Royal Commission on Aboriginal Peoples:
Established 1990s to investigate situation of Ind. People in Canada.
4 stages of our relationship outlined with them:
1. Separate worlds:

Before 1500, they were autonomous with their own governance and traditions.
2. Nation-to-Nation:










Early era of colonization
Treaties as they entered in relations with them
Colonizers wrote down and interpreted indigenous wording; meaning still being determined
Royal Proclamation 1763
3. Domination and Assimilation
1800s + less military threat, so less need for alliance = decline in fur trade + notions of white
supremacy
Reserves; Act to Encourage the Gradual Civilization of the Indian Tribes
Isolated under Indian Act as ward of state (placed under protection), only entitled to small areas of
land considered owned by federal = Justification for colonization. Seen in Report of the Aboriginal
Justice Inquiry of Manitoba)
Fed. Prohib. Against certain ceremonies + residential school system
Assim. Into white culture, livelihood, and language
1867 Constitution ind. Excluded from debate + discussion.
 Only mention in s91(24) = Indians + land reserved for them was under fed. Authority.
4. Renewal and Renegotiation
 Overt discrimination occurred till 1970s, though last school lasted till 1990s
 Rights arising from spirit of treaties + Royal declaration
 White paper on aboriginal people saying the Indian act was discriminatory and creates sep. status
for ind.
 reaction of white paper led to importance of reconciliation + importance of recognition of Ind.
Without assim. Them into Canadian polity.
 Calder Case: recognized some Abo. Right to land, and ind. Ppl have territorial rights for since they
always lived there
 Restructure relationship by recog. Ind. As nations, and self-governance (right they nvr surrendered).
4 principles to a renewed relationship: Calls for action, not just recommendations
1. Recognition: recognize ind. As og inhabitants and caretakers of lands = rights + responsibilities
2. Respect: Canadian must create a climate of positive, mutual respect
3. Sharing: giving and receiving benefits
4. Responsibility: Accountability for promises made
Aboriginal Justice Inquiry of Manitoba: Foundations of fair rel. between ab & non-ab people of Canada
 Failures of legal system reflect aboriginal legal interest in land
 Doctrine of Discovery: If land is uninhabited, colonizers can claim
 Europeans treated their territory as deserted = insufficient basis for Canadian sovereignty.
 Under int’l law, not valid claim to land, this report was just justification for it
 Doctrine of Conquest: Winner gets full right to colonize the nation and challenge legal regime
 But there were treaties + no state of war = they were protected
 Doctrine of Adverse Possession: If ppl arrive on land and stay long enough uninterrupted, then they
can assert they own it
 But ind. Did resist and object them
 Doctrine of Cession: Signing valid treaties fulfill req. for consent.
 Ind thought they were sharing the land, they would retain access to traditional territory
 They have right of self-gov since they never surrendered it
Under s35 of 1982 Constitution act, right to self-determination recog. And affirmed in existing treaties
UN Declaration on the rights of indigenous people (UNDRIP): constitute the minimum standards for the
survival, dignity and well-being.
 BC first province to pass it as law (2019)
 Authoritative influence but lesser status than convention
 Practice culture/custom, religion, language, strengthen economy, social, political inst; nationality,
free from discrimination
Royal Proclamation 1763 4 part: report on how Britain will govern colonies
Respected aboriginal rights while suppressing French colony
1. Ind. Rights:
 Recog. Ind. Rights and how they shouldn’t be disturbed on their land
 Relations w ind. Was to be channelled through treaties + gov-to-gov relations
2. French Rights:
Est. new gov and new Province of QC
Suppressed French Civil Law. British law apply to both public and private
Compromised religious freedom by attempting to stifle Roman Catholic institutions
3. Democracy:
Promise of Legislative Assembly to move to democratic gov ASAP
Fear that by being democratic, would give French too much power bc of voting = shift back to French
4. Rule of Law
All officers charged with misdemeanor/felony sent back to colony their from so they can be tried.
