil rights is used, the parliament under its power to legislate in regard to contracts in all and each of the provinces, even in Quebec who as a different civil code, would have its law subject to be altered. Regulation, trade and commerce a part of s.92, but whether insurance fits here must depend on the sense in which that word is used in the particular statute to be construed. The words “regulation of trade and commerce” are broad and if the

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legislature meant to be unlimited, we would not see specific areas mentioned in s.91 such as banking (15), weights and measures (17), bills of exchange and promissory notes (18), interests (19), bankruptcy (21), etc. It is enough for the present case to say that the legislature’s authority to legislate the contracts of a particular business or trade does not comprehend the power to regulate by legislation the contracts of particular businesses or trades, such as fire insurance. Therefore, its authority does not compete with the power over property and civil rights.

Mutual modification by the courts allowed trade and commerce under s. 91 to be interpreted narrowly to include inter-provincial trade and thus left exclusively intra-provincial trade such as contracts for fire insurance under property and civil rights to the provinces. Provinces have exclusive jurisdiction to legislate over contracts and rights arising from contracts under s. 92(13) and the Federal Government has exclusive power to legislate over foreign trade and inter-provincial trade under s. 91(2).

The legislation deals with contracts and the protection of property. The court characterizes the legislation here as being in relation to contracts. Parsons and the provincial government want the legislation to be classified under s. 92(13). The insurance companies want

the court to find that the legislation falls under s. 91(2). The court says we should include contracts under the words “civil rights” in s. 92(13). If we interpret s. 92 so as not to

include contracts that would come into conflict with the Quebec Civil Code. The wording of s. 91 does not specifically include contracts, except for one. Because they included this one specific kind of

contract the framers did not intend to include all contracts under s. 91 or they would have listed it specifically. The court also looked at other legislation to try and get some sense of the intention of the legislation. The court wants to make sure the legislation does not encroach on a federal head of power. What falls within the scope of s.

91(2)? Foreign trade, inter-provincial trade as well as general trade and commerce affecting the dominion all fall within the power of the federal government under s. 91(2).

This legislation does not affect any of the federal heads of power listed above. Therefore the legislation is intra vires Ontario.

Bédard v. Dawson – 1923 SC

Facts:

An action taken by Dawson under “an Act respecting the owners of houses used as disorderly houses.” Specific sections referred to were 2, 3, 4 and 7. The act takes certain sections of the criminal code (federal) as the basis of its subject matter and then proceeds to apply convictions there under as the basis of its application (provincial). This legislation provides for the closing down of these disorderly houses after the step-by-step process has been gone through. Dawson challenges the legislation. Bédard responded with an appeal that said the provisions of the act were ultra vires.

Issue:

Is the Act ultra vires? No.

Ratio:

The provincial legislatures have such absolute power over property and civil rights that so long as they do not encroach upon the powers assigned, it would be almost impossible to question such exercise of power so given unless by the exercise of veto power which was originally designed to prevent improper exercise of legislative power by the provinces. Therefore, the Act, interpreted and construed properly is not ultra vires. Further, it is the duty of the legislature to do the utmost if it can within its power to anticipate and remove whatever is likely to produce crime. In this case, there is a duty to protect neighbourhoods and neighbouring property owners from such a house. This type of intervention need not be recognised as crime, as they may be better rectified by local legislation.

Does this case fall within the provincial power of property and civil rights or the federal power of crime? Legislation ruled intra vires the province. The court characterizes the legislation as property focused rather than punishment

focused – protecting against nuisance and protecting property rights. Legislation does not encroach s.91(27) because the provincial government is allowed to prevent what would produce crime.

The powers can stand side by side as long as the province is preventing and not punishing. Only the federal government can punish.

If this case had been an owner convicted of operating a disorderly house and under the provincial legislation, had his house taken, this would be adding to the penalties under the Criminal Code. In this case, this would be ultra vires. But, because this wasn’t the facts of the case, the court didn’t go so far as to discuss what would happen if a house was taken.

Bank of Toronto v. Lambe – 1887

Facts:

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Quebec passed legislation that resulted in taxation of many large organizations, such as the Bank of Toronto. Bank of Toronto has its main branch in TO but has branches in Quebec. (Paid up capital: amount of money that’s been paid on a per share basis, taxes paid on capital/money made in the province of Quebec.) Bank of TO argued that the province did not have the right to levy the tax on the bank. Does the legislation fall under s. 91 or under s. 92(2)?

Issue:

Whether the Quebec legislation allowing this form of taxation is within the provinces powers?

Ratio:

Legislation which directly taxes corporations that carry on business in the province of Quebec. (The Court does not discuss whether it’s a direct or indirect tax at this point in the analysis.)

Classification: 1st step - Look to provincial placement of power: s.92(2) Is it a direct tax or an indirect tax? Questions to ask: Ultimately who pays the tax? Who bears the cost initially? Direct

tax – demanded of the customer and paid by the customer – such as a retail tax. Indirect tax – such as a customs duties or manufacturer’s tax – demanded of importer but the cots doesn’t remain there, the cost is passed on to the consumer.

The Court finds that we’re dealing with a direct tax. Are we dealing with provincial taxation? The fact that the bank was carrying on business in the province was sufficient

to comply with s. 92(2). The Court said it’s acceptable for the province to impose a tax on a business operating within the province. Court doesn’t look at the wisdom of how the government deals with the legislation – as long as the power is within their scope.

2nd step: Look to federal power: Analysis of ss. 91(3) taxation, 91(15) banking and the incorporation of banks, and 91(2) the regulation of trade and commerce.

S. 91(15): this tax applied to many different corporations, not just banks, therefore doesn’t apply. Provinces have power of direct taxation within the province.

This legislation was intra vires the province because Quebec did not single out banking specifically. The tax was directed at a number of types of business. Incidental effects doctrine - the power to pass legislation regarding banking is within federal jurisdiction under s. 91(15). The tax in question did affect banks but it is still permissible for the province to pass this legislation because it was not a tax dealing directly with banks; direct intrusion or encroachment is not allowed, but incidental effects are permissible.

Paid up Capital: Outstanding capital to shareholders. Tax was not directed at any particular business, they just needed to operate in Quebec. Legislation characterized as a means of raising revenue for the province on the basis of paid up capital (the direct wealth of

the business, not based on transactions) S.92(2) Jurisdiction over direct tax. Direct tax is tax demanded from an object that is to pay the tax and not passed onto

others (consumers, and so on where the business is able to recoup the tax with sales.) While the tax in theory could be passed along to customers, this tax was intended to be directed a PUC. S.92(2) must be for the purpose of raising provincial revenue. The Bank argues that their head office (applicable to

shareholders) is outside the province. The court decides that it is good enough that they have businesses carrying on within Quebec.

Calculation of Tax: Not for the courts to decide as long as the province is acting in the scope of its jurisdiction. Legislation does not encroach on s.91(15) which regulate banks as the tax is applied to other businesses and not just banks.

The legislation impacts banks, but does not encroach. S.91(3) concerns the federal jurisdiction to raise money by tax or other means. It does not include direct tax under s.92(2) so

it does not encroach on provincial powers. If the tax is so heavy that it undermines the business for banks, the court would look at the matter on a case by case basis. It

assumes the legislature would exercise its wisdom and would not impose such a tax that it would destroy business.

Reference Alberta Bills, AG Alberta v. AG Canada – 1938

Facts:

This is a reference under s.55 of the Supreme Court Act regarding the power of the Alberta legislature to enact three bills which had been presented to the L for assent and reserved by him for the signification of the GC’s pleasure. The Government of Alberta passed Bill No.1 “An Act respecting the Taxation of Banks.” The bill applied to every corporation or joint stock company other than the Bank of Canada incorporated for the purpose of doing banking or savings bank business in the province. The bill imposed on every such bank an annual tax, in addition to any tax payable under any other act of (a) ½% of the paid up capital and (b) 1% on the reserve fund and undivided profits. Bill No. 1 purports to be concerned with taxation of a direct character, differing

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however from ordinary taxing statutes in that it singles out for taxation only banks which transact business in the province. No other body is subject of taxation under this bill. It sought to be justified by s. 92(2) of BNA Act as being within the class of subjects described as “Direct taxation within the province in order to the raising of Revenue for provincial purposes.”

Issue:

Whether Bill No. 1 or any provision thereof is ultra vires the Alberta legislature and to what particular extent? Yes. The tax was held to be ultra vires the province and was classified under s. 91(15) – banking.

Ratio:

This legislation is highly selective and of unusual character to warrant it coming under s.92. This discriminatory tax would make it easy to impair the powers under s.91 by making them valueless. Banks would be taxed so high as to destroy their value (forms of currency and investment too) and other wealthy businesses have been spared. After calculation, it was found that this additional tax would amount to more than $2 Million. This would eventually prevent banks from carrying out business. This does not seem to be a tax to raise revenue, but a plan to prevent the operation of banks. A province or the federal government cannot purport to legislate in an area that is within its jurisdiction when the intent of the legislation is to affect subject matter that is outside of their legislative power. Legislation cannot be cloaked.

Legislation applied to banks only. This is different from Lambe in that the tax applied to a host of businesses. Social Context: The Social Credit Party under Aberheart had a negative view on banks and were trying to create a new

economic ear by exerting more central control (particularly trying to reduce the control banks had over farmers.) The province claimed the bill was intra vires but the federal government viewed it as an encroachment on s.91(15). The

purpose of the legislation appeared to push banks out of the province. The court looked at purpose and effect of the legislation to determine its characterization. Was it a direct tax or a guise for

something related to pressuring banks? Courts questioned why the legislation went after banks only when it was said to raise revenue. Courts also looked at the amount of money the tax was raising. The tax was a gigantic increase on the tax normally put on a bank which could create harm to the ability to carry on business. This effect led the court to decide that this legislation was not to raise revenue, but to prevent banks from doing business. The true character is not to raise revenue and it is an encroachment on s.91(15)

Colourability: Where the true matter of legislation is really something else in disguise. There is a fine line between actual separation of power and encroachment.

Walter v. AG Alberta, Fletcher v. AG Alberta – 1969 SC

Facts:

Walters are Hutterians. Fletchers are owners of land in which the Walters sough to purchase. The land would be held in common as defined in s.2(b)(i) of the Communal Property Act (1955), which prevents the acquisition of land. The general scheme of the Act for holding land in commune was that unless authorized by the LG in Council, no colony existing on May 1 1947 could increase the holding beyond the holding of March 1, 1944 or if on the day, the holding was less than 6,499 acres, they may extend it thereto. The Land Sales Prohibition Act of March 1, 1944 prohibited selling of land to Hutterites. It expired on May 1 1947 when the Communal Property Act came into effect. No land could be acquired by a colony outside the province without the consent of the LG and no land could be acquired for the purpose of starting a new colony without consent of the LG. A says the Act is in respect of religion and is ultra vires of the provincial legislature. The trial judge held that the pith and substance related to and tenure in the province and was ultra vires. This was sustained on appeal.

Issue:

Whether the Act as amended is ultra vires? No.

Ratio:

The Act was enacted in relation to ownership of land in Alberta and the legislature has the jurisdiction under s.92 because it deals with property, specifically the use of large areas of land for the purpose of communal living, which in public interest, ought to be controlled. It can be said that the province can enact law governing land under s.92(13) and must be valid unless it encroaches on a power in s.91. There is no evidence of this.

A said because the Act dealt with the spread of Hutterite colonies and because the maintenance of such colonies is part of the religion, the Act is dealing with religion, which is outside the scope. The Act does not forbid Hutterites, it deals with acquiring land. And the Act is not directed only at Hutterites, but at the practice of holding large pieces of than through religion or not. It is

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the responsibility of the province to govern acquisition of land, and if desirable to the majority, control the land holdings of a person. Further, freedom of religion does not mean freedom from compliance with provincial laws relative to property.

Legislation also affected people wanting to sell their land, because they could not sell it to groups that already held the regulated amount.

Court says the legislation was to control the acquisition of land which is under s.92(13) Hutterites say holding land in commune is a tenant of their faith and so the legislation is against religious freedom. Religion,

by default, falls into s.91, whether or not it is listed. If anything is not specified in s.92, it is read into the s.91 powers. Legislation remained in effect until the Human Rights Commission was created.

Pith and Substance

Consideration of a division of powers challenge to the scope of federal jurisdiction over navigation and shipping. Pith and substance is used to examine the legislation. It is recognised as a first step in division of powers analysis that the matter of the impugned law must be identified.

It can be represented as a constitutional value represented by the challenged law, an abstract of the statute’s content, or the true meaning of the challenged law, leading feature or true nature and character of the impugned law.

Munro v. National Capital Commission – 1966 SC

Facts:

In June of 1959, R with the approval of the Governor in Council, expropriated a farm of 195 acres owned by A. R acted under s13(1) of the National Capital Act. R took the land for the purpose of the Act and was willing to pay $200,000 in compensation. A said this Act was ultra vires to grant R the powers of expropriation for establishing a green belt outside Ottawa and that compensation should be $420,000.

Issue:

Whether the expropriation of the lands of A by R hereon referred to as a nullity because the legislative authority of Canada under the BNA does not extend to authorizing the expropriation? Appeal dismissed.

