CONSTITUTIONAL LAW Fall 2015

JENNA DAVIS THOMPSON RIVERS UNIVERSITY

LAWF 3010

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Table of Contents

Table of Contents ........................................................................................................................................ 1

Introduction to Constitutional Law ............................................................................................................. 4

Sources of Law ........................................................................................................................................ 4

Three Branches of Government .............................................................................................................. 4

Inherent vs Original Jurisdiction.............................................................................................................. 4

Royal Proclamation of 1763 ................................................................................................................ 4

Quebec Act 1774 ................................................................................................................................. 5

British North America Act 1867 .......................................................................................................... 5

Underlying Principles of Constitution ..................................................................................................... 5

Amending the Constitution ..................................................................................................................... 5

Reference re: Secession of Quebec ..................................................................................................... 6

Is a law constitutional? ........................................................................................................................... 6

Sections from Constitution ......................................................................................................................... 6

Federal (91): ............................................................................................................................................ 6

Provincial (92): ........................................................................................................................................ 7

Undertakings:.......................................................................................................................................... 7

Specific Powers ....................................................................................................................................... 8

General/Broad Powers ............................................................................................................................ 8

Constitutional Interpretation ...................................................................................................................... 8

Judicial Independence............................................................................................................................. 8

Reference re Provincial Court Judges 1997 SCC .................................................................................. 8

Reference re Supreme Court Act ........................................................................................................ 8

Parliamentary Sovereignty vs Constitutional Supremacy ....................................................................... 8

Judicial Review ........................................................................................................................................ 8

British Columbia v Imperial Tobacco Canada Ltd (2005) SCC .............................................................. 9

Trial Lawyers Association of BC v BC 2014 SCC 59 .............................................................................. 9

BC (AG) v Christie 2007 SCC ................................................................................................................ 9

Constitutional Interpretation .................................................................................................................. 9

Approaches to Interpreting the Constitution: ..................................................................................... 9

Edwards v Canada (AG) (Persons Case) Privy Council ......................................................................... 9

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Reference re Same Sex Marriage 2004 SCC ...................................................................................... 10

Russell v The Queen [1882] Privy Council (CAN) ............................................................................... 10

Hodge v R [1883] Privy Council (CAN) ............................................................................................... 10

Reference re Local Prohibition Act 1896 Privy Council (CAN) ........................................................... 10

Federalism – Divisions of Power ............................................................................................................... 11

Three Questions to Ask ......................................................................................................................... 11

Division of Powers Flow Chart .............................................................................................................. 13

Early Interpretations of Divisions of Power........................................................................................... 13

Citizens Insurance v Parsons 1881 .................................................................................................... 13

Reference re the Board of Commerce Act 1867 Act ......................................................................... 14

Reference re the Regulation and Control of Aeronautics in Canada [1932]...................................... 14

Reference re Regulation and Control of Radio Communication in Canada [1932]............................ 14

AG Canada v AG Ontario (Labour Conventions) 1937 ....................................................................... 14

Pith and Substance ............................................................................................................................... 14

R v Morgentaler 1993 SCC ................................................................................................................ 14

Reference re Employment Insurance Act 2005 ................................................................................. 15

Incidental, Double Aspect and Ancillary Doctrine ................................................................................. 15

Multiple Access Ltd v McCutcheon [1982] 2 SCR .............................................................................. 15

General Motors of Canada Ltd v City National Leasing SCC 1989 ..................................................... 16

Quebec (Attorney General) v Lacombe, 2010 SCC 38 ............................................................. 16

Inter-jurisdictional Immunity Doctrine ................................................................................................. 16

Bell #1 Commission du salaire minimum v. Bell Telephone Co. of Canada [1966] SCR ..................... 16

Bell # 2 Bell Canada v Quebec [1988] 1 SCR ...................................................................................... 17

Canadian Western Bank v Alberta [2007] 2 S.C.R. 3 .......................................................................... 17

COPA – Quebec (AG) v Canadian Owners and Pilots Association, 2010 SCC 39 ................................ 17

Bank of Montreal v. Marcotte, 2014 SCC 55 ..................................................................................... 17

Insite – Canada (AG) v. PHS Community Services Society, 2011 SCC 44............................................ 18

Tsilhqot'in Nation v British Columbia 2014 SCC 44 ........................................................................... 18

Paramountcy ......................................................................................................................................... 18

Ross v Registrar of Motor Vehicles [1975] 1 SCR .............................................................................. 19

Multiple Access Ltd v McCutcheon [1982] 2 SCR .............................................................................. 19

Bank of Montreal v Hall, [1990] 1 SCR 121........................................................................................ 19

Rothmans, Benson & Hedges v Saskatchewan, 2005 SCC 13 ............................................................ 19

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Federalism – Heads of Power ................................................................................................................... 20

Peace, Order and Good Government .................................................................................................... 20

Three Branches of POGG: ................................................................................................................. 20

National Concern POGG: ................................................................................................................... 20

Reference Re Anti-Inflation Act, [1976] 2 S.C.R. 373 ......................................................................... 20

R v Crown Zellerbach Canada Ltd [1988] 1 S.C.R. 401 ....................................................................... 21

Friends of the Oldman River Society v Canada (Minister of Transport), [1992] 1. SCR ..................... 21

Economic Regulation/Trade and Commerce......................................................................................... 21

Relevant Sections of Constitution: .................................................................................................... 21

Carnation Co. Ltd. v Quebec Agricultural Marketing Board [1968] SCR 238 ..................................... 22

Manitoba (AG) v. Manitoba Egg & Poultry Assn. [1971] SCR 689...................................................... 22

Reference re Agricultural Products Marketing, [1978] 2 S.C.R. 1198 ................................................ 22

The King v. Eastern Terminal Elevator Co., [1925] SCR 434............................................................... 22

Labatt Breweries of Canada Limited v Canada (Attorney General), [1980] 1 S.C.R. 914 ................... 22

General Motors of Canada v City National Leasing, [1989] 1 SCR 641 .............................................. 23

Reference re Securities Act, 2011 SCC .............................................................................................. 23

Trade and Commerce and Mobility Rights ........................................................................................ 23

Black and Co v Law Society of Alberta [1989] 1 SCR 591 ............................................................... 23

Canadian Egg Marketing Agency v Richardson 1980 3 SCR 157 .................................................... 24

Criminal Law ......................................................................................................................................... 24

Chart of Provincial and Federal Criminal Law Powers: ...................................................................... 24

Margarine Reference – Reference re Validity of Section 5 (a) Dairy Industry Act, [1949] SCR .......... 24

RJR-MacDonald Inc v Canada (AG), [1995] 3 S.C.R. 199 .................................................................... 25

R v Hydro-Québec, [1997] 3 S.C.R. 213 ............................................................................................. 25

Reference re Firearms Act (Can.), 2000 SCC 31 ................................................................................. 25

Quebec (AG) v Canada (AG) 2015 – Firearms Reference Part 2 ........................................................ 25

Reference re Assisted Human Reproduction Act. 2010 SCC 61 ......................................................... 26

Provincial Criminal Law Power .............................................................................................................. 26

R. v. Morgentaler, [1993] 3 S.C.R. 463 .............................................................................................. 26

Nova Scotia (Board of Censors) v McNeil, [1978] 2 S.C.R. 662 .......................................................... 27

Westendorp v R, [1983] 1 S.C.R. 43................................................................................................... 27

Chatterjee v. Ontario (AG), 2009 SCC 19 ........................................................................................... 27

Goodwin v British Columbia (Superintendent of Motor Vehicles), 2015 SCC 46 ............................... 27

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Inter-governmental agreements ........................................................................................................... 27

Reference Re Canada Assistance Plan (BC), [1991] 2 S.C.R. 525 ....................................................... 27

Delegation ............................................................................................................................................. 27

Federal Spending Power ....................................................................................................................... 28

Provisions related to Federal Spending Power.................................................................................. 28

Additional Resources ................................................................................................................................ 29

Validity Analysis Chart........................................................................................................................... 29

Federalism Checklist ............................................................................................................................. 30

Introduction to Constitutional Law

Sources of Law Written: Constitution Act (1867 and 1982)

Unwritten: Conventions, common law

European and Aboriginal Sources

Borrows: “Canada cannot presently, historically, legally, or morally claim to be built upon European-derived law alone.”

Canadian law is partially derived from Indigenous traditions

Three Branches of Government

Legislature: power to make law

Executive: power to implement law

Judicial: power to interpret law

Inherent vs Original Jurisdiction Inherent:

Matters that the superior courts have made their own (taken control over processes)

Superior courts derive authority from Constitution, so they can hear any matter unless a statute says otherwise

Original:

Both superior and original can have

Royal Proclamation of 1763 Paragraph 69: Confirmed that Canada was never terra nullius – there were already pre-existing legal rights held by Aboriginal people who occupied and used the land prior to European arrival Creation of “Indian Territories” (reserves) First Nations live under their protection

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Quebec Act 1774 After the Royal Proclamation changed law in Quebec to English law, the Quebec Act changed it

back so that private law was French and public law was English

British North America Act 1867

Discussed division of power; commitment to free inter-provincial trade (s 121); commitment to railway (s 145); still residual British power – couldn’t amend own constitution

Underlying Principles of Constitution Reference re Quebec Secession says there are 4 underlying principles in the Constitution and they can

be used to help fill the gaps.