Quebec Act 1774:
1. Legal pluralism: restored CVL in QC
2. Freedom of religion in Quebec
3. Retreated on the promise of democratic representation
Constitutional Act 1791
Divides QC into Upper (Ont.) and Lower Canada (QC)
Upper Canada English gov, CML, Church of England
Lower Canada retained CVL and operated in Eng/Fr.
Democracy: Legislative Council + Assembly of ea. Prov. To make laws of POGG
Durham Report 1839
Inquiry as to the cause of rebellions. Caused by conflict of progressive English pop. and reactionary
French pop., NOT about executive branch authority.
Propose solution: Suppress French culture. Believed should be English majority
Give elected assembly more power for responsible gov + democracy
Union Act
Merged upper and lower Can
English speaking majority in Legislature
 English sole language of records and reports
 Resistance to restrictions in French
British NA Act 1867 (renamed Constitution Act 1867)
Provinces maintain jurisdiction over property and civil rights, administration of justice, marriage,
education
Aboriginals not represented or participated in this
Westward expansion Post-Confederation
Indian Act 1876
Reduced status of first nation by making them ward of the state, thus limiting exercise of civil/pol.
Rights.
Manitoba Act 1870
Est. province of Manitoba and provisions (e.g. electoral vote to male property holders).
All ungranted land becomes to fed. Gov. and administered by Can. Gov. (s30-32)
S21: land grants distributed to children of Metis
S22 linguistic rights; rights to education, but infringement on denominational schools (catholic to
Christianity, so a smaller school to bigger religion) not allowed (
French and English equal rights
S93 provides appeal to fed. Gov that provincial laws cant affect denominational education rights
S23: Acts published in both languages
 Manitoba Legislature later enacted laws will be in English, despite s23 saying it could be in both.
------Manitoba Metis Fed. V Canada (AG) 2013
F: Can. Gov agreed in 1870 to grant shares of 1.4m acres of land and recognize Metis landholdings.
I: did Canada fail to comply w s31,32 of Manitoba Act?
R: constitutional obligation (not fiduciary duty) to the Metis that the Crown failed to do.
Ratio: purpose of s31 was to reconcile relations with assertion of Crown sovereignty
Per the Cons, crown must act with diligence to fulfill the purpose of the obligation towards Abo.
Fiduciary obligation: Control over one’s land which is obligation to act in good faith, no detriment.
Manitoba School Crisis
Franco Manitobans allowed to receive language in English or French
combined the separated school system into 1, eliminating denominational school districts
Manitoba language rights Ref 1985
Since 1920, Manitoba stopped passing laws in French, disregarding s.23 of Manitoba Act
Eng/fr must be used in records, journals, and Acts.
Acts with only 1 language are invalid and have no effect
SCC created temporary validity of Manitoba law to allow translation and re-enactment of bilingual laws.
Chinese Immigration Act:
Excluded Chinese race
10$ head tax on every Chinaman disembarking from a ship at Canadian Port
50$ head tax on immigrants (unequal financial burden, state-racism, limit new arrivals)
Restricted travel back to China
Collected 23m through this act
Emergence of Canadian Nationality and Identity
British NA Act gave prov and fed gov power to repeal, alter, and abolish pre-confed. laws
 Balfour Declaration: British dominions should be treated as independent not subject to British
control.
 Statute of Westminster
 Canada is an independent state
 No more imperial laws regarding dominion unless request or consent.
Repealed Colonial Laws Validity Act
Citizenship Act
Est. Canadian citizenship as distinct category. Residents of Can allowed citizenship regardless of country
of origin.
Canada Act 1982
British NA Act  Constitution Act
Repealed Statute of Westminster meaning they can now amend and repeal BNA
Constitution is supreme law of Canada, other laws not allowed to be inconsistent.
