CANADIAN CONSTITUTIONAL LAW 2004-2005; PROF. MARK ANTAKISummary by Kirk Shannon adapted from Derek McKee’s 02/03 summary

INTRODUCTION........................................................................................................................3Constitutional Principles.....................................................................................................................4

Jean-François Gaudreault-DesBiens, “The Quebec Secession Reference…” (CBp.57)..................................................4Reference re the Secession of Quebec.............................................................................................................................4

Four principles................................................................................................................................................... 5Legitimacy......................................................................................................................................................... 6

Executive and Legislative Powers and the Rule of Law...................................................................6Rule of Law....................................................................................................................................................... 7Parliamentary Supremacy................................................................................................................................. 8Rule of law tied to Parliamentary Supremacy....................................................................................................8

Roncarelli v. Duplessis, [1959] SCR 121...........................................................................................................................8The Judiciary........................................................................................................................................9

Judicial Review and the rule of law................................................................................................................... 9Judicial Independence....................................................................................................................................... 9Judicial Review Constitutionally Guaranteed.....................................................................................................9Legitimacy of Judicial Review and Constitutional Interpretation......................................................................10

Robin Elliot, “References, Structural Argumentation and the Organizing Principles of Canada's Constitution” (CBp.32)......................................................................................................................................................................................... 10Reference re Meaning of the Word “Persons” [1928] SCR 276./Edwards v. A.G. Canada [1930] A.C. 123 (H.L.) (CBp.41).......................................................................................................................................................................... 10

Section 96 and Administrative Tribunals.........................................................................................................11Labour Relations Board of Saskatchewan v. John East Works Ltd.................................................................................11Reference re Residential Tenancies Act.........................................................................................................................12Sobeys Stores Ltd v. Yeomans and Labour Standards Tribunal.....................................................................................13Ref re Amendments to the Residential Tenancies Act (NS)............................................................................................13McEvoy v. Attorney Gen of NB and Attorney Gen of Canada.........................................................................................13Ref re Young Offenders Act (PEI)...................................................................................................................................14Crevier v. Quebec Attorney Gen......................................................................................................................................14

FEDERALISM...........................................................................................................................15Historical Chapters in Canadian Federalism...................................................................................15

The Late Nineteenth Century..........................................................................................................................15Citizens Insurance Company v. Parsons (1880-1881), (CB p.90)...................................................................................15Russell v. The Queen (1882), 7 AC 829 (PC) (CB p.97).................................................................................................16Hodge v. The Queen (1883), 9 AC 117 (PC) (CB p.101)................................................................................................16AG Ontario v. AG Canada (The Local Prohibition Reference) [1896] AC 348 (PC) (CB p.107)......................................17The Compact Theory (CBp.114)......................................................................................................................................17

The Early Twentieth Century........................................................................................................................... 17Reference re Board of Commerce Act and Combines and Fair Prices Act (1920-1922) (CB p.127)..............................18Fort Frances Pulp and Paper Company v. Manitoba Free Press Company [1923] (CB p. 132).....................................18Toronto Electric Commissioners v. Snider (1925) (CB p.137).........................................................................................18The King v. Eastern Terminal Elevator Co. [1925] (CB p.141)........................................................................................19H.E. Smith, “The Residue of Power in Canada,” (1926) (CBp.146)................................................................................19J.R. Mallory, “Social Credit and the Federal Power in Canada,” (1954) (CBp.147)........................................................19Alan Cairns, “The Judicial Committee and its Critics,” (1971) (CBp.149)........................................................................20

The Depression and the “New Deal”...............................................................................................................20W.F. O’Connor, The O’Connor Report (1939) (CBp.183)................................................................................................20Proprietary Articles Trade Association v. AG Canada (1929-1931) (CB p.155)..............................................................20Reference re the Regulation and Control of Aeronautics in Canada (1930-1932) (CB p.157)........................................21Reference re Regulation and Control of Radio Communication in Canada (1931-1932) (CB p.160).............................21A.G. Canada v. A.G. Ontario (Labour Conventions) (1936-1937) (CB p.168).................................................................21AG Canada v. AG Ontario (The employment and Social Insurance Act)........................................................................22F.R. Scott, “The Consequences of the Privy Council Decisions” (1937) (CBp.181)........................................................22AG B.C. v. AG Canada (The Natural Products Marketing Act) [1936].............................................................................22

Federalism and the Modern Canadian State...................................................................................23

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Richard Simeon, “Criteria for Choice in Federal Systems” (CBp.198).............................................................................23Bruce Ryder, “The Demise and Rise of the Classical Paradigm” (1991) (CBp.237).......................................................23

Interpreting the Division of Powers..................................................................................................24Validity: Pith and Substance............................................................................................................................ 24

R v. Morgentaler [1993] 3 SCR 463. (CB p.213).............................................................................................................24Katherine Swinton, “The Anatomy of Constitutional Interpretation” (1990) (CBp.205)....................................................25W.R. Lederman, “Classification of Laws and the British North America Act” (1981) (CBp.208)......................................25

Validity: Necessarily Incidental or Ancillary.....................................................................................................25General Motors of Canada Ltd. v. City National Leasing [1989] 1 SCR 641. (CB p.225&371).......................................26

Validity: Double Aspect.................................................................................................................................... 26Multiple Access Ltd. v. McCutcheon [1982] 2 SCR 161. (CB p.232 and p.260)..............................................................26W.R. Lederman, “Classification of Laws and the British North America Act” (1981) (CBp.231)......................................27

Applicability: Interjurisdictional Immunity.........................................................................................................27McKay v. The Queen, [1965] SCR 798. (CB p.242)........................................................................................................27

Reading down....................................................................................................................................................................28Commission de la Santé et de la Sécurité du Travail v. Bell (Bell #2) [1988] 1 SCR 749. (CB p.246)............................28Irwin Toy Ltd. v. Quebec (AG).........................................................................................................................................28

Operability: Paramountcy................................................................................................................................ 29Ross v. Registrar of Motor Vehicles, [1975] 1 SCR 5. (CB p.255)..................................................................................29Multiple Access Ltd. v. McCutcheon [1982] 2 SCR 161. (CB p.232 and p.260)..............................................................29Bank of Montreal v. Hall, [1990] 1 SCR 121....................................................................................................................30

Peace, Order and Good Government...............................................................................................31Monahan on POGG (pp.255-273)...................................................................................................................................31Reference re Anti-Inflation Act, [1976] 2 SCR 373. (CBp.281)........................................................................................31Katherine Swinton: Laskin and Beetz (CBp.276).............................................................................................................33The Beetz-Lederman Thesis (Monahan, p.266)..............................................................................................................33R. v. Crown Zellerbach Canada Ltd., [1988] 1 SCR 401. (CBp.303)...............................................................................33Friends of the Oldman River Society v. Canada (Minister of Transport), [1992] 1 SCR 3. (CBp.318)............................34

Economic Regulation........................................................................................................................35Provincial Powers over Economic Regulation.................................................................................................35

Carnation Co. Ltd. v. Quebec Agricultural Marketing Board [1968] SCR 238. (CBp.330)...............................................35Manitoba Egg Reference (1971) (CBp.334)....................................................................................................................35Burns Foods Ltd. v. AG Manitoba....................................................................................................................................36Re Agricultural Products Marketing Act...........................................................................................................................36Canadian Industrial Gas and Oil Ltd. v. Govt. of Saskatchewan [1978] 2 SCR 545. (CBp.345).....................................37Central Canadian Potash Co. Ltd. v. Govt. of Saskatchewan [1979] 1 SCR 42. (CBp.350)...........................................38

Federal Powers over Economic Regulation.....................................................................................................381. Interprovincial / International Trade........................................................................................................................................39

The Queen v. Klassen (1960), 20 D.L.R. (2d) 406 (Man.C.A.). (CBp.357).....................................................................39Caloil Inc. v. A.G. Canada [1971] SCR 543. (CBp.361)..................................................................................................39Dominion Stores Ltd. v. The Queen [1980] 1 SCR 844. (CBp.362)................................................................................40

2. GENERAL BRANCH OF T&C..............................................................................................................................................41Labatt Breweries of Canada Ltd. v. A.G. Canada [1980] 1 SCR 914. (CBp.366)............................................................41General Motors of Canada Ltd. v. City National Leasing [1989] 1 SCR 641. (CB p.225&371).......................................42

Criminal Law.......................................................................................................................................43Federal Powers over Criminal Law.................................................................................................................. 44

Margarine Reference, [1949] SCR 1. (CBp.390).............................................................................................................44RJR MacDonald Inc. v. Canada (Attorney General), [1995] 3 SCR 199. (CBp.392).......................................................45R. v. Hydro-Québec, [1997] 3 SCR 213. (CBp.400)........................................................................................................45Reference re Firearms Act, [2000] 1 SCR 783. (CBp.413)..............................................................................................46

Provincial Powers over Criminal Law..............................................................................................................47Re Nova Scotia Board of Censors v. McNeil, [1978] 2 SCR 662. (CBp.416)..................................................................47Westendorp v. The Queen, [1983] 1 SCR 43. (CBp.421)................................................................................................48Rio Hotel Ltd. v. New Brunswick Liquor Licensing Board [1987].....................................................................................48

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INTRODUCTION According to s.52 [CA1982], “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.” The preamble to CA1867 lacks any inspiring language—it talks only of a union of colonies with a constitution

“similar in principle to that of the United Kingdom”; it talks of the “welfare of the provinces,” the “interests of the British Empire.” The preamble to CA1982 is equally uninspiring.

1) Constitutional Law turned to the words Id of key words in latin

o Latin – Stare – To stand –o Caused to stand The state is caused to stand o Look at CONstitution. To mean together – to stand together [Con is descriptive in and of itself

(vs. restitution or institution) ]o Different words for types of laws must also be examined (droit vs. loi, gesetz vs. rechts, law)

Written vs unwritteno What is meant to be written into the constitution? Many things that are important are not.

A constitution does not “set up the framework” - “It is the framework.” Presupposition that ‘it’ is written. Need not be written. Not all countries necessarily

have written constitution but rather may rely on a group of principles that ARE a constitution (UK).

Writings just capture those rules that (at one point) already govern our interaction When you write down a constit. it becomes a super-legality entrenched in framework.

Must investigate how to change it. See secession Ref summary (para 54)

Constitution vs. Limitation (How do these two relate?)o What is Con Law

Limitations placed on Gov’t (expressed in the language of rights) Balance of rights of citizens Recourse given, right to a remedy Sovereignty/federalism Framework Freedom from something and rights to something. An obiligation tends to be a carollarie See Secession Ref summary below (para 56)

2) CCL: Ch 1Defn of Constitutional Law: An open-ended set of rules, principles and practices that represent efforts to identify, define and reconcile competing rights, responsibilities and functions of gov’ts, communities and idivids

The consit of a society is an assortment of important rules, principles, and practices relating to the governance of society. --

Constit’s deal with the structures, procedure and powers of governmental instits and the nature and scope of individual rights and responsibilities in the face of public power.

Four features of Canadian constit.: 1) parliamentary democ, 2) federalism, 3) individ and group rights and 4) Aboriginal rights.

The rule of law is another element of the constit. Sources of the CDN Constit: the common law (found in statutes, others in conventions that are not legally enforceable, but are followed)

Supreme court created in 1875 – 1949, Brit Privy Council was no longer the highest body.

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Constitutional PrinciplesPrinciple: something that comes first CDN Constit not a typical Democratic Document not on the face of it, not “we the people…” -- different rhetorical form from other democratic constitutions The constitution includes:

contitutional texts quasi-constitutional statutes constitutional conventions (the existence of which lends support for the notion of “unwritten principles)

Quebec Secession Reference: “legality and legitimacy are linked”

Jean-François Gaudreault-DesBiens, “The Quebec Secession Reference…” (CBp.57) Gaudreault-DesBiens says that the QSR turns on conflicting notions of history and memory,

especially memory as intertwined with the identity narrative of the community. Gaudreault-DesBiens says that one cannot seriously approach constitutional interpretation while ignoring these narratives. This leads him to three observations:

1. Identity narratives are material and legitimate, and courts should be open to them.2. This does not mean that courts should accept mythologies uncritically.3. Narratives are often contested within a community.

Reference re the Secession of Quebec [1998] SCCFacts:

Questions asked – 1) Under constit of Canada, can quebec seced unilaterally

2a) Does international law allow for unilateral secession?

2b) is there a right to self determination that under international law that would give the national assembly, legislature or gov’t of Que the right to affect the secession of Quebec unilaterally

3) Conflict between international and domestic law

Issues: Justicibility is a ruling by this court within

purview of the court and is the court constituting itself as an international court

Constitutionality Is s.53 of the supreme court act Constitutional? Original jurisdiction allowed by showing that a court of appeal has done it before. If shown then s. 53 stands.

Legality Do these questions fit under s. 53? Ripe for consideration? speculative, political

nature,? Can Quebec Gov’t or head of gov’t or legislature

secede unilaterally Recognition by international law should it decide

to secede unilaterally

Decision: The court unanimously found that the case was

justiciable, and went on to rule that neither the Canadian constitution nor international law provided for Quebec’s unilateral secession. However, it also found that in the event that a clear majority of Quebeckers voted “yes” to a clear question about secession, the federal government and the other Canadian provinces would be obliged to negotiate constitutional changes with Quebec.

Ratio: Dealing with Justiciability of courts in this reference

first. (see 2nd page of the handout) Objections to questions being too theoretical or

speculative acting in an advisory role only, question are able to be interpreted and are not too vague. There is enough information to produce opinion

Too political in nature questions and answers confined to legal framework

Constitutional principles: Federalism, democracy, constitutionalism and the rule of law, respect for minority rights

Quebec must enter negotiations after a referendum on a clear question with a clear majority (up to political actors to decide what clear means)

McKee Raito: There was no explicit answer in the text, so the SCC used a structural approach. It began by giving a potted history of Confederation, emphasizing its voluntary nature, the balancing of regional interests, and how the federal-provincial arrangements had been devised. It said, “The vision of those who brought about Confederation was to create a unified country, not a loose alliance of autonomous provinces.”It then went on to describe four “underlying principles,” which it called the “lifeblood” of the constitution (it said

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this list was not exhaustive): federalism: The SCC applauds both the “democracy” and “community” aspects of federalism, noting how it

has given Quebec significant autonomy. democracy: The SCC says that democracy means more than majority rule; it has an “institutional” and an

“individual” aspect. It drew on the principles laid out in Oakes. constitutionalism and the rule of law: “The law is supreme over the acts of both government and private

persons. There is, in short, one law for all.” There needs to be an order of positive law which reflects the normative order. And the relationship between the state and the individual must be regulated by law. Constitutions are entrenched beyond the reach of simple majority rule in order to safeguard human rights, protect minorities against assimilation, and divide power between different levels of government.

respect for minorities: The fact that many of Canada’s regimes for protecting minority rights arose out of historical compromises does not detract from the principle behind them. Although “Canada’s record of upholding the rights of minorities is not a spotless one,” it has been the goal all along.

The court emphasized also that none of these principles is absolute to the exclusion of the others.Notes:

[para 53] A written constit promotes legal certainty and predictability, and it provides a foundation and a touchstone for the exercise of constitutional judicial review

[para 54] in the process of constit adjudication, the court may have regard to unwritten postulates which form the very foundation of the constit of Canada

[para 56] it is up to the courts to control the limits of the respective sovereignties (ie provincial and federal legislatures)

Discussion of rules and values (they are not interchangeable even though the court uses them interchangeably)

Four principles: (in para 49) Four principles are unwritten and “no single principle can be defined in isolation from the others”. They function in symbiosis. No one trumps or excludes the operation of another

All first – how can all be first? All unwritten

1) Democracy: demos -‘the people’ (either direct–rule themselves – or indirect-rule by elected) Still distinction b/n ruler and ruled. Majority rule (procedures that will allow will of majority to be identified) Self-limitation brings us to rule of law, constitutionalism Cannot exist without the rule of law (para 67 Secession ref)

2) Federalism: - separation of powers not clear where ultimate sovereignty resides. different jurisdictions

3) Constitutionality and the Rule of Law: Constitutionalism and amendments thereof must be performed by an ‘enhanced majority

(para 77 sucessions ref.) 4) Protection of Minorities:

Constitutional Principles Four Principles are presupposed and therefore unwritten. They are “similar in principle of the UK constit” which is unwritten and are “Vital unstated assumptions upon which the text is based” (para 49). There is an idea of a ‘basic constitution structure’ – individual elements of the constitution are linked to one another and must be interpreted in reference to one another (para 50). The Reference also spoke of touchtones of written constit, eg. preamble to constit, 1867

What are points of contact b/n unwritten principles and written statutes of the constitution

Legitimacy A social science concept A popular belief in an individ’s claim to a certain position

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o Moral values, legalityo Validity, arbitrary

Para 67 as a ref point in Succession Ref.“To be accorded legitimacy, democratic institutions must rest, ultimately, on legal foundations. That is, they must allow for the participation of, and accountability to, the people, through public institutions created under the constitution. Equally, however, a system must also possess legitimacy, and in our political culture, that requires an interaction b/n the rule of law and the democratic principle. The system must be capable of reflecting the aspirations of the people. But there is more. Our law’s claim to legitimacy also rests on an appeal to moral values, many of which are imbedded in our constitutional structure. It would be a grave mistake to equate legitimacy with the “sovereign will” or majority rule alone, to the exclusion of other constitutional values.

