Constitutional Law Federalism - Prof. Kang

7/29/2019 Constitutional Law Federalism - Prof. Kang

1/54

Kang Constitutional Law Federalism Review

Introduction to ConstitutionReference re Secession of Quebec, 1998 ...........................................................4

Reference re Meaning of the Word "Persons", 1928 ...........................................6

Edwards v. AG Canada, 1930 ................................................................................7

R. v. Morgentaler, 1993 ...........................................................................................9

Late 19th CenturyCitizens Insurance Company v. Parsons, 1881 ..................................................11

Russell v. The Queen, 1882 ...................................................................................13

Hodge v. The Queen, 1882 ..................................................................................15

Local Prohibition Reference, 1896 .....................................................................17

Early 20th CenturyInsurance Reference, 1916 ..................................................................................20

Board of Commerce Reference, 1919 ................................................................22

Fort Francis Pulp and Paper Company v. Manitoba Free Press Compan... ...24

Toronto Electric Commissioners v. Snider, 1925 ..............................................25

The King v. Eastern Terminal Elevator Co., 1925 .............................................26

Proprietary Articles Trade Association v. AG Canada, 1931 ............................28

AG Canada v. AG Ontario (Labour Conventions), 1937 ...................................29

Paramountcy and Interjurisdictional ImmunityRoss v. Registrar of Motor Vehicles, 1975 .........................................................31

Multiple Access Ltd. v. McCutcheon, 1982 .........................................................32

Bank of Montreal v. Hall, 1990 .............................................................................34

Rothman s, Benson & Hedges Inc. v. Saskatchewan, 2005 ............................35

Canadian Western Bank v. Alberta, 2007 ..........................................................36

POGGReference re Anti-Inflation Act, 1976 ..................................................................38

R. v. Crown Zellerbach Canada Ltd., 1988 ........................................................41

Economic RegulationR. v. Klassen, 1960 ................................................................................................44

Caloil Inc. v. AG Canada, 1971 ...........................................................................45

General Motors of Canada Ltd. v. City National Leasing, 1989 ......................46

1


2/54

Criminal Law PowerMargarine Reference, 1949 .................................................................................49

RJR MacDonald Inc. v. Canada (Attorney General), 1995 ..............................50

R. v. Hydro-Quebec, 1997 ....................................................................................52

Reference re Firearms Act, 2000 .........................................................................54

2


3/54

Introduction to Constitution

Reference re Secession of Quebec, 1998 .................................................................4

Reference re Meaning of the Word "Persons", 1928 ................................................6

Edwards v. AG Canada, 1930 ......................................................................................7

R. v. Morgentaler, 1993 .................................................................................................9

3


4/54

Reference re Secession of Quebec, 1998

Reference re Secession of Quebec, 1998

Issue:

1. Does Constitution allow National Assembly, legislature or government of

Quebec to effect secession of Quebec from Canada unilaterally?

2. Does international law give this power?

3. In the event of a conflict, which law prevails?

Holding:

Unilateral secession is unconstitutional. Secession requires a Constitutional

amendment, which in turn requires negotiation. However, while not legally

binding, a referendum should be considered a legitimate indication of the

need for constitutional discussions among all provinces. The right of self-

determination does not mean that discussion only involves agreeing on the

process of secession it means a debate about the issue of secession itself

Reasons:

The Constitution is comprised of written and unwritten elements, and the

unwritten principles must be recognized. 4 fundamental principles underlie

the interpretation of the Constitution:

1. Federalism

Political power is shared by federal government and provinces

Recognizes autonomy of governments within their areas of jurisdiction

Federalism protects minority culture (e.g. in Quebec) by allowing

provinces to have power over local matters

Requires all parties to Confederation to negotiate in good faith if

Quebec initiates a debate

2. Democracy

Democracy is connected to promotion of self-government (i.e. it is how

a sovereign people exercises its right to self-government)

Provinces can make policies in accordance with provincial majority,

while democracy at federal level allows citizens to achieve goals on

national scale

4


5/54

Democracy requires discussion and considering dissenting voices.

Quebec does have the power to initiate a constitutional debate, if there

is a clear expression of will

3. Constitutionalism and Rule of Law

Constitutionalism provides that the Constitution is the supreme law ofCanada, and that any law that conflicts with it is of no force and

effect (i.e., all government action must comply with the law, including

the Constitution)

Constitutionalism creates framework within which a democracy can

function

Rule of Law involves sense of orderliness, subjection to known legal

rules, and accountability at all levels (i.e., provides citizens a shield

from arbitrary state action) - all public power must find its ultimate

source in legal ruleOne law for all, all interactions between government and individuals

governed by laws

A constitution is more than majority rule: it protects individual rights and

the distinctiveness of minorities, and prevents one level of government

from unilaterally increasing its power at the expense of another.

By entering into a federal constitution, a province agrees to redefine the

jurisdiction that is consulted on any further constitutional changes (ie.

an enhanced majority is required, constituting the entire nation)

4. Protection of MinoritiesMany constitutional provisions protect minority language and religious

rights, and these provisions reflect a broader principle of protection of

minorities

5


6/54

Reference re Meaning of the Word "Persons"...

Reference re Meaning of the Word "Persons", 1928

Issue: Does the term qualified persons in s.24 of the BNA act include

women. In essence, SCC determining if women can be appointed to the

Senate

Holding: Women are not qualified persons

Reasons:

Common law shapes way we read statutes BNA Act meaning locked up

by common law. If Parliament wanted to include a provision that was such

a striking departure from common law (i.e., women eligible for appointment

to Senate), would have made its intention unmistakably clear

- Motives of decorum dictate that women be excluded from public office

- Since precedent shows women incapable of holding franchise, cant be

capable of holding public office, therefore not considered qualified"

persons

- Lord Broughams Act, which states that all masculine words in Acts be

considered to include females, does not apply in this case, because in this

case parliament made no obvious attempts to make the term persons

understood to include women

6


7/54

Edwards v. AG Canada, 1930

Edward v. AG Canada, 1930

Issue: Does term qualified persons in BNA Act requirements for Senators

include women?

Holding: Qualified persons does include women

Reason: The term is ambiguous. In determining meaning in an Act, 2 things

must be considered

1. External evidence from previous legislation and cases

- Past customs may have excluded women from public life, but these

customs were necessary in those times. No longer necessary

- Custom can crystallize into common law, but need to reexamine common

law to make sure reason for it still justified just because did it that way

then doesnt mean right now

- In Lord Broughams Act, 1850, it was stated that all words stating only

masculine were intended to incorporate both masculine and feminine,

unless otherwise noted, but later cases contradicted this; the Lords decide

that previous decisions in England should bear on this decision for

Canada in a different time and state of development

2. Internal evidence from Act itself

- BNA Act created a living tree capable of growth and expansion within

its natural limits

- Looking to section dealing with senators, the word member does not

mean only men, and there is no indication that persons is intended to

exclude women

- Interpretation Act, 1889 states that provisions using masculine pronouns

also include women

- Another section (s.41) of the Act states male British subject aged twenty-

one which indicates that if the drafters intended to exclude women in s.24

they would have said male

- In s.133, it allows persons to use English or French in any pleadings,

which must include both males and females because as it would be wrong

7


8/54

to think that only men may use either language

8


9/54

R. v. Morgentaler, 1993

R. v. Morgentaler, 1993

Facts: Nova Scotia enacted Medical Services Act which prohibited certain

medical services outside the hospital, disallowed insurance coverage for

these services, made violation of the Act a summary conviction. Province

claimed law was valid under ss.92(7), (13), (16)

Holding: Law struck down as ultra vires the province

Reasons: Treatment, not punishment is a valid provincial purpose re: health

regulations Schneiderallowed provincial jurisdiction over health i.e.,

treatment of heroin addiction upheld in that decision

Provinces can legislate over matters of cost/efficiency, nature of health care

delivery system, privatization of medical service provision

BUT this Acts purpose is to restrict/punish abortionists, not to treat unwanted

pregnancies - doctrine of colourability invoked due to invasion of Criminal

Law power

Extrinsic evidence of purpose found in previous regulations under Health

Services Act; legislative history, debates

No evidence that health will be improved by law why only 9 services

targeted?