Ratio:

It was argued that such a use of power for expropriation is in its nature, character and purpose (for a green belt) a use in relation to a matter falling within the classes of subjects assigned exclusively to the provinces and that if the NCA purports to confer such a power on the Commission, it is ultra vires of Parliament. However, it is accepted that

1. The making of zoning regulations and imposition of controls over land use come within s.92 and2. Legislative history of the NCA predecessors indicate Part 1 should be effected by cooperation between the Commission and

municipalities. 3. After unsuccessful efforts to achieve cooperation, Parliament conferred power to the NCC necessary to carry out zoning.

When reading the Act as a whole, the matter in relation to what is enacted is the establishment of a region, which is to be developed, conserved and improved in order that the nature and character of the sat of the government of Canada may be in accordance with its national significance. This Act deals with a single matter of national concern. Yes, civil rights will be affected, but once it has been determined that the matter falls within the power of Parliament, there is no objection. It is important to distinguish between legislation affecting civil rights and legislation “in relation to” civil rights. Consequential effects are not the same as legislative subject matter. It is the true nature and character of the legislation, not its ultimate economic results that matter.

Courts looked at the purpose of the act, which was to develop and improve the national capital region. It was characterized as an act to establish a region for the purpose of developing, conserving, etc.

Classified as a matter of national concern under the authority of s.91, particularly peace, order and good government. Obvious hat this will affect civil rights. Once it has been declared intra vires Parliament, there can be no dispute. Courts must

distinguish between legislation that is in relation to a certain matter and legislation that affects those matters (legislation on civil rights v. that which affects civil rights).

Property rights are not protected under the Charter. Zoning laws are typically under s.92. Because this was happening around the national capital, it fit under the federal power.

BC Securities Commission v. Global Securities Corporation – 2000 SC

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Facts:

In 1988, the Securities Commission of BC, Ontario and Quebec entered into a memorandum of understanding with the SEC, each agreeing to provide the fullest mutual assistance to each other, including obtaining documents and evidence from persons request by another signatory. The same year, BC amended its Securities Act so the ED of the Commission could order a restrain to produce records. On July 3, 1996 the Commission made an order against R, pursuant to an investigation of a woman and employee of R, as well as records of her trading activities. R gave information on the woman, but nothing else. The Commission served R with a notice of hearing under s.161(1) of the Securities Act to determine if it was in the public interest to order R to comply. R file a petition to the BC SC that it was ultra vires. The petition was dismissed and a hearing was ordered before the Commission at which they asked for the documents again.

Issue:

Is this Act ultra vires (s.141(1)(b))? No. The pith and substance is under s.92(13).

Ratio:

Use of the GM Canada 3-step analysis for laws claimed to be ultra vires. In the first step, it must be considered whether and to what extent the impugned provision can be characterized as intruding into provincial powers. If it cannot be characterized as intruding at all (pith and substance of federal law) and if the Act which it is attached is constitutionally valid, the investigation need go no further. For this case, the impugned provision meets the first step and it is unnecessary to go beyond.

To determine the pith and substance, the two stage test in R v. Hydro-Quebec is used. The law must first be characterized in relation to its dominant or most important characteristic and then see if it can be successfully assigned to an existing head of power. There are two dominant purposes to s.141(1)(b). First, it is to obtain reciprocal cooperation from other securities regulators, thus enabling the Commission to carry out its domestic mandate effectively. The second purpose is to uncover foreign violations of securities law by domestic registrant (to prevent fraud). Authorizing an order for production of information to assist a foreign regulator under s.141(1)(b) is the means to achieve the above goals. The purpose is not to assist a foreign body. The affects of the section also do not alter the pith and substance. While it does involve relations with a foreign authority, s.141(1)(b) does not attempt to extend the reach of provincial legislation outside its boarders. Extra-provincial effects are incidental to a domestic purpose. Thus, the pith and substance falls in s.92(13). Regulating domestic securities has long been a provincial task.

Using step 3 of the GM test, even if the pith and substance of s.141(1)(b) was not provincial, the ancillary doctrine in GM Canada would justify it. S.141(1)(b) is part of a valid legislative scheme and is necessarily incidental to the Securities Act.

Ancillary Powers Doctrine Effect of the legislation was only incidental thus the legislation is still valid. The dominant feature of this legislation is

domestic regulation of securities. The court says that this legislation falls under s. 92(13) (C.A. 1867) After characterizing the legislation the court found that it was intra vires the province, thus there is no need to go on to look at the validity of the act as a whole, nor the integration of the provision.

Although s.141(1)(b) allows one to go outside their jurisdiction, it is for the purpose to ensure fraud isn’t happening and traders from BC are acting properly when in other jurisdictions.

The court used the GM test. At stage 1, the legislation is characterized as an act that carries out its mandate to have an accountable securities system, and classified as falling under s.92(13). Intrusion into other areas are only incidental.

Even if it did intrude and was not incidental, at step 3, it would be found that it is necessarily incidental, assuming the highest level of intrusion.

By its nature, securities cross boundaries and boarders. It is necessary for s.141(1)(b) to act in its manner, even with incidental intrusions.

Sec 141(b) serves valid purposes namely; receiving reciprocal cooperation, uncover violations of international law by domestics

General Motors of Canada Ltd. v. City National Leasing – 1989 SC

Facts:

R, a company leasing vehicles and in competition nation wide, sued GM under s.31 of the Combines Investigation Act. CNL alleged GM had been preferential interest rate support to CNL’s competitors in respect of their purchase of GM vehicles. R alleged price discrimination under s.34(1)(a) of the Act. S.31 creates a civil cause of action for infractions notwithstanding the creation of civil causes of action lies within the domain of the provinces. The trial judge found s.31 ultra vires. CA found it intra vires.

Issue:

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Whether s.31.1 is intra vires the competence of Parliament? Yes.

Ratio: (Dickson, C.J.)

Inclusion of an invalid provision in a valid statute does not necessarily stamp the provision with validity. The court must focus on relationships between valid legislation and the impugned provision and see how well the provision fits or is integrated in the legislation, as well as how important it is for efficacy. This is a test that is case specific and will vary depending intrusiveness. If the impugned provision only encroaches marginally on provincial powers, then a functional relationship may be sufficient to justify the provision. If it is highly intrusive, then a stricter test is applied.

In a federal system, it is inevitable that each government will impact occasionally or overlap with respect to legislation. A certain degree of judicial restrain is thus needed when proposing strict tests that strike down legislation. The pith and substance doctrine enables a law classified 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.

In this case, A focuses on a particular section of the act, the issue not being whether the Act as whole is rendered ultra vires because it reaches too far, but whether a particular provision is sufficiently integrated into the Act to sustain its constitutionality. The following steps are used to determine this:

1. The court must determine whether the impugned provision can be viewed as intruding on provincial powers and if so, to what extent? If it doesn’t intrude, then the only issue is the validity of the act.

2. The court must establish whether the Act or severable part of the Act is valid. If the scheme is not valid, the inquiry ends. If it is valid, the test moves to step 3.

3. The court determines whether the impugned provision is sufficiently integrated in the scheme that it can be upheld by virtue of that relationship. This requires serious consideration of encroachment on provincial powers in order to develop a standard for the relationship.

If the provision passes the above test, it is intra vires Parliament as an exercise of the general trade and commerce power. If the provision is not sufficiently integrated into the scheme of regulation, it cannot be sustained under the second branch of s.91(2).

What happens when legislation as a whole is valid, but one provision doesn’t seem to fit? Must look at:

1. Intrusion of the provision on provincial powers.2. Validity of the Act as a whole.3. Integration/connection between the provision and the Act.

Court decides:1. There is no intrusion on provincial powers. The test stops at this point. If there is an intrusion, the test must move to the

next stage.2. If the scheme is not valid, the test stops. If it is, the test goes to the final.3. If a low level of intrusion, it must be functional or have a rational connection to the whole Act. If a high level of

intrusion, it must be questioned whether the provision is necessary to allow the Act to function. When applied to this case, s.31.1 is found to invade because civil actions are under the province. The provision was remedial

and affected by other provisions also. At step 2 the legislation as a whole is found to be valid. At step 3, it is found s.31.1 reinforced other areas of the act and was fundamentally necessary to the rest of the Act. In terms of being remedial, s.31.1 is only one remedy. There is a whole range, including criminal. This remedy is to prevent

anti-competition and allows one party who has been wronged to seek redress. Also relevant where the federal government has been allowed to include civil causes of action in their legislation. Low end of the spectrum in terms of intrusiveness and there is a rational and very necessary connection of this provisions to

the act.

Critique of Test Not clear of what makes intrusiveness high or low. Having a high standard may lead to courts gaining too much power in interfering with legislation.

Paramountcy: Double Aspect, Duplication and Contradiction

Manner in which similar federal and provincial laws interact. Some subject matters when considered broadly, may contain different aspects of a general matter.

Two principles:1. Is the law valid and validly passed?

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2. When the law is validly enacted, the paramountcy doctrine comes into affect. Conflict is analysed to determining whether paramountcy will render the law inoperative.

Double Aspect Doctrine Certain subject matters that can be divided into several aspects. One aspect may be in the provincial jurisdiction

while other is in the federal jurisdiction. Provided that each government has enacted the legislation in their appropriate jurisdiction, they can stand

concurrently. Powers are going to overlap and may each have provincial and federal elements. Overlapping is okay so long as there is not encroachment. Legislation may duplicate laws. May serve to the benefit of the state by allowing it to pick a jurisdiction. Although it may also serve the public

if they can prove a crime falls within provincial jurisdiction, rather than the Criminal Code.

Paramountcy Doctrine In the case of a legislative conflict, federal legislation supersedes the provincial. Provincial legislation becomes

inoperative to the extent of the conflict. Supplementing or duplicating legislation is usually okay.

Remedial Doctrine In a supplement or duplication situation, legislation continues to exist concurrently so long as they are both

valid or validly enacted.

Incidental Effects In double aspect, the potential for incidental effects is relevant. Look at the level of intrusion under the classification and determine if it passes the ancillary powers doctrine.

Bell Canada v. Quebec (Health, Work and Safety Commission – CSST) – 1988 SC

Facts:

Joanne Carriere-Laniel was employed by Bell Canada as a telephone operator. Bell planned to convert its telephone exchange in May 23, 1981 where she worked, to VDT units. She had concerns about working with VDT units because she was pregnant. Her employer offered her another position but she refused. She went on leave until June 7 th. She obtained unpaid maternity leave from June 8, 1981 to July 18, 1982. She resigned on July 9, 1982. In the meantime, on June 9, 1981, she gave Bell a physician’s letter confirming her pregnancy and a protective re-assignment certificate (s.40 and 33 of the Act). Bell challenged the application. The application was allowed and she was paid compensation by the CSST under s.36 of the Act. Bell asks for this decision to be declared ultra vires. It also asks for s.33, 36, 37, 40 and 45 of the cat to not apply to Bell.

Issue:

Are the above provisions applicable to Bell? No.

Ratio: (Beetz, J.)

This is a case of double aspect where one aspect and for one purpose fall within s.92 may in another aspect and for another purpose, fall within s.91. Two rules may be found; one in the legislation within the exclusive federal jurisdiction and the other in legislation within exclusive provincial jurisdiction, enacted for different purposes and in different contexts, which give them distinct constitutional characteristics. However, double aspect ought to be applied with caution due to the possibility of paramountcy and creating concurrent fields of legislation.

Double aspect has no application to this case. The preventative scheme in the Act and the Canada labour code demonstrate both legislatures are pursuing the exact same objective by similar means. They do not have concurrent jurisdiction in this case, but mutually exclusive jurisdictions.

Bell argues federal immunity doctrine which makes provincial laws inapplicable for certain federal subjects (federal undertakings – railways, intra-provincial transportation, intra-provincial telecommunications, etc.)

Paramountcy Argument: Part 4 of he Labour Code and Part 2 of he act were essentially the same. The provincial law was duplicating the Labour Code with respect to employees in federal works and undertakings. The claim was this rendered the provincial law inoperative.

For this case, double aspect doesn’t apply because the two provisions say the same thing and have the same purpose. This case is really about federal immunity.

Court cautions creating a concurrent sphere of power between both heads of power. Yes, there are cases of concurrent power

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but both levels have exclusive powers for a reason. In the end, they can stand together concurrently, but the field or jurisdiction itself should not be concurrent.

Test of impairing, sterilizing or paralysing the federal undertaking used. Also, the test for vitality, whether the vital or core parts are affected by the provincial legislation. The latter is a more broad component of the test and less severe than the former.

Here, the vital test is used. Provincial law affecting a vital part of the federal undertaking in that it deprived Bell of its workforce, a vital component to its operation. A provincial law that can regulate its workers can only be governed by federal laws and are not subject to the decision of the Occupational Health and Safety tribunal. The Canada Labour Code will govern

Multiple Access Ltd. v. McCutcheon – 1982 SC

Facts:

MAL is a public company incorporated under law of Canada having its head office in Toronto and capital stock listed on the TSX. D was president and director. On an order, a motion made by two shareholders of MAL pursuant to s.141(1) of the Securities Act, it was ordered that the Ontario Securities Commission commence action, in the name of and on behalf of MAL to enforce the liability created by the alleged insider trading by D. It was alleged that:

1. It was known to D but not to the public that MAL made a formal written offer to purchase certain radio and TV assets of a company for $18 Million.