Political power might be a form of legitimacy- Parl Supremacy, and grounds for it and Parl allows for discussion, ideas (liberalism or exchange of

ideas).

Executive and Legislative Powers and the Rule of Law The fact that executive power is “vested in the Queen” (s.9, CA1867) is misleading. “The Crown” includes the

queen, the governor-general, the prime minister, the cabinet, the civil service, the armed forces, the police: all of the executive branch.

The Crown has constitutional powers as well as statutory powers. The text of CA1867 does not reflect the real powers of the executive: There is a disjunction between what is

written in the constitution and what’s happened in practice. With the rise of the administrative state, the power of legislatures has diminished. The power of the executive

is now mainly checked by: Federalism The Charter

Dicey’s “rule of law” had three meanings: 1. “…no man is punishable or can lawfully be made to suffer in body or goods except for a distinct breach of law established in the ordinary legal manner before the ordinary Courts of the land.”2. “…not only that with us no man is above the law, but (what is a different thing) that here every man, whatever be his rank or condition, is subject to the ordinary law of the realm and amenable to the jurisdiction of the ordinary tribunals.”3. “…the general principles of the constitution (as for example the right to personal liberty, or the right of public meeting) are with us the result of judicial decisions determining the rights of private persons in particular cases brought before the Courts”

John A. Macdonald’s idea of the British constitution included: political rights (participation) civil rights (negative rights: speech, religion, property, etc.) protection of minorities

This was a thin “Diceyan” conception of the rule of law, which meant that it could be discriminatory as long as it was consistent in its application.

Dicey The general fear of arbitrariness moves society towards parliament rather than a single rulero The law is what gives parliament its power. o He privileges the courts as interpreters of the law crucial to his conception of the

rule of law.o Parliamentarians are the speakers. They speak the language of the law

- Language of parliamentarianism universal reason, debate, plurality of people links with rule of law

Rule of Law what is it compatible with (forms of political power)? What forms of political organization does the rule of law encourage?

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- Comes from concept of legality can have punishment without a crime, can’t have crime without a law - Relationship b/n legal goodness and moral goodness as it relates to the rule of law

o Does the rule of law have to link to this moral goodnesso Eg British tradition is tied to free market, liberalism

Formulations (para 71 of succession ref) o “source of power in legal rule”o Law is supreme over the acts of both government and private persons. o “The rule of law requires the creation and maintenance of an actual order of positive laws which

preserves and embodies the more general principle of normative order.”o The exercise of all public power must find its ultimate source in a legal rule. Put another way, the

relationship b/n the state and the individual must be regulated by law. Taken together, these three considerations make up a principle of profound constitutional and political signif.

Constitutionalism considered to be the pinnacle of Rule of lawo Written constitution as part of a culture of the rule of law. Can have the rule of law without a

written constitution.o Discussion of how written constitution encourages culture of rights rather than a culture of

democracy. Go to courts rather than articulation through election. Some would argue that, after charter in 82, we have moved from an état de driots to an état de lois (Charter has moralized law)

- In preamble to both constits some reference to the rule of law (actually written in 1982 and in “similar in to UK constit”

- Executive only acts in the way dictated by legislature (people wearing two hats) and rule of law might be better with more separation of powers

- Relation b/n “rule of law” and “rule BY law” idea of rule of law comes out of rule by law- Rule of law becomes an aspiration

Spectrum of conceptions of the Rule of Law American and Cdn more material whereas UK is more formal- Formal in rule of law

o subjection of executive under rule of law o More letter of the lawo Political actors must be empowered by statute o Procedure, general laws and principles o Anything that is entrenched

- Materialo Point of the rule of law is to protect certain thingso Identification of the so-called values the rule of law is there to protect.o Reflection of certain ways of governing ourselves o Court has discussion with legislature to protect certain parts of the constit. Certain rules of justice

that parl cannot depart from unless they are very clear – sense of interpretation

see Roncarelli : Public officers operating within their duties (CBp.643) See case belowo Could be very much formal procedureo Could be material concept of the rule of law (ie. idea that certain laws cannot or

should not be made)o Must conform to some sort of framework that is known by people

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Parliamentary SupremacyWhen a body is supreme means that is has a responsibility to keep its power and might not be able to delegate this power.- Monahan = Responsible Gov’t as internal limit on Parl Supremacy- How does apply in Canadian context?

o Limited by federalismo Charter limits and Aboriginal rights certain things can’t do as these are entrenched…

But….Still s.33 (notwithstanding clause) which over-rides charter rule…..o Democratic deficit that will become apparent if continues use of s. 33o Still could amend charter, supremacy exists…but only to a certain extent and under

certain conditions- From Monahan Ch3

- In 1867 act, Privy Council’s theory seemed to be that, as long as parl or legislatures stayed within bounds of s. 91,92 of the act, that they had the supreme power possessed by the Brit Parl (Wasn’t in text of the constit until 1982)

- See Ref re Agricultural Marketing Act (in economic reg chapter) where Pigeon says high degree of deference should be give to joint ventures when working together, it seems, they can come close to being supreme.

Rule of law tied to Parliamentary Supremacy- Is Rule of Law a limitation on Parl supremacy, a result or consequence of parl supremacy?- Rule of law and Parl Supremacy answer different questions but are compatable Questions of Who

and How exercises power connect them. - (Incompatable In UK context, both claim to be supreme How is that possible?)- In Canada, rule of law defines boundaries of parl supremacy.

Display that the rule of law applies to allRoncarelli v. Duplessis, [1959] SCR 121.Facts:

o Roncarelli owned restaurant and had his liquor licence revoked as result of dispute

o He bailed Jehovah’s Witnesses out of Jail when they were arrested for distributing literature (an illegal act at the time)

o Subsequently forced to close restaurant

Issue:o Revocation of a privilege (liquor

licence) – was it punitive and a message of power

o Does it fall under ‘discretion’?

Decision:o For Roncarelli with damages

Ratio:o the administration acting according to its arbitrary

likes and dislikes and irrelevant purposes of public officers acting beyond their duty, would signalize a beginning of the disintegration of the rule of law as a fundamental postulate of our constitutional structure

o Not discretion as discretion implies good faith in discharging public duties

o Liquor law, criminal code law to revoke licence did not allow Dup. to do so. Ie., used liquor licence to deal with issues in the criminal code.

o See above pg. formal v. material

Notes:- Crux: Were Roncarreli’s rights violated? - Court was lucky that that it had the facts it did was able to trace this.- Examination of the rule of law. Dup. didn’t follow it as he did not use those laws which applied to liquor

licence to revoke licence- Language of rights in case Privilege to a liquor licence (not a right) but the court tries to protect this

privilege- Non-rights that become crucial to people’s lives (liquor licence or taxi medallions) therefore courts try

to protect them

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The Judiciary

Judicial Review and the rule of law

Defn of Judicial Review (from CCL): power of the courts in Canada to determine (when asked) whether an action taken by a govn’tal body or legal actor (eg Parl of Canada or a member of RCMP) is or is not in compliance with our constit – if not, to declare it unconstitutional

Monahan, chapter 4, pp. 125-138 This section explains the court system and judicial independence. Some points: There are very few appeals to the SCC “as of right”; the SCC grants leave to appeal to 12-15% of the 500

applications it gets each year. (p. 131) The Federal Court deals with cases federal statute law and “federal common law,” which may or may not

exist. The Federal Courts also have “concurrent jurisdiction” in lawsuits against the Crown. (p.134) There are two aspects of judicial independence:

Judges must be autonomous and independent of other branches of government. Judges must be immune from the consequences of their actions as judges.

s.99 [CA1867]: Federally-appointed judges hold office on good behaviour, but are removable by Parliament. Under the Federal Judges Act, the Canadian Judicial Council must investigate and endorse any complaint against a judge.

s.100 [CA1867]: Judges’ salaries cannot be reduced (both federal and provincial). Non-discriminatory, across-the-board reductions may be possible through certain procedures.

Part VII, ss.96-101 [CA1867] establishes the federal-provincial division in the judiciary. s.11(d) of CA1982 gives Canadians “the right to be presumed innocent until proven guilty according to law in

a fair and public hearing by an independent and impartial tribunal.” Constitutional review can claim

1) to claim that the decision or action was unauthorized b/c it failed to comply w/ the terms or requirements of the law under which the gov’t was acting.

2) Or – Constitutional Judicial Review – ie the statute under which the gov’t was operating is itself invalid

Judicial Independence Judicial independence requres, among other things: financial security (pay), security of tenure, immunity from

lawsuits, a system of appointment (although this cuts both ways), freedom from political interference, and institutional independence.

Judicial Review Constitutionally Guaranteed Constitutional judicial review is the idea that any act or law of the state or government can be assessed by

judges as to its constitutional validity. This must be contrasted with administrative judicial review, which deals with the question of whether government officials are acting within their authority, especially their statutory authority (as in Roncarelli v. Duplessis).

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Legitimacy of Judicial Review and Constitutional InterpretationRobin Elliot, “References, Structural Argumentation and the Organizing Principles of Canada's Constitution” (CBp.32)Elliot summarizes six forms of constitutional interpretation used by American courts, as identified by American scholar Philip Bobbitt:1. historical: This is the “framers’ intent” approach, which carries much less weight in Canada than it

does in the United States. Is the framers’ intent “congealed”? In the Persons case (see below), the JCPC distinguished

between framers’ intent for statutes and for the constitution. What about the fact that there were multiple understandings at the time of framing?

2. textual: This uses a “literal” interpretation of the text; the present meaning of the words. This has been widely used in Canada.

3. doctrinal: This is a common law approach, relying on precedent. According to Elliott, it is probably the predominant form of constitutional argumentation in Canada. It can include:

past decisions of the SCC and JCPC comparative constitutional decisions from other countries

4. prudential: This form of argument is pragmatic (perhaps utilitarian?) asking what would produce the best result for society; in the federalism context, it asks which level of government can best deal with the issue (as in the national concern branch of POGG).

I am conflating this with what Sheppard called the extrinsic evidence/social context approach, which she says owes a lot to feminist advocacy.

5. ethical: This appeals to national values, ideals and identity (not necessarily embedded in the constitution).

This is never a strict source of authority, but it is often mixed up with other principles. 6. structural: This is based on inferences from the structure of the constitution as a whole and perhaps its

“unwritten principles.” The Provincial Judges Reference and the Quebec Secession Reference are perhaps the best examples of this form of argument in Canada. It is a well-established form of argument in Canada.

Reference re Meaning of the Word “Persons” [1928] SCR 276./Edwards v. A.G. Canada [1930] A.C. 123 (H.L.) (CBp.41)Facts This is the famous “persons” case, over the question of whether women could be appointed to the

Senate. Issues Did the term “qualified persons” in s.24 of the BNA Act include women?Holding SCC: No. JCPC: Yes. Ratio The SCC distanced itself from any political aspect of the question and used a “framers’ intent”

approach. (This approach was sanctioned by standard British rules of statutory interpretation.) While it allowed that the word “persons” standing alone would include women, it noted that the inclusion of women would have been revolutionary in 1867, and argues that if the framers of the constitution had really intended to include women, they would have said so. The basic idea was that the constitution should be interpreted in 1928 the same way it was in 1867.

Sankey: The JCPC, on the other hand, said it was relevant to consider “external evidence” as well as the BNA Act itself. Although most of the external evidence, in the form of historical precedent, pointed toward the exclusion of women, the JCPC did not find this conclusive, because it was derived from the customs and traditions of other times and places, not on law per se. As for the Act itself, Lord Sankey said that it had “planted in Canada a living tree capable of growth and expansion within its natural limits”—it needed a “large and liberal” interpretation. There was also a textual argument, based on the fact that ss.41 and 84 had explicitly excluded women, whereas s.24 had failed to do so.

SCC: If they wanted women, they would have said so explicitly. Since they haven’t said so we should take a conservative reading. Furthermore, the “he” in s.23 indicates men only.

JCPC: If they didn’t want women, they would have said so explicitly. S.23 does not name male gender as one of the “qualifications”. The male pronoun “he” includes women. Where women are

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to be excluded, it is explicit. See the voting rights section.Antaki on Persons

- Radical change b/n superior court’s decision and the privy council’s decision- Examination of the relation to the past should the definition of a word remain as the definition that was

intended by the framers of the constitConstitutional metaphors Language of a tree, will grow, blossom, new things will come out, will adapt, not unresponsiveWhat is it to interpret constitution

Burden for constit is more strict for Parl Parl must say if it wishes to exclude women

Section 96 and Administrative Tribunals- Formal reading in S.96 GG shall appoint. Formal (literal) would allow s.96 to be given away.

o Connected to the rule of law need this core set of functions set independently.- Functonal reading will care about protecting something. Core functions or inherent functions of superior

courts that cannot be given away.o Could be seen as drawing a principle from formal interpretation.

Looks like a mere appointing power but do we need to read it in another way? Looking at it from the Formal [looking just at what it says without examining framework it sets up appointing power] v. Functional (see CCL 502 (Laskin J) where says it is more functional the preserving power)

o What is danger in looking at it merely formally? (GG will still get to appoint Superior court judges but, if use formal interpret, all powers of court could be given to courts with other names)

Arguments on jurisdiction of courts (CCL 474) o Deals with appointing power of the Governor General in:

Superior Courts, District, County

Legislatures cannot set up administrative tribunals and insulate them completely from judicial review. Most “privative clauses” which attempt to do this have been struck down or interpreted very narrowly. (e.g. Crevier case p. 501). Such legislation, it is said, would create a s.96 court. Nevertheless, the SCC will often defer to administrative tribunals and will not quash their decisions unless

they are patently unreasonable.

First Set Whether provincially appointed Tribunals can exercise s.96 powers

Labour Relations Board of Saskatchewan v. John East Works Ltd. 1949, Privy Council

Facts: - Board issued orders for the reinstatement of workers at John East

- John East appealed to PC and orders were quashed

Issue: - did Board exercise juridical power?

- if so, was the tribunal analogous to a superior court

Decision: - Tribunal may be clothed with power formerly exercised by a s.

96 court so long as that power is merely an adjunct of, or ancillary to, a broader administrative or regulatory structure

- If impugned powers form dominant aspect of the function of tribunal, then it is acting ‘like a court’ – ultra vires

Ratio: - First major case dealing with Provincial Tribunals- Existence of tribunals was allowed but was given limitations - Did not exercise powers held by s.96 courts at Confederation- Examinations of s. 96 of Con Act 1867 and the s. 96 test

Notes:- Tension between Industrial politics

How do you describe it adjudication of rights or issues of balancing of social peace b/n classes

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Reference re Residential Tenancies Act (ON) 1981, SCC

Facts: - Ontario Gov’t awarded powers to

Res Tenancy Commission (RTC) in Res Ten Act of 1979

- given authority to evict tenants and to require landlords and tenants to comply with act

- Purpose: Resolving tenant landlord disputes

Issue: o Do the powers conferred on the RTC

by the Res Ten Act create a body that is operating “like a s. 96 court”

Decision: - Appeal dismissed Powers are

unconstitutional as the answers to the s. 96 test (below) show that the impugned provisions are held to be ultra vires fails all three steps

Ratio: - Refining of ‘s.96 tests’ which are called now ‘Residential Tenancies test’- Test is as to deals with power of superior courts at time of Confederation- 3 part test per Dickson:

- 1) Whether power or jurisdiction conforms to the power or jurisdiction exercised by superior, district or county courts at the time of confederation (identical or analogous powers as s. 96 court at confed)

- 2) Look at the function within its institutional setting is it considered a judicial function (judicial function vs. Policy principle vs. policy)

- 3) If yes, then what is the context in which power is exercised are they subsidiary or ancillary to its administrative purpose? (per Antaki, a “saving step”)

Per step 2 Tribunal is charged with analysing the law, apply the law and make an order therefore performing judicial function as per step 2 of the test

Notes:- Discussion of exclusive power of section 96 or was it a concurrent power shared with inferior courts.

Examined later.- Defining ‘Institutional setting’ is broad and slightly ambiguous tied not to policy but more functional or

operation- Third question might deal more with policy of legislation

This judgement has received strong criticism from Peter Hogg and others. According to Hogg: Each of the three steps is vague, and small differences in the histories of provinces can make for

exceptions. There are problems with the “self-interest” of courts, a conflict of interest. An amendment to the constitution is needed in order to deal with this problem.

This case is also remembered for its use of extrinsic evidence, following the Anti-Inflation Reference—and picked up again in the Nova Scotia Morgentaler case.