Provinces cannot fill gaps in the criminal law

Hansard evidence: legislative debates

Doctrine of colourability: where the legislation on its face address matters that

are intra vires, but in pith and substance it is directed at matters that are ultra

vires

9


10/54

Late 19th Century

Citizens Insurance Company v. Parsons, 1881 ........................................................11

Russell v. The Queen, 1882 .........................................................................................13

Hodge v. The Queen, 1882 ........................................................................................15

Local Prohibition Reference, 1896 ...........................................................................17

10


11/54

Citizens Insurance Company v. Parsons, 1881

Citizens Insurance Company v. Parsons, 1881, Trade and Commerce, Property

and Civil Rights, Doctrine of Mutual Modification

Facts: Ontario legislation contained provisions that set standard conditions in

fire insurance policies, which could be changed or omitted by insurers if the

changes were made in conspicuous print. Parsons made insurance claims

after fire in his store, but the insurance company refused to pay because

Parsons failed to provide information required by conditions of policy. Parsons

claims the conditions were void because they conflicted with legislation, and

insurer argued that legislation was ultra vires

Issue: Does the Ontario law infringe on the Dominions s.91(2) power to

regulate Trade and Commerce?

Holding: Legislation falls within provincial power over Property and Civil

Rights, and does not conflict with federal power over trade and commerce,

therefore it is valid. Richie adopts the prevalent view, that the province has

jurisdiction over insurance contracts

Reasons: Sir Montague Smith: Outlined a test for determining jurisdiction.

Does the law lie within provincial jurisdiction? If no, then its a federal power.

If yes, then do the two jurisdictions overlap? If yes, then the federal law is

paramount. Residual power belongs to the feds. But, we must strain to avoid

such a conflict by reading the two sections together.

- s.91 gives federal government power to make laws for good government of

Canada, sets out certain areas of jurisdiction, and states that in cases of

conflict, the federal power rules

- In situations were s.91 and s.92 deal with similar items (e.g. tax), they must

be read together and the language of one interpreted and modified by that of

the other (doctrine of mutual modification)

- Steps in analysis:

1. Does Act fall within provincial powers outlined in s.92?

- Court reads s.92 broadly and says that property and civil rights includes

insurance contracts of force in the province covering property in the province,

11


12/54

and not narrowly as rights flowing from the law (e.g. status as persons). All

rights arising from contracts are under provincial authority.

2. Does Act fall in classes of subjects in s.91?

- s.91(2) gives federal government power to regulate over Trade and

Commerce. According to Court, business of insurance is not a trade- s.91(2) includes international trade, inter-provincial trade, and maybe it also

means general regulations of trade affecting the whole Dominion (trade

principles write large). It specifically doesnt include the power to regulate

specifics of a particular trade within the province. This interpretation follows

from the collation of s. 91(2) with other subsections of national and general

concern.

- s.91 goes on to list areas such as banking (s.91(15)), weights and measures

(s.91(17)), therefore, the trade and commerce power appears to be limited,

and intended only to apply in certain specified cases- Court does not say how far trade and commerce power extends, it only states

that for the purposes of this case, it does not extend to contracts of a particular

trade such as insurance

- Since the federal power does not extend to insurance, it does not conflict

with the provinces power to regulate over property and civil rights, therefore

the legislation is valid

This case establishes two distinct branches to the Trade and Commerce

power

1. Interprovincial and export trade (interprovincial trade)2.General trade affecting the whole Dominion (intraprovincial trade)

Doctrine of Mutual Modification: cuts out whatever may be the larger, the more

general, the wider, the vaguer enumeration of one section, so much as is

comprised in some narrower, more definite, more precise enumeration in the

other section

Should always read the two lists together

Concern: if you don't adopt the doctrine of mutual modification, federal

powers might swallow up the provincial powers

12


13/54

Russell v. The Queen, 1882

Russell v. The Queen, 1882, Trade and Commerce, POGG, Property and Civil

Rights, Matters of a Local Nature

Facts: Russell was a tavern owner who served liquor in a locality that, by a

majority vote consistent with the Canada Temperance Act, banned all retail

sales of liquor. He was charged under the act and appealed.

Issue: Can the feds ban booze? Does the Canada Temperance Act infringe

on s.92 powers exclusively reserved for the provinces, including

(i) 92(9): Raising a revenue for provincial purposes

(ii) 92(13): Property and civil rights in the province

(iii) 92(16): Matters of a merely local or private nature in the province

Holding: Law is intra vires the federal government

Reasons: Sir Montague Smith: Court adopts two step approach from Parsons

1. Does Act fall within provincial powers outlined in s.92?

- Doesnt fall under power to grant licenses (s.92(9)), as this section refers to

issuing licenses for generating revenue for the province, while the Act in fact,

reduces provincial revenues; it is an incidental interference

- Doesnt fall under Property and Civil Rights (s.92(13)), as the true nature and

characteristic of the law is to regulate something that is dangerous to the

public (i.e., liquor), not property and civil rights.

- Doesnt fall under Matters of a Local Nature (s.92(16)), as the objective of the

Act was to promote temperance throughout the entire Dominion, not just in

local areas, despite the fact that the prohibitions of the Act had an local option

(i.e., the scope of the Act is national, not local).

- Since the Act does not fall under s.92 there is no need to proceed to the

second step. The federal Act does not conflict with provincial powers

Note: Feds are allowed to do what they presumably can t do under the Trade

and Commerce clause regulate a specific business (according to Parsons).

If you can regulate retail sales of liquor, why couldnt you regulate the retail

sales of anything? It is hard to square this with Parsons. The use of incidental

impact seems to be a way to brush off the s.92 powers.

13


14/54

This was a private prosecution; neither the federal nor the provincial

governments intervened, and the provincial side was poorly argued.

Becomes understood as a ruling under the POGG power

14


15/54

Hodge v. The Queen, 1882

Hodge v. The Queen, 1882, Trade and Commerce, POGG, Matter of a Local

Nature, Double Aspect

Facts: Hodge was charged under Ontarios Crooks Act for allowing billiards to

be played in his pub contrary to Toronto license commission regulations. He

challenges the Act under Russell: liquor traffic is a federal matter (trade and

commerce). Also, province could not delegate law making powers because it

had been delegated power from British Parliament (a common law maxim

exists that states a delegate cannot delegate).

Issue: Does the Ontario legislation infringe on s.91 reserving Trade and

Commerce laws to the federal government?

Holding: The legislation falls under provincial jurisdiction and does not conflict

with federal powers, and the province is not a delegate and may delegate as it

sees fit, so the legislation is valid

Reasons: Lord Fitzgerald: Provisions of Crooks Act make regulations of

merely local character, and therefore do not interfere with the federal

governments power to regulate over Trade and Commerce; the federal

authority in Russellwas to prohibit, the provincial power in this case is to

regulate. Court had to distinguish this case from Russell. Said that Russell

does not stand for the notion that all liquor traffic is a federal matter: things

which for one aspect fall under s.91 may for another aspect fall under s.92.