2. The offer was accepted.3. D made use of the knowledge to his advantage by purchasing securities in capital stock where stock rose significantly

(85 – 90%)

The cause of action is based on D being an insider of MAL and was liable to MAL for losses suffered as a result of the use of confidential information in connection with the transactions relating to the capital securities of MAL in accordance with s.113 and 114 of the Securities Act. D maintains that these sections were duplicates of s.100.4 and 100.5 of the Canada Corporations Act and therefore, with respect to P, are suspended and inoperative due to paramountcy, as well as are ultra vires Ontario with respect to P, a federally incorporated company.

Issue:

Are s. 113 and 114 suspended and inoperative? No.

Ratio:

S.100.4 and 100.5 are within the powers of Ontario and Canada respectively and are constitutionally valid.

Does a mere duplication render a provincial statutory provision inoperative? Test from Smith v. The Queen is used: laws might overlap but they can operate concurrently. There is no reason why duplication should be a case of inconsistency once the negative implication or covering the field test is rejected. Overlap clearly has not rendered provincial law inpoerateive. Here, the provincial legislation is duplicating the federal. The fact that P may have a choice of remedies does not mean that the provisions of both levels of government cannot work together and operate concurrently. There is no reason to speak of paramountcy unless there is actual conflict between the enactments and there is inconsistency. The courts will always prevent double recovery.

D claims s.113 and 114 of the Securities Act of Ontario duplicates s.100.4 and 100.5 of the Canada Corporation Act and should be suspended and declared inoperative due to the paramountcy doctrine.

Compliance with one act cannot violate the other. (Express contradiction test) There is no conflict; it is duplication. The provisions in both acts seek to achieve the same result. Paramountcy doesn’t apply

in this case. It has passed the express contradiction test. Double recovery or double remedy: The process of a case can only be done once, despite a breach of two statutes. The

purpose of Parliament is still fulfilled, regardless of which Act is used.

R v. Chiasson – 1982 CA NB (SC 1984) Facts:

On December 3rd an information was laid against the Chaisson charging that on November 1st he being in possession of a firearm for the purpose of hunting did discharge a firearm without due care and attention and did commit the offence of careless hunting contrary to and in violation of s. 50(1) of the Fish and Wildlife Act of the Province of New Brunswick.Issue:

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Whether s. 50(1) of the Fish and Wildlife Act is intra vires the province of New Brunswick? If so, whether it is inoperative owing to the fact that s. 84(2) of the Criminal Code substantially covers the whole field of its operations? The court has concluded that s. 50 of the Fish and Wildlife Act is intra vires and continues in operation notwithstanding the existence of s. 84(2) of the Criminal Code.

Ratio:

Covering the field test: If a provincial law is enacted in a field where a federal law has already been enacted, the paramountcy doctrine applies. If the province comes up with legislation that has a valid provincial interest in an area where the federal government has already legislated that is not sufficient for paramountcy to come into play. (Disregard the covering the field test.) This is more a case of duplication. There was some dispute over the laws as the federal law deals more generally while the provincial law deals specifically with hunting. However, overall the laws were similar and were short of a conflict. Thus, the paramountcy doctrine doesn’t apply.

The duplication test for paramountcy is the improper test. The test should be true conflict, not mere duplication. True conflict occurs when, in obeying one, you must disobey the other. Federal statutes override conflicting provincial statutes. If true conflict and duplication exists then paramountcy doctrine applies.

Claim that s.50(1) of the Act conflicts with s.84 of the Criminal Code, making the provincial act inoperative. Also claims the section is ultra vires. The court says no. This is a case of duplication, not conflict. The duplication test for paramountcy is the improper test. The test should be true

conflict (MAL: Express contradiction), not mere duplication. True conflict occurs when, in obeying one, you must disobey the other. Federal statutes override conflicting provincial statutes. If true conflict and duplication exists then paramountcy doctrine applies.

Covering the field test: if a provincial law is enacted in a field where a federal law has already been enacted then the paramountcy doctrine applies. If the province comes up with legislation that has a valid provincial interest in an area where the federal government has already legislated that is not sufficient for paramountcy to come into play. (Disregard the covering the field test.) This is more a case of duplication. There was some dispute over the laws as the federal law deals more generally while the provincial law deals specifically with hunting. However, overall the laws were similar and were short of a conflict. Thus, the paramountcy doctrine doesn’t apply.

Gillespie v. Gillespie – 1973 CA NB

Facts:

Appeal from an order made dismissing the petitioner’s application under s.10(b) of the Divorce Act for an order of interim custody of Kimberley Anne Gillespie. In her petition for divorce, the petitioner asked as corollary relief both interim and permanent custody and maintenance and by her counsel, moved or an interim order for custody, maintenance, care and upbringing of the child pending the hearing and determination of her petition for divorce. R did not contest the petition for divorce and was not represented on the hearing of the application for interim custody and maintenance, but by letter from hi solicitors, R took objection to the jurisdiction of the New Brunswick Court of Appeal to deal with the custody of the child.

The petitioner alleges that the trial judge erred in holding that:1. The custody provisions of the Divorce Act are not paramount where there already exists a valid Court order made under a

provincial statute in another province with respect to custody.2. He had no jurisdiction, nor would he exercise it if he had, where the Ontario court had already made an order as to custody,

under a provincial statute or otherwise, with respect to a child in Ontario. Nor would he do so at the late hearing.3. He should have exercised his jurisdiction under the Divorce Act to decide the questions of custody of the child,

notwithstanding that she resides in Ontario with R and is subject to a consent order of the SV of Ontario giving her custody to R.

Issue:

Did the trial judge have jurisdiction? Did he err in deciding the matter of custody would have to be decided in Ontario? Yes.

Ratio: (Hughes, C.J.)

The Divorce Act is paramount legislation with respect to the custody of children of the marriage of parties to a divorce proceeding over provincial legislation dealing generally with the custody of infants. Legislation may overlap in which case neither provincial nor federal legislation will be ultra vires if the filed is clear, but if the field is not clear and the two legislations meet, the federal legislation must prevail.

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The Infants Act empowers a court to make such order as the court sees fit regarding the custody of the infant and ht right of access thereto of either parent, having regard to the welfare of the infant and to the wishes as well of the mother as of the father. While the custody of infants is a matter within the reach of the provincial authority in relation to property and civil rights, it does not appear to be consistent that Parliament could not, in enacting the Divorce Act, confer custody jurisdiction on divorce courts designated by the Act in respect of children of a marriage which is being dissolved. When Parliament enacted the corollary provisions respecting custody contained in s.10(b), 11(2) and 15, it carved out of the general jurisdiction in custody matters theretofore administered solely by the Courts deriving their powers trough provincial legislation, a segment of that jurisdiction limited to the children of a marriage sought to be dissolved and empowered the Courts exercising divorce jurisdiction to make orders applicable to any children of such marriage. In this case, since the federal and provincial legislation cover the same matter, the federal legislation must prevail and supersede that enacted by the Province. Any custody order made by a divorce court under s.10 or 11 of the Divorce Act supersedes any previous order made under provincial legislation with respect to the same child. The trial judge had jurisdiction on hearing the petitioner’s application for interim custody to make or refuse an order for the interim custody.

The Process of Invoking the Double Aspect Doctrine:Part 1: Validity

Prov. Legislation: o Characterization: Deals with the protection and welfare of children o Classification: Property and civil rights s.92(13)

Federal Legislation: o Characterization: custody of children in the context of divorce, dissolution of marriage o Classification: under s.91(26)

Part 2: Conflict There is a potential conflict – where the father could get custody under provincial jurisdiction and the mother could get

custody through the federal jurisdiction. The judge shouldn’t have refused to hear the issue, because the federal order would prevail in a case of a conflict.

This case is demonstrates the role of paramountcy in striking down provincial legislation in a potential conflict If the federal order was made first, no point to contest because either, there is a conflict and the feds win, or there is no

conflict and they co-exist under the original federal order

Smith v. The Queen – 1960 SC

Facts:

A was charged under s.38(1) of the Securities Act of Ontario with failing to file a prospectus disclosing certain information required for mining companies and for failing to file an amended prospectus when changes in material facts become known to him. An issue arose as to whether the legislation was legislation in relation to the criminal law. Kerwin, C.J. held that it was not. The court then considered whether the provincial legislation should be rendered inoperative under the paramountcy doctrine because of a contradiction with s.343(1) of the Criminal Code. Kerwin held that the general aim of the act is to regulate the security business, that it was not legislation in relation to the criminal law and that since both levels of government had a legitimate interest, the enactments may coexist.

Issue:

Do the provisions contradict each other? No.

Ratio: (Martland, J.)

It does not appear that there is a conflict between s.63(1)(d) and (e) of the Securities Act and s.343 of the Criminal Code. The latter provision makes it an offence to make, circulate, or publish a prospectus known to be false in a material particular with intent to induce persons to become shareholders in a company. S. 63(1)(d) and (e) on the other hand is designed to penalize a person who, required as he is, by the provisions of the Act, to furnish full, detailed information about the company whose securities are sought to be sold, is knowingly responsible for the incorporation int hat material of information which is false.

The test to be applied is that which was stated in The Provincial Secretary of the Province of Prince Edward Island v. Egan:In every case where a dispute arises, the precise question must be whether or not the matter of the provincial legislation that is challenged is so related to the substance of the Dominion criminal legislation as to be brought within the scope of criminal law in the sense of section 91. If there is repugnancy between the provincial enactment and the Dominion enactment, the provincial enactment is inoperative.

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The matter of the provincial legislation in question here is not so related in substance to s. 343 as to be brought within the scope of criminal law in the sense of s.91. There is no repugnancy between s. 63(1)(d) and (e) of the Securities Act and s.343 of the Criminal Code. The fact that both provisions prohibit certain acts with penal consequences does not constitute a conflict. It may happen that some acts might be punishable under both provisions and in this sense that these provisions overlap. There is no conflict in the sense that compliance with one law involves the breach of the other and so they are able to operate concurrently.

Issue of duplication, not conflict of two provisions Securities Act regulates matters specific to securities and trading. The Criminal Code deals with false information and

misrepresentation with intent to defraud. Test is whether the matter of provincial legislation is so close to criminal law that it falls in s.91. Federal law will then

supersede the provincial. No conflict if compliance with one does not create a breach of another. Couldn’t be charged under the Criminal Code for failing to file a prospectus because there was no specification of what

should be included in the prospectus. Had he filed false information, it would be different.

Ross v. Registrar of Motor Vehicles – 1975 SC

Facts:

On August 22 1972, Ross was convicted under s.234 of the Criminal Code or driving while his ability was impaired. He was prohibited from driving for six months, except Monday to Friday from 8:00 am to 5:00 pm in the course of employment and going to and from work. The order further provided that Ross’ licence was not to be suspended and that the Registrar of Motor Vehicles be advised of that order. However, s.21 of the Highway Traffic Act of Ontario provides that subject to s.25, the licence of a person who is convicted of an offence under any of several sections of the Criminal Code, including s. 222 (now s.234) is thereupon suspended for a period of, upon the first offence, three months, but where personal injury, death or damage to property occurred in connection with the offence, six months. A six or twelve month suspension is provided for the second offence. S.25 contemplates the issue in some cases of a restricted licence for the last three months of a six month suspension or the last six months of a twelve month suspension, upon the recommendation of the provincial judge, leaving mandatory the complete suspension for the first three or six months. Ross claimed the s.21 of the Highway Traffic Act is inoperative and that the suspension of his licence is of no effect.

Issue:

Is s.21 of the Highway Traffic Act valid and operative? Yes.

Ratio: (Pigeon, J.)

A majority of the Supreme Court observed that the Criminal Code provided for prohibitory orders which were limited as to time and place. It was possible for the terms of such a limitation to correspond with a provincial license suspension, in which case there was no conflict and both could operate simultaneously. Similarly, terms of a Criminal Code limitation might conflict with a provincial license suspension, in which case the suspension could operate and the driver would not get the benefit of the limitation. In either case the two schemes were able to operate simultaneously, and both had been validly enacted. There was nothing in the Criminal Code authorizing the convicting magistrate to direct that R's license not be suspended, so this part of the order was held to have been made without jurisdiction.No conflict exists because you could obey both by not driving at all. Comply with the stricter rule to obey both.

Dissent: (Judson, J.)

In the present case, the Criminal Code as applied, and s.21 of the Highway Traffic Act are in direct conflict and the federal legislation must prevail. The power of the province to impose an automatic suspension must give way to an order for punishment validly made under the Criminal Code and to that extent the provincial suspension is inoperative.

The dissenting judges held that both s. 21 of the Highway Traffic Act and s. 238 of the Criminal Code were valid legislation. However, since there was a conflict the federal legislation had to prevail such that the provincial suspension would be inoperative.