1. Federalism

a. Facilitates democratic participation by distributing power to the government that is best

suited to achieve certain societal objectives.

2. Democracy

a. Democracy in more than just elections – also institutions, processes, substance

3. Constitutionalism and the Rule of Law

a. Idea that no one is above the law

b. Protects people from “arbitrary state action” because the exercise of public power must

be based on legitimate law

4. Respect for Minorities (including Aboriginal)

Amending the Constitution Prior to 1982: Britain had to change BNA Act for us. Constitution Act: 38. (1) Amendment may be made by proclamation issued by Governor General if authorized by (a) resolutions of the Senate and House of Commons; and

(b) resolutions of legislative assemblies of at least two-thirds of the provinces (that have at least 50% of population of all provinces)

(2) An amendment that takes away rights or privileges of the provincial government/legislature requires a resolution supported by majority of members of: the Senate, the House of Commons and the legislative assemblies mentioned under 38(1)(b). (3) An amendment that takes away rights/privileges of provincial government/legislature AND a legislative assembly has expressed dissent (resolution of dissent supported by majority) – shall not have effect in that province

(4) Resolution of dissent can be revoked before or after issue of proclamation Doctrines of Change: -living tree doctrine: constitution is organic and must be read in a broad and progressive manner in order to adapt to changing times -large and liberal interpretation -originalism: conservative form of interpretation that does not allow for much space for movement away from writer’s intentions

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Reference re: Secession of Quebec History: 1995 Quebec Referendum showed that 49.42% of Quebecers were in favour of secession/sovereignty. This raised the idea that the federal government could not ignore the desire for secession (even if the numbers were not quite high enough to achieve secession). Four underlying principles: federalism, democracy, constitutionalism/rule of law, respect for minorities -underlying principles help fill in gap

Is a law constitutional?

Does it violate any unwritten principles? (rule of law, judicial independence, access to justice)

Is the legislation within the authority of the provincial legislature, or federal parliament?

Is it valid, applicable, and operable?

Does the legislation infringe aboriginal/treaty rights? If so, is it justified?

Does it infringe a charter right? If so, is it justified?

Sections from Constitution

Federal (91): 91. It shall be lawful for the Queen, by and with the Advice and Consent of the Senate and House of

Commons, to make Laws for the Peace, Order, and good Government of Canada, in relation to all

Matters not coming within the Classes of Subjects by this Act assigned exclusively to the Legislatures of

the Provinces (POGG)

1A. Public Debt and Property 2. Regulation of Trade and Commerce 2A. Unemployment Insurance 3. The Raising of Money by any Mode or System of Taxation 4. The borrowing of Money on the Public Credit 5. Postal Service 6. The Census and Statistics 7. Military 8. The fixing of and providing for the Salaries and Allowances of Civil and other Officers of the Government of Canada. 9. Beacons, Buoys, Lighthouses, and Sable Island. 10. Navigation and Shipping 11. Quarantine and the Establishment and Maintenance of Marine Hospitals 12. Sea Coast and Inland Fisheries 13. Ferries between a Province and any British or Foreign Country of between Two Provinces 14. Currency and Coinage 15. Banking, Incorporation of Banks, and the Issue of Paper Money 16. Savings Banks 17. Weights and Measures 18. Bills of Exchange and Promissory Notes 19. Interest 20. Legal Tender 21. Bankruptcy and Insolvency

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22. Patents 23. Copyrights 24. Indians, and Lands reserved for the Indians 25. Naturalization and Aliens 26. Marriage and Divorce 27. The Criminal Law 28. The Establishment, Maintenance, and Management of Penitentiaries

Provincial (92): 1. Repealed 2. Direct Taxation within the Province in order to the raising of a Revenue for Provincial Purposes 3. The borrowing of money on the sole Credit of the Province 4. The Establishment and Tenure of Provincial Offices and the Appointment and Payment of Provincial Officers 5. The Management and Sale of the Public Lands belonging to the Province and of the Timber and Wood thereon.

6. The Establishment, Maintenance, and Management of Public and Reformatory Prisons in and for the Province.

7. The Establishment, Maintenance, and Management of Hospitals, Asylums, Charities, and Eleemosynary Institutions in and for the Province, other than Marine Hospitals.

8. Municipal Institutions in the Province. 9. Shop, Saloon, Tavern, Auctioneer, and other Licences in order to the raising of a Revenue for

Provincial, Local, or Municipal Purposes. 10. Local Works and Undertakings other than such as are of the following Classes……. 11. The Incorporation of Companies with Provincial Objects. 12. The Solemnization of Marriage in the Province. 13. Property and Civil Rights in the Province. 14. The Administration of Justice in the Province, including the Constitution, Maintenance, and

Organization of Provincial Courts, both of Civil and of Criminal Jurisdiction, and including Procedure in Civil Matters in those Courts.

15. The Imposition of Punishment by Fine, Penalty, or Imprisonment for enforcing any Law of the Province made in relation to any Matter coming within any of the Classes of Subjects enumerated in this Section.

16. Generally all Matters of a merely local or private Nature in the Province. 92(A): confirms prov jurisdiction to regulate exploration, development, management and conservation of national resources and production/generation of energy

Undertakings: -include both a physical and organization element -example/ steamships and companies providing shipping services -example/ broadcasting firms and act of broadcasting -activity and the conditions under which activity is performed -there is more scope for IJI to apply to undertakings

-provincial labour laws apply to federaly incorporated companies, but not to federally regulated undertakings

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Specific Powers Federal: federal undertakings; aeronautics (POGG); radio (POGG); banking; unemployment insurance

General/Broad Powers Federal: criminal, T&C, POGG Provincial: Property and Civil Rights (includes insurance; business within the province; labour relations; labour conditions; highways/transport in province; social security/income assistance)

Constitutional Interpretation The basic rule of statutory interpretation is that "the words of an Act are to be read in their

entire context, in their grammatical and ordinary sense harmoniously with the scheme of the

Act, the object of the Act, and the intention of Parliament": R. Sullivan, Sullivan on the

Construction of Statutes (5th ed. 2008)

Judicial Independence

Independent from legislature and executive; judicial jobs cannot be dependent on legislature or

executive; need to render judgements based solely on law and justice

Three aspects that support it: security of tenure (can’t be fired unless bad behaviour); financial

security; courts perform their own administrative duties

Reference re Provincial Court Judges 1997 SCC Facts: Provincial court judges had salaries reduced by provincial legislatures and said this breached judicial independence and was unconstitutional (because people have the right to a fair trial by an independent court). Issues: Do salary reductions impinge on “financial security” aspect of judicial independence? Decision: Legislature cannot directly change salary – should come from an independent commission.

Reference re Supreme Court Act Facts: When appointing a judge to replace a Quebec judge in the SCC, they had to interpret what being a Quebec judge meant. One candidate had been a Quebec bar members for 10 years, but wasn’t anymore because he was a federal court judge. Decision: Laws change too quickly, so the Quebec judge has to be currently a member of the bar. They would have to amend Constitution to allow him.

Parliamentary Sovereignty vs Constitutional Supremacy Parliamentary Sovereignty: There is nothing higher than an Act of Parliament (final word is with Parliament. ****Constitutional Supremacy: Constitution s 52. (1) The Constitution of Canada is the supreme law of Canada, and any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect.

Judicial Review Courts have the power to determine is legislation is in accordance with law

Judicial review is based on unwritten constitutional principles: rule of law; judicial independence; federalism; minority rights

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British Columbia v Imperial Tobacco Canada Ltd (2005) SCC Facts: BC Gov’t tried to recover damages from Imperial Tobacco in regards to health care for smokers. BC passed Tobacco Damages and Health Care Costs Recovery Act SBC 2000 to allow them to retroactively bring action, deny tobacco companies access to health records, and other things that made tort easier to prove (tort: Imperial misrepresented the health consequences of smoking). Imperial said legislation was not constitutional – extra-territorial impact (companies operate outside of BC), breach of judicial independence, breach of rule of law. Decision: Provincial legislation was valid. Ratio: A breach of rule of law cannot be used as the basis for ruling a law as unconstitutional. Rule of law does not require ensuring a fair trial or avoiding giving the government advantages.

Trial Lawyers Association of BC v BC 2014 SCC 59 Issues: Are BCSC court hearing fees constitutional? Decision: Fees are unconstitutional; judges should have discretion in whether to excuse people from paying.

Superior courts have inherent jurisdiction, but the fees prohibit less wealthy people from getting to the superior courts – which basically takes the inherent jurisdiction away from the superior

BC (AG) v Christie 2007 SCC Facts: Government added 7% tax to legal services. Christie (lawyer) argued that this infringed his clients from receiving access to justice (therefore, the general right to counsel under the rule of law). Decision: Tax is constitutional. A general right to counsel is too broad. We specifically give certain rights to counsel (s 10 Charter), so a general right would be redundant and a drain on resources. Rule of law does not include a general right to a lawyer. Right to counsel is only mandatory when life, liberty, and security of a person is at risk.