This is an instance of the Double Aspect Doctrine. Whereas the purpose of the

law in Russellrelated to POGG or Trade and Commerce, in Hodgethe nature

of the licensing scheme is entirely local. The provinces may regulate it, while

the feds can prohibit it prohibition vs. regulation distinction. The Ontario law

merely regulates the good government of taverns, preserves peace and public

decency, and represses disorderly conduct, but doesnt conflict with the

general trade and commerce jurisdiction of the federal government. Provincial

legislatures are not delegates of British Parliament; they have exclusive

jurisdiction over provincial jurisdiction set out in s.92, and have authority to

delegate to municipal bodies.

15


16/54

Notes: This case is important mainly for what it didnt do didnt extend the

logical implications of Russell. Instead, distinguished Russelland wrapped it

up in the concept of the Double Aspect. In doing so, undermined the strong

implications Russellhad for the POGG power. Just because an issue falls

under one area, doesnt mean it can

t fall under the other area in a different

case.

Double Aspect Doctrine

Subjects which in one respect and for one purpose falls within s.92 may in

another respect and for another purpose fall in s.91 (and vice versa)

16


17/54

Local Prohibition Reference, 1896

Local Prohibition Reference, 1896, POGG, Trade and Commerce, Matters of a

Local Nature, Property and Civil Rights, Paramountcy, National Concern Test

Facts: Ontario attempts to pass local prohibition legislation similar to federal

Canada Temperance Act from Russell

Issue: Did province have authority to enact legislation?

Holding: Provincial legislation is intra vires

Reasons: Lord Watson: Clarifies confusion between Russelland Hodge. The

feds can pass laws that affect local or private interests if these effects are

necessarily incidental to its legislative powers as outlined in s.91. Still, the

last paragraph of s.91 does not give the feds the power to legislate on matters

other than those enumerated in the classes of subjects listed in this section, as

that would destroy provincial autonomy. POGG: The federal government can

legislate on matters of national concern (not just regulation or abolition)

some matters can attain a national dimension. Doctrine of Paramountcy if

provincial and federal legislation overlap, fed. law takes precedence. Since

both the CTA and the provincial legislation need to be adopted by a locality,

they are only in conflict in the case that both have been adopted; in such a

case the provincial legislation becomes inoperative

Several parts to analysis:

1. Enumerated powers under s.91 and s.92 have paramount authority; it is

possible for fed. to infringe on provincial power by using necessarily incidental

doctrine when the area is enumerated in s.91

2. POGG power may be used to fill gaps in constitution; and fed. may use s.

94 to legislate over property and civil in cases where local issues become

national

3. s.92(16) is a form of residual power for the provinces; gives provinces

power over Local Matters not enumerated in s.92

4. Prohibition could fall under s.92(13), giving a lot of power to Property and

Civil Rights

Note: This judgment reveals an attempt to mediate between two visions of

17


18/54

federalism. On the one hand, by restricting the POGG powers there is an

attempt to ensure we have equal and autonomous jurisdictions. On the other

hand, there is recognition that the country is more than the sum of its parts,

and so there must be a POGG power so that the federal parliament can speak

for the country as a whole. Local Prohibitionsays If there is a direct conflictbetween the assigned powers, the federal government is pre-eminent.

Parsonssays we should strain to avoid such a conflict and try to reconcile ss.

91 and 92. Russelland Parsonsboth say we first look at s.92 and then s.91.

Parsonsalso gave us initial meanings of Trade and Commerce powers of

feds: Matters of international trade, provincial trade, or (maybe) general

regulations of trade affecting the whole country. Does not include specific

regulations of a particular trade. Local Prohibitionlimits Russellon POGG, but

gives content to the POGG clause. Matters of a national dimension. The

Hodgedouble aspect thinking has stayed with us.This case is the origin of the national concern test for POGG; a matter can

start out as local (provincial) and take on a national dimension over time, e.g.,

provinces get to regulate guns, but if guns are being used for seditious

purposes, or against a foreign state, then the subject of guns takes on a

national dimension (becomes a national concern)

Federal POGG power is narrowed, it cannot be used to encroach upon the

enumerated powers of s.92 - POGG is ruled to be a residual power

Ruled that the Canada Temperance Act cannot fall under s.91(2), because

prohibition is not regulation of trade; this narrows the Trade and Commercepower; therefore, it must be an exercise of the POGG power, i.e. prohibition is

a matter of national concern

18


19/54

Early 20th Century

Insurance Reference, 1916 ........................................................................................20

Board of Commerce Reference, 1919 ......................................................................22

Fort Francis Pulp and Paper Company v. Manitoba Free Press Company, 1923...24

Toronto Electric Commissioners v. Snider, 1925 ....................................................25

The King v. Eastern Terminal Elevator Co., 1925 ...................................................26

Proprietary Articles Trade Association v. AG Canada, 1931 .................................28

AG Canada v. AG Ontario (Labour Conventions), 1937 ........................................29

19


20/54

Insurance Reference, 1916

Insurance Reference, 1916, Trade and Commerce, POGG, Property and Civil

Rights

Facts: Dominion Insurance Act sought to regulate large insurance companies

carrying on business across Canada. Required a license in order to carry out

business outside of their home province.

Holding: Ruled ultra vires by Privy Council based on Parsons

Reasons: Lord Haldane: Fleshes out more clearly what is meant by POGG

and Trade and Commerce. Ontario Act confers on a company that power to

act in the business and elsewhere. Haldane said that this provision in the

Dominion Insurance Act would trample on this provincial right.

- Lord Haldane said that the insurance act deprives individuals of their right to

conduct insurance business. Cant have the feds involved in regulating a

trade in which Canadians would be otherwise free to engage. General liberty

is somehow enshrined in Property and Civil Rights.

- Remember, federal government have had trouble regulating a particular

trade or business in a province. s.91(2) does not allow them to regulate the

contracts of a trade; also, s.91(2) does not allow the federal government to

engage in the licensing of a particular trade.

- This thinking had a huge impact on the first 1/3 of the 20th century: freedom

to do what you want is protected under s.92, and can only rarely be interfered

with under s.91.

- Court characterizes the issue of one of the federal government preventing

people from carrying out business they otherwise could have done. It is

assumed the province would do nothing, and so it is a contest between

regulation and no regulation, not federal or provincial regulation.

-The province has a strong populist element. The federal government is more

about law and order.

Federal government is not allowed to regulate a particular trade - just

because a company is doing business in more than one province doesn't

make it a national economic activity

20


21/54

John Deere Plow Co. v. Wharton, 1915, POGG, Trade and Commerce

Gave federal government the power to incorporate companies for national

purposes, anchoring that power primarily in POGG, and with a little help from

s.91(2): Trade and CommerceProvides a limited power; does not cover regulation of trade, only regulation of

corporate structure

21


22/54

Board of Commerce Reference, 1919

Board of Commerce Reference, 1919, Criminal, Trade and Commerce, POGG,

Property and Civil Rights, Emergency Test

Facts: Federal anti-trust legislation that contained two statutes (Board of

Commerce Act and Combines and Fair Prices Act). Created a board that fixed

prices and profits as well as regulate and prevent hoarding. Intended to

alleviate the "national crisis" of inflation by limits on combines, monopolies,

and mergers and profit hoarding/unfair profits (national concern?)