Formally terminated UK Parliament authority over Canada
Constitutional Act
S52 – Supremacy clause = Constitution is supreme law in Canada
 Any inconsistency with other laws make them ultra vires (void)
S56 eng/fr versions of Constitution are equally authoritative
Constitutional Conventions: traditions, customs, practices that are accepted about Canadian political
life not necessarily found in the constitution
 Conventions have political force, not legal forces (principles)
Conventions that everyone follows like Parliament works, which gov forms elections & appointments
If convention violated, can’t go to court for remedy (Patriation Reference)
2 types of conventions:
1. When a convention arises that is inconsistent with formal written text (disallowance powers)
2. When a convention arises that fill gaps that written text doesn’t answer
Re Patriation Reference Amendment of the Constitution of Canada
To establish convention:
 Precedents
 Practice (where people believe they are bound to the rule)
 Reason/justification for the rule
Need substantial provincial consent to amend Constitution
No need for unanimous provincial agreement; no legal barrier for fed gov to amend w/ out prov. Cons.
Constitutional Principles:
Underlying principles of constitution; may give rise to legal obligations
Re Secession of Quebec
When gaps in constitution, SCC can use fundamental principles to fill them in
 Federalism: fed-prov. Division of power
 S56; Shares responsibility between prov + fed.
 S58; autonomy of prov. Gov to develop their societies
 Democracy: system of majority rule; promotion of self-gov
 S63: democracy is system of majority rule
 S64: democracy promotes self-governance + accommodates diff cultures/identities
 S66: no one majority is more or less legit than the other in democratic opinion
 Rule of law: law supreme over gov and private persons
 S71: requires creation and maintenance of positive law
 exercise of public power needs legal source
 s72: all gov action complies with law and Constitution
 Minority rights: accommodates and protects minorities against assimilative pressures of maj.
 S81: minority rights prominent since enactment of Charter
 S82: protection of minority rights are important underlying constitutional value.
Re Secession of Quebec 98
Looking at the right of QC to leave Can under Constitution and Int’l law.
Constitution amendment would need to occur to allow QC to leave.
Conduct would be governed by the 4 principles, giving rise to duty to negotiate If a sig. majority wants to
leave. Since rule of law, needs official amendment.
Democratically, need majority votes
Negotiation and dialoged to protect minority rights, majority wanting to leave not enough
All that in mind, if Quebec leaves unilaterally by de facto, unconstitutional!
Clarity Act: codified Secession ref
Duty to negotiate is triggered if sig. majority wants to leave.
Minority Rights Cases
Lalonde v Ontario
Legislative Assembly created Commission to improve health care in Ont. They gave intent to close
Hospital Montfort, a hospital that services the minority franco community. It was the only French
language teaching hospital. Thye said it would reduce cost without compromising health care.
Due to backlash, they kept it open but sig. reduced costs.
I: is reducing a violation to protect principle minority rights (Yes)
Is reducing service against public interest? (yes)
R: French language in Ontario is important. It would impact minorities. IT would hinder Montford’s role
as a linguistic, cultural and education institution that is important to minority. Public interest to kepe
it the way it is.
Ratio: When exercising discretion in public interest, must consider fundamental constitutional principles.
Mack v Canada (Chinese head tax)
 F: Chinese had to pay head tax, tbt. Redress from Gov for the harm of the discriminatory legislation
 I: base claim for reparations on minority rights principle?
 R: the violation goes against equality rights under s15, however, if there’s historical discrimination,
no legal action (charter doesn’t have retroactive application)
 Contravened customary int’l law of unjust enrichment, but that wasn’t a norm during the era.
Didn’t argue the minority rights principle (or they might’ve won).
Didn’t win but received symbolic payment.
Principle of protection of minority rights existed before Charter.