Difficulties with TestVague w/ regards to ‘confederation’ in terms of

o Timeo Where and if joining late (who do we look at) also if 2-2 tie then we go to UK (See case

Sobeys Store for resolution of problem)o Description of jurisdiction or level of generality (if you describe broadly might fit into s.96 court or

go narrow and might be able to distinguish) Problems with step 1 and 3 and language in the way you describe Language used by some judges is modern in Step 1 while others wait until step 3 to use

modern lango Relation steps 2 and 3. Where is institutional context (and structure) important? What language

are you forced to useo Resloved? [CCL 492] Call by McLauchlin to have a narrow defn of step 1 (is it a novel

jurisdiction??) Different articulation of test from 1981

Over-arching themes that relate to the class as a wholeo At stake is separation of powers and independence of judiciary and rule of lawo At stake is formal vs functional (how do we read s.96)o Core and periphery and Primary and ancillary (therefore level of generality)

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o Does the rule of law make sense can we privilege s.96 courts o Question of the past constitutional story telling in order to prove pointo Political vs. legal (judicial function)

Sobeys Stores Ltd v. Yeomans and Labour Standards Tribunal 1989, SCC

Facts:- Yeomans worked for Sobeys for over ten

years- Was manager when dismissed- Complained to LST (NS) that was dismissed

w/out just cause- Ordered reinstated and pay for lost wages- NS A.C. allowed appeal. Said unconstit as

conferred s.96 powers on a tribunal

Issue:- Do the impugned sections of the Code (that

governs the LST) create a body that is operating ‘like a s.96 court’

Decision:- Appeal allowed – Impugned sections that govern the LST are intra vires as

Ratio: - Based on Step 3 of the test tribunal is

incidental aspect of the broader social policy- Tribunal allowed to exist as:- 1) Failed first part of test as in UK legislative

package was under equivalent of superior courts

- 2) Was acting sufficiently like a court and could not pass this part of the test

- 3) It is an incidental aspect of the broader social policy

Notes:- Historical test refers to the four provinces at the time of confed (if 2 to 2 look to the UK)- Dissent LaForest: Would pass step one of the test legislation could not be in sharper contrast to that

which existed at Confed and as such is novel jurisdiction and therefore OK.- NOTE if jurisdiction shared pre-confed with inferior courts then can be jurisdiction of a tribunal

leads to Régie du logement has the right to operate

Ref re Amendments to the Residential Tenancies Act (NS) [1996] 1 SCRFacts:

Issue:

Decision: Powers intra vires as is a novel jurisdiction

Ratio: McLauchlin: Novel jurisdiction test What is required to create a new jurisdiction is a

unifying concept or goal, and a sufficiently novel philosophy to belie any analogy with the powers previously exercised by superior .

Comparison of the nature of the powers conferred on the inferior tribunal and the powers exercised by Superior Courts at the time of confederation to see if the powers are analogous

Notes: Lamer CJ : RE First Step Residential tenancies is substantially different phenomena of modern and urban

society balancing act as doesn’t attack core powers of s.96 courts and there is huge volume of cases

Second Set Can Parliament give s.96 powers to other courts Examination of s.97 ansd s.96 authority of Parliament to give away Superior Court jurisdiction to another court

McEvoy v. Attorney Gen of NB and Attorney Gen of Canada SCC, 1983Facts:

- NB act to creat provincially appointed court to try cases under Criminal Code

- NB A.C. decided in favour of the creation of such a court

Issue:- Is it intra vires the Parliament or legislature of

Decision:- Appeal Allowed – and answer questions in the negative (see issue)

Ratio:- Criminal cases part of s.96 courts in 1867- Cases are not ancillary or incidental but the

purpose of such a new court

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a province to take jurisdiction from a s.96 (superior) court and confer it onto another court?

- Parliament can no more give away constit powers than Provinces can uspurp them (CCL 494)

- Cannot give away GG”s s.96 right to appoint judges

Comment: - Does not address whether Parl can transfer jurisdiction from Superior Courts to Federal Courts- Second, does it prevent only wholesale removal of jurisdiction (ie everything under criminal code) or is it

possible to do piecemeal removal?- IMPORTANT in terms of Rule of Law not just protecting Feds from Prov trying to take away powers

but…..protecting the system as a whole and the rule of lawNotes in Class:

S. 96 says that GG ‘shall appoint’ not ‘may appoint’ Are they applying same test?

Ref re Young Offenders Act (PEI) SCC, 1991Facts:

- Creation of Young Offenders court (taking some powers of s.96 court)

Issue: Is this possible?

Decision: - Court allowed to exist

Ratio:- novel jurisdiction jurisdiction that did not exist at the time of Confed

Notes: MacMillan Bloedel Ltd v. Simpson decision states that Superior Courts are crucial to the rule of law as

no other court has the same core jurisdiction

Third Set Can Parl. protect tribunals from review by s.96 Courts

Notes:Attorney Gen of Que v. Farrah, 1978,scc Constitutionality of a Transport Tribunal for appeals to decisions of Transport Commission ruled was ultra vires as sole purpose was as court and appeals from Tribunal were not heard acted as appellate court.

o Interesting as the tribunal was ancillary to administrative body but still tribunal’s primary function was to exercise judicial power previously held by a s.96 Court

Crevier v. Quebec Attorney Gen SCC, 1981Facts:

- The Professional Code (Que) governed 38 professional corps

- Discipline committees were created for each profession

- Professions Tribunal was appellate to committees and code stated that (even though art.33 of CcQ makes bodies subject to superintending power of Superior Court) art 33 didn’t apply to this tribunal

Issue: Insulation from review by Superior Court

Decision:- Appeal Dismissed

Ratio: upon insulating the court from the

superintending powers of a s.96 court, the powers of the tribunal are ultra vires

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CCL 502 at top Good Quoteo “It is true that this is the first time that this court has declared unequivocally that a provincially

constituted tribunal court cannot constitutionally be immunized from review of decisions on questions of jurisdiction”

Who gets to decide if the tribunal is acting within their jurisdiction? Rule of Law issue as should this tribunal be insulated from review, they are their own bosses

After crevier, in order to look into Tribunal, must use language of Jurisdiction

On Interpretation of the law of the act, the tribunal is final can only appeal to superior court on a jurisdictional basis

Don’t forget that Tribunal must have passed Residential tenancies test first to exist in the first place

FEDERALISMHistorical Chapters in Canadian Federalism These three chapters demonstrate:

a formalist approach to constitutional interpretation different visions of federalism

Prof. Baker’s lecture:1. He made connections between developments in private law and contemporary developments in

constitutional law.2. He pointed out the underlying economic interests, and the impact that a centralist or decentralized

government could have on the national economy. 3. He acknowledged British imperial/colonial motives.4. He showed how the language of provincial autonomy was linked to the language of formal rights:

“autonomous rights-bearing provinces.”Federalism Where does sovereignty reside

Everywhere and nowhere? Each Province is sovereign? Idea of Federalism to deny sov or to break it up

The Late Nineteenth Century From 1867 to 1982, most cases were about the federal-provincial division of powers.

Many of these cases revolved around businesses and the question of economic regulation, especially in the early 20th century and the Great Depression.

There were also a few cases about judicial independence. Cases concerning Aboriginal rights were not argued in constitutional terms; they were property law cases.

Early Canadian cases could also be appealed to the JCPC. Some believed it was illegitimate that a British court should have so much influence on Canada. The

JCPC “turned the document on its head” by giving such a broad reading to provincial powers. Others argue that the JCPC’s geographical distance also gave it the critical distance necessary to

balance federal and provincial demands.

Citizens Insurance Company v. Parsons (1880-1881), (CB p.90)Jurisdiction OntarioFacts Two insurance companies refused Parsons’s claim due to contractual terms which violated an

Ontario statute. The insurers argued that the legislation was ultra vires. Parsons (and Ontario) won at the trial level and the appeal court.

Issues Was insurance regulation part of “regulation of trade and commerce” (s.91) or “property and civil rights” and “matters of a merely local and private nature” (s.92)?

Holding SCC: s.92; JCPC: s.92

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Ratio At the SCC, the majority (expressed by Ritchie CJC) upheld the legislation, based on “property and civil rights” and “matters of a merely local and private nature.” Gwynne J, dissenting, aruged that it fell under “regulation of trade and commerce,” and gave a

policy argument (floodgates, basically) about the risks of allowing the provinces to encroach on such areas. Neither majority nor dissent justified its decision through any particular interpretive technique.

At the JCPC, Sir Montague Smith set up a test for provincial legislation Parson’s Test Step 1: See if the legislation falls within any of the enumerated classes of s.92. If it doesn’t it is

invalid (ie Federal powers are residual). If is does, go to; Step 2: See whether the legislation does not also fall within one of the enumerated subjects in

s.91, in which case it is invalid. Smith then based his decision on the consistency of the BNA Act as a whole. He argued for an expansive definition of “property and civil rights” based on s.94 and the distinction between Quebec and the common law provinces. He narrowed “regulation of trade and commerce” to not include the regulation of specific trades.

Comments This is the leading case on the “trade and commerce” power—Smith’s interpretation has been followed. It is remarkable that the Ontario government was already regulating insurance at this stage. Oliver Mowat argued Parsons’s case at the SCC.

Sir Montague Smith’s two-step test makes it clear that the federal powers are residual, because the courts looked at s.92 first.

Russell v. The Queen (1882), 7 AC 829 (PC) (CB p.97)Jurisdiction New BrunswickFacts Russell was a tavern owner who was prosecuted for selling liquor contrary to the terms of the

Canada Temperance Act. Russell argued that this Act was ultra vires the federal government.Issues Did the regulation of liquor fall under any of the enumerated sections of s.92?Holding No. Ratio Sir Montague Smith used the 2-part test he had set out in Parsons. He found that the “true nature

and character” (p.99) of the legislation was POGG and that effects on property and civil rights and local nature (not under 92(9),(13),(16)) were incidental.

Comments This is an early formulation of the “pith and substance” doctrine. This is also one of the rare early cases decided in favour of the federal government and POGG. It was contradicted by many later cases, especially the Local Prohibition Reference. Why did Sir Montague Smith use the same two-step test for federal legislation?

Note: Note use of effects based interpretation (as opposed to pith and substance interpret) as s.91 and s.92 are not water-tight compartments

Interpretations bring up questions of law and politics – what is a judge? What is his role??

Hodge v. The Queen (1883), 9 AC 117 (PC) (CB p.101)Jurisdiction OntarioFacts Hodge, a tavern-keeper, was charged under regulations made by Toronto licence commissioners.Issues 1. Did the provincial government have the power to make such laws (or did it fall under “trade and

commerce”)?2. Did the provincial government have the power to delegate authority to the Boards of Commissioners?

Holding Yes, yes. The JCPC dismissed the appeal.Ratio Lord Fitzgerald:

1. The licensing of taverns is “of a merely local and private nature.” whereas temperance is of POGG. Possible for aspect doctrine.2. Provincial powers are not just delegated to the province; the province is supreme within its sphere of authority; therefore it can delegate.

Comments The important thing about this case is the “double aspect” doctrine: The idea that different aspects of a single subject (in this case, the liquor trade), could fall under different jurisdictions. Thus there is supposedly no conflict between this case and Russell.

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What happened to constitutional interpretation in these cases? There is a dichotomy between a formalist approach and a functionalist approach:

Legal formalism argues in terms of abstract categories, bright lines and fixed meanings; it claims to be scientific and apolitical.

In the modern era, legal formalism is often mixed with policy reasoning. Functionalism openly discusses social, political and economic realities; it treats law as a response to

historical experience and is sometimes openly political. Functionalism can easily evolve into a kind of formalism: what are interpreted as unwritten

principles can evolve into written principles! The critical legal studies movement argues that all law is political:

Marxist/feminist branch: law reflects dominant interests postmodern branch: law is indeterminate

AG Ontario v. AG Canada (The Local Prohibition Reference) [1896] AC 348 (PC) (CB p.107)Jurisdiction OntarioFacts In 1890, the Ontario had passed a statute which gave municipalities the power to introduce

prohibition (similar to the Canada Temperance Act). In 1894, while contemplating total prohibition, Ontario asked the courts about the legality of pieces of legislation.

Issues Does a province have the power to legislate prohibition?Holding SCC: No. JCPC: Yes. Ratio The SCC relied on “trade and commerce,” and also used historical/framers’ intent arguments.

In the JCPC, Lord Watson found that the provincial legislation fell under “property and civil rights” and “local or private nature.” Cannot be under T&C as T&C is regulation and not prohibition Watson separated POGG from the enumerated s.91 powers and used the last lines of s.91 to

narrow POGG. He ruled that POGG could only be used for matters “unquestionably of a Canadian interest

and importance,” and could not encroach upon or incidentally affect enumerated s.92 powers. This effectively meant that the “pith and substance” and “aspects” doctrines could not be used to support POGG.

Controversy – is the federal law exhaustive with this matter No! Room for Ont law. Interestingly, Watson also articulated the “paramountcy” doctrine, that if there is “collision,”

“provincial must yield to Dominion legislation.” However, he did not find conflict since it was possible to comply with both laws by complying with the stricter of the two.

Comments The JCPC’s judgment could be seen to directly contradict Russell. This case represents a major turn toward provincial rights. Watson’s use of s.92(16) “local or private nature” elevates it almost to the same status as POGG. This case used a text-based legal formalism which is not altogether convincing, and also boring to read!

The Compact Theory (CBp.114)The “compact theory” provided a way of understanding the JCPC’s defence of provincial powers. It argued that the provinces had never renounced the powers they held before Confederation; they had agreed to create the federal government “only for interprovincial objects.” The theory is associated with a Quebec judge, T.L.L. Loranger. This theory was popular among Quebecers and among common law lawyers in the late 19th century, but it lost its popularity in English Canada by the turn of the century because it was at odds with the prevailing formalist approach to constitutional (and legal) interpretation.

The Early Twentieth Century During this period, the government became more active in regulating the economy.

WWI was a major turning point/catalyst in this regard. According to some historians, the Canadian state was already more interventionist than the US because

of a concern for safeguarding key resource industries.

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Reference re Board of Commerce Act and Combines and Fair Prices Act (1920-1922) (CB p.127)Facts The federal statutes in question were designed to limit cartels, monopolies and mergers as well as

speculative hoarding. The Board of Commerce encountered resistance, and arranged for a Supreme Court reference. Violations punished with fine and possible prison

Issues Are federal board and Acts intra vires the Feds Holding SCC: No (3-3 split). JCPC: No. ultra vires fedsRatio SCC: Those who would have upheld the statutes relied on “trade and commerce” but also on

POGG and criminal law. Those who would have overturned them relied on property and civil rights. Duff J said that one must look at the “immediate operation and effect of the legislation” rather than the “ultimate social economic or political aims of the legislator.”

JCPC: Viscount Haldane said that s.92 powers must be “untramelled” by the enumerated powers in s.92 and that POGG could only be used in emergency situations like war or famine. He narrowed the interpretation of Russell to “abnormal circumstances.”

He also began the limiting of the federal trade and commerce power (which was confirmed in Snider.) T&C can only be used in furtherance of a general power or enumerated head.

He said criminal cannot save legislation as crim provisions are only ancillary (CBp.130)Comments - This is the first of the decisions Monahan calls “infamous.”

- This case is good evidence that the JCPC was not committed to formalism—it was not clear what basis Haldane had for making these decisions.

- Seen as the death of POGG

Fort Frances Pulp and Paper Company v. Manitoba Free Press Company [1923] (CB p. 132)Jurisdiction OntarioFacts During WWI, under the War Measures Act, the federal government had regulated the price of

newsprint; in 1917 it established the Paper Controller. In 1919 the Controller ordered Fort Frances to reimburse Manitoba Free Press for excessive prices. Fort Frances refused.

Issues Were the circumstances in the present case enough of an emergency to justify overriding “property and civil rights” in the name of POGG?

Holding Yes. – intra vires Dominion Power as long as emergency persists.Ratio JCPC: Viscount Haldane wrote that, although the war had ended, the conditions arising out of

war may have continued, and that the federal government could be justified in continuing to use some emergency powers under POGG.

Must have very clear evidence that emergency is overComments Although it’s remarkable that Haldane upheld the federal legislation, he did so by taking the

emergency doctrine (as put forward in the Board of Commerce case) for granted. Haldane wrote, “…as a general principle, the Dominion Parliament is to be excluded from trenching on property and civil rights in the Provinces of Canada…”

Toronto Electric Commissioners v. Snider (1925) (CB p.137)Jurisdiction OntarioFacts A labour dispute arose between the Toronto Electric Commissioners and some of its employees.

The TEC argued that the federal Industrial Disputes Investigation Act was ultra vires. The Act allowed feds to appoint board to solve dispute.

Issues Could the legislation in question be justified by “trade and commerce” and “criminal law”?Holding JCPC: No. – ultra vires feds Ratio JCPC: Lord Haldane found that the pith and substance of the legislation was property and civil

rights. He limited the trade and commerce power, declaring that it could only be used “in aid of” other

s.91 powers. He also emphasized the emergency nature of POGG and narrowed Russell rereading it as an

emergency situation. Not criminal as crim provisions are ancillary

Comments This case seems to have bypassed the SCC. This case had the effect of making labour law a provincial matter.Lord Haldane’s limiting of the trade and commerce power was effectively reversed in obiter in

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Proprietary Articles (see p.20).