Holding: Ultra vires the federal government. Privy Council finds that the

subject matter relates to Property and Civil Rights and is a matter of provincial

regulation.

Reason: Viscount Haldane:

- Dismisses the idea that these statutes could be held up under federal

Criminal power. They draw a distinction between those things that by their

very nature fall into criminal law (e.g., incest), and those things that have only

ancillary criminal aspects. Court in this period is loath to allow the federal

government to regulate business, even when it masquerades as criminal law.

Province stands for freedom from regulation.

- Trade and Commerce can be supportive of a stronger area of federal power,

but doesnt seem like it has any power on its own. Reduces Trade and

Commerce power from Parsons, where it provided power for regulating inter-

provincial and international trade.

- Also dismisses the idea that these statutes could be upheld under POGG.

During wartime, areas could be interpreted out of s.91 or s.92 and into POGG

power. They suggest a high bar that must be met to engage POGG power:

war and famine. National concern test becomes the Emergency test. Also,

the legislation isnt temporary (this would aid the feds argument about an

emergency) thus, the federal government cannot use POGG. to justify its

infringement on the provinces exclusive right to legislate on matters of

Property and Civil Rights

- The standard of necessity hasnt been met here. Close scrutiny of Parliament

22


23/54

by the court.

23


24/54

Fort Francis Pulp and Paper Company v. Ma...

Fort Francis Pulp and Paper Company v. Manitoba Free Press Company, 1923,

POGG

Facts: An attempt by the federal government to regulate the newsprint

industry. This was initially justified by the War Measures Act, which was still in

place even though the war was finished.

Holding: Court does say that the federal government is not supposed to do

this in general (Board of Commerce). However, this falls under the POGG

clause as there is a national emergency going on. Only this level of

emergency makes this justifiable. Notice that this comes up a few years after

the war is already over! How do we know when a state of emergency is

going on? Court says it is up to the federal government to decide, and they will

only intervene if there is no clear evidence at all.

24


25/54

Toronto Electric Commissioners v. Snider, 19...

Toronto Electric Commissioners v. Snider, 1925, Criminal, POGG, Property and

Civil Rights

Facts: Validity of the Industrial Disputes Investigation Act enacted by

Dominion challenged. The law in question sought to provide a labour dispute

mechanism. Strikes and lockouts were forbidden; both parties had to go

through mediation.

Holding: Ultra vires the federal government

Reasons: Lord Haldane:

- PC again holds that the Act interferes with Property and Civil Rights, which

are Provincial powers.

- There is a distinction between those things that naturally fall into Criminal

laws, and ancillary provisions that make something new a crime. As this isn t

even a total prohibition, it couldnt possibly be criminal law.

- Dismisses the idea that it could be held up under Trade and Commerce. As

this power does not extend to allowing the regulation of a particular trade or

industry, cant use it to regulate particular trades or industries. s.91(2) can only

be invoked in a supporting role.

- Outstanding question is still what to do about Russell. Haldanerereads

Russellas being about an emergency (national pestilence). National

emergency is the only test for POGG.

- Russellcannot be read to establish that if a particular piece of legislation

affects the whole country it can be brought within s.91. Effectively kills off

Russell.

Note: The federal government's power has been severely weakened at this

point:

1. s.91(2) cannot stand independently

2. s.91(27) is only to be used for natural crimes and not for anything

involving business relations

3. POGG is only to be used during national emergency.

25


26/54

The King v. Eastern Terminal Elevator Co., 19...

The King v. Eastern Terminal Elevator Co., 1925, Trade and Commerce, POGG,

Property and Civil Rights, Necessarily Incidental

Facts: Feds enacts Canada Grain Act to control and regulate grain most

important resource. Respondent refused to pay proceeds from excess grain to

the Board of Grain Commissioners as per s.95(7), claiming that that particular

subsection of the act was ultra vires

Issue: Given that the Act itself is of national concern and within the jurisdiction

of the federal government under s.91, is this particular subsection necessarily

incidental? Federal government says it falls within s.91(2) (regulation of Trade

and Commerce): the act on whole is an attempt to regulate external trade

(75% exported), provisions dealing w/local matters subsidiary to this main

purpose. Provinces say it falls within s. 92(10) (Local Works and

Undertakings), s.92.13 (Property and Civil Rights)

Holding: s.95(7) of the Canada Grain Act is ultra vires

Reasons:

1. The fallacy of percentages even if majority of trade is export-related

(70-80%), this doesnt mean that the remaining percentage (interprovincial or

local) can be affected in an incidental way. If you can do it for a trade with 80%

export, why not 50% or 30%? The federal regulation of specific provincial

trades was specifically rejected in the Insurance Reference. It does not follow

that the federal government can regulate a particular and local occupation

such as a grain elevator just because it has the right to regulate external trade

in grain. This argument cuts both ways though a small amount of

intraprovincial trade shouldnt read out s.91(2). The fact that the feds have

jurisdiction over international trade does not mean that they can regulate a

particular trade within the province.

2. Rejects the idea that since only parliament could do this they must therefore

be able to. Just because provinces couldnt implement such a plan doesnt

mean federal government assumes power to legislate. Provincial

governments could co-operate and do this.

26


27/54

Dissent:

- Says federal government should be able to do this if they are the only

jurisdiction that can do it. Argues that no single province could accomplish this

purpose. Since it is outside of individual provincial jurisdiction, it must be a

federal power. Stresses concluding paragraph of s.91 whatever is withinfederal power is not within provincial power

- If it is true that s.91(2) and POGG can only be invoked in support of another

head of power, how could they have supported each other in the Russell

case? He would uphold the grain act under either of these.

-He ridicules Haldanes reinterpretation of Russellfrom the Snidercase that

POGG can only be invoked in times of emergency. This is far too aggressive.

He would apply the national dimension test. Given the importance of the trade

in grain and the necessity of regulation, to say the feds cant do so would itself

create a national emergency!Necessarily Incidental Doctrine: a law may have an impact on matters outside

of the enacting legislation's jurisdiction, so long as these effects remain

secondary or incidental features of the legislation rather than its most

important feature

Allows for certain provisions to intrude into the jurisdiction of the other level

of government when the scheme as a whole is constitutionally valid,

provided that the impugned provision is tightly integrated into the valid

legislative scheme

The federal government responded by declaring all grain elevators to beLocal Works necessarily for the good of all Canada

27


28/54

Proprietary Articles Trade Association v. AG...

Proprietary Articles Trade Association v. AG Canada, 1931, Criminal

Facts: s.498 of the Criminal Code prohibited participation in an agreement to

restrain competition. The Combines Investigation Act made it a criminal

offence to participate in a combine (agreement/merger that limited competition

or increased prices to the public detriment). Reference sent re: validity of

each.

Holding: Both statutes upheld under s.91(27)

Reasons: Lord Atkin: competition is not a "traditional" aspect of the Criminal

law nevertheless, history and/or intuition dont determine what is criminal.

The criminal law evolves direct refutation of Board of Commerce, which said

that some acts are by their very nature criminal and that courts use morality to

discover what acts are criminal.

- Any acts that are prohibited and to which penal sanctions are attached are

criminal turns on the form of a law, not substance

- BUT, law cant be colourable cant be enacted merely to intrude on

provincial jurisdiction

28


29/54

AG Canada v. AG Ontario (Labour Conventio...