Meech Lake Accord
Did not pass
Recognized QC as distinct society in Canada
Fell apart when Manitoba and NFL refused
Didn’t account for Aboriginal issues (which is why Manitoba refused)
Charlottetown Accord
Focused more on senate reform and Aboriginal Issues than Quebec Issues
Gauranteed QC 25% seats in HoC
Canada Clause adding fundamental Canadian values
 QC distinct society
 Aboriginals right to self-governance
 Provinces are equal
Voted down bc certain groups not consulted (Like ind. Women)
Legislative Branch
 Elected and represents democracy
 Creates new laws
 Each citizen has right to vote in an election
 Notwithstanding clause: allows parliament to pass laws violating certain rights (not s3,s4 though)
 Parliamentary Sovereignty: parliament can enact any law and it’ll take precedence
 Parliament is always sovereign, so one legislature cant bind what the other does
Workings not set out in law, but 3 readings, committee and passed by house then senate would be a
convention
Municipalities tend to come under provincial jurisdiction
Parliament privilege: fundamental constitutional principle
Body should be allowed to function without outside interference
Members can act without being constrained by other institutions
Canada (HoC) v Vaid
Former HoC Speaker accused of firing his chauffeur for reasons that amount to workplace discrimination
I: Does P.P extend down to firing chauffeur (NO)
R: it’s an overreach of P.P. P.P must relate to internal workings of house. PP not applied here but Can.
Human Rights Tribunal didn’t have jurisdiction in the matter since it was internal redress process of
House.
Executive Powers:
In theory executives what legislative branch decides to enact
Source of power comes from Queen based on Constitution Act 1867
Legislative branch delegates authority to executive branch
Source of Legis. power: Prerogative powers: authority og possessed by monarchy, now in Parliament
Parliament must maintain support of House
If loss in confidence, must call election to dissolve or ask another party to form gov.
Executive branch is responsible to the Legislative branch.
Roncarelli v Duplessis
Roncarellil alleged that Duplessis arbitrarily cancelled liquor license as a way to punish him for bailing
out Jehovah’s Witnesses during the time when Catholic was predominant in QC.
R:need to act based on written legislation, if not then there’s no legal justification = no justification to
cancel license.
R: no public is above the law based on principle of rule of law.
Meant to protect citizens and residents in an ordered society free from arbitrary state action
SCC
Highest court in Canada
For a case to be heard, must raise matters of national public importance
Court that reviews decisions, not to correct appellant level decisions or if they think lower court is
wrong.
Judicial Independence: meant to insulate judges from influence of legislative/executive branches.
S99,100: judges can only be dismissed for misconduct and upon address of both houses
11(d): constitutional protection to prov. Courts if they exercise jurisdiction over offenses
Implied principle of judicial independence that can be directly enforced.
Ref Remuneration of Judges of the Provincial Court
Can prov. Reduce salaries of prov. Court judges?
No, because it’s a fundamental constitutional principle to keep them independent and not influenced by
Houses.
If they want to reduce, need independent commission as to not undermine jud. Independence.
Re Supreme Court Act ss5,6
F: Harper nominated new SC. However, Supreme Court Act says judge must be part of Superior Court or
COA to be appointed (he was only federal COA, so technically none of those).
Gov amended s6 to allow those who have previously been part of the bar for 10 years to be eligible (he
had been for 10 years but he was not a current member)
I: Can Parliament amend s6 (no), is SC protected and thus requires unanimous consent? (yes)
S6 is only to superior judges or current members. The purpose to maintain Quebec culture. If Parliament
wants to amend something that’s constitutionally protected, they need unanimous constitutional
amendment.
Trial Lawyers of BC v BC (AG)
V went to superior court to have a dispute resolved. TO get trial date she had to pay a fee in advance
(which she couldn’t afford).
I: Is having a hearing fee unconstitutional? (yes)
Cant have laws that remove art of the core jurisdiction of superior courts. Cant have measures that
prevent people from coming to courts bc it goes against functions of courts
Senate function: Sober second thought on legislation
Holds the government to scrutiny
Electing senators could be dangerous for minority representatives
Recommends parliament to pass laws about diversity
Re Senate Reform:
Can Fed gov unilaterally alter the Senate?
Though Senate is national institution, it gives regional representation = provinces have stake in it = fed
gov doesn’t have unilateral jurisdiction
Abolishing Senate is constitutional amendment = unanimous prov-fed consent.
