Canadian Constitutional Law
October 20 Supplemental
Ian Greene
Citizens Insurance Co. v. Parsons, 1881
• First major 92(13) case.
• Impugned: Ontario Fire
Insurance Policy Act.
• Fire in Parsons’ warehouse.
Parsons wanted insurance
payment
– Ins Co: you didn’t observe
the fine print.
– Parsons: the fine print didn’t
conform to the Ontario Act.
– Ins Co: The act is ultra vires
Ontario.
• Sir Montague Smith discusses
how s. 91 & 92 overlap. JCPC will
interpret the BNA Act as an
ordinary statute, applying similar
rules of interpretation.
-Smith Invokes presumption that
specific takes precedence over
general. “Property & Civil Rights”
more specific than “Trade &
Commerce”.
– “cubby hole” doctrine. S.
92(13)? Yes. Also S. 91(2)-T&C?
No. Feds can incorporate Co’s
with national objective, but this
doesn’t prevent provinces from
regulating intraprovincial
transactions
– Three aspects of T&C:
international, interprovincial and
general.
– He doesn’t define these
categories. Left for later cases.
– What is holding;? What is obiter?
Russell v. The Queen, 1882
• Impugned legislation: Canada
Temperance Act, 1878
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– Certiorari; rule nisi
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– ¼ of electors in a “county or
city” may petition for a
plebiscite on prohibition.
Fredericton went dry
Charles Russell: Fredericton pub
owner, sold anyway; convicted
Previous SCC decision: City of Fr.
v. Queen: Can Temp Act intra
vires under T&C (91-2)
JCPC decision: Sir Montague
Smith.
Russell’s lawyer: delegation
argument – Parliament can’t
delegate its powers. Legislation
says GG “may,” not “shall.”
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“cubby hole” doctrine
– Is subject-matter of impugned
legislation in s.92? If so, is it also
in 91?
– If not in s. 92, it must be in s. 91
Russell’s lawyer: argued legis. Falls in
s. 92: 9, 13 or 16
“pith and substance”
– Smith: Nearly anything could fall
under 92(13); what is p&s?
Central subject matter is public order
& safety, not T&C
Not local because of local option.
(eg. contageous disease orders with
greater impact in some areas)
Therefore, not under s.92.
No comment on SCC’s decision in
Fredericton re s. 91(2), but seems to
emphasize POGG
Eg of Gap (residual) branch of POGG
Case 4: Local Prohibition Case, 1896 (Ian Greene)
• Impugned: Ont’s Local
Prohibition Act (1890)
– Townships, towns, villages (&
cities)
– Appeal from SCC reference re
validity of Ont Local Proh. Act
• Lord Watson
• Feds (under POGG) can trench on
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s.92 only if incidental to a legitimate
fed purpose; otherwise, all of s.92
would fall under s. 91.
– s.94 issue (power to unify
common law in anglophone
provs): meaningless if POGG
interpreted broadly.
Ontario argued that legis. falls under
92(8): (municipalities). Watson: not a
convincing argument
• Pith & substance: vice of
intemperance at local level
• 92(16): (local) yes.
• 92(13): no; the law prohibits
rather than regulates
• if conflict: fed. law is paramount
• conflict of laws: no conflict if
strictest obeyed
• “aspect” (or double aspect)
doctrine: a legislative subjectmatter can fall under s. 91 for one
purpose, and s. 92 for another.
• National dimension or national
concern doctrine of POGG hinted
at: a subject matter can become
a matter of national concern and
then feds can regulate under
POGG.
Case 9, AG Canada v. AG Ontario, Labour Conventions
Case (restriction of federal power over international affairs,1937)
Ian Greene
– Lord Atkin - wrote decision
– Distinguished Aeronautics and
Radio cases. He said that the
Radio case decided that power to
regulate radio transmissions is
new, and therefore falls under
POGG. (Is that what you think
was decided?) The treaty-signing
power falls to the feds under
POGG, but the treatyimplementation power depends
on the subject-matter of the
treaty. Matters that fall under S.
92 can only be implemented by
the provinces.
• Extraterritoriality
– Federal
– Provincial
• Treaty-making powers
– Head of states
– Intergovernmental
– Exchange of notes
Chicken & Egg Reference - 1971
(Ian Greene)
• In 1970, Que gov’t
authorized Que egg
marketing agency to restrict
import of eggs from out of
province
• Ont and Man were suppliers
of eggs to Que
• Que supplied chickens to
other provinces; they
restricted Quebec chickens
• Man passed egg marketing
legis identical to Quebec’s
and referred it to Mn CAp
• Man legis. struck down;
appealed to SCC (What
if leg upheld?)
– 9 judges on panel: 6 + 2
+ 1 (all agreed ultra
vires)
– Martland: Pith and
substance:
interprovincial T&C.
Chicken & Egg (2)
• Laskin’s first major decision.
– Annoyed that case is fabricated. Why?
– Obiter since Parsons led to attenuation of literal interp of
T&C.