AG Canada v. AG Ontario (Labour Conventions), 1937, POGG

Facts: Federal government implemented three labor statutes in order to

comply with an international convention it had agreed to, and justified it under

its treaty powers under s.132 and POGG. Provinces challenged, claiming that

the feds were attempting to legislate over areas under provincial power under

s.92. Does federal government have authority under treaty powers (s.132) or

under s.91 to legislate over areas of provincial jurisdiction under s.92?

Holding: The federal Acts are ultra vires

Reasons: s.132 does not justify the legislation because it only deals with

treaties involving British Empire and foreign countries. This case is

distinguished from Aeronauticscase because that case involved treaty with

British Empire (s.132 applied)

- Legislation in this case is not within federal powers under s.91. It is clearly

within provincial powers under s.92. There is no doubt that employment and

labor law is within the provincial jurisdiction. This is a massive invasion.

Distinguished from Radiocase because that case involved matter not under s.

92 or s.91. Radio was a new matter that didnt fall under s.91 or s.92

- To allow this would allow the federal government to encroach on provincial

legislation whenever they signed a treaty in a provincial area of responsibility.

Cant get around the constitutional division of powers by making a treaty with

a foreign country.

- Federal governments cannot create power to act inconsistent with

constitution just by entering international treaties

- They reject the idea that treaty making in general is of national importance.

POGG allows feds to make treaties, but otherwise should only be invoked in

case of national emergency. Canadian cases have said that normal

distribution of powers under s.91 and s.92 may be overridden in cases of

extraordinary peril to the national life of Canada, or highly exceptional

cases; this is not such a case

29


30/54

Paramountcy and Interjurisdictional Immunity

Ross v. Registrar of Motor Vehicles, 1975 ...............................................................31

Multiple Access Ltd. v. McCutcheon, 1982 ..............................................................32

Bank of Montreal v. Hall, 1990 ...................................................................................34

Rothman s, Benson & Hedges Inc. v. Saskatchewan, 2005 ..................................35

Canadian Western Bank v. Alberta, 2007 ................................................................36

30


31/54

Ross v. Registrar of Motor Vehicles, 1975

Ross v. Registrar of Motor Vehicles, 1975, Criminal, Property and Civil Rights,

Paramountcy, Occupying the Field, Impossibility of Dual Compliance, Necessarily

Incidental

Issue: The federal Criminal Code prohibits impaired driving. Punishable by a

discretionary suspended sentence for up to three years. Also a provincial law

(Ontario Highways Act) that provides for an automatic suspension of the

drivers license in the case of a conviction for impaired driving. Ross is

convicted under the criminal code. Judge uses his discretionary sentencing

power to restrict Ross' driving for 6 months (he can only drive to work). This is

a valid punishment under the criminal code. The provincial registrar then

suspends Ross' license for three months based on the Ontario Highways Act.

No provision for driving to work: it is an automatic and complete suspension.

Either one of these pieces of legislation, on its own, is fine. But, Ross alleges

that the provincial law is invalid as it conflicts with the federal law, and thus

triggers paramountcy

Holding: Both laws are valid - under the Criminal law power for the federal

government (affecting the license was necessarily incidental to a proper

sentencing regime), and under Property and Civil Rights for the province

(licensing scheme)

Reasons: Both laws can be applied simultaneously. The criminal code says

nothing about licensing. The criminal sanction does not necessarily rule out

civil sanctions.

Key question is whether or not there was a conflict. It is not clear which test the

majority is using. Reference is made to the Occupying the Field test, and finds

that there is no intent by the federal government to occupy the field dealing

with the right to drive a motor vehicle after a conviction. Pigeon Jcreates the

Impossibility of Dual Compliance test - there is no problem with these two laws

operating together because Ross can comply with both.

31


32/54

Multiple Access Ltd. v. McCutcheon, 1982

Multiple Access Ltd. v. McCutcheon, 1982, POGG, Property and Civil Rights,

Paramountcy, Occupying the Field, Impossibility of Dual Compliance, Double

Aspect

Issue: There is Federal and Provincial legislation regulation the exact same

conduct: insider trading. Multiple Access executives were accused by

McCutcheon of insider trading under Ontario Securities Act. They claimed that

the Act didnt apply because regulation of trading of shares of a federally

incorporated company falls under federal jurisdiction (Canada Corporations

Act, which the Ontario Securities Act copied); they relied on doctrine of

Paramountcy to hold that the Ontario act was inoperative in situation dealing

with shares of federally incorporated company. Could duplicate legislation

give rise to federal paramountcy?

Holding: The provincial legislation is not inoperative because although there

is duplication, there is no conflict of laws

Reasons: Insider trading has a provincial aspect (Property and Civil Rights)

and a federal aspect (POGG). First we have to figure out if each one is valid in

their own right. Court concludes they are - there is a Double Aspect to insider

trading laws. Although, provinces have the exclusive power under s.92(13) to

regulate federally-incoporated companies, the federal government was found

to be regulating just an aspect of how these companies function in a way that

was related to internal structure. With respect to paramountcy, although there

is duplication, there is no conflict. It is not possible to comply with one law and

be in breach of the other, therefore the laws can exist concurrently

(Impossibility of Dual Compliance test). Court says duplicated legislation is

the ultimate harmony. There might be a diseconomy, but not a conflict. You

dont need to worry about the paramountcy rule if there is merely a case of

duplication without actual conflict. There are no different rules, so no conflict.

Dickson J: Untidiness is the cost of federalism - we have a goal of letting both

governments pursue their policy objectives (this is that path of judicial

restraint)

32


33/54

Whereas Rosspaid some lip service to the Occupying the Field test, this

approach is explicitly rejected in favour of the Impossibility of Dual

Compliance test here

33


34/54

Bank of Montreal v. Hall, 1990

Bank of Montreal v. Hall, 1990, Banking, Property and Civil Rights, Double

Aspect, Paramountcy, Occupying the Field, Impossibility of Dual Compliance,

Conflict in Operation

Issue: Hall defaulted on a loan and in accordance with the federal Bank Act,

BMO seized his machinery. Hall challenged this under the provincial

Limitation of Civil Rights Act which required notice before seizure of property.

Is there an actual conflict between the federal and provincial legislation that

would trigger the doctrine of Paramountcy?

Holding: Allowing the provincial legislation to have effect would negate the

intent of the federal legislation, therefore there is a conflict and the provisions

of the provincial legislation are inoperative. There was not only overlap, there

was conflict. Wasnt a necessary conflict, but the circumstances gave rise to a

conflict.

Reasons: Both pieces of legislation were found to be valid under Property

and Civil Rights and federal power over Banking. La Forest J says that

everyone has been wrongly reading Multiple Access(for 8 years), the test of

dual compliance encompasses policy considerations and the purposes of

the federal act. The purpose of the Bank Act is to provide uniform security

mechanism to facilitate access to capital by banks thus to require

compliance with the provincial legislation would frustrate the intent of the

federal government in creating its legislation - there is an actual Conflict in

Operation

Court says the very purpose of the federal legislation was to oust provincial

legislation and give immediate right of seizure. Thus, provincial law is not

compatible with the federal law. Not just that there is an operative conflict.

Here, there federal government intended to occupy the field. An incompatible

federal intent must be proven by the party relying on it - there is a heavy onus

It appears that the Conflict In Operation test can be satisfied by either an

impossibility of dual compliance and impossibility of legislative purposes

34


35/54

Rothman s, Benson & Hedges Inc. v. Saskatc...