Edwards v AG of Canada (Persons Case)
According to BNA, Gov Gen can summon qualified persons to Senate. At this point, in 1930 women were
not allowed to sit in senate. Case concerns whether women merit status as qualified persons
Living Tree Interpretation: the written constitution is subject to development and usage (contrast to
originalist interpretation)
Historical society has changed, so our interpretation must improve to reflect current societal changes.
S91 Federal powers make laws for Peace, Order, and Good Government
1. The Public Debt and Property
2. The Regulation of Trade and Commerce. (flow of trade across provinces/int’l but cannot regulate
particular industries, businesses, or professions within provinces – that’s property + civil rights).
2A. Unemployment insurance.
3. The raising of Money by any Mode or System of Taxation (except non-renewable energy).
4. The borrowing of Money on the Public Credit.
5. Postal Service.
6. The Census and Statistics.
7. Militia, Military and Naval Service, and Defence.
8. The fixing of and providing for the Salaries and Allowances of Civil and other Officers of the
Government of Canada (navigation/shipping).
9. Beacons, Buoys, Lighthouses, and Sable Island.
10. Navigation and Shipping.
11. Quarantine and the Establishment and Maintenance of Marine Hospitals.
12. Sea Coast and Inland Fisheries.
13. Ferries between a Province and any British or Foreign Country or between Two Provinces.
14. Currency and Coinage.
15. Banking, Incorporation of Banks, and the Issue of Paper Money.
16. Savings Banks.
17. Weights and Measures.
18. Bills of Exchange and Promissory Notes.
19. Interest.
20. Legal Tender (something used to pay, e.g. coins or cash).
21. Bankruptcy and Insolvency.
22. Patents of Invention and Discovery.
23. Copyrights.
24. Indians, and Lands reserved for the Indians.
25. Naturalization and Aliens.
26. Marriage and Divorce (92 is solemnization of marriage – public ceremony).
27. The Criminal Law, except the Constitution of Courts of Criminal Jurisdiction, but including the
Procedure in Criminal Matters.
28. The Establishment, Maintenance, and Management of Penitentiaries.
29. Such Classes of Subjects as are expressly excepted in the Enumeration of the Classes of Subjects by
this Act assigned exclusively to the Legislatures of the Provinces.
 Works connecting provinces; beyond boundaries of one province; within a province but to the
advantage of Canada/more than 1 province.
S92 Provincial Powers
2. Direct Taxation within the Province in order to the raising of a Revenue for Provincial Purposes.
3. The borrowing of Money on the sole Credit of the Province.
4. The Establishment and Tenure of Provincial Offices and the Appointment and Payment of Provincial
Officers.
5. The Management and Sale of the Public Lands belonging to the Province and of the Timber and Wood
thereon.
6. The Establishment, Maintenance, and Management of Public and Reformatory Prisons in and for the
Province.
7. The Establishment, Maintenance, and Management of Hospitals, Asylums, Charities, and
Eleemosynary Institutions in and for the Province, other than Marine Hospitals.
8. Municipal Institutions in the Province.
9. Shop, Saloon, Tavern, Auctioneer, and other Licences in order to the raising of a Revenue for
Provincial, Local, or Municipal Purposes.
10. Local Works and Undertakings other than such as are of the following Classes: (a,b are federal since
interprovincial and int’l transportation and communication) / intraprovincial transportation and
communication is provincial.
(a) Lines of Steam or other Ships, Railways, Canals, Telegraphs, and other Works and Undertakings
connecting the Province with any other or others of the Provinces, or extending beyond the Limits of the
Province
(b) Lines of Steam Ships between the Province and any British or Foreign Country:
(c) Such Works as, although wholly situate within the Province, are before or after their Execution
declared by the Parliament of Canada to be for the general Advantage of Canada or for the Advantage of
Two or more of the Provinces.
11. The Incorporation of Companies with Provincial Objects.
12. The Solemnization of Marriage in the Province (marriage ceremony).
13. Property and Civil Rights in the Province. (professional trades, labor relations, consumer prot./
regulate trade and commerce in their own province)
14. The Administration of Justice in the Province, including the Constitution, Maintenance, and
Organization of Provincial Courts, both of Civil and of Criminal Jurisdiction, and including Procedure in
Civil Matters in those Courts.