Constitutional Interpretation Approaches to Interpreting the Constitution:

Historical: looks at intent behind the Constitution (intentions of framers)

Textual: close focus on words (plain text)

Doctrinal: arguments from precedent

Prudential (Practical): based on factors external to the law (example/ convenience, response to

political pressure, efficiency of government operations)

Ethical: decision based on innate sense of justice; morality; and balancing interests of the parties

Structural: tries to balance adherence to the text and flexibility

Edwards v Canada (AG) (Persons Case) Privy Council **created the living tree doctrine – interpretation requires large and liberal interpretation to allow development through usage and conventions Issues: Does the word “persons” in s 24 of the BNA Act include female persons? Decision: Privy Council overturned SCC and said that women are people and are able to sit in the Senate. They applied the living tree doctrine and said legislation is subject to development through usage and conventions.

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Reference re Same Sex Marriage 2004 SCC **rejected the placing of abstract limits on the living tree doctrine (others said that the living tree allowed for growth, but only “within its natural limits”, which they said same sex marriage was not within) Issues:

1. Is the Act within the authority of Parliament? 2. Does 2(a) of the Charter (freedom of religion) protect religious officials who do not believe in

same-sex marriage? Decision: Marriage is federal jurisdiction and P&S of the Act is marriage. Applied the living tree doctrine (from Edwards) to say it extends to same-sex couples.

Russell v The Queen [1882] Privy Council (CAN)

Challenged federal temperance legislation

Legislation was upheld under POGG (national concern)

Hodge v R [1883] Privy Council (CAN)

Both Ontario and feds had legislation regarding temperance

Court decided both could have valid legislation

Double aspect doctrine: subjects that fall under 92 in “one aspect and for one purpose” can also fall under 91 in “another aspect and for another purpose”

Reference re Local Prohibition Act 1896 Privy Council (CAN)

Both provincial and federal legislation on same thing

Court said they are both permissible up to a point of actual conflict – if conflict occurs, federal takes paramountcy

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Federalism – Divisions of Power Three Questions to Ask

1. Is the legislation valid? a. Pith and Substance Analysis: What is the matter? (Morgentaler)

i. What is the purpose? – What is the intention of the legislation? 1. Look at internal evidence (within 4 corners): text of statute; legislation as a

whole 2. Look at extrinsic evidence: legislative history; motivating events; what was

said when it was introduced; government reports ii. What is the effect? – Who does it effect and how does it change their

rights/liabilities? 1. Look at internal evidence: legal effect that terms of legislation indicate will

happen 2. Look at extrinsic evidence: the actual or predicted effect of the legislation

iii. Colourable? (Hogg: a legislative body cannot do indirectly what it cannot do directly)

b. Classify legislation (other document) c. If intra vires, look at incidental and double aspect. If ultra vires, look at ancillary. d. Does the legislation overlap with the other government’s jurisdiction?

i. Lacombe: 1. Go to incidental if: main thrust of the law is within proper jurisdiction, but

the law has subsidiary effects that are in other jurisdiction 2. Go to double aspect if: law comes within jurisdiction of enacting body, but

intrude on other power because of overlap in division of powers 3. Go to ancillary if: provision is, in P&S, ultra vires

ii. Is the overlap merely incidental? If so, usually tolerable. iii. Is there a double aspect (both may legislate for different purpose)? If so, is there

conflict? 1. Does the application of one provision displace the legislative purpose of the

other provision? If no, no conflict – it is fine. If yes – paramountcy analysis. 2. Does abiding by one provision mean violating the other provision? If no –

duplication is allowed if they do not conflict (Multiple Access). If yes – paramountcy analysis.

iv. A provision may have a significant intrusion and still be permitted if the intrusion is on an ancillary part of the legislation ***concerns provision that is, in P&S, ultra vires. (GM test)

1. Does the impugned provision intrude on other jurisdiction’s’ power? To what extent? – If it does not, it is fine. If it does, proceed to #2,

2. Is the legislative regime valid as a whole? 3. If so, is the impugned sufficiently integrated with the scheme that it can be

upheld? a. Must determine the degree of intrusion:

i. What head of power is being encroached upon? Is it a narrow or broad power?

ii. What is the nature of the impugned provision? iii. Is there a history of legislation on the matter? Precedent?

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b. If there is minimal intrusion, do the rational functional test – is it functionally related to the general objective of the legislation and the structure/content of the regulatory scheme? (Lacombe)

c. If there is serious intrusion, do the strict necessity test – is the provision necessarily incidental (truly necessary) to the regulatory scheme as a whole? (Lacombe)

2. Is the legislation applicable? Apply IJI. a. Is the federal head of power immune from valid provincial legislation? b. Now: only applies to very specific powers (usually only federal); courts see it as the last step c. Test:

i. Should IJI apply? 1. Is there precedent that has applied IJI to this particular power or a similar

power? 2. If not, what is the nature of the power?

a. specific or general? If general, hard to apply. If specific, more likely to be successful.

b. Can you define a core of the head of power? If not, analysis likely over.

c. Can the issue be resolved some other way? ii. Does the infringing law trench on the “core” of the fed/prov competence? If no,

analysis over. If yes, proceed to 3. 1. Core: minimum necessary content to make the power effective for their

purpose iii. Is the effect of the infringement law sufficiently serious (COPA – causes impairment)

to invoke doctrine of IJI? 1. Can Western Bank: impairment means the “core” competence is placed in

jeopardy 3. Is the legislation operative? Paramountcy. (Relevent where there are two pieces of legislation and

they conflict). If act is not operational yet, can’t do paramountcy (doesn’t apply to proposed legislation)

a. Rothman’s Test for determining if there is a conflict: i. Can you comply with both at once?

ii. Does the provincial legislation frustrate Parliament’s purpose of enacting the legislation?

iii. Bmo v Hall added: frustration of purpose leads to impossibility of dual compliance b. If there is no conflict – no paramountcy. c. If there is conflict – apply paramountcy and provincial law is rendered inoperative to the

extent that it is inconsistent with the federal law.

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Division of Powers Flow Chart

Early Interpretations of Divisions of Power

Citizens Insurance v Parsons 1881 Facts: Ontario had passed legislation regarding home insurance. Parsons’ shop burned down and insurer refused to pay b/c he did not disclose proper information. Insurers’ requirements were inconsistent with legislation, but they argued the legislation was ultra vires. Issues: Does insurance fall under 92(13) (property and civil rights) or 91(2) (trade and commerce)? Decision: Insurance is provincial jurisdiction. Insurer must follow legislation.

Read Property and Civil Rights broadly; Read Trade and Commerce narrowly (limited it to matters of national concern or dealing with inter-provincial trade)

Took exclusivist approach (unusual): It falls under 92(13), so can’t be under 91(2) Ratio: 91(2) should be interpreted narrowly.

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Reference re the Board of Commerce Act 1867 Act Facts: Feds passed the Board of Commerce Act 1919 and the Fair Prices Act 1919. They restricted combines, mergers, and monopolies – to prevent the hoarding of necessities of life for the purpose of unfairly raising prices. The Boards could investigate and make orders about prices – merchants thought this was unconstitutional. Issues: Can the federal government enact a law that creates a Board to controls clothing profit margins? Decision: Ultra vires federal power. If was enacted during war or emergency conditions, the federal interference could have been justified – but in normal circumstances, this falls under provincial Property and Civil Rights.

Reference re the Regulation and Control of Aeronautics in Canada [1932] Facts: Britain made a treaty and Canada adopted it. Issues: Did the Dominion have the authority to enact the legislation? Decision: Yes. Aerial navigation can fall under 91(2), 91(5), and 91(7).

Reference re Regulation and Control of Radio Communication in Canada [1932] Decision: Broadcasting is federal jurisdiction under residual power of POGG.

AG Canada v AG Ontario (Labour Conventions) 1937 **The power to implement treaties depends on the subject matter in question – there is no separate treaty implementation power. Facts: Federal government tried to push uniform minimum wage across Canada to meet int’l treaty obligations. Provinces said it was ultra vires and actually fell under 92(13). Feds said it was under POGG. Issues: Were the Industrial Undertakings Act, the Minimum Wages Act, and the Limitation of Hours of Work Act ultra vires federal power? Decision: The federal government cannot sign treaties promising things that are actually under provincial jurisdiction. Too much infringement.

Pith and Substance

R v Morgentaler 1993 SCC Facts: Nova Scotia passed Medical Services Act that prohibited abortions outside of hospitals. Morgentaler was charged under the Act for performing abortions in his clinic, but argued that it was ultra vires (province can’t pass criminal law) Issues: Is the provincial Act, in pith and substance, a criminal law? Decision: It is criminal, therefore ultra vires.

Does Parliament have the power to implement international treaties made by the federal government? Only

if it is within their own subject matter jurisdiction (Labour Conventions)

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Reference re Employment Insurance Act 2005 Facts: Quebec says it falls under 92(13) or 92(16) (local). Feds say it falls under 91(2A) (unemployment insurance). Issues: Does the federal government have jurisdiction over maternity and paternity benefits? Decision: Maternity benefits fit the 4 characteristics of unemployment insurance. Feds have jurisdiction.