Rothmans, Benson & Hedges Inc. v. Saskatchewan, 2005, Criminal, Property and

Civil Rights, Double Aspect, Paramountcy, Impossibility of Dual Compliance,

Occupying the Field, Conflict in Operation

Issue: The federal Tobacco Act specified an extensive set of controls on

tobacco, including the sale of tobacco (has been found to be based on the

Criminal power in previous cases) - includes a broad prohibition on the

promotion of tobacco products but provides an exception for retailers.

Sasketchewan passed the Tobacco Control Act that was stricter and banned

retail advertisements if minors could be in the store (entrenched in Property

and Civil Rights power). There is a double aspect to this type of regulation. Is

Paramountcy triggered by the Conflict in Operation test?

Holding: There is no conflict. There is no impossibility of dual compliance and

there is no frustration of the federal legislative purpose.

Reasons: A provincial enactment must not frustrate the purpose of the federal

enactment; the Impossibility of Dual Compliance test is a sufficient but not the

only test for conflict. The purpose of the federal legislation is to protect public

health; tighter restrictions on advertising is not against this purpose. With this

purpose in mind, and the nature of the criminal law power (prohibition), it

could not have been that the federal government wanted to grant retailers a

positive right to advertise tobacco products.

Rogerson: Court is saying that Halldid not make a major change, it was not

bringing back the Occupying the Field test. The test for frustration of legislative

purpose is a very restrained test

35


36/54

Canadian Western Bank v. Alberta, 2007

Canadian Western Bank v. Alberta, 2007, Banking, Property and Civil Rights,

Interjurisdictional Immunity, Paramountcy, Conflict in Operation, Impairing Vital

Parts

Issue: Federal government amended the Bank Act to allow banks to engage

in the insurance business. Meanwhile, Alberta added elements to its

Insurance Act requiring all insurance sellers to have a license and be subject

to the provincial regulatory scheme. Banks didn't want to be made subject to

this scheme, and made two arguments: Interjurisdictional Immunity and

Paramountcy.

Holding: Interjurisdictional Immunity does not apply. There is no Conflict in

Operation, therefore Paramountcy does not apply

Reasons: The courts should adopt a restrained approach to the application of

Interjurisdictional Immunity, signalling that this power should be limited. The

test is "impairing vital parts", and not "sterilizing vital parts", and not "affecting

vital parts." On the facts, the newly given insurance power is not at the core of

the Banking power. With respect to conflict, there is no impossibility of dual

compliance or frustration of federal purpose (legislative history shows that it

was intended that banks would be subject to provincial regulations on

insurance)

Interjurisdictional Immunity: favours exclusivity, brings back doctrine of Mutual

Modification for core powers - there are core federal areas that are immune

from application of provincial laws; there can be no overlap; the provincial law

is "read down" to preclude application to the federal area

36


37/54

POGG

Reference re Anti-Inflation Act, 1976 ........................................................................38

R. v. Crown Zellerbach Canada Ltd., 1988 ..............................................................41

37


38/54

Reference re Anti-Inflation Act, 1976

Reference re Anti-Inflation Act, 1976, POGG, Property and Civil Rights, Rational

Basis, National Concern

Issue: The Anti-Inflation Act established price, profit, and income controls for

firms employing more than 500 people, members of certain professions,

construction firms with more than 20 employees, and other businesses of

strategic importance. The Act was only applicable to province after an

agreement was made between fed. and province. Is the Act valid under (a)

emergency branch of POGG? (b) national concern branch of POGG?

Holding: The act is valid under emergency branch of the POGG power

Reasons:

Both Laskin(majority) and Beetz(minority) agree that emergencies are not

confined to war - and inflation could constitute such an emergency. Parliament

could act to prevent an emergency. State of emergency implies something

that is temporary - legislation should also be temporary.

Laskins judgement poses four questions to determine if something can be

upheld under the POGG emergency test:

(i) Does the form of the act either support or contradict the federal

governments contention that it is emergency legislation? Those who opposed

this (Beetz) said that since the act didnt apply to the provincial public service,

couldnt have been much of a crisis. Laskindoesnt buy this; sees it as a

reasonable compromise. Beetzsays that if the federal government can

regulate wages in the public service, then there is nothing they cannot

regulate.

(ii) Should look at the preamble. Should tell you the goals of the legislation.

Preamble here refers only to a national concern. Laskindoesnt think that the

validity of legislation depends on the wording of the preamble. Preamble

expresses the gravity of the situation. Beetzthinks this is ridiculous: if we are

going to override provincial powers because of an emergency, Parliament

must signal that it is relying on the emergency power - absence of this signal

is "fatal"

38


39/54

(iii) Look at external evidence. Does it show that there is a Rational Basis for

identifying the act as a crisis measure? Says we dont look at external

evidence to try and determine the use or effectiveness of the law, just to

determine if Parliament had a rational basis for believing that there was a

need for action. (Economists around the country signed onto a study sayingthat the state of inflation was not an emergency, and this legislation would not

be effective.)

(iv) Could Parliament have reasonably taken the view that this act was

necessary to fortify other areas of federal responsibility, like monetary policy.

Dissent (Beetz): The Act infringes on provincial jurisdiction over local trade,

pricing, profit margins, and employment. Uses a slippery slope argument to

say that if inflation causes these provincial issues to become national issues,

then many other provincial issues will become classified as national issues

(where to draw the line?). The fed. can use its federal powers to combatinflation, but cannot invade on provincial rights unless there is an emergency.

Beetzargues that the POGG clause performs two functions: 1. Singularity and

newness, 2. Emergencies. Says inflation is neither singular nor new, and is

not much of an emergency.

Beetz's National Concern Test: This branch of POGG is a residual power, and

deals with matters that don't fall anywhere in the enumerations - very narrow

power and fills in the gaps. It is necessary to break down large subject matters

(e.g., inflation, environment) and break them down into their component parts

and tehn allocate the parts according to s.91 and s.92. What falls to federaljurisdiction under National Concern are those things that are new, distinct,

and indivisible. If this test is applied to inflation, we find that inflation is

divisible and some parts are in provincial jurisdiction (also inflation is not new)

Beetzacknowledges his definition of National Concern and emergency does

not hold for Russell; he considers Russellto rely on the Criminal power

Rogerson: This decision was heavily criticized. Federal government could

argue emergency power, and then offer minimal evidence to show a Rational

Basis for the legislation. The low threshold for emergency was just a backdoor

to the national concerns test. The Federal government has not relied on theemergency power in any subsequent case, as a matter of politics.

R. v. Hauser, 1979, POGG, Criminal Law, National Concern

39


40/54

Bad Judgment! The federal Narcotics Control Act (a Criminal Law) applied

Beetz's National Concern test, and found that it was a valid exercise of the

POGG power. Drug abuse is new (did not exist at the time of Confederation);

drugs are like drink and drink was ruled to be a national concern in Russell.

40


41/54

R. v. Crown Zellerbach Canada Ltd., 1988

R. v. Crown Zellerbach Canada Ltd., 1988, POGG, Property and Civil Rights,

National Concern, Provincial Inability

Issue: Logging company (CZ) was charged with dumping wood chips in

marine waters under the federal Ocean Dumping Control Act, and challenged

the Act, claiming dumping was under provincial jurisdiction. The federal

government has jurisdiction over marine waters. But, this act tried to regulate

provincial waters that do not affect federal marine waters. Is this valid? Does

federal government have power to prevent dumping in provincial waters that

does not cause harm to extra-provincial waters?

