Download - NCA Constitution Law Chapter PARAMOUNTCY
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8/13/2019 NCA Constitution Law Chapter PARAMOUNTCY
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PARAMOUNTCY
When 2 lawsare enacted by same legislative body, later law impliedly repeal
the earlier one.
In Federal system, when 2 laws enacted by different legislative bodies,doctrine of paramontcy applies:
1) Each law valid (Validity of law)
(Validity can be checed on !ederal "rondor C#arter "rond.)
!) Inconsistent with each other
"efinition of Inconsistency:
1) $f broad definition, most of provincial laws will defeat.
!) $f narrow definition, provincial laws will #et space to s$rvive.
%) E&press 'ontradiction (one law e&pressly as citiens to do the opposite to
the other law)
E&press 'ontradiction
1) Impossibility of d$al compliance. (Impossible to obey both laws)
CA%&M & D Farm V. Manitoba Agricultural Credit Corporation (1999) : *nder
federal act plaintiff obtained 1!+ day stay proceedin#s a#ainst the foreclos$re of
the property, "$rin# the stay period corporation obtained order from the co$rt
$nder the provincial Family Farm rotection -ct for the foreclos$re of the
property. When 1!+ days stay period #ets over, corporation demands possession
of the property. .'. held the foreclos$re invalid.
!) Fr$stration of Federal $rpose
CA%&Law ociet! o" #.C. V. Mangat ($%%1) : case re#ardin# the proceedin#s
before the Immi#ration and /ef$#e 0oard. *nder Federal Immi#ration -ct, party
co$ld present nonlawyer and $nder rovincial 0ritish 'ol$mbias 2e#alrofession -ct, prohibit the nonlawyers from practicin# law. .'. acnowled#ed
that no do$bt party can obey the stricter law, so that both laws can be followed.
0$t by obeyin# the stricter, p$rpose of federal law (to mae the process
ine&pensive and easily accessible to the people) will be fr$strated.
3e#ative Implication
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1) 'overin# the field ()
a) Follow the stricter law
Where the federal parliament has enacted a law, does this abstain a province
from enactin# the law on the same4
When provincial law does not contradict the federal law, b$t it is addition or
s$pplement to the provincial law, will the provincial law be inoperative4
What if provincial law is the e&actly same with Federal 2aw4
Canadian Cortsconfined the definition of paramo$ntcy to s$ch a narrow view
that it re'ects t#e covering t#e field(
CA%&) 'rad! V. parling (19%) *nder Federal 'riminal 'ode made an
offence to drive a motor vehicle reclessly and $nder provincial law made it an
offence to drive carelessly (Witho$t d$e care and attention). .'. $pheld that two
laws are not e&pressly contradictin# each other, beca$se by followin# the stricter
standards (provincial law) person can obey the both laws.
In 'rad!(19%) * tep+en,(19%*) mit+(19%) and -o,, (19$) case .'.
made it clear that no space for 'overin# the field aspect (3e#ative Implication) in
the 'anadian 'onstit$tion 2aw.
!) E&press e&tension of aramo$ntcy
ection 55 of Federal Indian -ct provides that provincial laws are inapplicable toIndians $pon the matters covered this act. 6his provision claims the doctrine of
paramo$ntcy by renderin# inoperative provincial laws $pon the same matter
covered $nder Indian -ct. *nder the Federalism r$les e&press federal
paramo$ntcy is considered to be valid. 6here is no reason why it sho$ld not be
valid.
7verlap and d$plication
1) 'onstit$tional i#nificance
"$plication is not a test of inconsistency. 6here is no reason why d$plicationsho$ld be a case of inconsistency, once It was decided in cases 189+s, namely,
7rady, mith, tephens and ;ann that there is no space in the constit$tion for
coverin# the field or ne#ative implication. ;any times provincial law is merely
d$plicate of federal law, beca$se the s$spension of provincial law can create a
#ap in provincial scheme of re#$lation, which wo$ld have to be filled by federal
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law. -nd the sit$ation seems to be $ntidiness, waste and conf$sion as
d$plication.
7nce it is determined that d$plication is not a test of paramo$ntcy, there is
obvio$sly no point is searchin# for the minor differences between the similar
laws.
!) "o$ble 'riminal 2iability
6he e&istence of overlappin# and d$plication of penal provision raises the
possibility that a person may be liable to convict $nder both provincial and federal
laws.
ection 11(h) of 'harter of /i#hts and vario$s other provision of criminal
proced$re prevent do$ble