The King v. Eastern Terminal Elevator Co. [1925] (CB p.141)Jurisdiction OntarioFacts Eastern Terminal Elevator company, which operated a grain elevator at Thunder Bay, refused to

pay a certain percentage of the proceeds from the sale of its “dockage” (foreign matter in the grain). It argued that provisions of the Canada Grain Act which aimed to limit the profits of terminal elevator companies were ultra vires.

Issues Could the impugned provision be justified under POGG?Holding SCC: No. ultra vires FedsRatio SCC: The majority found that the legislation really dealt with property and civil rights on a local

scale, even if the grain trade was of national importance. However, Duff J. suggested that the federal government could use s.92(10)(c) to declare that

the elevators were “for the general advantage of Canada,” and this is what it did. Fallacy 1: to say that difficulty to coordinate among provinces or the need for subsidiary

legislation to do so necessarily gives power to dominion parliament Fallacy 2: Although grain trade was largely export trade (a federal power under T&C) legislation

cannot be justified as it still encroaches on local trade matters which are provincial effect would allow Feds to take over any trade in Canada cannot be.

Anglin CJC, dissenting, lamented Lord Haldane’s limiting of the “trade and commerce” power in Snider. He would nevertheless uphold the legislation under POGG as a matter of national importance. He also says that he would have allowed the provision to stand based on the validity of the Act as a whole (using the “necessarily incidental” approach).

Comments This case is a good example of dialogue between the courts and the executive.

What modes of interpretation were used in these judgments? doctrinal: The courts had to deal with the Russell case, applying, distinguishing or reinterpreting it.

But does case law have effect on the outcomes of the case? Jurisprudence appears very malleable. textual: But the text proved to be highly indeteminate. historical (framers’ intent):

H.E. Smith, “The Residue of Power in Canada,” (1926) (CBp.146) Smith ridicules the arbitrary rule that had developed in English jurisprudence which stated that the framers’

intent (or other extrinsic evidence) could not be used in interpreting a statute. He blames this rule for the ahistorical reasoning which produced the Snider (TEC) decision. He laments the fact that, by the Snider decision, provincial “property and civil rights” has emerged into an

almost general grant of power to replace POGG. He says that no one reading the Confederation debates would doubt that POGG was intended as a general

grant of power.

Critics said it was necessary to use history to solve historical problems. Prudential or ethical reasoning—visions of provincial autonomy—is only rarely stated openly.

These cases mainly talk about the text and case law: They only make passing references to other modes of interpretation.

J.R. Mallory, “Social Credit and the Federal Power in Canada,” (1954) (CBp.147) Mallory says that Haldane’s decisions might be better explained in terms of laissez-faire versus

interventionism (or “individualism” versus “collectivism”) rather than provinces versus the centre. Most of the federal legislation he struck down was economic regulation. However, this is hard to explain because Haldane was a Labour party supporter. It also doesn’t fit with the Fort Frances case.

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Alan Cairns, “The Judicial Committee and its Critics,” (1971) (CBp.149) Cairns argues that the JCPC’s provincial bias was in harmony with contemporary political trends in favour of

regional pluralism. It’s important to remember that during this time Canada grew from four provinces to nine, and province-building was happening at the same time as nation-building. Although Ontario led the struggle in the courts, all of the provinces had movements toward autonomy.

It is worth noting that these courts were very activist courts—they were not afraid to strike down legislation in the name of the constitution.

The Depression and the “New Deal” Federal jurisdiction was upheld in three important cases early in the 1930s (Proprietary Articles, the

Aeronautics, and Radio). Trends: Academic commentary during this period saw a continuation of what happened in the late 19th and

early 20th century: a restrictive reading of federal powers and a continuing concern for provincial autonomy, the striking down of numerous federal initiatives (especially those set up to deal with the economy).

Academic commentary was now more directly critical of the JCPC, but also of the SCC.

W.F. O’Connor, The O’Connor Report (1939) (CBp.183) O’Connor did a detailed formalist analysis of ss.91 and 92, and concluded that the JCPC (especially Watson

and Haldane) had erred in setting aside the general grant of power to Parliament, and concentrating on the enumerated powers. His formalist analysis was much more thorough than that of H.E. Smith and others. He traced the “path of error” through Watson and Haldane’s judgments, and argued that not much needed to be fixed if these decisions could be overruled.

Even in the midst of a clear emergency, POGG was ignored. The federal government might have relied on POGG to deal with the devastating effects of the Depression,

but it didn’t. When King was re-elected in 1935, one of the first things he did was to refer Bennett’s “new deal” economic legislation to the SCC.

Another factor in this was the way the legislation was drafted—it could have been framed to re-enforce its legitimacy under POGG, but it wasn’t.

The government shifted between the Liberals and Conservatives; neither Bennett nor King was committed to Keynesian economic policies.

Academics such as W.P.M. Kennedy (p.165) felt that the federal government’s hands were tied during a time of national tragedy. Kennedy lamented the loss of the federal “general power,” and thought that appeals to the JCPC should be abolished, that its past decisions should be overturned, and that the BNA Act should be repealed and the constitution rewritten (p.180).

Proprietary Articles Trade Association v. AG Canada (1929-1931) (CB p.155)(PATA)Facts This case concerned the legality of the federal Combines Investigation Act and a section of the

Criminal Code which gave the federal government power to investigate cartels and mete out criminal sanctions. The PATA was allowed to participate in the reference.

Issues Could the Combines Investigation Act be upheld under “criminal law”?Holding SCC: Yes. JCPC: Yes. both the Act and section of Criminal code are intra viresRatio SCC: Duff J. refuted the argument that the list of crimes had been frozen in 1867. (This was a

rejection of a historical/framers’ intent approach.) He put forward a kind of definition of crime, mentioning “a violation of generally accepted standards of conduct as to deserve chastisement… the views of community as to what deserves punishment changes from generation to generation…”

The JCPC (Lord Atkin) agreed seeing “criminal law in the widest sense.” Putting forward a purely positivist definition of crime (acts that are “prohibited by the State and that those who commit them are punished”).

In obiter, the JCPC also distanced itself from Lord Haldane’s narrowing of the “trade and commerce” power in B of C. B of C is fact based not general law. T&C is independent

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enumerated head.Comments - Were these laws really targeted at trade unions?

- This judgement took a decidedly “living tree” rather than “frozen rights” approach: it’s worth comparing to the Persons case, which was decided around the same time. - Why mention T&C when decision is not resting on it – support of federalism.

Reference re the Regulation and Control of Aeronautics in Canada (1930-1932) (CB p.157)Facts After WWI, Canada entered into an international convention about aeronautics (signed by the King

on behalf of the British Empire). The federal government then enacted legislation regulating aeronautics.

Issues Can aeronautics be assigned on the basis of sections 91 and 92?Holding SCC: a series of divided judgments. JCPC: No but is valid under s.132.Ratio JCPC: Lord Sankey made a plea for interpreters of the constitution to “remember the object with

which it was passed” and not to give so much weight to case law. He decided that aeronautics did not obviously fit into either s.91 or s.92, but that this didn’t

matter: he based his decision on s.132 (the power to perform treaty obligations). Sankey also

mentioned the national concern of aeronautics. Fits partially in 3 enumerations in s.91 and rest into s.132 Adds up to – the whole field of aeronautics is the feds

Comments Lord Sankey is the same judge who wrote the decision in the Persons case. Reinterprets Aeronautics Says b/c treaty is with Brits, Power resides in s.132 Not same in Labour Radio True ground of decision was that the subject could not be found in s.91 or s.92 and therefore

POGG used as residual power Again, not same and Federal parl does not have treaty implementation power

Reference re Regulation and Control of Radio Communication in Canada (1931-1932) (CB p.160)Facts Canada entered into international agreements about radio; the federal government enacted

legislation and referred it to the SCC. Issues Did POGG give the federal government power to regulate radio?Holding SCC: Yes. JCPC: Yes.Ratio SCC: POGG (The SCC did not refer to s.132)

JCPC: The treaty power (s.132) could not be invoked since this treaty (unlike the aeronautics treaty) had been signed by the federal government, not the entire British Empire. (This is a good example of a “textual” approach to constitutional interpretation, concentrating on the present meaning of the words.)

However, radio could be assigned to the federal government under POGG (either a “national concern” or a “purely residual” version, it seems).

These three cases demonstrate a shift toward federal power. Nevertheless, commentators at this time continued to perceive the JCPC as biased toward provincial rights.

The JCPC did however strike down federal economic regulation, as in these three cases: Labour Conventions Employment and Social Insurance Natural Products Marketing

A.G. Canada v. A.G. Ontario (Labour Conventions) (1936-1937) (CB p.168)Facts The reference had to do with labour legislation (maximum working hours, etc.) which the federal

government had enacted following ILO conventions. Issues Could the federal government use s.132 to enact legislation within a provincial sphere in order to

implement an international convention it had signed? Holding SCC: 3-3 split. JCPC: No.Ratio JCPC: Lord Atkin found that the conventions were acceded to by the Canadian executive of its

own volition; the executive cannot “clothe itself” with treaty-making power in order to override provincial powers.

Water-tight compartments – not enough to say it’s too hard for provinces to work together

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Radio doesn’t stand for federal treaty implementation power – use of POGG as residual – there is no federal treaty implementation power

POGG use limited to times of emergencyComments The JCPC articulates something of a vision of provincial autonomy on p.171.

This case contains Lord Atkin’s famous statement: “While the ship of state now sails on larger ventures and into foreign waters she still retains the watertight compartments which are an essential part of her original structure.”

AG Canada v. AG Ontario (The employment and Social Insurance Act) [1937] PCFacts:

Reference by Crown to court for the above act

Issue: Is the Act ulra

vires federal power?

Decision: Appeal Dismissed – ultra vires feds

Ratio: Lord Atkin: Feds cannot give taxation moneys to the people if legislation

infringes on provincial head of power Spending powers must still fall under s.91 or 92 – not just taxation powers Not under POGG as not considered an emergency

Note: In 1940 - constitution was amended to give the fed gov’t power over unemployment insurance: s.91(2A) The provinces were willing to give up jurisdiction if the federal government would pay. The academics of the 1930s put forward an essentially functional critique. They favoured federal government

action because they thought it would be more effective.

F.R. Scott, “The Consequences of the Privy Council Decisions” (1937) (CBp.181) Scott had a social-democratic critique of the JCPC. It appeared that the JCPC was defending laissez-faire

capitalism and striking down all attempts at government intervention in the economy. Scott also criticized the JCPC’s handling of the Natural Products Marketing Act. The legislation had involved

a good deal of federal-provincial cooperation, and each of the provinces had enacted complementary legislation to set up Marketing Boards. Yet the JCPC ignored this and struck down the federal legislation. The JCPC lost credibility over this.

The “legal realist” movement was a reaction against undue formalism. Some of its principles were: Law should be informed by and connected to changes in society. Law is not objective; judges make value judgements and political decisions. Conflicts of rights require a subjective balance. Stare decisis is a myth: precedent is manipulable and indeterminate.

AG B.C. v. AG Canada (The Natural Products Marketing Act) [1936]Facts Act’s focus was on products whose principle market was outside province of productionIssues Ulra vires feds?Holding SCC: Yes. JCPC: Yes. Ultra vires fedsRatio SCC: Duff CJC - T&C although does not allow for regulation of specific trade in local sense, it

does embrace the regulation of external trade and interprovincial trade (from Parsons) Falls in s.92 and the only time POGG could be employed is in times of emergency JCPC Atkin: Following Eastern Terminal Elevator Feds cannot legislate under T&C where

matter is in substance of local and provincial nature (control of local trade by legislating over interprovincial and external trade)

Cooperation b/n Federal and provincial will be difficult and “will not be achieved by either party leaving its own sphere and encroaching upon that of the other.” water-tight compartments

Comments Straight forward application of Eastern Terminal Elevator. High Threshold of care for Feds to enact legislation of such a trade as will end up controlling trade within a province

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Federalism and the Modern Canadian StateRichard Simeon, “Criteria for Choice in Federal Systems” (CBp.198)Simeon says that federalism is not an end in itself, and that people usually assess federalism in terms of one of three distinct bodies of theory: 1. community (or diversity):

Federalism can accommodate a balance between different notions of community. In the contemporary world, most people belong to multiple communities, ranging from the family to humanity in general; federalism acknowledges this. Conflicts arise (e.g., Quebec nationalism) when different parts of the country hold different ideas of the balance between local and national community identity.

Some people see this as a “minority rights” argument. counter-argument: Some communities might not end up being recognized, if they are minorities within

provinces or states. examples of federal governments safeguarding minority rights:

Aboriginal rights in Canada blacks in the southern US

counter-argument: Provincial divisions are artificial and do not really represent communities.2. functional effectiveness: (also cf. “subsidiarity”)

In this view, institutions and levels of government are assessed according to their ability to respond to citizens’ needs.

It tends to be liberal and individualist (relying on economics). Functionalists are concerned with the burden of duplicating institutions, and the possibility of

governments “passing the buck.” As Prof. Sheppard put it, “arguments about efficiency and effectiveness often cut both ways.”

3. democracy: (also cf. “subsidiarity”) One aspect of this theory is separation of powers, checks and balances, and limiting the role of the

state. (However, modern critics associate federalism with excessive government.) Another aspect is the idea of citizen participation and government accountability.

However, there is the counter-argument that confusion between different levels of government reduces transparency. This is especially true where “executive federalism” takes over.

There is also the classic problem with federalism, that it may frustrate the will of the majority. Federalism doesn’t solve the dilemma of majorities and minorities.

Most constitutional cases in the late 19th and early 20th centuries dealt with federalism. Since then, the number of cases dealing with federalism has declined, but there has been a corresponding rise in executive federalism. Rather than going to court, the federal government and the provinces are more likely to negotiate (e.g. health care spending). Of course, going to court is still an option.

Federalism has also changed due to the changing role of government: The environment, regional development, culture, health, social welfare, housing, human resources development, consumer protection: none of these are enumerated powers.

Bruce Ryder, “The Demise and Rise of the Classical Paradigm” (1991) (CBp.237)Basically, Ryder critiques the classical paradigm for being too deregulatory, but he criticizes the modern paradigm for being too inclined to compromise provincial autonomy. Classical paradigm (Beetz) exclusivity; “watertight compartments”; powers

“mutually modified” judicial activism deregulatory safeguarding provincial autonomy

associated with JCPC (pre-1949), but: used for economic regulation

Modern paradigm (Hogg) allows overlap; “pith and substance”

judicial restraint maximizing legislative powers risks compromising provincial autonomy due to

“paramountcy” rule associated with SCC (post-1949), but: used for social and moral issues

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Interpreting the Division of Powers The various doctrines interweave, and can provide different analyses of the same issue:

pith and substance necessarily incidental or ancillary double aspect

These are not unwritten constitutional principles; they are rather judge-made law.

Validity: Pith and Substance “Pith and substance” is defined as the “matter” of the law, its dominant feature, its true meaning, how it can be

characterized, or what it is about. The test has two steps:

1. One has to identify dominant features of law, then2. assess if it falls under federal or provincial power.

Once one identifies a law’s dominant feature, if it comes within the dominant head of power, it can be sustained even if it intrudes incidentally into another level of government’s jurisdiction. This is seen as reflective of the modern approach to constitutional interpretation, willing to engage the various levels of government in an area of law.

Legislators may include a “stated purpose” in the legislation, but courts may second-guess this, and look for the “actual purpose” of the law, as in the Nova Scotia Morgentaler case:

R v. Morgentaler [1993] 3 SCR 463. (CB p.213)Jurisdiction Nova ScotiaFacts In January 1989, Morgentaler announced his intention to open an abortion clinic in Nova Scotia. In

March 1989, the Nova Scotia government enacted the Medical Services Act, whose stated purpose was to prohibit the privatization of medical services in order to maintain a high-quality public health care system. Certain medical services, including abortions, could only be performed in hospitals, not privately-run clinics. Morgentaler opened a clinic anyway and performed abortions; he was then charged.

Issues Was the Medical Services Act valid provincial hospital legislation? Holding No. Ultra vires Provinces (NS)Ratio The Medical Services Act was in pith and substance criminal law, and therefore ultra vires the

Nova Scotia government. Sopinka J looked at the “four corners” of the legislation as well as extrinsic evidence: The course of events and Hansard showed that the actual motivation behind the legislation was the prohibition of abortion clinics.

P&S Criminal: Restrictions on abortion have historically been part of the criminal law Legislation establishes local standard of morality and stiff fines this is the classic ends of the criminal law

Sopinka J laid out a detailed procedure for the classification of laws:1. Identify the ”matter” of the legislation2. purpose and effect:

(a) the effect includes the strict legal effect—“how the legislation as a whole affects the rights and liabilities of those subject to its terms”—as well as the practical effect. The social or economic purpose of the legislation is also relevant. (b) the use of extrinsic materials: Hansard is OK

3. scope of applicable heads of power: here the court assessed the scope of (a) criminal law and (b) provincial health jurisdiction, before discussing (c) the regulation of abortion and the fact that it fit under criminal law.

Comments This is an example of “colourable” legislation. Why don’t they use language of colourability? According to CCL this is the perfect example

The SCC appears to be a little pissed off that the Nova Scotia legislature was not respecting the SCC’s 1988 decision.