Holding: The federal Act is valid. Marine, salt water pollution is a unified matter

that falls within POGG even though it includes dumping distinctively provincial

territory. Marine pollution is found to be a National Concern through the newly

formulated Provincial Inability test

Reasons: LeDain J: National Concern test elaborated upon:

1. National concern is different from emergency power because is doesnt

have to be of a temporary nature (from Inflation)

2. Applies to new matters which did not exist at time of confederation, and to

matters which are under provincial jurisdiction, but have become issues of

national concern (growth)

3. For a matter to qualify as one of national concern, it must have (a)

singleness, distinctiveness, and indivisibility that clearly distinguishes it from

matters of provincial concern, and (b) a scale that is reconcilable with the

fundamental distribution of legislative power under the Constitution (from

Inflation)

4. Provincial Inability test: In determining whether a matter has attained a

required degree of singleness, distinctiveness and indivisibility that clearly

distinguishes it from matters of provincial concern, it is relevant to consider

what would be the effects on extra-provincial interests of provincial failure

to deal with the intra-provincial aspect - this is a functional test to Beetz's

conceptual test

41


42/54

-The scale must be right to qualify under the national dimension test. Cant be

too small, cant be too large, must be just right. Issue has to be big (beyond

the provinces), but cant be too big (must leave provinces intact).

-He says that it would be difficult to ascertain the distinction between dumping

into waters that flow into the sea and those that do not.-Pollution does not respect the boundaries that the Constitution sets up, so

must regulate it all - literal spill-over effects

-Permanent legislation cant qualify under the emergency provision.

Dissent (LaForest):

-Provinces argued that the act was far too broad. Regulates any sort of

dumping without a permit.

-Environmental pollution should not be under federal jurisdiction because is

would extend too far (another slippery slope argument: if it can regulate

dumping that pollutes intra-provincial waters, then why cant it regulate

emissions, etc.). If pollution has sufficient singularity that it can become a

matter of national concern, then so can anything. What doesnt have an

environmental impact?

42


43/54

Economic Regulation

R. v. Klassen, 1960 ......................................................................................................44

Caloil Inc. v. AG Canada, 1971 .................................................................................45

General Motors of Canada Ltd. v. City National Leasing, 1989 ............................46

43


44/54

R. v. Klassen, 1960

R. v. Klassen, 1960, Trade and Commerce, Property and Civil Rights, Necessarily

Incidental

Issue: Under the Canadian Wheat Board Act, grain elevator deliveries

quantity must be entered in delivery permit book due to quotas, not permitted

to exceed quota. Klassen charged with failing to record a delivery sold to

farmers in immediate neighbourhood, products were not being used in

interprovincial/international trade. Is the Canadian Wheat Board Act "record

system" ultra vires concerning Klassens wheat mill (a totally local

undertaking)?

Holding: No. It is intra vires the feds.

Reason: The integrity and works of system depend on it. Slippery slope

argument if Klassen was able to exceed quota it could put whole system in

disorder.

- The act is not legislation in relation to Property and Civil Rights but is in pith

and substance in relation to Trade and Commerce. Federal government can

regulate wholly local transactions when they are incidental to inter-provincial

or international trade. Aims v. Effects: Act merely "affects" Property and Civil

Rights.

- Without getting down to this local level the orderly marketing of grain would

be ineffective. Rejects the older law of Eastern Terminal Elevatorsand says

the federal government should even regulate wheat grown for home

consumption. Could substantially affect the market.

-Court looked at s.91(2), and said that this intereference with a local

transaction is Necessarily Incidental to international trade. Without regulating

local contracts, greater goal would be ineffective.

44


45/54

Caloil Inc. v. AG Canada, 1971

Caloil Inc. v. AG Canada, 1971, Trade and Commerce, Property and Civil Rights,

Necessarily Incidental

Issue: To enforce energy policy, federal regulation prevented oil importers

from transporting gas across a line running N/S through Ontario and Quebec.

Wanted to provided market for Western Canadian oil west of the line, restrict

sale imported oil to east of line.

Holding: Law intra vires

Reasons: This was a new regulations limited in scope to imported oil, and

therefore a valid regulation of international trade (Trade and Commerce), not

an invasion of Property and Civil rights power.

- Warrants federal regulation of entirely provincial transactions if those

transaction are in regards to a market that at some stage traverses provincial

or international.

- An embellishment to the first stage of Parsons. Swinton says that harping too

much on this first branch of Parsons(emphasizing the flow across borders)

hampers the feds ability to affect general economic problems. Some things

are national but dont flow across boundaries.

45


46/54

General Motors of Canada Ltd. v. City Nation...

General Motors of Canada Ltd. v. City National Leasing, 1989, Trade and

Commerce, Property and Civil Rights, Necessarily Incidental, Provincial Inability

Facts: There is a new Combines Investigation Act that gives people a civil

cause of action (provision s.31.1) when they have been harmed (purpose is to

regulate anti-competitive conduct). City National Leasing alleges that GM

gave its competitors preferential interest rate support for car purchases

contrary to the Act. GM, challenges the act as ultra vires the federal

government because provinces have jurisdiction over Property and Civil

Rights.

Issue: Is the Combines Investigation Act ultra vires the federal governmentt?

Holding: Section 31.1 is Necessarily Incidental to the purpose of the Act and

thus intra vires the federal government.

Reasons: Dickson CJC: set up 5 requirements for the second branch of

Parsons(general Trade and Commerce power):

1. Impugned legislation must be part of a more general scheme. This is clearly

the case here. A general scheme regulating anti-competitive behavior

2. This regulatory scheme must be monitored by a regulatory agency. Again,

this is the case here.

3. Must be concerned with trade as a whole, not a particular industry. This

legislation applies to all forms of trade.

4. Legislation should be of the nature that provinces jointly or separately

would be incapable of enacting it. In this case, anti-competitive behavior falls

under this act if if affects Canada. Only feds are able to legislate with extra-

territorial affect.

5. Failure to include one or more provinces would jeopardize the scheme in

other parts of the country. If you could fix prices in one province, it would

undermine the whole scheme.

Rogerson: 4 and 5 are essentially the Provincial Inability test

Dickson CJCsets out a test to use when dealing with a questionable

provision:

46


47/54

1) Look at the provision (does it intrude on provincial powers)

a. If no, its okay, test over

b. If yes, dont need to strike down the whole scheme (Go to 2)

2) Look at Statute as a wholeIs the act as a whole valid?

- Therefore, it will be less intrusive- If act or scheme is not validthat is the end of the inquiry. If it is valid, the

court must decide if the provision is sufficiently integrated in the scheme that it

can be upheld by virtue of that relationship

If Statute okay, go to 3

3) Test of fit Look to provision and ask if it sufficiently integrates (fits) into

the whole scheme. This will depend on how serious incursion on other level of

power is

a. If incursion of provision is marginal, use a functional test

o Low thresholdo Does it fit adequately? Is there a functional relationship btw the provision

and the scheme?

b. If provision is seriously intrusive, use a Necessarily Incidental or integral

test

o Must prove that for scheme to work, provision is necessary to the scheme

- Note: If you dont pass Necessarily Incidental, but it was intrusive, you could

sever the provision from the scheme

47


48/54

Criminal Law Power

Margarine Reference, 1949 .......................................................................................49

RJR MacDonald Inc. v. Canada (Attorney General), 1995 ....................................50

R. v. Hydro-Quebec, 1997 ..........................................................................................52

Reference re Firearms Act, 2000 ..............................................................................54

48


49/54

Margarine Reference, 1949

Margarine Reference, 1949, Criminal, Property and Civil Rights, Form Test,

Purpose Test

Facts: Federal government passes Dairy Industry Act, s.5(a) prohibits

manufacture, import, offer, sale, or possession of margarine and other butter

substitutes.