Was not supposed to have his licence suspended by s.21 said otherwise and had certain suspensions depending on the offence and degree of harm. Ross wanted to declare this section inoperative.

Bank of Montreal v. Hall – 1990 SC

Facts:

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Hall obtained a loan for farm machinery from the Bank of Montreal. He gave the Bank a security interest in the machinery under s. 88 of the Bank Act. Hall defaulted on his loan and the bank repossessed the machinery. However the bank did not follow procedures for repossession set out in the provincial Limitation of Civil Rights Act. s. 27 of this Act provided that failure to follow the acts procedures terminates a security interest and the debtor is released from any further obligation. Hall claimed that the security the Bank had in his machinery was terminated because of the failure to follow the procedures of the provincial act.

Issue:

Whether the provincial legislation should be declared inoperative because it conflicted with the federal legislation? Yes. Whether there is an actual conflict in operation between the Bank Act and the Limitation of Civil Rights Act?

Ratio:

Covering the field test: appears to have some relationship to this test. The purpose of the Federal Legislation was displaced by the Provincial Law. The effect of the provincial notice is that a judge would come in to determine when foreclosure could occur and this interfered with the purpose of the federal legislature. The court went beyond the wording of the legislation to determine the intent of the federal law. In Ross there was no displacement of federal purpose because you could comply with both by not driving. Here, the purpose of the federal legislation was displaced by the provincial legislation. Rule of Construction used here: displacement. The federal law envisioned a uniform procedure for foreclosure which the Saskatchewan law displaced. The court did not look at this in the same way the issue was examined in Multiple Access v. McHutchin. The legislative purpose of the federal legislation was the paramount purpose here. The federal law did not envisage such a long process with a third party (judge) deciding when foreclosure could occur. When you read these cases it is good to look at particular words as they can illuminate the issue at hand. How does the court approach the issue of paramountcy given the Ross case and the Bank of Montreal case? Does the court consider which legislation is more important in this area? Is it uniformity that is better than local accommodation? Here, the court decided uniformity was better.

Dual compliance is impossible when application of the provincial statute can fairly be said to frustrate Parliament's legislative purpose.

The s.178 security interest would no longer be cognizable as such the moment provincial legislation might operate to superadded conditions governing realization over and above those found within the confines of the Bank Act.

Federal legislation was frustrated by provincial legislation

Rothmans, Bensons and Hedges Inc. v. Saskatchewan – 2005 SC

Facts:

In 1997, Parliament enacted the Tobacco Act. Section 4 of the statute speaks to its purpose as follows:

4. The purpose of this Act is to provide a legislative response to a national public health problem of substantial and pressing concern and, in particular,

(a) to protect the health of Canadians in light of conclusive evidence implicating tobacco use in the incidence of numerous debilitating and fatal diseases;

(b) to protect young persons and others from inducements to use tobacco products and the consequent dependence on them;(c) to protect the health of young persons by restricting access to tobacco products; and(d) to enhance public awareness of the health hazards of using tobacco products.

Section 19 of the Tobacco Act prohibits the promotion of tobacco products and tobacco product-related brand elements, except as authorized elsewhere in the Tobacco Act or its regulations. The provisions that follow s. 19 both prohibit specific types of tobacco product promotion, and permit other types of promotion that s. 19 would otherwise prohibit. Among those provisions, s. 30(1) provides that, “[s]ubject to the regulations, any person may display, at retail, a tobacco product or an accessory that displays a tobacco product-related brand element.” Section 30(2) further provides that retailers may post signs indicating the availability and price of tobacco products.

On March 11, 2002, The Tobacco Control Act came into force in Saskatchewan. Section 6 of that Act bans all advertising, display and promotion of tobacco or tobacco-related products in any premises in which persons under 18 years of age are permitted. R sued the A in QB, seeking a declaration that s. 6 of The Tobacco Control Act is inoperative in light of s. 30 of the Tobacco Act, and that ss. 6 and 7 of The Tobacco Control Act are of no force and effect in light of s. 2(b) of the Canadian Charter of Rights and Freedoms.

Issue:

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Whether Saskatchewan legislation, and in particular s. 6 of The Tobacco Control Act, S.S. 2001, c. T-14.1, is sufficiently inconsistent with s. 30 of the federal Tobacco Act, S.C. 1997, c. 13, so as to be rendered inoperative pursuant to the doctrine of federal legislative paramountcy? No. Appeal allowed.

Ratio: (Major, J.)

The doctrine of federal legislative paramountcy dictates that where there is an inconsistency between validly enacted but overlapping provincial and federal legislation, the provincial legislation is inoperative to the extent of the inconsistency. There is an inconsistency for the purposes of the doctrine if it is impossible to comply simultaneously with both provincial and federal enactments. However, subsequent cases indicate that impossibility of dual compliance is not the sole mark of inconsistency. Provincial legislation that displaces or frustrates Parliament’s legislative purpose is also inconsistent for the purposes of the doctrine. In Bank of Montreal v. Hall, La Forest J. wrote: A showing that conflict can be avoided if a provincial Act is followed to the exclusion of a federal Act can hardly be determinative of the question whether the provincial and federal acts are in conflict, and, hence, repugnant. That conclusion, in my view, would simply beg the question. The focus of the inquiry, rather, must be on the broader question whether operation of the provincial Act is compatible with the federal legislative purpose.

There is no repugnancy in the case of merely duplicative provisions since it does not matter which statute is applied; the legislative purpose of Parliament will be fulfilled regardless of which statute is invoked by a remedy-seeker; application of the provincial law does not displace the legislative purpose of Parliament.

It follows that in determining whether s. 6 of The Tobacco Control Act is sufficiently inconsistent with s. 30 of the Tobacco Act so as to be rendered inoperative through the paramountcy doctrine, two questions arise:

1. Can a person simultaneously comply with s. 6 of The Tobacco Control Act and s. 30 of the Tobacco Act? 2. Does s. 6 of The Tobacco Control Act frustrate Parliament’s purpose in enacting s. 30 of the Tobacco Act?

Read in the context of the Tobacco Act as a whole, it is clear that the purpose and effect of s. 30 is to define with greater precision the prohibition on the promotion of tobacco products contained in s. 19. Specifically, it serves to exclude from the wide net of s. 19 promotion by way of retail display. In this way, it is like ss. 22(2), 26(1) and 28(1) of the Tobacco Act, which also exclude from the s. 19 prohibition certain types of tobacco product promotion that it might otherwise capture. This demarcation of the s. 19 prohibition represents a measured approach to protecting “young persons and others from inducements to use tobacco products”, one of the purposes of the Tobacco Act set out in s. 4. However, in demarcating the scope of the s. 19 prohibition through s. 30, Parliament did not grant, and could not have granted, retailers a positive entitlement to display tobacco products. That is so for two reasons.

1. The Tobacco Act is directed at a public health evil and contains prohibitions accompanied by penal sanctions. It falls within the scope of Parliament’s criminal law power contained in s. 91(27). As the criminal law power is essentially prohibitory in character, provisions enacted pursuant to it, such as s. 30 of the Tobacco Act, do not ordinarily create freestanding rights that limit the ability of the provinces to legislate in the area more strictly than Parliament.

2. It is difficult to imagine how granting retailers a freestanding right to display tobacco products would assist Parliament in providing “a legislative response to a national public health problem of substantial and pressing concern.” An interpretation of s. 30 as granting retailers an entitlement to display tobacco products is unsupported by, and perhaps even contrary to, the stated purposes of the Tobacco Act.

Parliament did not intended to make the retail display of tobacco products subject only to its own regulations. To impute to Parliament such an intention to “occupy the field” in the absence of very clear statutory language to that effect would be to stray from the path of judicial restraint in questions of paramountcy.

A. Impossibility of Dual Compliance

Dual compliance is possible in this case. A retailer can easily comply with both s.30 of the Tobacco Act and s.6 of The Tobacco Control Act in one of two ways: by admitting no one under 18 years of age on to the premises or by not displaying tobacco or tobacco-related products. A judge called upon to apply one of the statutes does not face any difficulty in doing so occasioned by the existence of the other. The Tobacco Control Act prohibits what Parliament has opted not to prohibit in its own legislation and regulations. For an impossibility of dual compliance to exist, s. 30 of the Tobacco Act would have to require retailers to do what s. 6 of The Tobacco Control Act prohibits (to display tobacco or tobacco-related products to young persons).

B. Frustration of Legislative Purpose

Section 6 of The Tobacco Control Act does not frustrate the legislative purpose underlying s. 30 of the Tobacco Act. Both the general purpose of the Tobacco Act (to address a national public health problem) and the specific purpose of s. 30 (to circumscribe the Tobacco Act’s general prohibition on promotion of tobacco products set out in s. 19) remain fulfilled. Indeed, s.

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6 of The Tobacco Control Act appears to further at least two of the stated purposes of the Tobacco Act, namely, “to protect young persons and others from inducements to use tobacco products” (s. 4(b)) and “to protect the health of young persons by restricting access to tobacco products” (s. 4(c)).

There is no inconsistency between s. 6 of The Tobacco Control Act and s. 30 of the Tobacco Act that would render the former inoperative pursuant to the doctrine of federal legislative paramountcy. The appeal is allowed with costs to the appellant throughout.

Federal Immunity

Federal Immunity Doctrine Do provincial laws of general application apply to federal undertakings? Another way to challenge the provincial law is to argue that the law is inapplicable to the federal matter.

CNR v. Clark – 1988 SC

Facts:

R, when age two, was seriously injured when he was stuck by a CN train after he wandered onto unfenced CN lands and railway tracks. The accident was alleged to have been caused by negligence by A and its employees, as well as by breach of common law duty of care and statutory duties in the Railway Act and Uniform Code of Operating Rules. The action was pleaded three years later. A denied any negligence and said R’s action was barred by the two-year limitation period in s.342(1) of the Railway Act. R argued that the applicable limitation of actions provision was s.18 of the provincial Limitations of Actions Act, which would permit the action to be commenced within six years of the infant’s attaining the age of majority. QB held that the limitation period in s.342(1) was not applicable to R’s action. The CA upheld the decision.

Issue:

Whether s.342(1) is applicable as a matter of construction and constitutional validity?

1. Whether s.342(1) is constitutionally valid and applicable to this action, and2. If so, whether it conflicted with and rendered inoperative s.18 of the provincial Limitations of Actions Act?

Decision:

S.342(1) is ultra vires.

Ratio:

Undertakings falling within the federal competence by virtue of s.92(10) are subject to provincial laws of general application. The constitutionality and application of federal legislation pursuant to s.92(10) is governed by what has been described as the “integral element” approach, where provincial laws can be applicable to matters in federal jurisdiction. In creating this term, a question of whether provincial wage control legislation was applicable to a contractor working on the construction of an airport on federal land. It was held that the issue must be resolved in the light of established principles, the first of which is that Parliament has no authority over labour relations as such, nor over the terms of a contract of employment. By way of exception however, Parliament may assert exclusive jurisdiction over these matters if it is shown that such jurisdiction is an integral part of its primary competence over some other single federal subject. It follows that primary federal competence over a given subject can prevent the application o provincial law relating to certain matters, but only if it is demonstrated that federal authority over these matters in an integral element of such federal competence, thus the regulation of wages, being related to an integral part of the operation of the undertaking, are removed from provincial jurisdiction and immune from the effect of provincial law if the undertaking is a federal one.

In Bell Canada v. Quebec, provincial occupational health and safety legislation was held inapplicable to a s.92(10) undertaking on the ground that the provincial measures entered directly and massively into the field of working conditions and labour relations on the one hand, and on the other into the field of the management and operation of undertakings.

Provincial limitation of action legislation plainly does not impinge upon the management of operation of the railway in the manner of the legislation at issue in those cases. They are subject to provincial laws of general application that do not bear upon their specifically federal aspects.

It is clear from authorities that undertakings which fall under federal legislative competence by virtue of s.92(10) are not thereby removed from the ambit of provincial legislative competence, and equally, that they are not entirely embraced by the legislative

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authority of Parliament. While s.314(1) is plainly legislation in relation to railways, a limitation provision relating to an action for personal injury caused by a railway cannot be said to be an integral part of federal jurisdiction. The establishment of general limitation periods which affect those injured by the negligence of the railway is not part of that core federal responsibility or of any penumbra sufficiently proximate to satisfy the test articulated above. It would seem extraordinary to suggest that Parliament could impose a special limitation period to govern actions for injuries caused by undertakings and thereby massively disrupt and interfere with the course of personal injury legislation within the province. S.342(1) is ultra vires in so far as it applies to such an action.

Determine validity, applicability and then inoperativity. Federal immunity can arise even when there is no federal law conflicting with the provincial. Paramountcy requires both

legislatures to have a law that is related or conflicting. S.342(1) of the Railway Act is ultra vires. It is not sufficiently connected to Railway powers to be necessary. It intrudes into

provincial powers concerning personal injury legislation. Ancillary Powers Doctrine: Lacking the necessary connection and not integrated to the operation of the Act. Provincial law on limitations should apply to this federal undertaking. Look at the operation at the core of the undertaking then at the particular subsidiary operation in question, and then finally at

the relationship of that operation to the core of the federal undertaking. The necessary relationship being variously characterized as vital, essential or integral. Immunity Doctrine then comes into play.