The “matter” of the legislation: providing a mechanism for replacement of income when unemployment occurs due to birth of child

Four essential characteristics of a public unemployment insurance plan: (1) It is a public insurance program based on concept of social risk (2) with the purpose of preserving workers’ economic security and ensure their re-entry into labour market (3) by paying temporary income replacement benefits (4) in the event of an interruption of employment.

Incidental, Double Aspect and Ancillary Doctrine Incidental Effects:

Impact of law that is not a dominant characteristic

Generally permissible if legislation is valid in P&S

Double Aspect:

“Subjects which in one aspect and for one purpose fall within s 92, may in another aspect and for another purpose fall within s 91”

If there is not conflict, it is permissible.

If abiding by one would mean violating the other, a paramountcy analysis is triggered. Ancillary Powers:

When a particular provision, when considered in isolation, intrudes on other jurisdictions’ power

Can be permissible if its integration into otherwise valid legislation is sufficient

Multiple Access Ltd v McCutcheon [1982] 2 SCR Facts: Canada’s Corporations Act 1970 and Ontario’s Securities Act 1970 both prohibited insider trading (and federal applied to federally incorporated companies). Shareholder brought action against Multiple Access – but brought it under the provincial legislation, even though Multiple Access is federally incorporated. Issues: Is provincial valid? Is federal valid? If so, should paramountcy apply? Decision: Both are valid and operative. Both apply to Ontario incorporated companies (but courts cannot permit double recovery under both acts). Duplication of legislation is unproblematic when both pieces are after the same result. When to go to paramountcy: if there is an actual conflict – one enactment says “yes” and the other says “no” (compliance with one is defiance of the other).

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General Motors of Canada Ltd v City National Leasing SCC 1989 Facts: City National had an interest rate deal with GM, but GM realized others were getting better deal. Decision: Whole regime valid. Provision (31.1) upheld under ancillary. GM Test – Ancillary Analysis:

1. Does the impugned provision intrude on other jurisdiction’s’ power? To what extent? – If it does not, it is fine. If it does, proceed to #2,

2. Is the legislative regime valid as a whole? 3. If so, is the impugned sufficiently integrated with the scheme that it can be upheld?

Test for Sufficient Integration (Ancillary Doctrine): put it on a spectrum based on seriousness of intrusion (this was updated in Lacombe to be a simple, 2 branch test)

If there is a minor intrusion on power, you apply a rational function test (is it functionally related to objective and structure and content?)

If there is a major intrusion, apply strict necessity test (is it truly incidental to scheme?) Order of Analysis:

1. Did P&S analysis of impugned provision 2. Did P&S analysis of entire act 3. Looked to see if provision was sufficiently integrated with scheme

Quebec (Attorney General) v Lacombe, 2010 SCC 38 Facts: Sacre-Couer passed by-law 260, which amended by-law 210. 210 was about general land use. 260 created 2 zones: one where aerodomes could be constructed, and one where they could not. Decision: 210 is intra vires. 260 is ultra vires – aeronautics are federal jurisdiction and this is about aeronautics, not land use. 260 is not sufficiently integrated to save it (based on rational function test). Test for Sufficient Integration (Ancillary Doctrine):

If there is a minor intrusion on power, you apply a rational function test (is it functionally related to objective and structure and content?)

If there is a major intrusion, apply strict necessity test (is it truly incidental to scheme?) **Possible problem with this case: McLachlan only looked at the matter in comparison to the head of power – she saw that it was about airplanes and automatically assumed it fell under aeronautics, therefore was ultra vires provincially. (Not a proper pith and substance analysis)

Inter-jurisdictional Immunity Doctrine Doctrine that can immunize certain specific powers from all overlaps

Impugned (but valid) legislation will be read down so that it doesn’t apply to matters that are protected by IJI

Can Western Bank: only for specific/narrow powers and should not be used often

Two views: strong (there should be no encroachment); weak (there can be minor impacts)

Bell #1 Commission du salaire minimum v. Bell Telephone Co. of Canada [1966] SCR Facts: Quebec’s Minimum Wage Act tried to impose a levy on Bell and Bell refused to pay because they had status as a federally regulated undertaking Issues: Can Quebec’s Minimum Wage Act apply to Bell (federal undertaking under 92[10][a])? Decision: Does not apply. Provincial legislation does not apply to federal undertakings if it affects a vital part of the undertaking. Administration of labour is a vital aspect.

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Bell # 2 Bell Canada v Quebec [1988] 1 SCR Facts: Quebec law tried to give right of protective reassignment to a pregnant worker – Bell said province could not apply laws to federal undertakings Decision: Provincial law must be read down so as to not apply to federally regulated undertakings. Ratio: IJI can apply when a law “affects a vital or essential part” of federal undertaking.

Canadian Western Bank v Alberta [2007] 2 S.C.R. 3 **Says it is not enough for the law to “affect a vital or essential part” – it must “impair a vital or essential part” Facts: Alberta required people prompting “piece of mind” insurance to get a license to promote it. And people taking out loans are required to get “piece of mind” insurance. CWB said that banking is federal and protected by IJI.

Issues: Do banks, as federally regulated financial institutions, have to comply with provincial laws regulating promotion/sale of insurance? Decision: IJI not applied. Legislation applies to CWB. This isn’t vital to undertaking of banking and no conflict (compliance with provincial will complement federal). Ratio: Should hesitate to apply IJI. Mentioned that it is possible to apply IJI to give immunity to a provincial power.

COPA – Quebec (AG) v Canadian Owners and Pilots Association, 2010 SCC 39 Facts: Province passed land planning legislation for agricultural reasons (ARPALAA). It designated areas as for agriculture only and they needed authorization to use it for another purpose. Laferriere and Gervais built airstrip without permission and Quebec made them remove it. Issue: Is s 26 of the Act respecting the preservation of agricultural land and agricultural activities outside of Quebec’s power? Decision: The provincial law is intra vires (valid as a whole and s 26 is sufficiently integrated), but does not apply due to IJI. It seriously impairs the core of aeronautics (deciding/approving location of airstrips).

Bank of Montreal v. Marcotte, 2014 SCC 55

Facts: BMO did not disclose fees for using credit cards in foreign currencies, then tried to collect the fees. Consumers said it violated Quebec’s Consumer Protection Act because there was no proper disclose. Issues:

1. Does the provincial CPA apply to banks? Or can they be protected by IJI? If they can, a. Is the power to regulate disclosure at the core of the federal banking power? b. If so, do the provisions significantly impair the power to regulate disclosure?

Decision: Not protected by IJI. CPA applies to banks. (Banking is federal power, but this does not impair the core of federal banking power. Even if it did, the provisions would not significantly impair federal power). Ratio: Apply IJI only with restraint.

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Insite – Canada (AG) v. PHS Community Services Society, 2011 SCC 44 Facts: PHS needed an exemption from the application of the federal Controlled Drugs and Substances Act in order to continue to operate their safe injection site. Minister refused to renew their exemption. Issues:

1. Can IJI be applied to provincial powers (health; matters of local nature)? 2. Is the refusal to renew the exemption a violation of s 7 of the Charter?

Decision: IJI cannot apply to such a broad power, especially because there is no precedent in applying it to this power. But the court did ordered Minister to give an exemption under s 7 of the Charter.

Tsilhqot'in Nation v British Columbia 2014 SCC 44 Facts: BC’s Forest Act says Crown can only issue timber licenses for Crown timber (not private land). Crown land is “land, or an interest in land, vested in the Crown”. The Tsilhqot’in were in process of obtaining title to a piece of land, and gov’t sold timber licenses for that land without consulting them. Issues:

1. Do provincial laws of general application apply to land held under Aboriginal title? 2. Does the Forest Act prima facie apply to Aboriginal land? 3. If so, is its application valid under the Constitution?

Decision: Province has duty to consult and accommodate Tsilhqot’in interest in land – they did not. 1. Yes. But there are constitutional limits. 2. The Forest Act did apply when the licenses were issued – because it was still technically Crown

land. Now that it is under Tsilhqot’in title, the Act no longer applies (the land is no longer vested in the Crown).

3. No. It must be balanced to take Aboriginal rights into consideration. a. Section 35: have fiduciary duty b. Provincial power to regulate land may be limited by section 91(24) (federal power over

Indians, and Lands reserved for Indians) Ratio: Aboriginal title constitutes a beneficial interest in the land. Rights under Aboriginal title include the right to decide how the land will be used, to enjoy, occupy and possess the land and to proactively use and manage the land and its resources. But the court can override Aboriginal title in the public interest if: (1) they carry out consultation and accommodation; (2) they must have a compelling and substantial objective; and (3) action must have been consistent with fiduciary obligation of Aboriginal people

Paramountcy Where there is a conflict, the federal rule is paramount.

Renders the conflicting aspect of the impugned (but valid) provincial legislation inoperable.