Issue: Is this prohibition a matter of Criminal law under s.91(27) or is it ultra

vires Parliament (regulation of Property and Civil Rights with respect to trade

within provinces)

Holding: The provision is ultra vires except with respect to import.

Reasons: Rand J: Criminal law no longer requires moral taint, however does

require prohibition, penalty and evil, injurious or undesirable effect upon

public. Here, purpose is not public peace, order, security, health, or

morality, but economic aim to give one group (dairy producers) benefit

against competitors. The test for criminal law purpose includes economic

interest, but here, the purpose is strictly for economic regulation. Passes Form

Test but fails Purpose Test. Forbidding sale and manufacture is to deal directly

with the civil rights of individuals in relation to a particular trade; therefore

dealing with civil rights and trade in the province. The only prohibition that can

be upheld is that on importation since this is dealing with international trade

and it can stand alone apart from the remainder of the legislation.

Rule: An act falls under the Criminal law power if it has prohibition, penalty

and evil, injurious or undesirable effect upon public (i.e., threat to public

peace, order, security, health, morality, etc.)

Rogerson: This is a rare example of a law satisfying the form requirement but

failing the purpose requirement - courts give a lot of leeway on form

49


50/54

RJR MacDonald Inc. v. Canada (Attorney Ge...

RJR MacDonald Inc. v. Canada (Attorney General), 1995, Criminal, Property and

Civil Rights

Facts: The Tobacco Products Control Act prohibited all advertising and

promotion of tobacco products with the exception of the advertising of foreign

tobacco products in foreign magazines. The Act also required the display of

health warnings on all tobacco products. Violation of the Act was punishable

by fines of up to $300,000 or up to two years imprisonment.

Issue: Is banning tobacco advertising an infringement of provincial jurisdiction

over advertising grounded in s.9292(13) or s.92(16)

Holding: Banning tobacco advertising is permitted under the criminal law

power.

Reasons: La Forest J: Criminal power is plenary and should be interpreted

broadly to include any prohibited act which has an undesirable evil or

injurious effect. Scope of federal power to enact criminal legislation with

respect to health concerns is broad, and only requires a prohibition and penal

sanction directed at a legitimate health concern. This act is concerned with

protecting health of Canadians, and given that tobacco kills, this is a valid

concern. No evidence of ulterior motives (i.e. the legislation wasnt colorable)

like in Margarine. Parliament could ban tobacco, and so it is logical that they

could ban advertising. Criminal law isnt frozen in time - federal government

can always create new crimes. Federal government can pass criminal laws

on subject without the subject being expressly criminalized (i.e., criminalizing

advertising is okay because criminalizing smoking would likely be ineffective);

furthermore, federal government is allowed to chose a roundabout route to

achieve its objective.

Dissent: Major J: Doesnt believe prohibition on advertising is allowable. Not

proper criminal law. The activity parliament wants to prohibit must pose a

significant risk; advertising hardly does this. It simply encourages people to

consume a legal (albeit harmful) product. Federal government has chosen to

not prohibit tobacco, so it is hard to see what the evil is. If smoking isnt evil,

50


51/54

how can advertising it be? There are broadly based exemptions contained in

the act (is not criminal to import magazines with foreign tobacco ads, but as

soon as the ads originate in Canada it becomes criminal this doesn t make

sense if it is a true evil.

R. v. Cosman's Furniture, 1972, Criminal, Form Test

Federal Hazardous Products Act set out detailed standards for certain

products, in particular baby cribs. Imposed an obligation on manufacturers to

conform to standards. Act had a regulatory form, but courts upheld it as

Criminal law dealing with hazardous products.

51


52/54

R. v. Hydro-Quebec, 1997

R. v. Hydro-Quebec, 1997, Criminal, Property and Civil Rights

Facts: The federal Environmental Protection Act set up a process regulating

the use of toxic substances. Hydro-Quebec was charged with a violation of

this act relating to the emission of PCBs into the environment Lots of

ministerial discretion is permitted.

Issue: Is the federal Environmental Protection Act a regulatory scheme, in

which case it would encroach on provincial jurisdiction, or is it a valid use of

the federal criminal law power

Holding: The legislation is justified under the Criminal law power

Reasons: La Forest J:

Most Current Explanation of Criminal Law:

The purpose of the Criminal law is to protect our fundamental values

- Pollution is an evil that the feds can seek to suppress by criminal law

power. The act is valid under the criminal power and it is therefore

unnecessary to consider POGG

- True to his word in Crown Zellerbach, La Forest Jsays that both federal

government and provinces can regulate the environment

- Validity of the legislation must be tested according to the particular

characteristics of the head of power that is said to support it.

- Feds can do it through Criminal Law

o It has prohibitions

o It has a public purpose

o It is coloured like Criminal Law. But, is it really? Looks like the feds are doing

something other than criminal law; attempting to regulate in the provincial

sphere via Criminal powers

- When dealing with prohibitions and penal sanctions, it is no of concern if

there is an interference with Property and Civil Rights (i.e., the legislation

prohibits sale, import, etc. of certain toxins), rather we are concerned with

whether or not the prohibitions are targeted at an evil

Dissent: Lamer and Iacobucci JJ: The act in question sets up broad powers to

52


53/54

regulate every conceivable aspect of listed toxic substances; the pith and

substance of the act is a regulatory scheme aimed at protecting the

environment, human life and health, and regulating these substances

- It is an attempt to regulate pollution, not a prohibition; a prohibition will

normally be self-applied but this act requires the intervention of anadministrative agency before there is an offence. Criminal law power must

contain prohibitions backed by penalties and be directed to a legitimate public

purpose - although the feds claim health as the public purpose the act goes

well beyond protection of human health. There isnt even a crime until an

administrative agency intervenes! Also, feds can give exemptions to

provinces.

- The provisions of the act and the overly broad definition of toxic mean it

applies not just to chemical pollution and not just to interprovincial pollution;

the act may apply to pollution that is only local and temporary - sinceprovinces are able to deal effectively with such pollution it fails the Provincial

Inability of POGG.

53


54/54

Reference re Firearms Act, 2000

Reference re Firearms Act, 2000, Criminal, Property and Civil Rights, Double

Aspect

Facts: Federal government passed new gun control legislation establishing a

comprehensive licensing system for all firearms and outlawing some. The

province of Alberta challenged the federal power to enact this new act by

saying that the scheme was regulatory rather than criminal because of the

complexity of the legislation and the discretionary power that it gave to the

chief firearms officer. Alberta argued that it was like a car registry.

Holding: Gun Control Act upheld as falling within federal jurisdiction over

Criminal law

Reasons: Found a Criminal law purpose. Purpose is to protect is public

safety. Comes right from Rands original list in Margarine.

- The regulatory nature of the legislation did not preclude a finding of a

criminal prohibition. Gun control was distinguished from other regulatory

schemes because of its inherent nature. In any case, we can have criminal

regulation of stuff like drunk driving.

- Gun control law did not upset the federal-provincial balance of power

because its effect on Property and Civil Rights were incidental. Provinces can

continue to address insurance, permissible locations of use, etc. There is a

Double Aspect.

Constitutional Law Federalism - Prof. Kang

Documents

Transcript of Constitutional Law Federalism - Prof. Kang