S.342(1) is struck down as it didn’t meet the ancillary powers test, so paramountcy cannot apply. There is no federal law which conflicts with the provincial. Had the provision been found to be applicable, paramountcy would apply.

Three pronged test to see if the provincial law affects a vital part of the federal undertaking.1. Begin with the operation that is at the core of the federal undertaking2. Look at the particular subsidiary operation engaged in by the employees in question3. Judgment as to the relationship of that operation to the core federal undertaking, the necessary relationship being vital,

essential or integral

Inter-jurisdictional Immunity

The Paramountcy Doctrine

From constitutionally valid power bases in their own respective catalogues of powers, both Parliament and a provincial legislature enact valid legislation. The legislations meet in the sense that they regulate similar activities but contradict if the two statutes command a citizen to do inconsistent things and the citizen cannot comply with both statutes. When this happens, the federal legislation prevails.

Inter-jurisdictional Immunity

The inter-jurisdictional doctrine does not premise a meeting of legislation competently enacted by Parliament and a province. It becomes relevant where a thing, person, or undertaking specifically within federal jurisdiction exists and validly provincial laws of general application create significant obstacles to the complete existence of the federal undertaking. The law strips the undertaking of their specifically federal attributes, even without the legislation meeting or conflicting. Paramountcy is thus, not relevant, but the inter-jurisdictional immunity doctrine applies to prevent the provincial law of general application form applying to the federal undertaking. Even where there is no contradiction or meeting of legislation, the provincial legislation offers significant obstruction to the federal undertaking, affects its status, or drains off essential federal attributes, which make them within federal jurisdiction.

How Immune?

The original approach was that the provincial law had to sterilise the federal undertaking and the legislation had to inflict the regulatory equivalent to a death blow to the federal undertaking to be rendered invalid. It was modified later in that the legislation needed only to impair the undertaking and legislation would be invalid if it affected a vital part of the federal undertaking. In the Irwin Toy case, it was found that where provincial legislation applied to a federal undertaking affects a vital part of that undertaking or, though not applied directly to a federal undertaking, has the effect of impairing its operation, the legislation in question is ultra vires. The doctrine is designed to accord a certain degree of protected constitutional space in which a federal undertaking con operate. The provincial law cannot significantly invade, impair or sterilise this protected constitutional space.

To determine significant invasion, the following are helpful indicia:a) Does it affect a vital part of the federal undertaking?b) Does it affect the federal undertaking’s status?c) Does it affect the essential capabilities of the federal undertaking?d) Is the federal undertaking substantially modified by the provincial legislation?

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Mississauga v. Greater Toronto Airports Authority (GTAA) – 2000 CA On.

Facts:

Air passenger traffic in airports is increasing such that a redevelopment project is needed. Mississauga contends that the Building code Act and the regulation passed under it, the Ontario Building Code, apply to all new buildings constructed at Lester B. Pearson Airport. It also claims that the GTAA and Nav Caada must pay development charges levied by Mississauga under the Development Charges Act and the City’s development charges by-law (approximately $47.3 Million). Mississauga contends that the Ontario Building Code applies because that regime does not impair or interfere with the redevelopment of Pearson Airport.

Issue:

Whether Parliament’s exclusive legislative authority over aeronautics precludes Mississauga from regulating the construction of new buildings? Does it require the Ontario Building Code, which includes Mississauga’s development charges, to be read down not to apply to the construction of new buildings at Pearson Airport because it lies within Parliament’s exclusive jurisdiction over aeronautics or a federal undertaking? Yes. Ontario Building Code must not be read down.

Ratio: (Laskin, J.A.)

Every municipality in Ontario must comply with the Building Code Act and the regulation passed under it. It concerns the building and demolition of structures, manner and type of construction, and building permits. The Development Charges Act authorises municipalities to pass by-laws that would impose development charges against land whose development would increase the need for municipal services. Under the Aeronautics Act (Canada), airports must meet the standards in the National Building Code and National Fire Code.

Normally, a valid provincial law of general application such as the Building Code Act may validly affect a federal matter. But the courts have carved out an important exception to this general rule – the inter-jurisdictional immunity principles or the inapplicability of provincial legislation rule. It holds that a basic minimum and unassailable content must be assigned to each head of federal legislative power. Because federal legislative power is exclusive, provincial laws cannot affect that essential core. A provincial law, valid inmost of its applications must be read down not to apply to the core of the exclusive federal power. The application of this principle doffers form the paramountcy doctrine in that it does not require conflicting or inconsistent federal legislation, or even the existence of federal legislation.

The test of inter-jurisdictional immunity is as such: If a provincial law affects a vital or essential or integral part of a federally regulated enterprise, then the otherwise valid provincial law does not apply to that enterprise. The qualification does require impairment. There is a distinction between the direct and indirect effect of a provincial law on a federal undertaking. If a province seeks to apply its law directly to a federal undertaking – the usual case – the provincial law will not apply if it affects a vital part of that undertaking. If, however, a provincial law only indirectly or incidentally affects a federal undertaking, it will apply unless it impairs, paralyses or sterilises the undertaking. Here Ontario’s building code regime would not merely affect Pearson Airport indirectly or incidentally. Mississauga is attempting to control an aeronautics undertaking directly by applying the Ontario building code regime to the redevelopment of the airport. It would affect a vital part of the redevelopment of the airport and is constitutionally inapplicable to the redevelopment. A municipality cannot regulate the physical construction of airport buildings because to do so would affect a vital part of an aeronautics undertaking.

Test for inter-jurisdictional immunity. The legislation had a direct affect, so the vital part test was applied. It was found that the legislation would affect a vital part

of the federal undertaking’ the physical building which is at the core of aeronautics. It was unlike the Montcolm case, where a wage dispute only affected a project that was one step removed from the vital part.

Determining Direct or Indirect Effects Direct Effect: Vital/Essential element test applied. Indirect Effect: Impairment test applied (Bell Canada)

Emergency Power

Emergency Power Allows the federal government to intrude in provincial jurisdiction during emergencies. Emergencies must be limited in time.

Re Board of Commerce Act, 1919 and Combines and Fair Prices Act, 1919 – 1922

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(Viscount Haldane)

The first question to be answered is whether the Dominion Parliament could validly enact such a law. It is not one enacted to meet special conditions in wartime; it was passed after peace had been declared, and it is not confined to any temporary purpose, but is to continue without limit of time and to apply throughout Canada. It might well be that the subjects of undue combination and hoarding are matters in which the Dominion has a great practical interest. Even in time of peace, it can be said that such an interest might conceivably become of such paramount and overriding importance as to amount to what lies outside the heads in s.92, but it is another matter to say that under normal circumstances, genera policy can justify interference on such a scale. It can only be under necessity in highly exceptional circumstances, such as cannot be assumed in this case, that the liberty of the provinces may be restricted by the Parliament and that the Dominion can intervene.

The new Board of Commerce appears to be ultra vires. It implies a claim of title, in the cases of non-traders, as well as of traders. It can make orders prohibiting the accumulation of certain articles requires for everyday life. It allows the withholding of such articles from sale at prices to be defined by the Board, whenever they exceed the

amount of the material which appears to the Board to be required for domestic purposes or for the ordinary purposes of business.

It allows the Board to regulate profits and dealings which may give rise to profit. It is applied to articles produced for the own use of the householder, as well as to articles accumulated, not for the

market, but for the purposes of their own processes of manufacture by manufacturers.

Legislation setting up a board as such appears to be beyond the powers of S.91. The circumstances in war or when the peace, order and good government are threatened create an exception to allow legislation to go beyond its power, but if this case were to arise, it would have to be considered closely before the conclusion could properly be reached that it was one not falling under any heads enumerated. There is no evidence that the standard of necessity has been reached, or that the attainment of the end sought is practicable, in view of the distribution of legislative powers enacted by the Constitution, without the co-operation of the Provincial Legislatures.

In exceptional cases, the federal government can intrude (war, famine, or where the general Dominion is at stake). Even when provinces are acting collectively, they still don’t have the same central power.

Special circumstances were not present in this case. The war was over and the legislation passed after the war had ended, so it was not justified to use the emergency powers doctrine.

There was also no time limit for this board. Emergency powers must have a time line. By definition it is temporary and only extends until the emergency is over.

Parliament may have the powers related to POGG, but not here.

Fort Francis Pulp & Power Company v. Manitoba Free Press Company - 1923

Facts:

A is a manufacture of newsprint paper in Ontario and R is a publisher of newspapers, carry on business at various places in Canada. R brought an action against A to recover sums the former had paid for paper delivered to them at controlled prices. These sums, which R alleged to represent margins in excess of the prices regulated by law, they claimed to be repayable to them as the result of orders of the Paper Control Tribunal of Canada, the final order having been made on July 8 th 1920. The sums represent the amounts due after an adjustment of accounts in accordance with the final order and previous orders which were modified.

Issue:

Whether the orders in council and the proceedings founded on them by the Controller and the Paper Control Tribunal, were intra vires of the Dominion Executive and Legislature? Yes.

Ratio: (Viscount Haldane)

It is necessary to consider first the validity of the legislation and Orders in Council by which the controlling tribunals were set up and invested with the powers exercised. Under the War Measures Act, and order was made on April 16, 1917 authorising the Minister of Customs to fix the quantity of newsprint paper in sheets or rolls furnished or to be furnished to those who required it for publishing. The order was to operate from March to June of that year. It was extended to December. Acting on these orders, a Controller and Commissioner were appointed, with the power to fix prices and quantities. By another order on September 18 th

1918, a new tribunal called the Paper Control Tribunal of Canada was set up with a right to appeal any order of the Controller was given. The Tribunal made various orders including an order fixing a price for a period ending December 31, 1919 on July 18, 1920 and directed A to refund all sums received in excess of the prices fixed.

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It is clear in normal circumstances that the Dominion could not have so legislated as to set up the machinery of control over the paper manufacturers which is now in question. It cannot legislate so as to interfere with property and civil rights in the Provinces, it could not have done what the two statutes under considerations purport to do had the situation been normal.

The emergency doctrine can be applied because there were consequential conditions arising out of war, which may continue to produce effects remaining in operation after war itself (in this case the scarcity of resources = paper).Temporary Nature: When is the power going to be exhausted? Need clear evidence that the consequential conditions are no longer a concern and thus the measures will be thought. This expands on the temporary principle.1. Test of the first principle (this is a subjective test): When does the war begin: There is a declaration of war.2. Clear evidence: What may a person do if there is no longer a war? The burden is on the person who is declaring that there is

not a war to show that there is clear evidence that there is not a war.3. Temporary: Need clear evidence that the consequential conditions are no longer a concern.

It is unable to find that the Dominion Government had no good reason for thus temporarily continuing the paper control after actual war had ceased, but while the effects of war conditions might still be operative.

Attacking constitutional validity of emergency powers during a time of no emergency. Parliament says although the emergency is over, some situations will require Parliament to continue passing laws to regulate

certain areas. It helps the economy readjust. Central government is best to meet emergency conditions. Court makes it clear that the emergency has to clearly pass, before emergency doctrine is ineffective

1. If emergency conditions are still present, the measures can continue2. Level of deference to Parliament, as Courts do not criticize Parliament’s assessment

Also, the time limit on the emergency power could either be an express time, or for the length of the emergency as established by Parliament

Reference Re Anti-Inflation Act – 1976 SC

Facts:

After a 20-month period of double digit inflation, the government announced a comprehensive wage and price control program. The Anti-Inflation Act controlled increases in wages, fees, prices, profits and dividends in certain areas of the private sector. Act also applied to federal public sector and potentially applied to the provincial public sector.

Issues:

1. Is the Anti-Inflation Act ultra vires the Parliament of Canada either in whole or in part, and if so, in what particular or particulars and to what extent?

2. If the Anti-Inflation Act is intra vires, is the Agreement entitled “Between the Government of Canada and the Government of the Province of Ontario” effective under the Anti-Inflation Act to render hat Act binding on, and the Anti-Inflation Guidelines made there under applicable to, the provincial public sector in Ontario as defined in the Agreement?

Ratio:

(Laskin, C.J.)

The preamble to the Inflation Act is sufficiently indicative that Parliament was introducing a far-reaching program prompted by what was viewed as a serious national condition. It provides a base for assessing the gravity of the circumstances that called for the legislation.

There need not be an actual emergency, only the perception or apprehension of a crisis. Emergency powers may be invoked to prevent an emergency, and may be used in peacetime as well as wartime. The Anti-Inflation Act fulfilled the requirements for the exercise of emergency powers, and therefore is intra vires. It was temporary and necessary. The federal government must show that the matter is of such a crisis that it effects Canadians as a whole (whether the matter is currently happening or is believed will happen.)

Characterization of the Act: legislation to contain and reduce inflation by implementing wage and price controls. Beetz says the pith and substance of the legislation is not just simply to contain and reduce inflation.

Legislation of this subject matter would normally be classified under s. 92(13) Property and Civil Rights in the province. But here, the federal government wants the court to investigate two other possibilities:1. The Emergency Branch of POGG

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2. The National Concern doctrine.