Cooperative federalism: o Alberta v Molony, 2015 SCC 51: because of cooperative federalism, we must apply the

doctrine of paramountcy with restraint There is a presumption that Parliament intends its laws to co-exist with

provincial law

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Ross v Registrar of Motor Vehicles [1975] 1 SCR Facts: Under the Criminal Code of Canada, judges have discretion to give full or qualified prohibitions on driving. Judge gave Ross specific order (6 month prohibition that allowed him to drive to work). But the Registrar automatically gave full 3 month suspension. Issues: Is provincial legislation valid? Is federal legislation valid? If so, does paramountcy apply? Decision: No conflict; both can apply. They are both regulating the same thing – but the purpose is different.

The federal legislation gives the judge discretion, but does not allow them to say that the license cannot be suspended. Judge acted outside of legislation.

Multiple Access Ltd v McCutcheon [1982] 2 SCR Facts: Canada’s Corporations Act 1970 and Ontario’s Securities Act 1970 both prohibited insider trading (and federal applied to federally incorporated companies). Shareholder brought action against Multiple Access – but brought it under the provincial legislation, even though Multiple Access is federally incorporated. Issues: Is provincial valid? Is federal valid? If so, should paramountcy apply? Decision: Both are valid and operative. Both apply to Ontario incorporated companies (but courts cannot permit double recovery under both acts). Duplication of legislation is unproblematic when both pieces are after the same result. When to go to paramountcy: if there is an actual conflict – one enactment says “yes” and the other says “no” (compliance with one is defiance of the other).

Bank of Montreal v Hall, [1990] 1 SCR 121 Facts: The federal Bank Act allows bank to take security and enforce it. The provincial Limitation of Civil Rights Act requires the bank to give notice before seizing property. Decision: Even though the bank can comply with both pieces of legislation, the provincial legislation frustrates the purpose of the federal legislation, therefore is invalid under paramountcy. (The federal purpose is to allow bank to easily get security so that more banks give loans – and the province is creating a hurdle for the banks to get security). Ratio: Frustration of purpose leads to an impossibility of dual compliance.

Rothmans, Benson & Hedges v Saskatchewan, 2005 SCC 13 Re-iterated tests from Ross, Multiple Access, Hall: Should paramountcy be applied?

1. Can someone comply with both pieces of legislation simultaneously? 2. Does the provincial legislation frustrate Parliament’s purpose in enacting the legislation?

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Federalism – Heads of Power

Peace, Order and Good Government

Parliament has the power “to make laws for the peace, order and good government of Canada, in relation to all matters not coming within the classes of subjects by this Act assigned exclusively to the Legislatures of the provinces” (section 91 Constitution).

Three Branches of POGG: 1. Gap: for subjects not mentioned in 91 and 92

2. Emergency: temporary legislation during emergency

3. National Concern: for matters that concern the Dominion as a whole

National Concern POGG: -national concern: subject must be recognized as national in dimension -applies permanently -applies in limited fashion Emergency POGG: -power to make laws in unlimited -applies temporarily

Reference Re Anti-Inflation Act, [1976] 2 S.C.R. 373 **Set out requirements for national concern Facts: Feds passed Anti-Inflation Act 1974 that established a system of price, profit, and income control. Applied to private sector firms. Also applied to some public sectors, if there was an agreement between provincial and federal government. Issues: Is the Act ultra vires? Decision: Legislation is valid under the emergency branch of POGG. Does it fall under national concern?:

Beetz (dissenting judge, but was the majority on this point): o Must be indivisible, unified and specified o Must have a distinct subject matter o Must have reasonable limits o Can be a novel subject matter

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R v Crown Zellerbach Canada Ltd [1988] 1 S.C.R. 401 Facts: Zellerbach logging company maintained a log dump on a water lot leased from the provincial Crown. He used a crane to move wood waste into deeper waters (no permit in that spot). He was charged under 13(1)(c) for violating s 4(1) of the federal Ocean Dumping Control Act. Issues:

1. Does federal jurisdiction over dumping at sea (to prevent marine pollution) extend to provincial marine waters?

2. Does the jurisdiction cover dumping cover substances (wood waste) that are not proven to harm marine life?

Analysis: Decision: It is a matter of national concern under POGG – so the law is valid in its application of dumping in provincial waters. Allow the appeal by Crown and send matter back to provincial court.

Distinct: marine water, not fresh water; Indivisible: polluted water can move National Concern Doctrine Test:

1. National concern is separate and distinct from emergency. 2. Applies to matters that did not exist at Confederation, or matters that used to be local nature,

but are now of national concern. 3. Must have singleness, distinctiveness, and indivisibility that clearly distinguishes it from

matters of provincial concern. 4. To determine if SDI is met, apply the provincial inability test.

a. What are the effects on other provinces if a province failed to effectively regulate the issue?

Friends of the Oldman River Society v Canada (Minister of Transport), [1992] 1. SCR Facts: Environmental Assessment and Review Process Guidelines were issued under the federal Department of the Environment Act – it required all federal departments/agencies with decision making authority that could impact environment to screen the proposal and determine whether it could have adverse environmental effects. If it could, there would be a public review by an environmental assessment panel. Alberta Government wanted to construct dam and it was approved by federal Minister of Transport, but it was not subject to environmental assessment. Friends brought action to force them to comply with environmental guidelines. Issues: Is the environment indivisible? Decision: Environment (like health) is indivisible – cannot fall under national concern doctrine of POGG. Both can legislative for their own purposes. Judgement in favour of Friends. *Only feds have the power to control dumping in one province that will impact another. River is federal jurisdiction.

Economic Regulation/Trade and Commerce

Relevant Sections of Constitution: Federal: 91(2) Trade and Commerce; 91(3) taxation; 91(15) banking; 91(25) bankruptcy Provincial: 92(1) local undertakings; 92(2) direct taxation; 92(9) licensing of shops; 92(6) management and sale of public lands/trees; 92(13) Property and Civil rights

92(A): province has jurisdiction to regulate exploration, development, management, and conservation of national resources and production/generation of energy

Both: 95 joint control over agriculture Citizens Insurance v Parsons: T&C should be read narrowly. Fed T&C is only for matters of national concern or interprovincial trade (not to control a particular trade)

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Carnation Co. Ltd. v Quebec Agricultural Marketing Board [1968] SCR 238 Facts: Quebec Marketing Board tries to control dairy prices, but Carnation says the dairy is mainly being exported outside of Quebec, so it is ultra vires. Quebec says it is aimed at contractual rights. Issues: Did the Quebec Marketing Board infringe federal power to legislate T&C? Analysis: Decision: There is an incidental effect on export prices, but the board is aiming at factors of production within the province (price of milk; labour) – so it is intra vires provincial power. Ratio: Sometimes laws that have an incidental effect on other provinces can still be valid.

Manitoba (AG) v. Manitoba Egg & Poultry Assn. [1971] SCR 689 *contradicted Carnation – but can be distinguished as it appears the purpose was to limit trade, whereas the limit on trade was merely incidental in Carnation Facts: Scheme that regulates sale and marketing of products in the province. Decision: Regulation is aimed at limited free flow of trade between provinces, so it is ultra vires. Ratio: Laws which restrict one province from trading with another province are federal jurisdiction.

Reference re Agricultural Products Marketing, [1978] 2 S.C.R. 1198 Decision: Intra vires. Ratio: Production of natural goods is provincial jurisdiction. Marketing the goods to outside markets is federal.

The King v. Eastern Terminal Elevator Co., [1925] SCR 434 Facts: In grain elevators, cleaning and separating dockage from grain can be worth money (dockage is valuable). Canada Grain Act 1912 created the Board of Grain Commission, which had extensive regulatory powers and required the cleaning, weighing, grading and certification of grain. In 1919, s 95(7) was added that said each elevator could only retain .25% of the grain received and the remainder had to be sold and proceeds given to the Board. Eastern Terminal refused (said provision was ultra vires). Issues: Was 95(7) ultra vires? Decision: Act itself is valid; provision is invalid. Scheme is valid because it has an export dimension, but this doesn’t mean they can regulate local activities (just because the broader effect is related to export). It is an attempt to regulate occupations and operation of grain elevators (not their jurisdiction). Aftermath: Feds altered legislation to include grain elevators under federal jurisdiction (92.10.c of the BNA Act).

Labatt Breweries of Canada Limited v Canada (Attorney General), [1980] 1 S.C.R. 914 Facts: Labatt was brewing lite beer that contained too much alcohol to be “lite” beer under the federal Food and Drugs Act. Issues: Can the feds control the production of beer that is made and consumed in one province? Decision: Not federal jurisdiction. Court says the purpose appears to be dictating how product is produced, not what the label says. And it does not fall under T&C because it stays in one province.

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General Motors of Canada v City National Leasing, [1989] 1 SCR 641 Facts: City National had an interest rate deal with GM, but GM realized others were getting better deal. Decision: Whole regime valid. Provision (31.1) upheld under ancillary. GM Test – Ancillary Analysis:

1. Does the impugned provision intrude on other jurisdiction’s’ power? To what extent? – If it does not, it is fine. If it does, proceed to #2,

2. Is the legislative regime valid as a whole? 3. If so, is the impugned sufficiently integrated with the scheme that it can be upheld?