The SCC could have found just the provision on abortion invalid, but instead struck down the whole statute.

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Defn Colourable legislation: legislation that is determined by the courts to, on its face address matters within its jurisdiction but, in pith and substance it is directed at matters outside its jurisdiction defn in Fire arms ref Substantial divergence from the stated aim of the law (CBp. 223-224)

- Sopinka J. in Morgentaler, Present legislation is criminal leg on its face and therefore do not need to invoke colourability doctrine

o This could be considered colourability doctrine regardless of what Sopinka said. On it’s face, looks like criminal law.

o Colourability Doc deals with “stated purpose” of legislation – in Morgentaler is health. Stated purpose is not actual purpose.

o Sopinka just says, on its face is criminal so we don’t even have to worry about colourabilityo Question: How central is the “stated purpose” of the legislation to the colourability doc.

Katherine Swinton, “The Anatomy of Constitutional Interpretation” (1990) (CBp.205) One of the biggest controversies in the interpretation of ss.91 and 92 has been over the POGG power:

Some, such as Laskin, saw it as a general grant of power to Parliament. Others, such as Lederman, thought the enumerated powers were the express grants of power.

ss.91 and 92 are not exhaustive of all the possible areas of legislation: new areas have emerged. According to Abel, there are three steps in determining which category to assign legislation to:

1. Identify the “matter” of the legislation.2. Delineate the scope of the various powers.3. Determine which power the legislation falls under.

In practice, the courts tend to collapse these steps. The first step is controversial, because it’s unclear whether the courts should focus on the purpose or the

effects of the legislation. This depends partly on ideas of judicial deference or activism.

Contrary to this three-step test, the double aspect doctrine allows courts to uphold overlapping legislation.

Swinton acknowledges the role of many different modes of interpretation, including historical, textual, ethical and prudential. She emphasizes that precedent plays an important role.

W.R. Lederman, “Classification of Laws and the British North America Act” (1981) (CBp.208) The enumerated powers in ss.91 and 92 are concerned with classes of laws, not classes with facts: “the

regulation of trade and commerce” rather than simply “trade and commerce.” This means that overlap between the sections is inevitable, in spite of the last lines of s.91. The opening lines of each section, which refer to “all matters coming within the classes of subjects next

hereinafter enumerated,” really mean “laws coming within the classes of laws next hereinafter enumerated.”

Lederman thought it a “false antithesis” to distinguish between the purpose and the effects of a rule. He would prefer to throw all such considerations together and to try to decide what is the most important “feature of meaning” of the legislation. He advocates the use of prudential and ethical approaches. (“Who is to be the physician?”) He qualifies this by advising the use of the doctrinal approach (stare decisis).

However, he qualifies stare decisis by referring to changing circumstances and conditions.

Validity: Necessarily Incidental or Ancillary “…if the larger scheme of which the impugned provision is part is constitutionally valid, the impugned

provision may also be found to be valid because of its relationship to the larger scheme.” This approach was invoked by Anglin CJC in his dissent in Eastern Terminal Elevator.

General Motors of Canada Ltd. v. City National Leasing [1989] 1 SCR 641. (CB p.225&371)Jurisdiction Ontario

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Facts City National Leasing (CNL) sued GM for its discriminatory pricing policy, as authorized by a provision of the Combines Investigation Act. GM argued that the provision was ultra vires the federal government because the creation of civil causes of action is part of “property and civil rights.”

Issues Was the impugned provision sufficiently integrated into the federal statute (truly necessary or functionally related) to sustain its constitutionality?

Holding Yes. Act and provision are intra viresRatio The SCC found that, although the impugned provision appeared to encroach on provincial sphere,

it passed both the functionally related and necessarily incidental test within the Combines Investigation Act, which was valid as a whole. Creation of rights for civil action is incidental to the purpose of the Act Dickson CJC’s judgment became a three-part test for the necessarily incidental doctrine: 1. Does the impugned provision intrude on the other level of government’s jurisdiction?2. Is the impugned provision contained within a valid regulatory scheme?3. Is the impugned provision “truly necessary” or “integral” part of the impugned legislation (Necessarily incidental test) or functionally related (Functionally related test)?

Dickson CJC also set out five criteria for the general trade and commerce power (see p.38), adding two conditions to a list begun by Laskin CJC.

Comments Dickson CJC’s test may be adapted to a kind of “sliding scale” analysis: If the impugned provision interferes significantly with the other level of government’s jurisdiction, then the “fit” with the regulatory scheme will have to be close: i.e., one may have to establish that the government has to include this provision in order to achieve its regulatory objectives. In this case, the SCC found that the interference with provincial jurisdiction was minimal.

One way to apply the necessarily incidental doctrine is to develop a good pith-and-substance analysis, and then see if exceptions, such as this one, are an issue.

According to some, this doctrine is just another version of “pith and substance.”

Validity: Double Aspect This doctrine overlaps with the other two doctrines. The pith and substance doctrine works well when there is

one key dominant dimension that can determine the validity of the legislation. The double aspect doctrine, however, works well when provincial and federal purposes co-exist.

The double aspect doctrine has its origin in Hodge v. the Queen (see p.16 and CBp. 102) Leads commentators to say there is a state of concurrency (overlapping

Multiple Access Ltd. v. McCutcheon [1982] 2 SCR 161. (CB p.232 and p.260)Jurisdiction OntarioFacts A shareholder sued Multiple Access Ltd. under the Ontario Securites Act alleging that insiders had

traded on inside information. The alleged insider traders argued that the Ontario statute could not apply because Multiple Access was a federally regulated company, registered under the Canada Business Act, which also contained provisions dealing with insider trading. According to the paramountcy doctrine, they claimed, the federal legislation on insider trading should have applied instead, and the provincial legislation should have been rendered inoperative.

Issues Which of the two insider trading laws are valid, provincial or federal?Holding Both!Ratio Dickson J found that the Ontario legislation was valid under “property and civil rights,” and that

the federal legislation was valid as a regulation of a company. With regard to the double aspect doctrine, the insider trading provisions were equally important

to both regulatory schemes, so it was not easy to make one trump the other (see Lederman CBp.231). (for paramountcy, see operability section below)

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W.R. Lederman, “Classification of Laws and the British North America Act” (1981) (CBp.231) Lederman says that overlapping of ss.91 and 92 powers is inevitable. While some of this can be dealt with

through “mutual modification” (e.g., “trade and commerce”), some overlap inevitably remains. There are two ways the courts can deal with this: The necessarily incidental doctrine: This involves a judgment that the provincial legislation is less

important than the federal legislation. The double aspect doctrine: If the courts find that both pieces of legislation are equally important, they

can allow both of them to stand (following Hodge). A problem thus arises if the two pieces of legislation are totally inconsistent. Then the paramountcy

doctrine can be applied. (Lederman takes a “narrow” view of conflict of laws.)

Applicability: Interjurisdictional ImmunityInterjurisdictional Immunity Doctrine (IID): A break away from the P&S doctrine and a move toward exclusivity of jurisdiction. In matters where this doctrine applies, provincial laws are not allowed to have even an incidental effect on matters falling within federal jurisdiction (no double aspect)

- Applied originally to federally incorporated companies- Extended to federal works and undertakings

This doctrine carves out spheres of exclusive federal jurisdiction into which a province cannot reach. This doctrine never challenges the validity of the law itself, just its application to federal entities. The Bell #1 case in 1966 had stated that a valid provincial law (in this case, minimum wage legislation) could

not apply to federal undertakings if it affected a vital part of their operation or management. Tends to be unidirectional Not nec clear how far this doctrine will go as in Bell #2 there is statement that this is more of a general rule

applying to exclusivity of federal core of legistlated jurisdiction therefore how far can you extend it? Not clear.

NB. There does not have to be a federal law in the picture – only a provincial law which is being applied to federal undertaking.

Question is – what is the core of the federal jurisdiction. Environment does not nec become part of the core whereas labour law (as in Bell) seems to be part of the core. IF part of the core then Federal law applies (or, rather, Prov law does not apply). If not part of the core, then provincial laws of general application.)

(Bell#1): Commission du Salaire Minimum v. Bell Telephone Co. of Canada [1966] SCC Held: that Quebec minimum wage laws could not affect Bell Canada as it was “an interprovincial undertaking” and therefore subject to exclusive legislative control of the feds affect vital parts of federal undertaking

- Prior to this case, the “Sterilization Test / impairment test” had applied whereby Prov legislation could stand as long as it did not impair the status or essential power of the fed undertaking

McKay v. The Queen, [1965] SCR 798. (CB p.242) Jurisdiction OntarioFacts The McKays put an sign on their lawn during a federal election, and were convicted under a

municipal by-law which prohibited lawn signs in general. Issues Could a municipal (i.e., provincial) law be applied to the sphere of a federal election? Holding No. Ratio Cartwright J., for the majority, wrote that federal elections are an exclusive federal sphere, so

interjurisdictional immunity applied. Martland J., for the dissent, found that nothing in the federal power over elections gave anyone a specific right to erect a sign, and that the legislation was in pith and substance property and civil rights.

Comments The casebook notes that the interjurisdictional immunity doctrine has become obsolete as a way of protecting rights since the advent of the Charter.

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The OPSEU case in 1987 concerned provincial legislation prohibiting provincial civil servants from running in provincial and federal elections without taking a leave of absence. In this decision, the majority upheld the legislation and distinguished McKay. Dickson and Lamer JJ would have overruled McKay altogether.

Reading down: Princ of interpret construe a statute as within the power of a legislature o McKay (majority: interjurisdictional immunity so read legislation down so as not to target federal

election signs)o Reading down here was tied to Applicability (ie interjurisdictional immunity)

Commission de la Santé et de la Sécurité du Travail v. Bell (Bell #2) [1988] 1 SCR 749. (CB p.246)Jurisdiction QuebecFacts A pregnant employee of Bell Canada sought to be reassigned to a safer task, following Quebec

labour laws. Issues Could a Quebec labour or health law apply to employees of Bell Canada?Holding No. Ratio Beetz J. considers the interjurisdictional immunity doctrine at length, including a discussion of Bell

#1 and Hogg’s criticisms of it. He clarifies the doctrine by saying that interjurisdictional immunity applies only when the application of provincial laws would “bear upon [federal] subjects in what makes them specifically of federal jurisdiction.” Thus, as working conditions and management in federal corporations, like Bell #1, are essential

and vital to the operations of Bell, the provincial legislation cannot apply Vital part test.Comments This case was part of a trilogy dealing with the application of provincial health and safety laws

to federal undertakings. Beetz J. is known for being a provincial rights advocate, and yet here he empowers the federal

government. The term “interjurisdictional immunity” was invented by critics of the doctrine. Following Hogg’s criticism, couldn’t this case have also been decided on the basis of

paramountcy? Only if one takes the “broad” approach to conflict of laws.

Tension b/n IJI and P&S - IJI says some incidental effects are not ok (McKay Cartwright for majority uses IJI and reading down)- P&S says some incidental effects are ok (McKAy Martland dissent uses P&S)

It’s been suggested that the interjurisdictional immunity doctrine has been used by provincial rights advocates as a way of dodging the more powerfully centrist paramountcy doctrine.(examples?)

Hogg argues that there is no need for an interjurisdictional immunity doctrine. He says that interjurisdictional immunity is only relevant in the absence of federal legislation, because otherwise the paramountcy rule could apply. In such situations, the federal government should just legislate!

Prof. Sheppard gave as an example the Paul case, in which there was no federal family law to protect an Aboriginal woman on a reserve getting a divorce.

Irwin Toy Ltd. v. Quebec (AG) [1989] 1 SCR 927Facts:

Province of Quebec put in place a ban on advertisements that targeted children who were under 13 years old.

An advertiser argued that this law impeded the essential and vital functions of broadcaster management’s undertakings.

Held: No, it was not directly vital because it affected advertisers and not the broadcast companies

themselves.Note:

This should have been decided along the lines of Bell #2, but because the SC was concerned with the ability for Quebec to legislate for cultural reasons the legislation was allowed and this new wrinkle introduced.

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In the Irwin Toy case, a Quebec law prohibited advertising aimed at children under 13. The toy company argued that this limited freedom of expression and that it encroached on the federal sphere of television broadcasting. The SCC allowed the law because it applied to advertisers rather than to broadcasters themselves. (This case added a new layer of complexity to the doctrine.)

There is no corresponding provincial doctrine to counter interjurisdictional immunity.

Operability: ParamountcyThe Paramountcy Doctrine: provides that in cases of conflict b/n federal and prov laws, the federal law is paramount and the prov law is inoperative to the extent of the conflict (the prov law is not invalid, just part of it is inoperative)

When there are two pieces of legislation, federal and provincial, the courts will assess the validity of each. If both are valid, paramountcy might be applied.

This doctrine was crafted entirely by the courts. The confusing part is how to determine whether there is really “conflict” between the two pieces of legislation.

The narrow version of the paramountcy doctrine states that there is only conflict when it is impossible to comply with both laws. (“express conflict” or “impossibility of dual compliance” e.g. Multiple Access)

The broad version of the paramountcy doctrine states that if the federal government has legislated within a certain area, provincial law is redundant, and therefore inoperable. (“covering the field” or “negative implication” e.g. Ross)

Incompatibility if legislative purpose eg B of M v. Hall

Ross v. Registrar of Motor Vehicles, [1975] 1 SCR 5. (CB p.255) Jurisdiction OntarioFacts Ross was convicted for impaired driving, and was sentenced under federal criminal law to have his

license suspended for six months, except that he could drive to and from work. The Feds ordered that his license was NOT to be taken away. The provincial law that regulates drivers’ licenses totally suspended Ross’s license for three months.

Issues If there was a conflict between the federal and provincial legislation, would the rule of paramountcy mean that the provincial legislation would not apply?

Holding No. Ratio Pigeon J. holds that the right of a judge to distribute punishments for driving impairment, under

s. 238(1) of the Criminal Code, is limited to time and place. It should not deal with suspensions of licenses, as this subject is one of provincial jurisdiction.

Fails Covering the Field Test: The federal government, when enacting this legislation under the Criminal law provision, did not intend to occupy the entire field of licensing. (Pigeon used the narrow version of conflict.)

No direct conflict b/n laws and both laws are validComments Dissent – Judson and Spence JJ.: the Highway Traffic Act is in direct conflict to the Criminal

Code; thus, the federal legislation should operate under paramountcy. This was a very narrow definition of conflict.

It appears that the courts’ underlying objective in many of these cases is to uphold both pieces of legislation. Multiple Access Ltd. v. McCutcheon [1982] 2 SCR 161. (CB p.232 and p.260)Jurisdiction OntarioFacts A shareholder sued Multiple Access Ltd. under the Ontario Securites Act alleging that insiders had

traded on inside information. The alleged insider traders argued that the Ontario statute could not apply because Multiple Access was a federally regulated company, registered under the Canada Business Act, which also contained provisions dealing with insider trading. According to the paramountcy doctrine, they claimed, the federal legislation on insider trading should have applied instead, and the provincial legislation should have been rendered inoperative.

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Issues Which of the two insider trading laws should apply and operate, provincial or federal?Holding Both! No use of paramountcy as the two enactments are not in conflict.Ratio (see Multiple Access case, p.26. for double aspect doctrine)

And as for paramountcy, Dickson J the doctrine could only apply in circumstances where the provincial law was in conflict with the federal law.

Dickson applied the “impossibility of dual compliance test”, which stated that the duplication of laws was the ultimate in harmony – it was the hallmark of the federal system – and one law should only be inapplicable where one enactment says ‘yes’ and the other says ‘no’ – compliance with one is defiance of the other. Not so here.

Used the narrow version of conflict, finding that it was possible to comply with both laws, so there was no conflict. He quoted Lederman to say that duplication is “the ultimate in harmony.”

There is no true repugnancy in the case of merely duplicative provisions since it does not matter which statue is applied

Provincial law not rendered inoperable.Comment In this case, and according to this logic, the strictest legislation will win so long as their pith and

substances are aligned.Language of compliance

o Limiting, prohibiting - To bend to someone’s will to that of the lawo Misleading for Antaki…but…Language of compliance can be saved by shifting the actor (he who

must comply) from citizen to the judge legislative compliance

Bank of Montreal v. Hall, [1990] 1 SCR 121Jurisdiction SaskatchewanFacts Hall, a farmer, borrowed money from the Bank of Montreal to buy some machinery, with the

machinery as security. He failed to pay the loan, so the bank seized the machinery according to the federal Bank Act, but in contravention of certain procedures required by the Saskatchewan Limitation of Civil Rights Act which required notice prior to seizure.

Issues Could the provincial law apply?Holding No. Paramountcy applies and provincial law inoperableRatio La Forest J. held that both acts were valid

Federal law gives the right to not give notice which is in conflict with the obligation to give notice Incompatibility of legislative purpose test: The purposes in this case were in direct conflict.

The uniformity of security realization laws could not coexist with the specific restriction of the Civil Rights Act limiting the collection of security (CBp.266).