The court was split on the classification of the legislation. Laskin and Ritchie clearly see the legislation as being justified under the emergency powers doctrine. Laskin says that it is not necessary to consider whether the legislation falls under the national concern branch because it is justified by the emergency powers doctrine. Ritchie concurs with Beetz’s conclusion under the emergency powers branch.

Laskin’s Reasoning:- He looked at evidence including the Consumer Price index and says that if the circumstances are so notorious

that the courts could take it as a given that there was an economic crisis in the country then the court does not need to look at evidence.

- The federal government has powers which relate to the legislation. He does not say that the legislation can be classified as trade and commerce or monetary policy, but he says the related areas can be used as a spring board for the government’s power in the emergency context.

- He examines the preamble to find the intention of the parliament. Parliament was responding to what it saw as a serious matter or crisis.

- He acknowledges that this is legislation that is temporary in nature. Even if the legislation itself is not temporary you need to look at the circumstances at the time the legislation was passed. If those emergency circumstances no longer have application then the legislation should cease to exist.

- In regards to deference to parliament Laskin says the court should be concerned with whether the government had a rational basis for the legislation. (The court will not second guess parliament if there is evidence that parliament was rational in the decision that it came to.)

Ritchie’s Reasoning”- In order for legislation to be valid under the emergency powers doctrine it must adversely affect all Canadians.- Is not persuaded by Laskin’s spring board argument.- There will be deference on the question of if there is an emergency and if those questions are met. There is no

broad, overarching deference to parliament. It is not only permissible but essential to examine the evidence that was before parliament in order to find that there was an emergency (He is less deferential than Laskin.)

- The legislation itself has to be temporary in nature.

Mr. Jusitce Beetz (dissent)- He accepts that the government does have power to legislate in times of emergency and that inflation could be a

valid reason to enact these powers. He dissents because the federal government did not go far enough to declare that it was acting in an emergency. He says the government has to do more than simply call it a matter of serious national concern in order to invoke its emergency powers.

Emergency conditions applied to a financial situation. Agreements between Parliament and Ontario to regulate certain financial objectives. Ontario would attempt to have the

legislation declared ultra vires if followed through. Some double aspect. In both jurisdictions to control inflation through the control of prices and wages. Federal government

has stepped over the line in attempting to control provincial public sector and provincially regulated industry. How can they justify it?

Laskin: Don’t need an actual emergency. Parliament can invoke powers to prevent an emergency from occurring. It can be an

apprehended emergency. The word emergency does not need to be used. A serious national concern is sufficient to indicate Parliament is responding to

a crisis situation. White Paper: Purpose was to control inflation through price and wage control. This is a form of extrinsic evidence. Judicial Notice: Use common knowledge to support a particular proposition. Evidence is not required to be brought forward.

In this case, judicial notice on inflation can be used, as it was common knowledge. Feds need to show a rational basis for legislation and court won’t question the emergency situation or Parliament’s

assessment. Legislation is also of temporary character, so is sufficient to be supported under emergency powers. National concern branch is broader than emergency powers. The government would have permanent power to legislate under

national concern whereas for an emergency, it must be temporary.

Ritchie (Concurring) Power can be found in POGG heading. It is not necessary to find that the feds have different jurisdiction in certain respects.

They only need an emergency to justify the legislation. Essential to have al the evidence necessary to show an emergency.

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Emergencies are not restricted to war-time but can apply to economic emergencies. Sometimes national concern is not enough to justify legislation in the provincial jurisdiction. This case cannot be justified

under national concern. Allowing a permanent intrusion would be unconstitutional.

Beetz (Dissenting) Subject matter is not inflation. It is so intrusive that it is more related to trade and commerce. This could affect many areas

beyond the intentions of the legislation. Emergency powers should not have any ambiguity when legislation is enacted under it. It must clearly show powers are being

enacted because of an emergency for the purpose of POGG. Must be careful not to usurp provincial powers. In essence, this would be a constitutional amendment. Serious national concern is not sufficient for relying on emergency powers doctrine even with the legislation is temporary.

National Concern

Look to see if a subject is already under a federal head of power. Careful not to add powers. New subject matters or class of matters are federal interests. For a matter to qualify as a matter of national concern in either sense it must have:

1. A singleness, distinctiveness and indivisibility that clearly distinguishes it from matters of provincial concern (provincial inability)

2. A scale of impact on provincial jurisdiction that is reconcilable with the fundamental distribution of legislative power under the Constitution

In determining whether a matter has the requisite singleness, distinctiveness and indivisibility, it is relevant to consider what would be the effect on extra-provincial interests of a provincial failure to deal effectively with the control or regulation of the intra-provincial aspects of the matter.

AG Ontario v. Canada Temperance – 1946 (Viscount Simon)

On June 1st, 1939, the LG of Ontario in Council referred to the SC of Ontario the following question, “Are parts I, II, and III of the Canada Temperance Act 1878 constitutionally valid in whole or in part, and if in part, in what respect? The object of the appeal is to challenge the decisions of this Board in the case of Russell v. The Queen or at any rate, to deny its applicability to the Act now in questions. The majority of the SC held that the decision governed the present case and obliged it to be answered in the affirmative.

The object of the Act was to authorize the adoption of a system of local option in regard to the sale of liquor in countries and cities throughout the Dominion. Part I gives elaborate provisions for bring it into force: Following a petition to the GG in C supported by electors, a poll is taken and if a majority supports petition, an Order in Council is passed bringing Act into force for three years. Part II prohibits the sale of liquor in the areas where the Act is in force. Part III gives prosecution and penalties, some of which are severe. The Act was challenged in Russell and argued ultra vires but it was held that it did not deal with any of the matters exclusively reserved to the provinces and that it was related to POGG. It was later commented in another case, that perhaps Russell had been wrongly decided.

Nowhere in the CA 1867 does it give the Parliament power to legislate in matters for the provincial legislature, merely because of the existence of an emergency. At the birth of this Act, there was no emergency at all. Also, this Act is permanent. The true test must be found in the real subject matter of the legislation. If it is such that it goes beyond local or provincial concern or interests and must from its inherency nature by the concern of the Dominion as a whole, then it will fall within the competence of the Dominion as a matter affecting POGG. The court decides that the Act must be regarded as firmly embedded in the constitutional law of Canada and is impossible now to depart from it. The court is not prepared to hold that Russell was decided incorrectly. It is by repeal that he Dominion and not by appeal to the Judicial Committee, that the enactment might cease to be effective. The appeal should be dismissed.

The court in this case doesn’t want to interpret Russell as having been decided on the basis of the emergencies power branch of POGG.

The matter must go beyond local or provincial interest and go to the concern of the dominion as a whole. (The matter is of national concern.)

The Canada Temperance Act could not be justified under the emergencies powers branch because it was not temporary. There may still be room for enactments by the province in dealing with the same subject as the national concern in as much as it affects the province. If the federal government legislates in relation to a subject matter under the national concerns branch it is possible for the province to legislate in relation to a different aspect of the same matter (Double Aspect Doctrine.)

True test: The subject matter of the legislation. It goes beyond the Dominion but is the inherent concern of the Dominion that it falls under POGG.

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Matters of National Concern and the Future of National Concern

The national concern doctrine has been applied to provide a basis for legislation under the introductory clause of S.91 of the Constitution. It has long been recognised that this power ought to be strictly confined to such matters as are unquestionably of Canadian interest and importance and that great caution must be observed in distinguishing between matters that are local and matters that are of national concern.

The Supreme Court is sensitive that the national concern branch of peace, order and good government will not threaten provincial jurisdiction. Matters of such must have a singleness, distinctiveness and indivisibility. Determining whether a particular subject matter is a matter of national concern involves the consequence that the matter falls within the exclusive and paramount power of Parliament and has obvious impact on the balance of Canadian Federalism.

For a matter to be of national concern it must have a singleness, distinctiveness and indivisibility that clearly distinguishes it from matters of provincial concern and its impact on the provincial jurisdiction must be reconcilable with the fundamental distribution of legislative power under the Constitution. The test for singleness, distinctiveness and indivisibility is demanding because of the high risk to the division of powers. It is crucial that one be able to specify precisely what it is over which the law purports to claim jurisdiction. Otherwise, “national concern” could absorb all areas of provincial authority.

The provincial inability test is another criterion that can be used to distinguish a matter of national concern. It is where the failure of a province to enact effective regulation would have adverse effects on interests exterior to the province.

R v. Crown Zellerbach Canada Limited – 1988 SC

Facts:

R was charged with dumping wood waste materials into the sea contrary to the federal Ocean Dumping Control Act. The definition of "the sea" included the internal waters of Canada other than fresh waters. The relevant section of the Act prohibited dumping except in accordance with the terms and conditions of a permit. R had a permit to dump waste from its logging operations at a site about two miles from where the waste was actually dumped. R conceded that Parliament had jurisdiction to regulate dumping in waters beyond provincial territorial limits, to regulate dumping in provincial waters to prevent pollution that would be harmful to fisheries, and to regulate the dumping in provincial waters of substances that would pollute extra-provincial waters. What was challenged was federal jurisdiction to control dumping in provincial waters of substances not shown to have a pollutant effect in extra-provincial waters. The trial judge and the Court of Appeal held the section to be ultra vires and dismissed the charges.

Issue:

Was the control of dumping in provincial marine waters an integral part of a single matter of national concern - marine pollution? Yes - legislation was valid, referred back to the trial judge.

Ratio:

The court characterizes the legislation as being in relation to the control and regulation of marine pollution through the control of the dumping of substances through a permit system. The dissent’s problem with the legislation is that it controls the dumping of all substances into the see. The majority of the

court sees the legislation as dealing with toxic substances or substances that can be presumed to have a negative effect. The feds try to argue that this should be seen as falling under s. 91(12) but the court found that that section could not support

the regulation. The court looks at case law and sets out a number of propositions about the national concerns branch. It expands on the idea

that you have to be dealing with new subject matters and matters which would have originally have been local or private concern but have taken on a new aspect and become a matter of national concern. 1. Singleness / distinctiveness / indivisibility.2. Scale of impact on provincial jurisdiction reconcilable.

Provincial Inability Test: If one of the province fails to regulate on the matter and that has extra-provincial impacts then that will support the idea of classifying the matter under the national concerns branch.

The court characterizes the legislation as being in relation to the control and regulation of marine pollution through the control of the dumping of substances through a permit system.

The feds try to argue that this should be seen as falling under s. 91(12) but the court found that that section could not support the regulation.

Marine pollution, because of its predominantly extra-provincial as well as international character and implications, is clearly

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a matter of concern to Canada as a whole. The pollution of marine waters, including provincial marine waters, by the dumping of substances is sufficiently

distinguishable from the pollution of fresh waters by such dumping to meet the requirement of singleness or indivisibility. While in many cases the pollution of fresh waters will have a pollutant effect in the marine waters into which they flow,

marine pollution, because of the differences in the composition and action of marine waters and fresh waters, has its own characteristics and scientific considerations that distinguish it from fresh water pollution.

Moreover, the distinction between salt water and fresh water as limiting the application of the Ocean Dumping Control Act meets the consideration, emphasized by a majority of this Court in the Anti-Inflation Act reference, that in order for a matter to qualify as one of national concern falling within the federal peace, order and good government power it must have ascertainable and reasonable limits, in so far as its impact on provincial jurisdiction is concerned.

Classification Provincial Inability Test: Cannot deal with the subject matter or fails to deal with the matter which creates extra-provincial

effects. Looking for a subject that is single, distinct and indivisible. It is difficult for a province to regulate to protect other provinces. New Subject Matter: Maybe not historically new, but new in the sense of national concern.

Characterization Act for the control and regulation of dumping to prevent marine pollution and negative effects in marines. Satisfied the provincial inability test. Provinces cannot agree on the type of legislation to enact and if one province doesn’t

regulate it, it will affect other provinces. It also has an international characteristic as well as extra-provincial. Pollution could go outside national waters.

Legislation only deals with marine pollution and not fresh water pollution. It is narrow or limited to the regulation of pollution, not pollution as a whole, but only affecting marines and territorial seas.

Pollution flowing in and out of inland waters and territorial waters also makes a difficulty for provinces to regulate. The Act applies to inland waters, but only in a narrow sense to keep federal intrusion to a minimum.

Dissent Cannot justify the Act under POGG. It is dealing with inland waters, but boundaries are not always clear. Thus, regulations

may affect the provincial ability to control pollution in inland or fresh waters.

Intra-Provincial Trade and Commerce

Carnation Company v. Quebec Agricultural Marketing Board – 1968 SC

Facts:

The marketing board was created under the Quebec Agricultural Marketing Act and was empowered to approve joint marketing plans and to arbitrate any dispute arising in the course of carrying out a joint marketing plan. The Act provided that ten or more producers in Quebec could apply to the board for approval of a joint plan for marketing one or more farm products if such a plan was supported by at least 75% of all producers concerned. On July 25, 1957 the board approved Carnation Milk’s plan to bind all bona fide milk producers shipping milk and dairy productions to any of the plants of A in Quebec. The board had power to negotiate with A for the marketing and sale to it of milk and dairy products from the farms of producers bound by the plan. The plan also had an arbitration method for disputes.