– Prov. Marketing legislation OK if producers in other
provinces treated the same a local producers
– Purpose of this legislation: to control the import of eggs.
Therefore it is ultra vires; trenches in fed control over
interprovincial T&C
• Scholarly analysis both of case law and realities of
trade in eggs & other goods
• Not necessary to invoke s. 121
Ref re Anti-Inflation Act (1976)
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Trudeau campaigned against wage & price
controls during 1974 election. After his
election victory, he reversed his position.
1975: federal Anti-Inflation Act enacted.
All prov's cooperated. Ont public
employee unions challenged in court, so
the feds sent a ref question to the SCC to
settle the issue.
AG of Canada defended Act under nat
concern branch of POGG, and also argued
that an economic crisis equals an
emergency.
There were two decisions for the majority,
by Laskin and Ritchie. However, the
dissenters agreed with Ritchie’s
interpretation of POGG, leaving the
Court’s interpretation of POGG unclear.
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Laskin (+3 judges): Laskin had been a law
prof, and wrote the leading text (before
Hogg) on Can. const. law.
Reviewed history of POGG
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Const must adapt to change.
If judges can defend as crisis, not nec to
look at national concern argument.
Evidence shows there is a rational basis
for believing a crisis exists (Stats Can)
Lipsey & 39 economists in an affidavit
argued that 1975 inflation is not a crisis.
Laskin: there is disagreement amongst
economists, and it’s not up to SCC to
decide. (Beginning of use of soc sci
evidence in court.)
Fed power supported by 91 (14-21 except
17), & T&C, so it’s intra vires.
Ont. order-in-council is ultra vires; needs
primary legislation.
Monahan, Chapter 10: Property & Civil Rights (92-13)
within provinces
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During JCPC era, 92(13) was the de facto residual clause
Federal legislation directly relating to one of the enumerated heads of power in S. 91 was
upheld, even if it had an incidental effect on provincial powers; other legislation was usually
declared ultra vires. The enumerated heads were no longer examples of federal power, but
nearly the whole of federal power.
Even though the Chicken & Egg reference prevented provinces from using 92(13) to interfere
with interprovincial marketing, an interprovincial egg marketing scheme with federal and
provincial dovetailing legislation was later held to be constitutional.
Earlier decisions (Carnation, 1968) supported provincial regulation of trade within provinces.
In later decisions in the ‘70s, the court looked into whether provincial legislation worded to
control only trade within a province might be designed to impact interprovincial or
international trade; if so the provincial legislation could be struck down. In reaction to these
decisions, the provinces demanded that S. 92A be added to the Constitution Act, 1867 –
giving provinces more control over production and export of non-renewable natural
resources.
Sometimes provincial laws have an incidental impact outside the province. If the pith and
substance of the law is intended to have a purely provincial impact, then the SCC will uphold
the law (eg. BC legislation to hold extraprovincial tobacco companies liable for health care
costs in B.C. of B.C. residents made sick by tobacco - 2005). (In contrast, federal laws can
have extraterritorial application if practical. It is a criminal offence to hijack a Canadian plane
inside or outside of Canada.)
Monahan, Constitutional Law, Ch 11:
Criminal Law (Ian Greene)
• In contrast to U.S., criminal law is a federal power in
Canada (91-27); in U.S. – state law. But in Canada,
provinces control enforcement (most police &
prosecutions)
• Case law: a criminal law prohibits with a penalty, and is for
a “criminal … public purpose” including “peace, order,
security, health, morality.” (margarine ref, 1949)
• 1993: Tobacco Products Control Act within federal criminal
power
• 1997: Can Environmental Protection act valid criminal law
• 2000: Federal Firearms Act valid criminal law
• 1980: Federal regulation of “light beer” not valid criminal
law
Monahan, Constitutional Law, Ch 11:
Criminal Law (Ian Greene) – slide 2
• Provincial power to enact penal laws
– S. 92(15) gives provinces the power to impost “punishment by fine, penalty or
imprisonment” for enforcing provincial laws. “Quasi-criminal” legislation.
(Provincial laws – imprisonment up to 2 years; federal criminal law – up to life.
Prov laws – prosecuted by way of summary conviction; fed criminal law –
prosecution by either summary conviction or indictment. Provinces build jails
for offenders sentenced to less than 2 years; feds build penitentiaries.)
– SCC case law separating criminal law from valid provincial law is contradictory
and confusion – eg cases about criminal law and municipal bylaws regulating
strip joints.
– Police functions under the criminal code are provincial jurisdiction under
92(14). RCMP has the power to enforce federal laws other than the criminal
law. Eight provinces “rent” the RCMP from the federal gov’t for provincial
police services; the RCMP in these provinces is under the control of the
provincial Attorney General. But investigation of complaints is a federal
responsibility for the RCMP.
– SCC has held that the federal government can prosecute drug cases; thus, a
confusing array of federal prosecutors, at first appointed for patronage
reasons. Monahan claims that the federal government could extend the role
of federal prosecutors into criminal cases.