There was a conflict between the federal and provincial laws. La Forest J. used a “broad” notion of conflict. He held that the “essence” of the federal legislation, which was to provide banks with a national regime of security for loans, would have been undermined by allowing the provincial legislation to apply.

Comments This seems totally inconsistent with the Multiple Access and Ross judgements; it would have been possible for the bank to comply with both the federal and provincial legislation.

By invoking paramountcy (and not IID) leaving prov to legislate but have no effect in certain cases Had used IID would severely limit Prop and Civil Rights

Change in the language of compliance judge as having to comply with both laws. Here there is a focus on a different actor (judge rather than the citizen)

Another case in which the courts took a broader view of conflict was Law Society of British Columbia v. Mangat, 2001 SCC 67, which concerned a federal law allowing legislation to be made allowing non-lawyers to act as counsel in immigration hearings. This appeared to conflict with a provincial law prohibiting non-lawyers from acting as counsel for money. Technically, it may have been possible for anyone to comply with both laws by becoming a lawyer, but to limit the law thus would have been contrary to Parliament’s intentions. “Dual comp with both statutes is impossible without frustrating Parl’s purpose”

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Peace, Order and Good Government What does “Peace, Order and Good Government” say about the role of the state? The original draft said “Peace, Welfare and Good Government.” The text literally extends the POGG power to all matters except the enumerated provincial powers. Shrinking of POGG from Parsons to Eastern Terminal to really only a emerg power Then expansion as residual power and, in some cases, treaty power.

Monahan on POGG (pp.255-273) According to Monahan, there are four branches to the POGG power:

1. emergency (pro-provincial rights)2. purely residual (centralizing) (Russell may be an example of this.)3. national concern (centralizing)4. interprovincial concern (centralizing)

S. 91It shall be lawful for the Queen, by and with the advice and consent of the Senate and H of C 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 Provinces.

o - Residual > Generalo Montague Smith said General o Fell into disfavour quickly which left it as a residual power

o Local Prohibitiono Watsono Intra Vireso First use of words National Concern

o B of C, Fort Francis, Snidero Haldaneo Emergency takes over from National Concerno Seemed the only way to justify POGGo ET Anglin Dissent

o Radioo Find treaty power (external to treaty with UK) Gap idea is b/c it is found in the POGG power

In AG Ontario v. Canada Temperance Federation [1946] (PC), Viscount Simon expands POGG power: For matters of national concern (National Concern Doctrine) Not limited to emergency (as was limited in rereading of Russell in Snider) Extended to prevention of emergency of national concern

In another case POGG used as basis for decision following Radio ref, that s.91 also authorizes federal legislation in

relation to subject matters not explicitly assigned to either level of gov’tIn Jones v. AG New Brunswick

Legislation of Feds upheld on the basis that federal institutions are clearly beyond provincial reach and fall into POGG b/c of the residual character of the legislative power thereby conderred

Reference re Anti-Inflation Act, [1976] 2 SCR 373. (CBp.281)Facts The federal government enacted a powerful series of price, income and profit controls for

professions and large businesses. The provincial public sector (education, health, etc.) was not explicitly covered, but was addressed by federal-provincial agreements with eight of ten provinces. (B.C. and Saskatchewan did not sign agreements, but they supported the Act nonetheless.) The preamble to the Act called inflation “a matter of serious national concern” but did not use the word “emergency” or “crisis.” Trade unions were outraged and the Canadian Labour Congress intervened in the case.

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Issues Was the Act ultra vires in emergency times and (in general) under the national dimensions argument (National Concern Doc) of its POGG powers?

Holding Intra vires feds in emergency times [Majority 7:2]: Act intra vires; supportable under the p.o.g.g. power as “emergency legislation” [Minority]: Act ultra vires [Note: court divided 5:4 in favour of the proposition that the Act was not supportable under the “national dimensions” test (was held ultra vires under national concern)

Ratio According to Laskin CJC, the question was not whether there was in fact an emergency, or whether Parliament had declared there to be an emergency, but whether Parliament had a rational basis (test)to believe that there was an emergency.

Laskin CJC found that Parliament had such a basis. He based his decision on extrinsic evidence: economic studies, etc. It was not the courts’ role to assess Parliament’s ability to respond the emergency. However, he rejected the idea that Parliament could act on the mere basis of “national concern.”

Laskin identifies the POGG phrase in s. 91 as a “general power” – that is, it gives federal Parliament a general power to legislate for Canada except on matters carved out in S. 92

The form, the preamble, the lack of cooperation with provinces do not shut down legislation no need to explicitly say ‘emergency’ as “serious national concern” is sufficient coupled with extrinsic evidence.

Laskin CJC also suggested that the general branch of the trade and commerce power and monetary policy are springboards for the legislation though enacted under POGG.

Beetz, dissenting held that the Act directly interfered with prop and civil rights on a large scale (not ancillary or incidental).

Inflation is not subject matter it is an aggregate. P&S of the Act is prop and civil rights scope of federal power would be too large and would undermine division of powers.

Beetz J, thought that Parliament should explicitly use the word “emergency” if it wanted to rely on the emergency powers. This “unmistakable textual signal” is necessary but not conclusive

Beetz J. warned against the “national concern” branch of POGG Test for valid exercise of NATIONAL CONCERN branch of POGG - The national dimensions doctrine is a branch of the POGG power. When identifying a matter of national concern, consider (1) degree of indivisibility and discreteness of subject matter; (2) scope of intrusion into provincial areas. (His reasoning on this point was endorsed by a majority of the court.)

Comments This case is perhaps best remembered for its discussion of the admissibility of extrinsic evidence in constitutional cases.

It seems ironic here that the trade unions were trying to limit federal powers: compare this to the 1930s when social democrats wanted more federal power.

Wouldn’t this have been a lose-lose situation for the trade unions? If they had won the case, the provinces could have enacted their own leglisation.

- For the 4 who do not endorse the existence of a National Concern branch, why do they invoke T&C, Monetary policy, etc. even though they only rely on emergency branch of POGG?? ANTAKI FLAG!!!! NO ANSWER!!!!

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Katherine Swinton: Laskin and Beetz (CBp.276)Laskin’s Centralist Vision Laskin believed in a strong central government. He was influenced by F.R. Scott and other 1930s critics. Laskin used a functional approach: this would consider the ability of governments to meet existing needs

and allocate powers accordingly. He called for flexibility in interpreting the constitution.

Laskin thought that the “aspects” doctrine should deal with the object or purpose of legislation rather than the subject matter.

He thought the “necessarily incidental” doctrine was unnecessary given the “aspects” doctrine.Beetz’s Classical Federalism Beetz was concerned with safeguarding provincial rights (especially with Quebec in mind) He sought to limit judicial discretion; he valued stare decisis and the immutability of the BNA Act. He used a “conceptual” approach, with a clear separation between law and politics; he felt the functional

approach was too political. A conceptual approach preserves exclusive areas of jurisdiction for each level of government.

the “emergency” branch of POGG: There is a broad consensus that the federal government has the power to deal with emergencies. The subsequent Emergencies Act (1988) seems to reflect Beetz J.’s dissent in the Anti-Inflation

Reference. Although the Act does not restrict the federal government’s power to deal with emergencies, its terms can only be invoked if the government declares an emergency.

The “national concern” branch of POGG is alive and well. It originated in the Canada Temperance Federation case (1946). Beetz J’s remarks in the Anti-Inflation Reference (see above) seemed to define a limited scope for such a

doctrine.

The Beetz-Lederman Thesis (Monahan, p.266) Lederman warned against sweeping grants of jurisdiction over general categories, such as culture, the

environment, or the economy. The preservation of a federal-provincial balance depended on grants of limited and discrete subjects of power. Bigger subjects should be seen as outside the system and subdivided for federal and provincial purposes.

Beetz J. picked up on this with his remarks in the Anti-Inflation Reference, as did Le Dain J. in Crown Zellerbach.

R. v. Crown Zellerbach Canada Ltd., [1988] 1 SCR 401. (CBp.303)Jurisdiction British ColumbiaFacts The federal Ocean Dumping Control Act prohibited dumping at sea without a permit. Crown

Zellerbach was prosecuted for dumping woodwaste just off the shore of Vancouver Island, within provincial territorial waters. It was not clear that the woodwaste would harm marine life or impede navigation.

Issues Could the federal government regulate pollution in provincial waters that had no demonstrable effect outside the provincial waters?

Holding Yes. Under POGG national concern doctrine intra vires FedsRatio The majority found that the pith and substance of the legislation was to control marine pollution,

and it upheld the federal control of marine pollution on the basis of the national concerns branch of POGG. Le Dain J. expanded on Beetz J.’s remarks in the Anti-Inflation Reference to summarize the national concern doctrine in four points:

1) Doctrine applies to new matters (not existing at Confed) and to matters which were once of a local nature but have become matters of national concern

2) Matter must have singleness, distinctiveness and indivisibility that clearly distinguishes it from matters of provincial concern and a scale of impact on prov jurisdic that is reconcilable with the fundamental distrib of power per const

3) Provincial Inability Test: Can consider the effect on extra-provincial interests of a provincial failure to deal effectively with the control or reg of the intra-prov aspects of the

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matter Le Dain found that there was a distinctiveness/singleness to marine pollution – extra-

provincial and interntl in character. Close relationship b/n pollution in internal & external waters. Hard to visually discern boundaries. – is one single thing

Limited interference with provincial powers.Dissenting, La Forest J. found that control of marine pollution failed to meet the indivisibility test. “ocean pollution” is an aggregate. Would “gut” provincial powers

problem w/ provision- it deals with ALL dumped substances, even ones that cannot be demonstrated to pollute and therefore should not be under federal jurisidition as are of provincial concern.

Comments Not convinced that the case at hand satisfied Le Dain’s four-part test either. To what extent is this provincial inability test requiring evaluation of the provincial efforts? And

what is the connection b/n inability and then calling it “distinctive” matter? perhaps this goes back to the idea that, should province be unable to deal with something then it should be considered something distinct from the provincial powers. (seems like rationalization)

Brun and Tremblay (p.315) critique this judgment and basically show how all of Le Dain’s criteria are vague and fluid. They accuse the Supreme Court of politically favouring the federal government.

Antaki on Tests To what extent does a test give an anwer? Oriented in a direction that will get you to think of certain considerations and then the onus is still on you (ie

judge) to use this direction in dealing with the responsibility of making the decision.

Friends of the Oldman River Society v. Canada (Minister of Transport), [1992] 1 SCR 3. (CBp.318)Jurisdiction AlbertaFacts The federal Department of Transportation did not follow proper environmental assessment

procedures when giving the Alberta government permission to build a dam on the Oldman River. The Friends of the Oldman River Society brought a mandamus action. The Alberta government challenged the constitutionality of the environmental assessment legislation.

Issues Did environmental regulation pass the test for the “national concern” branch of POGG? Does the federal law or provincial law apply…or both.

Holding Does not fall under POGG. Both laws apply. Assessment must be made.Ratio Writing for the majority, Laforest J. echoed his (minority) views in Crown Zellerbach, to the effect

that environmental regulation was too diffuse and not distinctive enough to meet Beetz J.’s requirements for the national concern branch in the Anti-Inflation Reference. Alberta’s claim that dam is a provincial undertaking is erroneous as implies IID for provincial

undertakings this does not exist (only for federal)

In the Ontario Hydro v. Ontario (Labour Relations Board), [1993] 3 SCR 327 case, the majority found that labour relations at a nuclear power plant fell under national concern. It was not a clear-cut case: the three Ontario justices dissented on the basis that labour relations were not

part of the “single matter” of nuclear energy.

It is therefore clear that Le Dain J.’s criteria for the national concerns branch are problematic: nuclear energy, aeronautics, the national capital: none of them are indivisible.

Provincial Inability connection with singleness Per Simeon – supports efficiency above all else -To what extent is this provincial inability test requiring evaluation of the provincial efforts? And what is the

connection b/n inability and then calling it “distinctive” matter? perhaps this goes back to the idea that, should province be unable to deal with something then it should be considered something distinct from the provincial powers. (seems like rationalization)

The national concern branch has been limited in scope. Monahan talks about “interprovincial concern”: How different is this from “national concern”?

There is no indivisibility requirement; it doesn’t have to be exclusive. Could this be a new doctrine emerging to take the place of “national concern”?

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Economic Regulation East-West economic integration has been a huge part of Canadian nation-building: the idea of an “economic

union.” The federal government has numerous economic powers, especially “the regulation of trade and commerce.” The provinces have numerous economic powers, especially “property and civil rights.” What do we mean by economic regulation?

Production, trade, finance, banking, labour, taxation, subsidies/spending, consumer protection, etc.

Provincial Powers over Economic Regulation92(13) and 92(16) give the provinces broad sweeping powers to regulate most intra-provincial matters, particularly labor, capital and goods and services. This is the general rule.

TestIn order to determine whether there is a constitutional right for a province to legislate on a given area it is best to ask (1) What is the pith and substance of the legislation? (2) try to determine where the impugned provision’s pith and substance fits into the constitution. If, for

example, the pith and substance is to legislate over inter-provincial or international trade then the legislation will be found ultra vires

The provincial powers over “property and civil rights” and “matters of a merely local or private nature” basically give the provinces residual power over anything intra-provincial.

Carnation Co. Ltd. v. Quebec Agricultural Marketing Board [1968] SCR 238. (CBp.330)Jurisdiction QuebecFacts Carnation operated an evaporated milk factory in Sherbrooke. It bought its raw milk from Quebec

dairy farmers, but shipped most of the evaporated milk to other provinces. A price dispute arose between Carnation and its suppliers. The Quebec Agricultural Marketing Board was empowered by legislation to arbitrate such a price dispute, which it did. Carnation contested the price settlement on federalism grounds.

Issues Did the Board’s decision encroach on the federal field of interprovincial trade and commerce as price settlement would effect the price of sale of milk iterprovincially?

Holding No. Orders are intra vires provincial BoardRatio Martland J. found that the pith and substance of the act was to preserve the local milk industry and

to improve their bargaining position via Quebec purchasers (incidental effect of increasing costs outside province). The purpose of the legislation was intraprovincial, and that its effects on interprovincial trade

were incidental. In Martland J’s words, “It is not the possibility that these orders might ‘affect’ the appellant’s

interprovincial trade which should determine their viability, but, rather, whether they were made ‘in relation to’ the regulation of trade and commerce....” It used the analogy of labour law: it certainly affects the cost of doing business in the province, and it may therefore affect the province’s external trade, but its main goal is internal.

Note Distinction b/n aiming at T&C and having incidental affect on T&C

Manitoba Egg Reference (1971) (CBp.334)Jurisdiction ManitobaFacts Marketing boards from within Quebec and Ontario gave preferential treatment to chicken and egg

producers within their own provinces – the Chicken and Egg War. This had particularly adverse effects on producers from outside the province. The Manitoba provincial government framed almost an identical piece of legislation and put it to the SCC as a reference in order to challenge the legislation of the other provinces.

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Issues Was the marketing board in Manitoba – (which was really aimed at the one in Quebec & Ont) – invalidly impinging on inter-provincial trade and commerce (an illegal system of indirect taxes aimed at out of province producers)?

Holding Martland J. – The legislation was ultra viresRatio The statute did indeed aim to interfere with the free flow of interprovincial trade.

Pith and Substance: This plan not only affects interprov trade in eggs, but aims at the regulation of that trade. In order to achieve its purpose (create advantage for Man producers), the Plan specifically controls and regulates the sale in Manitoba of imported eggs. It is designed to restrict or limit the free flow of trade b/n provs which is under T&C

Laskin J. Concurring: Here, regulated product (the eggs) is coming from outside the province (distinguish from

Carnation). This is NOT, however, the test of validity. This scheme embraces products which are in the current of interprovincial trade

The scheme is on its face an invasion of federal trade and commerce power. Reasons: [1] the direct object of the scheme is the regulation of the importation of eggs, and it is not saved

by the fact that the local market is under the same regime (Eastern Terminal); [2] to permit each province to seek its own advantage by sealing borders to goods from other

Provs would be to deny an object of confedNote Laskin expressed concern about answering the reference b/c there was no “factual underpinning

for the issues” no factual economic background to the statute There was a criticism by Paul Weiler that the legislative scheme was not dramatically different

than that in Carnation. However, Monahan noted that the scheme in the latter was put in place to maintain the viability of Quebec’s dairy industry. If it was not this way then the provinces could legitimately erect legislation to discriminate against out of province producers.

Wrong Question asked per Weiler: Manitoba forced court to look at blanket legality of such a marketing scheme when the real issue was the discriminatory application of these schemes to out-of-province producers. Thus, all schemes would be ultra vires even if they applied favourably to extra-prov products.

Burns Foods Ltd. v. AG Manitoba [1975] SCCFacts: Manitoba hog marketing scheme that required all hogs to be purchased from prov Marketing Board required that in and out-of-province hogs be treated the same way.Decision: legislation ultra vires b/c is in P&S an attempt to regulate the interprov trade in hogs.

By subjecting price of “imports” to the same regs as local sales has effect of regulating interprov trade. Fact that there is no discrim doesn’t make a real difference – gov’t could introduce discrim at any time.