15. The Imposition of Punishment by Fine, Penalty, or Imprisonment for enforcing any Law of the
Province made in relation to any Matter coming within any of the Classes of Subjects enumerated in
this Section.
16. Generally all Matters of a merely local or private Nature in the Province. (child custody)
Non-renewable energy
(A + B) Exploration + export (to anywhere in Canada) for non-renewable natural resources + it’s taxes
Development, taxing, management, facilities for non-renewable natural sources
 Electrical energy

Old age pension, agriculture + immigration (into any of the Provinces, if conflict, federal prevails),
but provincial laws prevail for old age, even though both can do it.
Canadian Quasi-federation vs Fully Federal:
 Quasi-federation: Fed gov exercising a degree of supervision and control over provinces.
 Under BNA s90, Ottawa holds potential unlimited veto over prov. Legislation
 Fed can unilaterally acquire jurisdiction over areas that fall under provinces for the general
Canadian advantage (POGG)
 Fully federal: equal power between federal and provincial gov
Compact Theory vs Statute Theory
Compact Theory: Canada was the product of contract between og colonies, which underpins provincial
rights
Statute theory: Canada is the product of Britain’s exercise of sovereign authority
Decentralized (federal):
System functionally ineffective (provinces manipulated by external capital)
Centralized (provincial):
Subsidiarity: Law-making and implementation are often best achieved at the level of gov closest to
citizens and most responsible to their needs (in favor of provincial jurisdiction)
 Any given policy should coincide with the people affected by it
Validity: the level of gov that enacted the law does not have jurisdiction to do so (ultra vires)
 Determine: P&S, Ancillary powers doctrine test
Applicability: the law is valid, but interpret it in a way that limits the scope of application
 Determine: (interjurisdictional immunity)
Operability: prov + fed laws are valid, but conflicting (paramountcy makes provincial law inoperable)
 Determine paramountcy
Intervenors: social interest groups that get involved by putting their views before the court = broadened
social context
Pith and Substance, Incidental Effects (Assessing Validity of Legislation)
1. Investigate the text – what is the issue at hand?
2. What is the purpose and effects/impact the legislation will have on society?
a. To determine: text itself, primary objective, extrinsic evidence, legal effect
i. Primary objective: stated purpose of legislation
ii. Legal/actual effects: how the law works and what it does
iii. Extrinsic evidence: practical effects, larger social/economic/political context,
reports and studies, legislative debates and statements by politicians about the
purpose of the legislation for the true purpose of the legislation
1. Need only go so far as to persuade the court that there is a rational
basis for the legislation in support of its validity
3. What heads of power correspond to the purpose?
a. Incidental effects: if the dominant purpose falls in the jurisdiction of the enacting gov,
then the law is valid, even if it has incidental effects on the other gov (allows some
overlap)
b. Double aspect: both levels of gov can legislate on same matter if it falls within both of
their respective powers
4. If there are incidental effects – move onto Ancillary Doctrine Test
Fire arms Ref:
Fed required holders of all firearms to register their ordinary or non-restricted rifles and shotguns.
Alberta challenged it bc regulation of commercial sale of guns is a provincial power of property
rights
I: P&S of gun control fall under Criminal matters (yes)
I: fed gov have constitutional authority to enact legislation about gun rights? (Yes)
R: law was enacted for deterrence, controls access to firearms, controls all types of arms). The purpose
was for criminal law matters, not regulation (They wanted to lower harm by squashing illegal gun
trade, violent crime, suicide, accidental gun deaths to promote public safety – not regulate guns) =
effects of the act surround public safety.
Ref Same-Sex Marriage
Marriage is union of 2 ppl = P&S is those who have capacity for marriage
Based on living tree, members of same-sex have right to marriage. Comes under 91(26), but infringes on
92(12) solemnization of marriage.
Legality of same sex falls under fed power, but performance of the marriage is provincial = legislating on
religious protection falls to the provinces.