Test for Genera Trade and Commerce Power: **not exhaustive – absence of an aspect is not fatal 1. Is the law part of a general regulatory scheme? (Must be) 2. Is the scheme under the oversight of a regulatory agency? (Must be)

An agency that is there specifically to enforce regulations 3. Is the law concerned with trade as a whole, rather than particular industry? (Must be trade as

whole) 4. Would the provinces (alone or together) be constitutionally incapable of enacting the scheme?

(Must be unable) (Genuinely national in scope) 5. Would failure to include 1+ provinces jeopardize its successful operation? (Must jeopardize)

Reference re Securities Act, 2011 SCC Facts: Feds want provinces to opt-in to legislation regarding capital securities. They say it is their jurisdiction because: capital markets affect well-being of all Canadians; it is national/int’l in scope; we need a competitive capital market; stability and integrity would be enhanced by having a single Canadian securities regulator. Province says it is aimed at a particular trade – so not federal jurisdiction. Issues: Is the proposed Canadian Securities Act within the legislative authority of Parliament (federal)? Decision: Not valid under general T&C. Feds have overstepped boundaries. Their target is too narrow – not aimed at trade as a whole. Ratio: Trade and Commerce is limited to matters that are genuinely national in scope, and distinct. (To limit the overlap between P&C Rights and T&C) Aftermath: In the decision, the courts seemed to tell the feds to try again, but keep it within their power. So they did. They created the Cooperative Capital Markets Regulatory System. Quebec has questioned constitutionality.

Trade and Commerce and Mobility Rights

Black and Co v Law Society of Alberta [1989] 1 SCR 591

Facts: Law Society of Alberta prohibited partnerships between resident and non-resident lawyers in order to prohibit McCarthy and McCarthy from opening a branch in Calgary (they were a Toronto-based firm). Decision: This rule violated s 6(2)(b) of the Charter (which guarantees a citizen or permanent resident the right to pursue the gaining of a livelihood in any province) and could not be upheld under s 1.

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Canadian Egg Marketing Agency v Richardson 1980 3 SCR 157

Facts: NW Territories were excluded from national egg marketing scheme, therefore NWT egg producers (Richardson) were prohibited from marketing or exporting their eggs inter-provincially/internationally. Issues: Does the scheme breach his s 6 mobility rights? Decision: Section 6 says you have mobility in pursuit of livelihood subject to laws that do not discriminate based on residency. The purpose of the scheme is not discriminatory – so it does not breach s6 rights.

Criminal Law

Chart of Provincial and Federal Criminal Law Powers:

Federal Provincial To define prohibitions/offences 91(27) Main Criminal Power

POGG (some matters start out as POGG, then are considered criminal)

Regulatory heads of power – Fisheries, etc

92(13) Property and Civil Rights

92(16) Matters of the merely local or private nature

To punish/set penalties 91 (27) Main Crim 92(15) Criminal procedure/procedure in enforcement of penalties

91(27) Main Crim

96 is relevant – role of superior courts

92(14) Administration of Justice

92(15) Court staffing, court administration, provincial Crowns

***IJI can’t apply to federal criminal power (Can Western Bank)

Margarine Reference – Reference re Validity of Section 5 (a) Dairy Industry Act, [1949] SCR **purpose and form Facts: Act prohibits people from making, importing, selling margarine. Issues: Is s 5 (a) of the Dairy Industry Act sufficiently criminal? Decision: Ultra vires. (The prohibition on importing could be upheld under T&C, but the rest would directly impact the civil rights of people in that industry). Ratio: Health is a valid criminal law purpose. Two Requirements of Criminal Law Legislation:

1. Purpose: a valid criminal law purpose (addressing a public evil) a. Public peace, order, security, health, morality, environment (Hydro-Quebec) others

2. Form: prohibition and penalty

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RJR-MacDonald Inc v Canada (AG), [1995] 3 S.C.R. 199 **introduced ability to have exceptions in prohibition (don’t need strict prohibition – example/ it prohibits advertising, but does not prohibit smoking) Facts: Federal Tobacco Products Control Act prohibited cigarette advertising and required health warnings on cigarettes. Violations could result in up to $300,000 fine or 2 years imprisonment. Quebec said it infringed freedom of expression (2b) and provincial power over advertising (under 92.13 or 92.16). Issues: Does the Act infringe 2b? Or provincial powers? Decision: It is, in pith and substance, valid criminal law and does not appear to be colourable. Legislation upheld. Ratio: Criminal law power is broad – it may be used to “safeguard the public from any ‘injurious or undesirable effect’”

R v Hydro-Québec, [1997] 3 S.C.R. 213 **allowed a discretionary form of prohibition Facts: Hydro challenged the federal Canadian Environmental Protection Act (especially s 11 defining toxic substances) – said it was not sufficiently criminal. Decision: It satisfies criminal law requirements. Purposes are health and environment – can be criminal. Ratio: Environment is valid criminal law purpose. Criminal law power can authorize discretionary administrative authority.

Reference re Firearms Act (Can.), 2000 SCC 31 Facts: Act was passed that required gun owners to register them and get licenses for them. Failure to comply could lead to charges under the Criminal Code. Alberta argued that guns fell under personal property – so provincial jurisdiction. Decision: Intra vires federal power.

Purpose: criminal (yes) (safety)

Form: seems regulatory, but also prohibits anyone who doesn’t have a license from having a gun – form is valid criminal form.

Degree of provincial intrusion on federal crim power is minimal – so both can regulate.

Quebec (AG) v Canada (AG) 2015 – Firearms Reference Part 2 Facts: Federal Gov’t was ending Long Gun registry and wanted to destroy all the data. Quebec wanted to create their own registry, and wanted feds to preserve the Quebec data. Canada refused. Decision: They do not need to preserve data. If the feds have the power to create the law, they have the power to destroy it. Cooperative federalism is irrelevant.

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Reference re Assisted Human Reproduction Act. 2010 SCC 61 Issues: Are sections 8 to 19, 40 to 53, 60, 61 and 68 of the Assisted Human Reproduction Act, S.C. 2004, c.2, ultra vires the Parliament of Canada in whole or in part? Decision:

McLachlin and 3 others: valid under crim o P&S: public health, security, morality

Prevention of negative practices associated with AHR o Applied ancillary to uphold entire regime o Looked at P&S of entire Act first, then looked at provisions o Has criminal law purpose (morality and health); imposes prohibitions; backed by

penalties

Deschamps, LeBel and 2 others: Invalid o Matter: regulation of AHR as a health service (ultra vires) o Said you have to look at impugned provisions first – McLachlin looked at entire P&S first

and that distorted the P&S of provisions

Provincial Criminal Law Power

R. v. Morgentaler, [1993] 3 S.C.R. 463

Provinces may not invade the criminal field by trying to stiffen, supplement or replace criminal law OR try to fill in gaps

But they can regulate around the criminal law – they can regulate the same subject if it is for a valid provincial purpose (and will be accepted under double aspect)

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Nova Scotia (Board of Censors) v McNeil, [1978] 2 S.C.R. 662 Facts: Nova Scotia used the Theatres and Amusement Act to ban “Last Tango in Paris”. Any theatre that showed the movie could have license revoked. Issues: Is it valid legislation under 92(13) (P&C Rights)? Or is this a criminal power (ultra vires)? Decision: Valid provincial legislation. There is no penalty – so not criminal law. Ratio: Majority said that the revocation of a license (to operate theatre) is not a penalty.

Westendorp v R, [1983] 1 S.C.R. 43 Facts: Westendorp was charged under a by-law that attempted to stop prostitution on the streets. Municipality tried to argue that it was a local matter (regulating congregations on the streets; flow of traffic). Decision: Ultra vires. Criminal purpose and form.

Chatterjee v. Ontario (AG), 2009 SCC 19 Facts: Under the provincial Civil Remedies Act, property that is derived from unlawful activity can be forfeited. Chaterjee was arrested for breaching bail and they found cash that smelled like marijuana in his car. He was not convicted of anything, but Ont gov’t wants to seize money. Decision: Upheld. There is a valid purpose under P&C Rights – making crime unprofitable.

Goodwin v British Columbia (Superintendent of Motor Vehicles), 2015 SCC 46 Issues: Is the Automatic Roadside Prohibition scheme (allowing roadside screen devices and roadside suspensions) a valid exercise of provincial power? Or is it federal (heightened Charter protections would apply)? Decision: It is valid – regulatory in nature. (But does breach s 8 – search and seizure).