Many of the most contentious federal-provincial economic cases have revolved around natural resources. In the 1970s, these cases followed the same pattern as other cases: the SCC struck down provincial

regulations when they were in pith and substance trying to regulate interprovincial or international trade.

Re Agricultural Products Marketing Act [1978] 2 SCR 1198 Facts:

Federal-provincial cooperative scheme to regulate the market for agricultural products in order to prevent the problems that arose in Manitoba Egg. It erected a comprehensive program for marketing agricultural products, including setting up quotas for production at a local level. Ontario set up identical provisions to the federal legislation. The legislation was challenged by local producers.

Ontario sets its own quotas that were identical to Federal QuotaIssue:

Is provincial scheme ultra vires the provinces b/c impinges on federal T&C power?Decision:

NO. Scheme is intra viresRatio: (1) control of production is prima facie valid because it is impossible to identify and regulate only those goods being produced and sold in the province from those that are leaving the province; and (2) there should be a high degree of deference with respects to federal provincial joint initiatives.

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Pigeon: “Production Stage” is prima facie provincial jurisdiction Egg farms are local undertakings under 92.10. Carnation case is conclusive in favour of prov jurisdiction over undertakings where primary agri products

are transformed into other food products. The destination of the goods was irrelevant. The only thing that mattered was that the regulations

imposed constraints on local production. This distinguished the scheme from “marketing” and focused on the “production” element.

He also noted that the Ontario marketing board’s authority cannot extend to inter-provincial trade There should be a high degree of deference when reviewing joint provincial-federal initiatives

Thus, he finds that he has no problems to allow the provincial legislation to complement the federal one.Notes:

Distinction b/n “marketing” and “producing”. Latter is a local matter and so production quotas by province are ok.

Case comes back to Parliamentary supremacy issue in a different manner that is, if working together, feds and provs should be able to do anything.

S.121 issue scheme argued to prevent establishment of a single economic unit in Canada with absolute freedom of T&C Nope all provinces are on board so there is no disadvantage to one province (no customs or tariffs)

In the oil cases, oil-producing and oil-consuming provinces were battling over the difference between the world market price of oil and the cost of producing oil in Canada. The federal government was caught in the middle, trying to establish a single national price and reduce its commitments to subsidies and equalization payments.

Cases in this area involved scope of provincial power to tax under 92.2 and scope of inter-gov immunity from taxation under s. 125

Canadian Industrial Gas and Oil Ltd. v. Govt. of Saskatchewan [1978] 2 SCR 545. (CBp.345)Jurisdiction SaskatchewanFacts Saskatchewan had enacted a “mineral income tax,” which was equivalent to 100% of the

difference between the current price of oil (in Canada) and the international price of oil prior to the energy crisis. 98% of Saskatchewan’s oil was shipped to Eastern Canada and the USA.

Issues 1. Was the mineral income tax an “indirect tax” and therefore beyond provincial jurisdiction under s.92(2)?2. Was the tax in relation to interprovincial and international trade and commerce, and therefore encroaching on the federal trade & commerce power?

Holding 1. Yes.2. Yes. Scheme ultra vires province

Ratio 1. [not included in excerpt]2. Martland J. found that the legislation was “directly aimed at the production of oil destined for export and has the effect of regulating the export price…” regulation of price though no specific setting of price, company would still have to pay same

in taxes (in effect setting price) The pith and substance of the regulations are to impose a price floor on the price of oil in order

to expropriate the benefits from the increase in the price of oil before it is exported extra-provincially.

Provincial authorities cannot directly affect the price of exports – Carnation was distinguished because it functioned as an indirect tax on exports and it was not simply a measure to line the coffers of Quebec – without trenching on s. 92 (2) of the BNA

Since the producer of exported oil has no choice but to comply with the taxes it is ultra viresDickson J, dissenting, would have upheld the tax as a form of direct taxation for the purpose of raising revenue. He thought there should have been a presumption of constitutionality in favour of the province, and that the suspicion of external objectives should not have been enough to overturn this. Court must be sensitive to Legislatures safeguarding their legitimate interests. Nothing in this case suggests that the taxation measures are a colourable measure to assume

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control of extra-provincial trade. The tax relates only to oil produced w/in SK. The transactions are well-head transactions. There are no impediments to the free movement of goods. (as in Man Egg)

Comments According to Monahan, this case can be distinguished from the Carnation case, because there were no internal provincial motivations for the legislation except a desire to capture revenue.

Carnation distinguished because it was not to “line the coffers of the provincial government”). This is a benchmark case in poor economic decision-making

Criticism of the decision: Tax is on a purchaser of the oil (the company) and therefore is a direct tax and should be considered valid

Central Canadian Potash Co. Ltd. v. Govt. of Saskatchewan [1979] 1 SCR 42. (CBp.350)Jurisdiction SaskatchewanFacts Almost all of Saskatchewan’s potash was sold outside the province, and 64% was sold to the US.

Fearing US trade sanctions, Saskatchewan instituted a “prorationing” scheme. In setting up the scheme, the Saskatchewan government met with officials from New Mexico; Saskatchewan officials issued “directives” regulating the used of potash exported to Europe, and so on. This regulation prevented CCP from fulfilling a contract.

Issues Was the prorationing scheme ultra vires the province?Holding Yes. Ultra vires Sask gov’tRatio the provinces can legislate on locally produced and traded goods; however, the regulation of

goods in pith and substance that are produced locally but bound for export cannot be colourably regulated.

The pith and substance of the regulations is to put a price floor on the extra-provincial sale of potash in order to meet the extra-provincial market demand

There is virtually no potash market in Sask.

In 1982, s.92A was added to CA1867, which gave provinces power over natural resources. This section was meant to “reassure” the provinces that the federal government would not use

s.92(10) to declare natural resources to be works under federal jurisdiction. s.92A(2) gives provinces the power to regulate exports of natural resources, so long as this does not

result in prices that discriminate against other provinces. This subsection is qualified by s.92A(3), which makes federal paramountcy explicit in this area.

ANTAKI on Common link b/n cases- Attempt by provinces to regulate an industry w- In era of increasing economic integration what is the line for provincial control?- Key Words

- Price fixing (to what extent is it important)?- Transaction taking place entirely within province- Production (provincial?)- Distinction b/n production and marketing- Opportunity for discrimination- Colourability

Federal Powers over Economic RegulationIntroduction S. 91(2): The Regulation of Trade and Commerce Two Federal Trade and Commerce Branches of Power: These were outlined in Parsons. They are: (1) The

regulation of inter-provincial and international trade and commerce and (2) the “general regulation of trade affecting the whole dominion”.

The JCPC initially circumscribed the application of both of these branches severely. Doctrinal developments since 1960 have opened up possibility of larger federal role over trade and commerce

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1. Interprovincial / International Trade This can be used with the pith and substance doctrine to incidentally encroach on provincial law.

The Queen v. Klassen (1960), 20 D.L.R. (2d) 406 (Man.C.A.). (CBp.357)Jurisdiction ManitobaFacts Klassen operated a feed mill in Manitoba. He bought 296 bushels of wheat from a nearby farm and

converted it into feed, which he sold to farmers in the immediate area (not crossing any provincial borders). Klassen failed to record the purchase of the grain in his “delivery permit book,” as required by the Canadian Wheat Board Act. (This Act declared that all grain elevators were “works to the general advantage of Canada” and it enforced a quota system, assigning grain to elevators.)

Issues Was the Canadian Wheat Board Act ultra vires in respect of Klassen’s feed mill?Holding No. Ratio Although the court conceded that the Act impinged on property and civil rights, they found that this

was necessarily incidental, because the legislation as a whole was aimed at interprovincial/international trade. Even though the transactions in question were purely intraprovincial, they could nevertheless “clog the channels of the marketing system” that the Act was meant to regulate. Moreover, separating regulations so that they would affect intra and extra-provincial grain

producers, traders and exporters would make the system unworkable.Comments This was a revolutionary decision, allowing the trade and commerce power to apply to wholly

intraprovincial transactions. The SCC declined leave to appeal this decision. In an article in the Canadian Bar Review, Bora Laskin praised this decision for abandoning a

formalist distinction between intraprovincial and interprovincial trade. Klassen was a break from the bright lines approach to separating local and extra-provincial

trade regardless of the violence to a legislative scheme established by the JCPC since Parsons Klassen allows for a game of percentages to be played, where a central regulatory scheme can

operate if a certain percentage of goods are exported extra-provincially. (distinguished from Eastern Terminal Elevator)

Antaki on Klassen - What degree of scrutiny was the court willing to subject this regulatory scheme to? why is the court not

willing to push in that direction like in Eastern Terminal.- Klassen says cannot opt out. (or there is not clause say “if you produce more than X amount…”- Another issue is allowing all to sell at same price

Caloil Inc. v. A.G. Canada [1971] SCR 543. (CBp.361)Jurisdiction FederalFacts Caloil imported oil which it was licensed to sell in Atlantic Canada, Quebec, and part of eastern

Ontario. Federal energy regulations reserved the rest of the Ontario market for Canadian-produced oil. Caloil violated these regulations by selling oil in Ontario west of the Borden line, and its license was revoked.

Issues Was this federal legislation a restriction on property and civil rights? Holding No Pigeon J – there was no infringement on property and civil rights Ratio The federal government can regulate imports that have an incidental effect on local trade and

commerce if (1) it is necessary for the effective regulation of international or inter-provincial trade and (2) it is a justifiable restriction in order to develop Canadian resources. This could be restricted just to oil; however, it could be expanded to other goods. In order for the legislation to be valid the infringement on property and civil rights must be (1)

“necessary” for the effective regulation of international or inter-provincial trade. And, (2) the regulation in the case at bar is a justifiable restriction on “imports” and inter-provincial trade in order to develop Canadian resources.

Thus, as the legislation was geared towards regulating extra-provincial trade in pith and substance, and because it only applied to oil – the legislation was framed narrowly – the necessarily incidental effects on provincial transactions could be ignored.

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Comments Katherine Swinton points out that this decision is not as broad as it might seem. It only allows the federal government to regulate intraprovincial trade if it is necessary for the purposes of interprovincial or international trade.

This would apply to an issue that was of general economic concern for the national economy as a whole, even at the local production level

The problem is that this power has the same ability to be as amorphous as the national concerns branch of the POGG powers in encroaching upon provincial jurisdiction

Swinton, K. The Supreme Court and Canadian Federalism: The Laskin-Dickson Years Caloil was welcome expansion of fed regulatory role over trade. Permitted fed regulation over trade matters in provinces if such reg was “necessary” to effective regulation of interprov or international trade. Paul Weiler claimed that there were no reasoned limits to Caloil test and that it would over-expand federal role in trade. BUT…then come Dominion stores. This case held that fed leg was invalid b/c it could not be said to be “incidental” to regulation of interprovincial trade.

Dominion Stores Ltd. v. The Queen [1980] 1 SCR 844. (CBp.362)Jurisdiction OntarioFacts Dominion Stores were charged with selling bruised apples under the inter-provincial trade name

of “Canada Extra Fancy” which was regulated both Federally (CAPSA) and Provincially. Did not meet the Fed standards although were sold intra-provincially and therefore under the standards voluntarily. —they applied only if the seller voluntary decided to use the trademark. There was also an Ontario statute setting mandatory grading standards

Moreover, there were provincial regulations that mirrored the federal regulations and were mandatory

Issues Were the standards provisions ultra vires the federal government as they applied to intraprovincial trade?

Holding Yes. (5-4 split) ultra viresRatio Estey J: Parliament is not empowered to regulate local trade simply as part of a scheme to

regulate extra-provincial trade – incidental effects are not to be tolerated notwithstanding the pith and substance of the regulation.

This has been the law since from Parsons (with two branches of T&C ((1)interntl and inter-prov & (2)general trade power)) and Eastern Terminal

Thus, in order to avoid wasteful (overlapping or) duplication in legislation, the section of the statute in question must be found ultra vires

Dissent – Laskin CJ It is a convenience for producers and consumers that producers should be able to avail themselves of the same standards that apply to cases of interprov and international trade were voluntary.

Comments Monahan: Disagrees Estey’s decision (p.288) Validity of federal legislation should not depend on the repeal or enactment of a provincial law. Sees Estey as confounding different steps of validity, operability, paramountcy Declaring invalid a Federal law b/c there has been provincial activity in that area.

In CCL (p. 364) – Somewhat surprisingly Estey relied on a pre-1950 interpretation and does not take into account decisions such as Caloil

Hogg also thinks this decision did not make sense: the credibility of the federal trademarks would depend on their being applied consistently, whether the produce is traded locally or interprovincially.

2. general This is similar to the “national concern” branch of POGG.

However, there is no “indivisibility” requirement. The “general” trade and commerce power had been dormant for several decades until Laskin

CJC suggested such an idea in the Anti-Inflation Reference.Antaki on Dominion Stores

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- Eastern Terminal Elevator stands for Parliament is not allow to regulate local trade under a scheme that is aimed at inter-prov and internation trade.

- Ambiguous use of language of inapplicability. P.363 “inapplicable to local trade” but does not read it as only apply to extra-prov trade. Odd use of language.

- Estey J. thinking that if the Fed law as to be found valid, Paramountcy would not apply and there would be inefficient overlap (didn’t want to get to the operability stage)

- Bases his decision (therefore, in order to avoid this) on validity the prov’ial law was there in 1937.

2. GENERAL BRANCH OF T&C

Swinton P. 365- Necessarily incidental doctrine wrt T&C power still required goods to move across provincial borders. Could

not use this doctrine to uphold federal regulation of economic problems where (1) cross-border flow did not exist or; (2) court believed that some reg of intraprov trade was not necessary to the effective reg of intraprov or international trade.

- Another approach to interp of T&C fed govt’s power over “GENERAL REGULATION OF TRADE” Revived from Parsons in 1976 in Anti-Inflation (where it wasn’t applied but mentioned)

- Gen Reg of Trade Doctrine – does not preclude federal regulation of intraprovincial transactions provided that there is a sufficiently impt national interest to warrant such regulation. Court must look beyond the stage at which regulation is imposed – feds may regulate an economic prob of interest to the country as a whole even if it does so at the stage of production or retailing in a province.

- Court must decide if there is a problem of national interest – this poses similar difficulties for Court as the National Dimensions test of POGG.

- The inquiry is value-laden – much more so than the old test which was an objective inquiry (do the goods cross a border?).

- Could be an analogy with National concern branch

Labatt Breweries of Canada Ltd. v. A.G. Canada [1980] 1 SCR 914. (CBp.366)Jurisdiction FederalFacts Labatt was selling “Special Lite Beer” containing more alcohol than was allowed for “light beer”

under the federal Food and Drugs Act. The beer was locally produced in 8 out of 10 provinces and normally locally distributed.

Issues Was this an infringement on the provinces jurisdiction?Holding Estey J – Yes, this was an infringement (Ultra vires Feds)Ratio Estey J: Since the standards for “light beer” were mandatory even at a local level, they couldn’t be

claimed to be merely incidental to a scheme of interprovincial trade regulation. The “general” branch of the trade and commerce power could only be used to regulate a general

aspect of the economy, not a particular industry (as in this case) There was almost no extra-provincial trade of light beer, so the first trade and commerce branch cannot be justified.

Nor could it fall under the second branch because this regulates a specific trade. The regulation under this branch must be “sweeping” and in the “general sense contemplated in Parsons”. The federal government cannot under this power regulate “one industry or trade at a time, by a varying array of regulations or trade codes applicable to each individual sector.”

Dissent – Pigeon J.: this was the legitimate use of a national trade mark (you could argue that it is an industry trade name that is too specific, like in Dominion Foods)

Dissent – Laskin CJ – the federal standards are justified because of the concern in the Constitution over the augmentation and preservation of the economic union (section 121). There should be a federal power to impose uniform standards for trademarks, and Hogg seems to agree with this in principle too.

Comments Hogg thinks the standards should have been upheld under the criminal law power, for the purpose of preventing consumers’ deception.

Antaki on Labatt

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- See language of Parsons in the general vs. Single Trade- Rejection of first branch production is within province and sale is within province. Legislation could only be

justified under second branch- How would this be distinguished from Dominion: - Interferes with the local - Common names of “beer” and “lite beer” Not voluntary b/c it is such a common name (is therefore a

mandatory stardard)- Different conceptions of labelling Estey sees as just revealing content whereas others believe labelling

to allow standards to be enforced

In the MacDonald v. Vapor Canada case (1977), Laskin CJC set out three criteria for the general trade and commerce power:

1. The impugned legislation must be part of “a regulatory scheme.”2. The scheme must be monitored by “a federally-appointed agency.”3. The legislation must deal with trade as a whole rather than a particular industry.

General Motors of Canada Ltd. v. City National Leasing [1989] 1 SCR 641. (CB p.225&371)Jurisdiction OntarioFacts City National Leasing (CNL) sued GM for its discriminatory pricing policy, as authorized by a

provision of the Combines Investigation Act. GM argued that the provision was ultra vires the federal government because the creation of civil causes of action is part of “property and civil rights.”

Issues Was the impugned provision sufficiently integrated into the federal statute (truly necessary or functionally related) to sustain its constitutionality?