Agreement on the price of milk to be purchased by A from the producers was not reached. The matter was arbitrated by the board, which determined a price of $3.07 per hundred pounds on December 18th and then $2.78 on June 11th.

A is incorporated under Canadian Companies Act and has its head office in Toronto. It operates an evaporated milk plant in Sherbrooke and a receiving station in Waterloo. During the period in question, A purchased raw milk from 2,000 farmers and shipped it to Sherbrooke for processing. Most of it was sold outside Quebec. During this period, it was the only evaporated milk plant in Quebec. Since December 18th, prices paid by A were about $0.10 to $0.25 higher than those paid by the other purchasers of raw milk. A states that the orders made by the board are invalid because they enable it to set a price to be paid by A for a product which will be used for export out of Quebec and is therefore, under section 91(2) (regulation of trade and commerce).

Issue:

Whether the marketing board has infringed on the exclusive legislative powers of Parliament under s.91(2) to regulate trade and commerce? No.

Ratio: (Martland, J.)

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The meaning of regulation of trade and commerce would include political arrangements in regard to trade requiring the sanction of parliament, regulation of trade in matters of inter-provincial concern, and maybe the general regulation of trade affecting the whole dominion. Its authority to legislate for the regulation of trade and commerce does not comprehend the power to regulate by legislation the contracts of a particular business or trade, and therefore does conflict or compete with the power over property and civil rights.

That the price determined by the board may have a bearing on A’s export trade is unquestionable. It affects the costs of doing business. A trade transaction, completed in a province, is not necessarily, by that fact alone, subject only to provincial control. The fact that such a transaction incidentally has some effect upon a company engaged in inter-provincial trade does not necessarily prevent its being subject to such control. The orders in question were not directed at the regulation of inter-provincial trade. They did not purport directly to control or to restrict such trade and there was no evidence e that they did control or restrict it. They had some effect on the cost of doing business in Quebec, but that itself is not sufficient to make the rulings invalid.

This is an incidental effect and not directed at regulating inter-provincial trade. It was to regulate the industry within the province.

No evidence of seeking to restrict or control trade outside Quebec. Incidental effect on prices.

AG Manitoba v. Manitoba Egg and Poultry Association – 1971 SC

Facts:

Manitoba claimed to be injured by marketing plans for chickens and eggs issued by Quebec and Ontario and enacted its own egg plan requiring all out of province eggs be channelled through the provincial marketing board regulations which controlled all marketing conditions. Manitoba referred the legislation to the courts for a determination of its constitutional validity, thereby determining the validity of the Quebec and Ontario plans.

Issue:

Whether the plan is ultra vires of Manitoba because it trespasses upon the exclusive legislative authority of Parliament to legislate on the matter of the regulation of trade and commerce? Yes.

Ratio: (Martland, J.)

The plan is applicable to all eggs in Manitoba, whether or not they were produced there. It is a plan intended to govern the sale of all eggs in Manitoba, which is to be operated by and for the benefit of the egg producers in Manitoba, to be carried out by a Board armed with the power to control the sale of eggs in Manitoba, brought in from outside the province, by means of quotas or even prohibition.

Once a statute aims at regulation of trade in matters of inter-provincial concern, it is beyond the competence of the Province. The plan not only affects inter-provincial trade in eggs, but it aims at the regulation of such trade. It is an essential part of this scheme, in which the purpose is to obtain for Manitoba producers the most advantageous marketing conditions for eggs, specifically to control and regulate the sale in Manitoba of imported eggs. It is designed to restrict or limit the free flow of trade between the provinces. Thus, it is an invasion of s.91(2).

(Laskin, J.)

From Reference Ontario Farm Products Marketing Act:1. Individual contacts for the sale and purchase of goods in a province do not engage federal power under s91(2) where

any applicable provincial legislation relate merely to the terms of the contract,2. Regulation of the marketing or the processing and marketing of production in a province for consumption therein is

within provincial competence,3. Regulation of the marketing of provincial produce intended for export or sought to be purchase for export is beyond that

competence,4. Regulation of production or manufacture must be distinguished from regulation of transactions in the product and it

cannot be said that the former is so wholly within provincial regulatory competence as in all cases to cover production or manufacture for export, and

5. Even in respect of the latter, it cannot be categorically stated that ultimate extra-provincial destination will foreclose provincial regulation of intermediate steps in the marketing process.

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Prohibition of importation is beyond the legislative jurisdiction of the province. The existence of such a scheme makes it clear that inter-provincial trade in eggs is being struck at by the provincial barrier to their movement into various provincial markets. If it is necessary to do so, it must be by seeking the aid of Parliament.

Legislation was made to benefit Manitoba producers by restricting egg production to drive prices up. The province did not want lower priced eggs coming into the province.

Legislation is ultra vires because it is aimed at inter-provincial trade. It sets quotas, prices, and so on which directly affect producers in other provinces.

Different than the Carnation case in that it regulated eggs from other provinces whereas milk only came from Quebec farmers.

Price discrimination is not considered in this case because trade was already decided as inter-provincial. Clearly federal jurisdiction when legislation is attempting to control production, marketing, regulation, etc., of a product and

not just a single aspect.

Burns Foods Limited v. AG Manitoba – 1975 SC

Facts:

On July 17th 1972, the Manitoba Hog Producers Marketing Board made an order that no Manitoba processor could prepare hogs for slaughter unless they were purchased from the producer board. Hogs brought in from other provinces were subject to the same legislation.

Issue:

Whether, as an incident of its authority over the local matter of hog slaughter by the packers in Manitoba, this province can regulate the buying of hogs by the Packers from producers in another province? No. Not incidental either.

Ratio: (Pigeon, J.)

A province cannot regulate inter-provincial trade in a given product because this appears desirable for the effective control of intra-provincial trade. It is outside provincial jurisdiction and cannot be treated as an accessory of the local trade. What the impugned provision seeks to accomplish is to require that their acquisitions from the producer in another province be made in accordance with the law in Manitoba, not with the law of the province of origin. It does not purport to prohibit the bringing in if that requirement is not complied with, but the same result is sought by providing that the goods cannot then be used for sole purpose for which they are brought in. The regulation prescribes the conditions under which the hogs may be brought in from outside, and is in itself, regulating inter-provincial trade. It is not an incident of the operation.

(Ritchie, J.) Dissenting

The impugned legislation is primarily directed to a local matter and only affects inter-provincial trade as an incident of a scheme for controlling local trade. It does not aim at the regulation of trade in a manner of inter-provincial concern.

Hogs were being regulated on importation, which could lead to price discrimination. Ancillary Powers: A province cannot regulate inter-provincial trade because it is good for intra-provincial trade. Aimed at the control of products coming in from other provinces and was not just an incidental affect.

Extra-Provincial Trade and Commerce

Federal Aspect of Trade and Commerce Province has jurisdiction over intra-provincial trade under s.92(13). It also applies to single industries. Federal government has jurisdiction over international and inter-provincial.

Caloil Incorporated v. AG Canada – 1971 SC

Facts:

Section 20 of the National Energy Board Part VI Regulations conferred upon the board the power to regulate the importation of oil into certain parts of Canada. Under this, the board refused applications for licenses to import gas into Ontario, as well as refused to issue import licenses for other areas unless the importer declared the gas would be consumed in those areas. A challenged the validity of the legislation and the decisions of the board requiring him to make that declaration on the ground that

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it was an unconstitutional interference with intra-provincial trade. (aimed directly at imported commodities for distribution and consumption)

Issue:

Is this legislation ultra vires? No.

Ratio: (Pigeon, J.)

(Lawson) S.91(2) is necessarily limited in order to preserve provincial powers. However, there is no lack of authority for the proposition that regulations governing external trade, as well as regulations in matters affected with an inter-provincial interest, or regulations which are necessary as auxiliary to some Dominion measure relating to trade generally throughout the Dominion and dealing with matters not falling within s.92.

Once goods are imported into Canada, they ordinarily fall into the same category as goods produced in Canada and fall to be regulated by Parliament or the legislature depending on whether they find their way into paths leading to destinations in or outside the province where they are situate. In Shannon, it was held that provincial authority over transactions taking place wholly within the province is applicable to imported products as well as local products. However, existence and extent of provincial regulatory authority over specific trades within the province is not the sole criterion to be considered in deciding whether a federal regulation affecting such trade is invalid, especially when it is an integral part of a scheme for the regulation of international or inter-provincial trade.

In this case, it is clearly shown that the policy intended to be implemented is a control of the imports of a given commodity to foster the development and utilisation of Canadian oil resources. The restriction on the distribution of imported products to defined areas is intended to reserve the market in other areas for the benefit of products from other provinces. Thus, the true character appears to be an incident in the administration of an extra-provincial marketing scheme, which is an integral part of the control of imports in extra-provincial trade policy.

Importing oil from Spain was cheaper than buying it from Canada. Characterization: Control of importation of a single commodity (Protection of a domestic market – Alberta) Classified: s.91(2) Can be under federal or provincial authority when imported. Must look at whether the goods move inter-provincially or intra-

provincially to determine the proper jurisdiction. Sometimes to regulate imported goods, the feds must regulate intra-provincial trade; it is ancillary to imports. What is

typically provincial but is integral to the federal operation becomes intra vires Parliament.

General Trade and Commerce

Labatt’s Breweries of Canada Ltd. v. AG Canada – 1980 SC

Facts:

A seeks a declaration that “Labatt’s Special Lite” is not to be mistaken for a light beer within the standards set out in the regulations under the Food and Drugs Act with the position that this product is not likely to be mistaken for a light beer within s.B.02.134 of the Food and Drug Regulations enacted pursuant to s.25(1) of the Act. Section 6 of the act says where there is a standard, food shall not be advertised in the way that will mistaken it for something that it is not. A asserts that s.6 and s.B.02.134 are ultra vires the Parliament, as well as the extent s.25 authorises regulations.

Issue:

Is it within the competence of Parliament to enact s.6 and 25 and is the regulation s.B.02.134 validly made? No.

Ratio: (Estey, J.)

Parsons makes clear that minute rules for regulating particular trades are not within the trade and commerce competence. The statute and regulations here purport to establish such a detailed single industry regulatory system. The Pith and Substance test can be used to determine if an objective falls under a certain head of power. Nowhere are the impugned provisions concerned with the control or regulation of the extra-provincial distribution of the product or the movement through any channels of trade. Their main purpose is the regulations of the brewing process itself. There is no demonstration by the proponent of these isolated provisions in the Act and its regulations of any inter-provincial aspect of this industry. It is a local production which is under provincial jurisdiction. It is clearly not of national concern to regulate a single trade or industry.

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(Laskin, C.J.) Dissenting

The federal trade and commerce power is sufficient to support this legislation, as it is within federal competence regulate generally trade affecting the whole Dominion. If parliament can set up standards for required returns for statistical purposes, it should be able to fix standards that are common to all manufacturers of food, including beer, drugs, cosmetics and therapeutic devices, at least to equalize competitive advantages in business. Labatt operates throughout Canada and it should be in the jurisdiction of Parliament to regulate standards for its production and distribution according to various alcoholic strengths under labels appropriate to the governing regulations.

General trade does not mean control over single trades or industries as here. Marketing is generally in the federal jurisdiction. Pith and Substance: Attempt to control the actual brewing industry and legal recipe for lite/light beer. Single trade here and not of national concern to regulate it.

Dissent Food and Drug Act broadly can be seen as the general regulation of trade. Local production and consumption of the product is not in inter-provincial flow.

Regulatory Schemes and the Trade and Commerce Power

There are several indicia for characterizing a matter as a valid exercise of the general trade and commerce power.

1. The presence of national “regulatory scheme,”2. The oversight of a regulatory agency,3. The concern with trade in general, not a particular aspect of a business,4. Whether the provinces jointly or severally would be constitutionally incapable of passing the enactment,5. Whether failure to include on or more provinces would jeopardize successful operation in other parts of Canada.

There is no definition of a valid regulatory scheme; however, certain characteristics seems to be present whenever it exists.

1. The party being regulated has caused the need for the regulation and receives some benefit.2. The challenged statute delineates certain required or prohibited conduct, creates an investigatory procedure supervised by

public regulators, and establishes remedial or punitive mechanisms. 3. The major elements of the scheme should be statutory. 4. The scheme must be national.

General Motors of Canada Ltd. v. City National Leasing – 1989 SC (further notes: exclusivity)

(Dickson, C.J.)

In respect to trade and commerce, three hallmarks to determine validity have been set forth. Each of these requirements is evidence of a concern that federal authority under the second branch of the trade and commerce power does not encroach on provincial legislation and an attempt to balance these power is made.