Inter-governmental agreements

Reference Re Canada Assistance Plan (BC), [1991] 2 S.C.R. 525

Government cannot bind Parliament from exercising its powers to legislate amendments to the Plan

Decision: the power to enact, repeal, or amend Acts is well within the Parliamentary sphere

Delegation

Assignment of law-making powers and other functions to other bodies

Limiting principles o Delegatus non potest delegare (delegates cannot further delegate their powers) o Can’t make constitutional changes via delegation (cannot tell provinces “we don’t want

to legislate banking anymore, so you can do it”

Federal government also delegates power to bands so they can control certain things (negotiated governments)

o Example/ Nisga’a treaty gives them powers relating to culture, language, education, and Nisga’a citizenship and lands

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Federal Spending Power

Federal spending power ability of the federal government to spend money beyond the limitations of its regulatory heads

of power Agreements made between the governments

Provisions related to Federal Spending Power 1867 Act: -53 and 54: process of legislating bills (money) -91(3): the raising of money by any mode or system of taxation -the provincial power only allows for direct taxation to raise revenues for provincial purposes -91(A): public debt and property -106: “Subject to the several Payments by this Act charged on the Consolidated Revenue Fund of Canada, the same shall be appropriated by the Parliament of Canada for the Public Service.” 1892 Act: -36(2): commitment to equalization payments (feds making equalization payments to ensure that provincial governments have sufficient revenues to provide reasonably comparable levels of public services at reasonably comparable levels of taxation)

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Additional Resources

Validity Analysis Chart

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Federalism Checklist

Legislation:

Morgentaler; COPA

What is the “MATTER” of the impugned provision?

1. What is the purpose? a. Text of the statute:

__________________________________________________________ b. Statute as a whole:

__________________________________________________________ c. Legislative history:

__________________________________________________________ d. Government reports:

__________________________________________________________ e. Events in society:

__________________________________________________________

2. What is the effect? a. Legal effect:

__________________________________________________________ b. Practical effect:

__________________________________________________________

3. Colourable? YES___ NO ___

4. “MATTER” = _______________________________________________________________________

Characterization

VALIDITY – PITH & SUBSTANCE ANALYSIS

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EI Reference

Description of the “SCOPE” of the competing classes (Proceed to Test sheet for respective heads of

power).

Where does the “matter” fit in the heads of power under the Constitution?

Federal Provincial

___ 91(2) Regulation of Trade & Commerce ___ 92(7) Hospitals

___ 91(2A) Unemployment Insurance ___ 92(13) Property & Civil

Rights

___ 91(10) Navigation & Shipping ___ 92(14) Maintenance of

Justice

___ 91(15) Banking, Incorporation of Banks, Paper Money ___ 92(16) Matters of Local or

Private Nature

___ 91(27) Criminal Law

___ 92(10) Federal undertakings

___ POGG

Is the matter within the jurisdiction of the enacting legislature? YES___ NO ___

If NO, then the law is INVALID (ultra vires)

IF YES, but there are concerns about overlapping jurisdiction, continue to Double Aspect or Ancillary

Powers Analysis

R. v. Morgentaler (Pith & Substances, purpose and effect) MATTER EI Reference (Scope of head of power) SCOPE

AHRA and GM did P&S of impugned legislation first, then P&S of entire act after. (Dissent disagreed)

Classification

Cases

32

Promislow says this is basically a yes or no answer – don’t spend too much time on it

Legislation:

Double Aspect Doctrine:

Where the “federal and provincial features and provincial features of the challenged rules are of roughly equivalent importance so that neither should be ignored respecting the division of legislative powers.

“Subjects which in one aspect and for one purpose fall within s. 92, may in another aspect and for another purpose fall within s. 91.”

Is there CONFLICT between the federal and provincial provisions?

1. Does the application of one provision displace the legislative purpose of the other provision? YES ___ (Proceed to IJI or Paramountcy analysis)

NO ___ (Double Aspect may apply, move to question #2)

2. Does abiding by one provision mean violating the other provision (Multiple Access)? YES ___ (Proceed to IJI or Paramountcy analysis)

NO ___ (Double Aspect may apply, move to question #3)

3. Is the legislation valid under the Double Aspect Doctrine? YES ___ (Legislation is valid, consider IJI Doctrine & Paramountcy)

NO ___ (Move to Ancillary Powers Analysis for validity)

Multiple Access Ltd v. McCutcheon (1982) Temperance Cases; Morgentaler

IS THERE A DOUBLE ASPECT BETWEEN THE MATTERS? YES ___ NO ___

VALIDITY – DOUBLE ASPECT DOCTRINE ANALYSIS

Test for Conflict

Cases

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Ancillary Powers Doctrine: GM; Lacombe

Concerns legislation that in pith and substance falls outside the jurisdiction of the enacting body. This doctrine may be used as a last attempt to validate an invalid provision. Permissibility depends on “how well the offending provisions are integrated into the otherwise

valid legislative scheme.”

1. Can the impugned provision be viewed as intruding on the other government’s powers, and if so, to what extent?

YES ___ NO ___

If the impugned provision does NOT intrude, and the legislative regime is valid (i.e. step 2), analysis over.

2. Is the legislative regime as a whole valid (i.e. P&S analysis)? YES ___ NO ___

If the legislative regime is NOT valid, the analysis is over.

3. Is the impugned provision sufficiently integrated with the scheme that it can be upheld by virtue of that relationship? This requires considering the seriousness of the encroachment on the other government’s powers, in order to decide on the proper standard for such a relationship.” Minimal Intrusion (Consider criteria in AHRA)

Rational Functional Test: Is it functionally related to the general objective of the legislation, and to the structure and content of the regulatory scheme? YES ___ (Legislation is sufficiently integrated & valid, consider IJI &

Paramountcy)

NO ___ (Legislation is invalid, analysis is over)

Serious Intrusion

Strict Necessity Test: Can the enacting body show that the provision in question is necessarily incidental (truly necessary) to the regulatory scheme as a whole? YES ___ (Legislation is sufficiently integrated & valid, consider IJI &

Paramountcy)

NO ___ (Legislation is invalid, analysis is over)

General Motors of Canada Ltd v. City National Leasing (Test for Ancillary) Quebec (AG) v. Lacombe (Step #3) Assisted Human Reproduction Act Reference (Criteria for intrusion)

VALIDITY – ANCILLARY POWERS ANALYSIS

Ancillary Doctrine Test

Cases

34

IS THE LEGISLATION VALID UNDER ANCILLARY POWERS DOCTRINE? YES ___ NO ___

MAIN QUESTION: Should the head of power be immune from valid provincial legislation if it is

overlapping into exclusive federal jurisdiction?

1. After Canadian Western Bank (and as applied in PHS,), the first step is to consider: Should the doctrine apply as a matter of precedent and nature of the power that

parties wish to immunize? Ask . . .

Is it specific or general head of power? Specific ___ (Proceed to step #2) General ___ (Analysis over)

Can you define a core of the head of power? YES ___ (Proceed to step #2) NO ___ (Analysis over)

2. Does the (provincial) law … trench on the protected “core” of a (federal) competence.

The more general rule is that (provincial) legislation applies to (federal) matters: “works...things…and persons… who are within the special and exclusive jurisdiction of Parliament, are still subject to provincial statutes that are general in their application…..provided however that the application of these provincial laws does not bear upon those subjects in what makes them specifically of federal jurisdiction.” (Beetz, Bell # 2).

A “core” = the text of the constitution creates “exclusive classes of subject to which a basic and unassailable minimum content has to be assigned to make up the matters falling within these classes.” YES ___ (Proceed to step #3) NO ___ (Analysis over)

3. Does the provincial law’s effect on the exercise of the protected federal power is sufficiently

serious [i.e. causes impairment] to invoke the doctrine of interjurisdictional immunity.” (COPA).

“The difference between “affects” and “impairs” is that the former does not imply any adverse consequence whereas the latter does”; impairment implies that the “core” competence is placed in jeopardy (Canadian Western Bank). YES ___ (The provincial legislation CANNOT apply to federal head of power). NO ___ (The provincial legislation CAN apply to federal head of power).

APPLICABILITY – INTERJURISDICTIONAL IMMUNITY ANALYSIS

Interjurisdictional Immunity Test

Cases

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Bell #1 (Test was “affect on vital part” of federal undertaking) Bell #2 (Maintained “affect on vital part” discussed idea of a “core.”) Canadian Western Bank (Created test of “impairment of the core”) COPA (Confirms the test from Canadian Western Bank and persistence

of doctrine. BMO; Insite

IS THE FEDERAL HEAD OF POWER IMMUNE FROM VALID PROVINCIAL LEGISLATION? YES ___NO___

Rule of Paramountcy:

In cases where there are inconsistent of conflicting federal and provincial laws dealing with the same matter, the federal law prevails and the provincial law is suspended or rendered inoperative to the extent that it is inconsistent with the federal law.

1. Can a person comply with both pieces of legislation simultaneously? YES ___ (Analysis over, the doctrine of paramountcy applies) NO ___ (Continue to step #2)

2. Does the provincial legislation frustrate Parliament’s purpose in enacting the legislation? YES ___ (Analysis over, the doctrine of paramountcy applies) NO ___ (The doctrine does NOT apply, both laws may co-exist)

Ross v. Registrar of Motor Vehicles If compliance of both is possible and legislative purpose is NOT frustrated, then

paramountcy does NOT apply. Multiple Access Ltd v. McCutcheon Bank of Montreal v. Hall:

Dual compliance is not the only mark of inconsistency. Provincial legislation that displaces or frustrates Parliament’s legislative purpose is also inconsistent for the purposes of the doctrine of paramountcy.