Holding Yes. Act and provision are intra viresRatio The SCC found that, although the impugned provision appeared to encroach on provincial sphere,

it passed both the functionally related and necessarily incidental test within the Combines Investigation Act, which was valid as a whole. Creation of rights for civil action is incidental to the purpose of the Act

Distinguishes from B of C saying that the General Trade power under T&C was not properly interpreted in that case.

Dickson set out the five criteria under which the general trade and commerce power can be applied (added onto from Vapour case per Laskin)

[1] Leg must be part of a general regulatory scheme [2] The scheme must be monitored by the continuing oversight of a regulatory agency. [3] The leg must be concerned with trade as a whole rather than with a particular

industry. [4] Leg should be of a nature that the provs jointly or severally would be constitutionally

incapable of enacting. [5] Failure to include one or more provs in a leg scheme would jeopardize its successful

operation in other parts of the country These 5 traits are not exhaustive and not determinative – need a careful case by case analysis

Comments However, this is not really a “test”: it’s not necessary to fulfill all five criteria.

Interprov/interntl Branch General Branch of T&CDominion (1980)Cooperation, applicability, marketing

GM Combines Investigation Act S.31.1CNL feels that GM has given pref treatment to other

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1937 – Dominion Trade v. Industry Case Natural Products Marketing Act case (ultra vires on similar grounds as Eastern Terminal) Ontario Steps in

1955 CAPSA Part I – Intra - prov (voluntary) - Standards Part II – inter- prov (manditory) Part I is ostensibly optional however b.c this law mirrors the prov law, the federal law is a parasite on the federal law In effect, Part I federal law becomes mandatory on intra-prov. Colourable Estey says at three point “if law is the way I understand it to be…..Part I, if were to be mandatory, in an of itself, would be ultra vires. Well, what if law isn’t the way he sees it. Solution is to read down. Not invoking Interjurisdictional immunity for a provincial law…..just reading it down. Federal law was piggy-backing prov legislation and was concrete example of provincial jurisdiction. Must be ultra vires as Feds could keep piggy-backing. Prov could change law and Feds could mimic and continue piggy-backing calling intra-prov part voluntary.

Since then, there has been a switch. Feds are now controlling the trade names. now there is a coordinated food inspection program now.

What is problematic or Estey is that if Eastern Terminal is Law then this cannot be intra vires. – manner for Feds to encroach on Prov powers.

Language of Marketing: - From ONt Statute: Includes advert, assembling,

packing, processing, storing, transporting…..etc. Everything.

- Federal successor to CAPSA broadly, advertising packing etc….. opposed to production.

companies and want to avail themselves of Federal law saying may take civil action

Hallmarks of Validity: Question – what does it have to be integrated into to.

1. Impugned leg part of general reg scheme2. Continuing oversight of reg agency3. Trade as a whole, not part of industry4. Provincial incapacity5. Failure to include a prov jeapordize

Anatki: thinks this is calling for bigger gov’t if wants to regulate this.

Why are these the Hallmarks?- Dickson says list is not exhaustive – don’t need to

fulfill all these criteria- Not clear how many you need- A vague test….as all must not be fulfilled- Discussion of Fed T&C power – desire to balance

the powers- Monahan says what 1) and 2) have to do with

anything- Balance:- Principle: What is the logic of this protection.

There doesn’t seem to be one here. Just acting as a road block to make it hard for feds to do it. could be protection of federalism.

- Analogy. Lord Haldane in Hodge saying that T&C was only to be used in furtherance of another power.

- Analogy: Provincial inability test. (which was not really applied here – Monohan says no)

Application in the case at hand:-

Criminal Law s.91(27) assigns criminal law to the federal government:

except the constitution of courts but including criminal procedure

s.92(14) assigns provinces the administration of justice in the province, including provincial courts “of civil and criminal jurisdiction” and including civil procedure

According to s.92(15), provincial laws can be enforced by fines, penalties and imprisonment.

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- S. 91.27 gives feds power over criminal law. This gives rise to two issues: (1) scope of fed power; (2) extent to which existence of fed power has constrained provincial attempts to control local conditions of public order and morality.

Requirements The legislative power is found in s. 21(27) of the CA

(1) The Functional RequirementA) Does the legislation have a valid criminal purpose? It must fit into the “categories” outlined by Rand J in the Margarine Reference and La Forest J in

Quebec Hydro Peace, Order Security, public morality, the environment and health These are not exhaustive. To be regulated under the criminal power “it must be an evil and have an

injurious effect on the public”B) Does it have a colorable purpose? This is the only real constraint, and, like in the Margarine Reference the primary concern is one that the

government might use the legislation for economic regulation.

(2) The Formal Requirement The legislation must have (1) a prohibition and (2) a penalty Note: civil penalties can be ancillary – the Firearms Reference Note: the term “prohibition” was given a very broad definition by LaForest J in Quebec Hydro and could

potentially be used in a regulatory manner (e.g. a tariff to constrain production). However, this expansive definition may have been relaxed in the Firearms Reference. However, the term is still somewhat unclear.

The only true constraint on the criminal law power is a colorable purpose.

(3) If (1) and (2) are satisfied then a displacement of the division of powers is justified.

Federal Powers over Criminal Law In Proprietary Articles (see p.20), the JCPC had defined criminal law by the existence of a prohibition with a

penalty attached. It had refused to look at the content, purpose or function of the criminal law.

Margarine Reference, [1949] SCR 1. (CBp.390)Facts The federal government referred section 5(a) of the Dairy Industry Act, which banned the

manufacture, sale, or possession of margarine, to the Supreme Court.Issues Was the federal government justified in evoking the criminal law power to ban margarine

imports?Holding Ultra vires feds under criminal power. Can keep provision re importing marg under T&CRatio Rand J. found that, while the impugned provision met the test of being a prohibition with a

penalty attached, its “purpose” was economic, i.e., to protect the dairy industry. Must determine if the prohibition is enacted with a view to a public purpose which can

support it as being in relation to criminal law. Ordinary ends of the criminal law include public peace, order, security, health morality. the Act does not – trade protection to the dairy industry

Colourable aimed at regulating the dairy industry.Comments Rand J.’s criteria for a criminal purpose were extremely broad and amorphous.

A crime is an act which the law, with appropriate penal sanctions, forbids. BUT…there must also be some evil or injurious or undesirable effect upon the public against which the law is directed. That effect may be in relation to social, economic, or political interests; and the legislature has had in mind to suppress the evil or to safeguard the interest threatened.

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RJR MacDonald Inc. v. Canada (Attorney General), [1995] 3 SCR 199. (CBp.392)Jurisdiction QuebecFacts The federal Tobacco Products Control Act prohibited the advertising of tobacco products

and specified penalties for violating this ban. RJR MacDonald challenged this, saying that it was in pith and substance property and civil rights, and that it violated freedom of expression under the Charter.

Issues Could the ban be upheld as criminal law? Holding Yes, but it was struck down on Charter grounds, for violating freedom of expression. Ratio Following Rand J.’s judgement in the Margarine Reference, La Forest J. (for the majority)

found that the ban was criminal law, especially as it was directed against the public health hazard of smoking with prohib and penal sanction.

It did not matter that the law was more regulatory than prohibitory. 1) How can not ban evil yet ban advert? -- Parliament can take a circuitous path to

accomplish goals so long as goals are constitutionally valid 2) Doesn’t address conduct that has affinity with a traditional criminal law concern

criminal law is not frozen in time. 3) Criminal law can’t contain exemptions. Criminal law may validly contain

exemptions w/o losing its status as criminal law. Exemption helps to define the crime by clarifying its contours.

The dissent argued that the regulatory nature of the law meant it couldn’t be criminal law: it just banned tobacco advertising without addressing smoking itself. The fact that imported magazines were exempted from the ban also seemed to indicate that this was not really criminal law.

Issue of exemptions While exemptions don’t necessarily take a statute out of criminal law, broadly based exemptions are a factor which may lead a court to conclude that the proscribed conduct is not criminal. How is something not criminal for US publications but is for Cdn.

Comments While La Forest J. was one of the greatest opponents of an expansive “national concern” branch of POGG, he has promoted an expansive federal criminal law power.

Note the Requirement of Form in Criminal Law- One of the main constraints on the federal criminal law power – requirement of standard form (prohibition,

penalty enforced by the courts)- Presence of regulatory features (admin agency with discretion, detailed regulation, civil remedies) may make

law unsupportable under crim law power.- Courts have allowed deviation from criminal form in some cases where clear crim purpose was found:- RJR case: criminal despite exemptions; also, established federal gov’t undisputed power to regulate unsafe

food and products under crim law (regardless of form?)- Hydro Quebec case: regulatory scheme w/ lots of admin discretion satisfied crim law formal requirements.- Ancillary remedies have been upheld under the criminal law power- Departure from form (i.e. requirement of punishment) has been allowed also where purpose of law is

prevention of crime.

R. v. Hydro-Québec, [1997] 3 SCR 213. (CBp.400)Jurisdiction QuebecFacts The Canadian Environmental Protection Act allowed the federal government to regulate the use of

toxic substances. The law was evidently drafted to be justified under the national concern branch of POGG. Hydro-Québec was found to have violated a federal government order regulating PCB emissions. (The order was made by Lucien Bouchard’s environment department!)

Issues Could the federal government use the criminal law power to justify environmental regulation?Holding Yes. Intra vires FedsRatio La Forest J., writing for a narrow 5-4 majority, Prohibition must have a public purpose

protection of clean enviro is legit public purpose Purpose of Crim Law is to underlie and protect our fundamental values enviro is such a

value.

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The prohibition of certain toxic substances in Part II is a limited prohibition applicable to a restricted number of substances (the most dangerous ones). The prohibition is enforced by a penal sanction and is undergirded by a valid criminal objective, and so is valid criminal legislation.

The dissent argued that the law was regulatory rather than prohibitory, especially as it did not define the general terms of offences but rather enabled bureaucrats to make specific orders about what would be an offence.

Environmental protection is a legitimate public purpose but the impugned provisions are an attempt to REGULATE rather than to prohibit or proscribe.

Comments This decision was extremely controversial, drawing criticism from some such as David Beatty, who argued that it was an absurd abuse of the criminal law power, since it eliminated the requirement of a prohibition and a penalty. Beatty felt it should have been upheld under the national concern branch of POGG. On the other hand, Jean Leclair applauded the decision, saying that it upheld Canadian values and was constructive of Canadian identity.

Regulatory vs. Criminal (Hydro QC case)- How elaborate is the scheme? (more elaborate = more likely that exemption is reg and not criminal)- What is the subject matter of the law?- Are there blanket prohibitions?- Are there lots of exemptions?- Does it cover a narrow field of dangerous activity or a broad area of concern?- Can the prohibition be self-applied or is the crime created by “discretion”?- Is there deference to provincial regulatory schemes? - Are the regulations limited to matters falling within the criminal purpose?

Reference re Firearms Act, [2000] 1 SCR 783. (CBp.413)Jurisdiction AlbertaFacts The federal Firearms Act, enacted in 1995, required licensing and regulation for all guns and made

it a criminal offence not to comply. The Alberta government challenged the Act on the basis that it was regulatory, not prohibitory: it made a reference to the Alberta Court of Appeal, which upheld the Act. The Alberta government appealed to the Supreme Court. While there was no problem with regard to the purpose of the legislation, the form was a bit more complicated.

Issues Could the Firearms Act be upheld as criminal law? Holding Yes – intra vires Feds Ratio The SCC focused on the prohibitory aspects of the legislation. A certain amount of

administrative discretion was allowed, but offences (possessing a firearm without a proper licence and registration) were clearly defined by the Act.

Therefore the Act contained a prohibition and a penalty, for a criminal purpose. The complex, regulatory nature of the Act did not preclude it from being considered criminal law. The court explicitly responded to the dissent’s concerns in the Hydro-Québec case. The court found that the civil consequences of the Firearms Act were necessarily incidental.

Comments Although the court upheld the legislation, its approach to the criminal law power was more moderate here than in the Hydro-Québec case. La Forest J. had retired by this point.

It seems, after all this, that the fundamental principles of the federal criminal law power haven’t changed:1. The law must have a criminal law purpose (broadly defined to include health, security, etc.)2. It must take the form of a prohibition and a penalty.

Why was La Forest J. so open to an expansive interpretation of the criminal law power, when he was opposed to expanding the national concern branch of POGG?

It may be that, as an enumerated power, the criminal law is perceived to have limits. Antaki on Federal Criminal Law

Propostions of Crim Law Case1. Criminal regulations = prohibition + Sanction + 1. Marg Ref

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Purpose Hydro2. Valid Objectives (syn with evils, purposes,):- Enviro- Health- New purposes can arise3. Exemptions- Criminal law containing exemptions has been found to be valid- What kind, what is an exemption, and more Antaki questions

RJR MacDonald

4. - Can regulate (not only prohibit) incidentally - Can regulate specific issue (eg. toxic substances) but not entire industry- Cannot be colourable law- Though it seems like you can regulate in a broad way, there seems to be shift in the Court with RJR and Hyrdo where there are significant dissents.

Hyrdo

5. To what extent can the substance of a crime not actually be found in the law - can the scope of criminal law extend so far it will not only be in a statute but rather must look in a regulation. - trend in Criminal law away from tradition view of criminal law and towards regulatory – under the charge of bureaucrats 6. Self application7. Parl has the latitude to apply criminal law where it has a practical

RJR

8. Can Parl criminalize something and not criminalize the evil.

RJR

Provincial Powers over Criminal Law The provinces have numerous powers related to criminal law:

s.92(6) “public and reformatory prisons” s.92(13) “property and civil rights” s.92(14) “the administration of justice in the province” s.92(15) “the imposition of punishment” (However, this is ancillary to other heads of power.) s.92(16) “matters of a merely local or private nature”

Provinces don’t have power over criminal law per se. But they have been allowed a certain amount of power to legislate with regard to morality and public order.

Re Nova Scotia Board of Censors v. McNeil, [1978] 2 SCR 662. (CBp.416)Jurisdiction Nova ScotiaFacts Nova Scotia legislation created a board of censors, with the power to ban films. If any cinema

showed the banned film, it could be fined or lose its licence. McNeil, a private citizen, sued to overturn the banning of Last Tango in Paris.

Issues Did the Nova Scotia government have the power to ban films on the basis of morality?Holding Yes. (5-4 split)Ratio Ritchie J, writing for the majority, emphasized that the Board of Censors was regulating

“property and civil rights.” He also said that in “a country as vast and diverse as Canada,” laws dealing with morality had to

be “of a local and private nature.” variety of tastes and standards. (sounds like at the whim of the board)

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Caloil (among others) to stand for intra-provincial transactions are provincial Of a regulatory nature rather than a penal nature. Loss of a licence is not a penal punishment Does strike down provision dealing with indecent performances as is to similar to criminal lawLaskin CJC Dissent was strongly opposed, This is backdoor punishment – backdoor criminal law. – is intrusion into the field of criminal law. Ought not be able to do what it cannot do directly in an indirect way (like Dominion stores)

Comments Could Double Aspect be invoked here?

A series of provincial laws relating to morality were upheld: the Ontario Adult Entertainment case (1997)

Westendorp v. The Queen, [1983] 1 SCR 43. (CBp.421)Jurisdiction Alberta Facts Westendorp was charged under a Calgary by-law which prohibited being on the street for the

purpose of prostitution. Issues Did a ban on being in the street for the purpose of prostitution invade the federal criminal law field?Holding Yes. Ultra vires ProvincesRatio The SCC unanimously found that the by-law dealt with criminal law, since it only regulated being

on the street for prostitution, not the mere fact of being on the street. (The Alberta Court of Appeal had upheld the legislation, because it only dealt with prostitution on the street (purportedly as a public nuisance), not the mere fact of prostitution.) Larger penalty than any other section in the act.Colourability – taking criminal power under morality and public order and nuisance.

Such provincial laws are only likely to be problematic if they come into direct contact with federal law. Most cases revolve around municipal by-laws.

Rio Hotel Ltd. v. New Brunswick Liquor Licensing Board [1987]Jurisdiction NBFacts - Under Liquor control Act, liquor licensing board could attach conditions to liquor licenses

- The Rio Hotel had been given a license with a condition precluding nude performances.- Hotel owner challenged the condition on the basis that it related to public morality and thus fell

w/in jurisdiction of criminal law; he noted that Criminal Code had numerous provisions relating to public nudity

Issues Is there an intrusion on the criminal powers of the Feds?Holding No – intra vires the provinceRatio S.C. confirmed provinces’ ability to prohibit nude entertainment as part of a liquor licensing

scheme notwithstanding related Criminal Code provisions Prohibition part of a comprehensive scheme of regulation and licensing Leg is in relation to property and civil rights and matters of a purely local nature There are no penal consequences for breach of the provincially-imposed conditions. There are similar provisions in the criminal code but there is no conflict Distinguishable from Westendorp b/c no colourable intrusion Aspect Doctrine Clarity up front in rules. They will not change with times unlike Nova Scotia Board of Censors. Dealing with marketing tools by the owners of licenced premises to boost sales of alcohol.

Property and civil rights. Possible to comply to both Federal law and Provincial law

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