1. The impugned legislation must be part of a general regulatory scheme.2. The scheme must me monitored 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 jeopardise the successful operation of

the scheme in other parts of the country. (Similar to National Concern Doctrine)

As s.31.1 creates a civil right of action it is not difficult to conclude that the provision does appear to encroach on provincial power to some extent. In assessing the seriousness of the encroachment, three facts must be considered. First, s.31.1 is only a remedial provision. This purpose is to help enforce the substantive aspects of the Act but in itself is not substantive. Second, the scope is limited. S.31.1 does not create a general cause of action, it is carefully limited by the provisions of the Act. Finally, it is well established that the federal government is not constitutionally precluded from creating rights of civil action where such measures may be shown to be warranted. Further, the Act contains a distinguishable regulatory scheme that is present throughout the Act. The Act as a whole embodies a complex scheme of economic regulation, its purpose is to eliminate activities that reduce competition in the market and it includes an investigatory procedure and the establishment of a remedial mechanism.

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In general, competition is not a just a matter of local concern but one of crucial importance to the national economy, it is legislation that the provinces could not pass and its failure to include one or more provinces or localities would jeopardise successful operation of the legislation in other parts of the country. It is therefore intra vires of Parliament.

Regulation of trade must be at a general level.

Scope of Federal Power: Criminal Essence

Valid Criminal law must have elements of POGG, security, health, morality or environmental concerns.

In order to be justified under s. 91(27) to legislation must:1. Have a Prohibition2. Have a Penalty 3. Valid Criminal Law Purpose

public safety public peace public order health morality

Proprietary Articles Trade Association v. AG Canada – 1931 (Re: Combines Investigation Act and s.498 of the Criminal Code)

Issue:

1. Is the Combines Investigation Act ultra vires the Parliament ether in whole or in part and if so, in what particulars or to what extent? No.

2. Is s.498 of the Criminal Code Ultra Vires the Parliament and if so, in what particulars or to what extent? No.

Ratio: (Atkin, L.)

Combines in the Act are defined as combines which have operated or are likely to operate to the detriment or against the interest of the public and which result from any agreement which has the effect of lessening competition in production or manufacture or otherwise restraining or injuring trade or commerce. S.498 and the greater part of the Combines Act fall within s.91(27) under the power to legislate as to matters falling within the criminal law including the procedure in criminal matters. The substance of the Act is to make criminal combines which the legislature in the public interest intends to prohibit. It is beyond dispute that in a country where a general protective tariff exists, persons may be found to take advantage of the protection and within its walls, form combinations that may work to the public disadvantage. If Parliament determines that commercial activities which can be so described are to be suppressed in the public interest, there is no reason why they should not be crimes. It does not need some moral connection to be a crime.

Combines Act prohibited combines and gave penalties. Its purpose was to prevent unfair competition and creation of monopolies (by combining businesses to inhibit fair competition)

Falls under s.91(27) in that it has penal consequences and has prohibitory measures to constitute as criminal. It doesn’t need to be immoral, nor does it need to be criminal since confederation. Parliament has the power to make new crimes.

Must be careful that Parliament doesn’t always justify interference by making an object criminal. Customs duties and revocation of patents could not be upheld. Main point: With prohibition, penalty and public interest, the matter can fall under s.91(27).

Reference Re s.5(a) of the Dairy Industry Act 1949 SC

Issue:

Is s.5(a) of the Dairy Industry Act ultra vires of the Parliament either in whole or in part and if so, in what particulars or to what extent? Yes.

Ratio: (Rand, J.)

S.5 states that a butter substitute cannot be manufactured, imported or sold in Canada. This came from the belief that butter substitutes were unhealthy. Now this does not appear to be true. Those with vegetable oil are substantially as nutritious and possess as much energy value and are as free from deleterious effects as butter itself. The object of Parliament in this Act is to give protection to the diary industry in the production and sale of butter; to benefit one group of persons as against competitors in

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business in which, in the absence of the legislations, the latter would be free to engage in the provinces. To forbid manufacture and sale for such an end is prima facie to deal directly with civil rights. The public interest is in the trade effects. But to use it as a support for the legislation in the aspect of criminal law would mean that the Dominion under its authority could in what it considered a sound trade policy, not only interdict a substantial part of the economic life of one section of Canada but do so for the benefit of that or another. It is hard to conceive a more insidious form of encroachment on a complementary jurisdiction. There is nothing of a general or injurious nature to be abolished or removed. It is a matter of preferring certain local trade to others.

S.5(a) was intended for health reasons Characterized as trade protection. Not going towards the general public good so it is not a valid criminal law purpose. The true purpose is to protect diary

farmers from competition which intrudes on s.92(13) Also trying to regulate a very narrow aspect of a single industry.

Reference Re Firearms Act (Canada) – 2000 SC

Facts:

In 1995 Parliament amended the Criminal Code by enacting the Firearms Act to require the holders of all firearms to obtain licences and register their guns. In 1996, Alberta challenged Parliament’s power to pass the gun control law to the CA. The CA upheld Parliament’s power. Alberta appeals.

Issue:

Whether the licensing and registration provisions of the Act constitute a valid federal enactment pursuant to Parliament’s jurisdiction over criminal law or its peace, order and good government power? Yes.

Ratio:

For many years, the CC has restricted access to many firearms. The Act extended this regulation to all firearms. The licensing section of the act provides that a person must be licensed in order to possess a firearm. Eligibility for a licence reflects safety interests. An applicant with a criminal record involving drug offences, violence, or a history of mental illness, may be denied a licence. Those seeking to acquire a firearm must pass a safety course. A firearm cannot be registered unless the applicant is licensed.

The purpose of the act is for the issuance of licences, registration certificates and authorizations under which persons may possess firearms and to authorize the manufacture of and transfer or ordinary firearms. This regulatory language is tied to a purpose cast in the language of the criminal law. The government’s purpose was to protect public safety. It is aimed at a number of evils or mischief such as the illegal trade in guns and the link between guns and violent crime, suicide, and accidental deaths. The pith and substance deals with public safety. In terms of effects, the requirements for acquiring a licence are aimed at public safety rather than regulation of property. It is the essence of public safety through the reduction of the misuse of firearms, and no an attempt to regulated firearm production, trade and ownership.

Legislation may be classified as criminal if it possesses three prerequisites: a valid criminal purpose, prohibition and a penalty. The focus on public safety meets the first requirement of the Act. The Act is also propitiatory and has penal consequences. (s.115 of the Act and s.91 of the CC) The prohibitions and penalties are not regulatory in nature, nor are the confined to ensuring compliance with the scheme, but can stand on their own, independently serving the purpose of public safety. A total prohibition on firearms in not necessary; exemptions from the law do not preclude it from being prohibitive and therefore criminal in nature. Also, the prohibition is not merely designed to enforce a fee payment or regulatory scheme separate from the essential safety focus.

In terms of intruding into provincial powers, the registration applies to all persons and all guns and is intended to ensure that when a firearm is transferred, the recipient is licensed. The registration system is also an integral part of the general scheme of the law in reducing misuse. The system can aid police in solving crime. The effects in the provinces are also incidental. The mere fact that guns are property does not suffice to show that a gun control law is in pith and substance a provincial matter. Also, the Act does not hinder the provinces in the ability to regulate the property and civil rights aspects of guns. Finally, the effect of this law is its elimination of the ability of the provinces to not have any regulations on the ownership of ordinary firearms. By taking over this field, it is ensured that this area of concern is regulated across the country.

Act created amendments to include all guns as prohibited in the Criminal Code. The licences here were concerned with the third category of guns.

Feds try to justify either under s.91(27) or POGG

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Characterized as an act to protect public safety and prevent evils and mischief coming from firearms. (crime, suicide, drugs)Provincial Regulatory “Crimes”

s.91(27): The Criminal Law, procedure of criminal law

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

s.92(15): The imposition of punishment by fine, penalty or imprisonment for enforcing any law of the province made in relation to any matter coming within any of the classes of subjects enumerated in this section.

There are several factors which indicate that a sufficient nexus exists in order to support provincial prohibitions in aid of regulatory scheme.

1. Whether the prohibition enforces standards created as part of a comprehensive provincial regulatory scheme. The standard should be reasonably related to provincial regulatory purposes such as business ethics, rather than moral objectives.

2. Whether the provincial legislation in pith and substance relates to provincial legislative powers such as highway controls, zoning or health.

3. Whether the prohibition is an enforcement mechanism in aid of a scheme that aims at regulatory control of property such as zoning as contrasted with prohibition of offensive conduct.

4. Whether the regulatory scheme is occasioned by some compelling temporary local circumstances or emergency which requires stern control at the local level.

There are several factors which indicate the absence of a sufficient nexus to provincial regulatory power to support a provincial prohibition:

1. The prohibition is an end in itself, the purpose of which is to enforce compliance with the legislature’s view of morality or sanctity.

2. The prohibition is directed to standards of public order or safety through the criminalisation of activity perceived as a public wrong. The prohibition in object and purpose aims at the maintenance of public order, as contrasted with protecting the safety of rights of individuals from the consequences of harmful conduct.

3. Finally, provincial prohibitions become suspect when they intrude into areas traditionally associated with federal criminal jurisdiction.

Westendorp v. R – 1983 SC

Facts:

A was charged under the City of Calgary by-law (s.6.1(2)) for prostitution. She and a friend approached a plain clothes officer and solicited his interest to engage in intercourse for money. They moved with him to a car where another plain clothes officer was waiting and both were arrested. A was acquitted at trial on the grounds that the impugned by-law was unconstitutional as invading the federal authority in relation to criminal law, as well as federal legislation in that area.

Issue:

Is s.6.1(2) ultra vires the province? Yes.

Ratio: (C.J.)

If s.6.1(2) was just to control the streets, it would have dealt with congregation of persons on the streets or with obstruction, unrelated to what the congregating or obstruction person did. This by-law only deals with persons offering sexual services. It is triggered only by an offer for sexual services or a solicitation to that end. This is clearly an attempt to control or punish prostitution and goes beyond the power of the province. However desirable it may be for a municipality to control or prohibit prostitution, there has been an over-reaching in the present case which offends the division of the legislative powers.

Calgary by-law is ultra vires. Had the by-law been broader to include anything that might cause a public disturbance, it might have been different. Met three criteria for criminal law. Colourable attempt to legislate in criminal law. It has nothing to do with property, either public or private. The triggering

event was prostitution. Potential to allow the city to regulate all kinds of activities that might fall under federal jurisdiction if this law was allowed.

Process of Analysing

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Federal Legislation:1. Characterization: pith and substance2. Classification – head of power (s. 91)3. Intrusion?

A. Incidental EffectsB. Ancillary Powers

4. Conclusion re: validity

Provincial Legislation:1. Characterization: pith and substance2. Classification – head of power (s. 92)3. Intrusion?

A. Incidental EffectsB. Ancillary Powers

4. Conclusion re: validity. If yes, then5. Federal Immunity Doctrine – Is legislation applicable to federal entities?6. Paramountcy Doctrine – Is legislation inoperative?

Pith and Substance Analysis Identify the purpose and effect of the legislation. Look at the legislation itself (a preamble or purpose clause is ideal). You may also want to look at extrinsic evidence (minutes, hansard, debates, etc.)

Classification of Legislation What head of power can the legislation be classified under? Federal Government: ss. 91(2) General Trade and Commerce, 91(27) Criminal Power, 91(29) POGG Provincial Government: ss. 92(13) Property and Civil Rights, 92(16) Health, 92(2) Taxation, 92(A) Natural Resources,

92(15), 92(14)

Incidental Effects What is the aim of the legislation? Provided it is within the power of the government then it is permissible for the

legislation to have an incidental effect on the other level of government’s power. In the Alberta Bank Taxation case that is an example of the provincial government’s legislation having a more than

incidental effect on the ability of the banks to do business. Thus, it was held that the legislation could properly be classifies as falling under the federal head of power. (This goes to validity.)

Ancillary Powers If only one provision of the legislation is intrusive then you go to the three part test discussed in the GM case: 1)

determine the level of intrusion, 2) look at if legislation as a whole is valid, 3) look at whether there is a sufficient connection between the problematic provision and the legislation as a whole.

If the provision is invalid then there is a sliding scale test for validity depending on the level of intrusion and the connection between the provision and the legislation.

Federal Immunity Doctrine If the provincial legislation is valid then you can examine the federal immunity doctrine. Test: does the legislation have a direct or indirect effect on the federal entity (Mississauga Airport Case.) If the legislation has a direct effect on the federal entity then the question is whether the legislation affects a vital or

integral part of the federal undertaking? Bell Canada case – the provincial legislation did affect a vital part of the federal undertaking, which was telecommunications.

If you come to the conclusion that the legislation only indirectly applies to the federal entity, provincial legislation will only be found invalid if it impairs or sterilizes the operation of the federal entity in question. (This is a higher standard than the direct effect test.)

If it is advantageous to your client to have the provincial legislation struck down then you will want to argue the vital part test rather than the impairment test.

Paramountcy Doctrine Goes to the question of whether provincial legislation is inoperative? Double aspect: you can have some subject matters that are broad and can fall within both federal and provincial powers

(e.g. driving). What the cases say is that given the importance of allowing for both levels of government to enact legislation both pieces

of legislation will be able to operate where they duplicate or supplement each other. If there is a conflict between the two legislative schemes then the federal legislation overrules the provincial legislation.

(See Multiple Access, Ross, Bank of Montreal v. Hall)

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