Ancillary Powers Doctrine Test (Still Assessing Validity if there’s Incidental (overlapping) effects)
1. Intrusion: Does the impugned provision intrude on powers of the other gov? If so, to what
extent?
a. To determine use P&S
2. Validity: is the law in its entirety valid under the power of gov that enacted it?
a. To determine: use P&S of entire law
3. Fit of Provision into general scheme. Is the provision functionally and integrally related to the
larger scheme?
a. Sliding Scale: if the provision is intrusive, it can only be saved if the entire act cannot
function without it
b. If it’s NOT intrusive, the provision can be saved if it has a rational and functional
connection to the scheme
General Motors v City National Leasing
CNL bought cars from GM. CNL receive interest rate through GM. CNL alleges GM paid a preferential
interest rate to CNL’s competitors = price discrimination, giving them civil cause of action (usually
falls under provincial jurisdiction)
I: does s31.1 of the Combines Invetigation Act, which creates civil cause for some infractions, valid since
civil causes of action are provincial?
Does the act go under 91.2?
R: it encroaches on provincial power, but the provision is remedial and not constitutionally fatal.
Purpose is to eliminate activities that reduce competition in the market. This regulatory scheme is
valid under general trade and commerce power under 92.2 = Intra vires of fed. Gov.
Test for challenging provision of an act is the test of the Doctrine of Ancillary powers.
Interjurisdictional Immunity Test (limiting Application of Valid Laws): Assess applicability of valid laws
IJI: whether the law trenches on a protected core of federal or provincial power.
1. Is the law valid?
a. Use P&S
2. Does the law trench on protected core of other jurisdictions?
3. If so, is the effect on the exercise of the protected power of the other level sufficiently serious to
invoke IJI?
a. If the effect seriously constrains essential part of other jurisdictions’ power = immunity
b. If it doesn’t constrain/infringe = no immunity
QC (AG) v Canadian Owners (COPA) – IJI
Group constructed an airstrip = subject to federal standards. The lot for the airstrip was designated in an
agriculture region (which is provincial power). Provincial Commission ordered demolition.
Is s26 ultra vires since it affects aeronautics (federal)?
PS = of the (s26) provincial law was to secure land for agriculture. The effects mirrors this, it prohibits
non-agriculture use on it. This is valid.
But, s26 does impact federal powers over aeronautics. Fed’s ability to decide where its built would be
seriously affected, thus impacting an essential core of it’s power.
Dissent: aviation is small scare, and agriculture lands are of special interest to aviation sector. No
incidental effect that would amount to impairment of the core of federal aeronautic power
Provincial power of limiting non-agricultural use is valid, but it’s inapplicable when it prohibits
aerodromes in the area, since it impairs the protected core of federal jurisdiction over aeronautics
(National Concern Doctrine under POGG)
Canada V PHS (insite) – IJI test (Not IJI); Double aspect
Safe injection site. Removing insite results in violation of s7 of charter.
Is Insite exempt from federal crim laws that prohibit possession and trafficking of controlled substance
(CDSA), either bc it’s a health facility (provincial jurisdiction) or bc the application of criminal law would
violate the charter?
CDSA to insite would violate the charter. CDSA is inapplicable to Insite under IJI (provincial management
of health centers)
CDSA is valid based on criminal law power = may interfere with regulation of provincial health facilities.
PS of impugned provision of the CDSA are valid exercise of fed power. Provisions does not colourably
intrude on provincial jurisdiction. Delivery of healthcare is not protected core of provincial power
Applying IJI here would create a legal vacuum where fed could not legislate controversial medical
procedures – wary to use IJI
Insite not immune from Fed bc CDSA does not infringe on a core of provincial powers.
To find the core, look at whether the core has been recognized in jurisprudence, or that the core does
not cross over with other gov’s power.
By denying Insite, violates Charter bc arbitrary prohibiting management of addiction and its associated
risk.
Carter v Canada (medically assisted suicide) IJI Test
Fed legislated to prohibit medically assisted suicide as criminal matter
does the prohibition interfere with core of provincial jurisdiction over health?