Rothmans v. Saskatchewan If compliance of both pieces of legislation is possible and the legislative purpose is NOT

frustrated then the paramountcy doctrine is NOT triggered. Current Test for Paramountcy

Alberta v Molony

IS THERE CONFLICT BETWEEN THE PROVISIONS TRIGGERING PARAMOUNTCY?YES ___ NO___

OPERABILITY – PARAMOUNTCY ANALYSIS

Paramountcy Test

Cases

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Gap Branch

1. Is the subject of the impugned federal legislation mentioned in either s. 91 or s. 92? YES ___ (Gap branch cannot apply, consider Emergency or National Concern branches) NO ___ (The gap branch of POGG may apply)

Emergency Powers Branch

1. Extrinsic Evidence (consider) a. Preamble:_______________________________________________________________ b. Government Reports:______________________________________________________ c. Events in society:__________________________________________________________

2. Is the federal legislation NECESSARY? YES ___ NO ___ (If NO, analysis over)

3. Is the federal legislation TEMPORARY? YES ___ NO ___ (If NO, analysis over)

Reference re Anti-Inflation Act [1976] (Test for Emergency Powers branch)

National Concern Branch

National Concern – Test (Crown Zellerbach)

1. Does the legislation apply to new matters which did not exist at Confederation or to matters that have become ones of national concern?

YES ___ NO ___ (If YES, move to step #2)

2. Does the matter of national concern must have a singleness, distinctiveness and indivisibility that clearly distinguishes it from matters of provincial concern?

YES ___ NO ___ (If YES, move to step #3) 3. Does the matter must have a LOW scale of impact on provincial jurisdiction that is reconcilable

with the fundamental distribution of legislative power under the Constitution? YES ___ NO ___ (If YES, move to step #4)

4. Do the provinces have an inability to deal with the matter? – 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.

YES ___ NO ___ (If YES, the National Concern branch applies)

R. v. Crown Zellerbach Canada Ltd

The federal legislation regarding marine pollution is valid under national concern) Test for the National Concern branch.

SCOPE OF POWER: POGG ANALYSIS

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Friends of the Oldman River Society v. Canada

The federal government can intervene in provincial projects if they impinge in federal residual POGG power but NOT necessarily for all environmental issues.

DOES THE “MATTER” FALL WITHIN POGG? YES ___ NO ___ BRANCH __________

MAIN QUESTION: What falls within the scope of s. 92(13) “Property & Civil Rights in the

Province”?

Carnation Co Ltd. v. Quebec Agricultural Marketing Board [1968]

Are the effects of provincial economic regulation on trade and commerce outside the province only INCIDENTAL?

YES ___ NO ___ (If NO, the provincial legislation is ultra vires)

Manitoba (AG) v. Manitoba Egg & Poultry Association [1971]

Is the provincial economic regulation aimed at regulating INTERPROVINCIAL (province to province) trade and commerce?

YES ___ NO ___ (If YES, the provincial legislation is ultra vires)

Agricultural Products Marketing Act [1978]

Is the provincial economic regulation part of a federal scheme aimed at interprovincial trade and commerce?

YES ___ NO ___ (If YES, the provincial legislation may be valid)

SCOPE OF POWER: ECONOMIC REGULATION – PROVINCIAL

Case Tests for Provincial Economic Regulation

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DOES THE “MATTER” FALL WITHIN THE SCOPE OF S. 92(13)?YES ___ NO ___

MAIN QUESTION: What falls within the scope of s. 91(2) “Regulation of Trade and Commerce”?

The King v. Eastern Terminal Elevator Co. [1925]

Does the federal economic regulation, despite involving a product used primarily for export which the province cannot regulate still infringe on matters of a merely local nature within the province?

YES ___ NO ___ (If YES, the federal legislation is ultra vires)

The Queen v. Klassen [1960]

If the federal economic regulation infringes on intra-provincial property and civil rights, does it do so ONLY in an ancillary manner? (Requires analysis of whether failure to regulate would jeopardize entire federal scheme).

YES ___ NO ___ (If YES, the federal legislation may be valid)

The Test for General Regulation (General Motors)

1. Is the impugned legislation is part of a general regulatory scheme? YES ___

NO ___

2. The scheme is overseen by a regulatory agency?

YES ___

NO ___

3. The legislation must be concerned with trade as a whole rather than with a particular industry (Labatt’s)?

YES ___

NO ___

4. The legislation should be of a nature that the provinces, jointly or severally, would be constitutionally incapable of enacting.

YES ___

NO ___

SCOPE OF POWER: ECONOMIC REGULATION – FEDERAL

International & Interprovincial Trade

General Regulation Affecting Whole Dominion

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5. The failure to include one or more provinces or localities in a legislative scheme would jeopardize the successful operation of the scheme in other parts of the country (General Motors)?

YES ___

NO ___

Labatt Breweries of Canada v. Canada (AG)[1980]

Parliament cannot regulate a specific industry and can only regulation trade and commerce as a whole.

General Motors of Canada v. City National Leasing [1989]

Test for General Regulation branch of s. 91(2) “trade and commerce”. Kirkbi AG v. Ritvik Holdings Inc. [2005]

DOES THE “MATTER” FALL WITHIN THE SCOPE OF S. 91(2)? YES ___ NO ___ BRANCH

____________

MAIN QUESTION: What falls within the scope of federal s. 91(27) “Criminal Law”?

The Test for Criminal Law (Margarine Reference): 1. Does the provision have a valid criminal law PURPOSE? (i.e. public peace, order, security, health,

morality, safety)? YES ___ (Move to step #2) NO ___ (The provision cannot falls under criminal law)

2. Does the provision adhere to the proper form requirements? (i.e. does it have a prohibition AND a penalty)?

YES ___ (The provision falls under criminal law) NO ___ (The provision cannot fall under criminal law and is ultra vires if provincial)

Reference re Validity of Section 5(a) of the Dairy Industry Act (Margarine Reference) [1949] Criminal laws must have both valid criminal objectives (i.e. public peace, order, security, health,

morality) while adhering to form requirements.

SCOPE OF POWER: CRIMINAL LAW – FEDERAL

Requirements for Criminal Law

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RJR MacDonald Inc. v. Canada (AG) [1995] A statute with a primary purpose of protecting the health of Canadians with penal sanctions that

follow non-compliance is in pith and substance criminal in nature, and is intra vires the federal government.

R. v. Hydro-Quebec [1997] Environmental protection can fall under the criminal law power of s. 91(27).

Reference re Firearms Act (SCC, 2000)

Parliament can do indirectly what it can do directly (greater power includes the lesser power). If it can prohibit guns then it can regulate guns. Added “safety” as an element from the Margarine Reference.

DOES THE “MATTER” FALL WITHIN THE SCOPE OF S. 91(27) “CRIMINAL LAW”? YES ___NO ___

MAIN QUESTIONS: What falls within the scope of provincial s. 92(14) “The Administration of

Justice in the Province . . . “?

What falls within the scope of provincial s. 92(15) “The Imposition of

Punishment by Fine, Penalty, or Imprisonment for enforcing any Law of the

Province . . . “?

Guiding Principle (Morgentaler): Provinces may NOT invade the criminal field by attempting to stiffen, supplement or replace the

criminal law . . . or to fill perceived defects or gaps therein.” Province CAN regulate “around” the criminal law and have a double aspect in a number of

ways: o Ex. Attaching civil consequences, “preventative” regulation.

Nova Scotia Board of Censors v. McNeil [1978]

Does the provincial legislation regulate on moral grounds and is it anchored in another provincial power?

YES ___ NO ___ (If NO, the provincial legislation is ultra vires) Westendorp v. The Queen [1983]

Does the provincial legislation prevent crime through a head of power within its jurisdiction and without a criminal purpose?

YES ___ NO ___ (If NO, the provincial legislation is ultra vires)

SCOPE OF POWER: CRIMINAL LAW – PROVINCIAL

Case Tests for Provincial Criminal Power

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DOES THE “MATTER” FALL WITHIN THE SCOPE OF S. 92(14) or S. 92(15) YES ___

NO ___

Provincial Legislation Valid Provincial Legislation Invalid

McNeil (1978) Censorship Provincial purpose - local standards in local

transactions, conducting the business.

Westendorp (1983) Ban of prostitution on streets. No valid provincial purpose; bylaw in issue not

well integrated, supplements/fixes criminal law.

Dupond (1978) Temporary ban on public demonstrations. Provincial purpose – local matters;

preventative rather than punitive.

Morgentaler (1993) Ban on abortions (etc) except in hospitals No valid provincial purpose. Provisions,

purpose are criminal law not hospitals/health.

Rio Hotel (1987) Liquor license condition prohibiting nude

entertainment. Provincial purpose – liquor control;

prohibition well integrated, no punitive sanctions.

Chatterjee (2009) Forfeiture of proceeds of crime to province. Provincial purpose - administration of

criminal justice: recouping costs, deterring crime; significant double aspect.

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1. Is the legislation valid?

a. P&S b. Double Aspect c. Ancillary

2. Is the legislation applicable? a. IJI

3. Is the legislation operative? a. Paramountcy