Prohibition on assisted suicide is valid exercise under 91.27, but provinces have power over
administration of health care. They would have to show the prohibition on assisted dying impairs
the protected core of provincial jurisdiction over health.
= assisted dying subject to valid legislation by both levels, depending on circumstances and objective of
legislation. Court not satisfied that provincial power over health excludes fed power to legislate
assisted dying.
R: When the core is vague, a law enacted by the other may or may not entrench on that core is still
applicable
Paramountcy and Inoperability Test (when both laws are valid)- Incase of conflict, Federal has adv.
1. Look at both laws: based on analysis, what are the key differences?
2. Is there a conflict between the 2 laws?
a. To determine: is it impossible to comply with both at the same time?
b. Can both laws be complied with, but would frustrate the purpose of the federal law to
comply to both?
c. Determine if there’s conflict, comply with the fedral law (even though provincial law is
valid, it is inoperable)
3. Is there a public policy concern?
a. Determine if having both laws confuses the law
b. Is there a tension between functionalist argument (risk of overlap, duplication, multiple
provisions that get confusing for citizens) and allowing as many powers as possible
under federalism?
c. Can have duplication, as long as theyre both valid and it doesn’t break the other (can
have 2 legislations in the same area, both stand if they’re harmonious).
Multiple Access v McCutcheon – Paramountcy
Fed enacted insider trading legislation in response to lack of protection for outsides in it. Province
enacted similar legislation = duplicate.
If ss100.4 + .5 are ultra vires (void) for fed, fully or in part? Is the provincial legislation ultra?
If each are intra, it is imposible to comply with both, or does it frustrate the fed law?
Does the duplication render the provincial laws inoperable?
R: both laws are the same, but both valid bc of double aspect doctrine = both intra vires
Though they overlap, there is no conflict in the sense that compliance with one breaches the other. They
can both operate concurrently, they are in harmony. You can get punished by both. = valid,
applicable, and operable.
R: mere duplication not enough for paramountcy and inoperability.
Rothmans v Sask
Fed and prov have similar legislation for tobacco reg. The stated federal purpose is to provide legislative
concern for the national public health problem of tobacco – incl. restricting access to young ppl and
by enhancing public awareness. S19 of Tobacco Act prohibits promotion of tobacco products. S6 of
Tobacco control act (Prov.) balls all advertising for kids under 18 (prov reg. is more restrictive than
fed).
They don’t conflict. Even though prov is more restrictive (bans all ads for kids under 18), when read as a
whole, the fed Act defines in greater precision the prohibition on promoting tobacco products
contained in s19. = they have the same purpose, to precise prohibitions.
They both stand
Emergency Powers
POGG is general power which gives residual powers to fed
POGG requirements:
1. Residual Gap: does the legislation deal with a matter not expressly allocated to provinces?
a. All powers not expressly given to provinces fall under fed.
b. Very limited application, don’t spend too much time here
2. Emergency Powers: does the legislation deal with a national emergency?
a. Ottawa can legislate on whatever it considers necessary to address the emergency
3. National dimensions or concerns: does the law deal with an area that’s of national concern?
a. *most important* recognizes certain matters are appropriate for fed.
Evoking Emergency Powers Test (ref anti inflation)
1. Form: What does the form of the legislation tell about whether it fits into the emergencies Act?
a. Scope of legislation and whether it is a temporary measure
b. Differentiate between Emergency Powers and National Concern Doctrine
2. Purpose: Stated purpose, and does it fit with requirements for emergency legislation?
3. Rational basis: does extrinsic evidence put before Court show a rational basis for the act as a
crisis measure?
a. Judicial notice without extrinsic material to reinforce it (allows fact to be introduced into
evidence if the truth is so notoriously well known that it cannot be reasonably doubted)
4. Whether parliament could reasonably take the view that the legislation was a necessary
measure to fortify action.
a. Beyond local or provincial concerns:
National Emergency Emergencies Act
Urgent and critical situation of a temporary nature that
a. Emergency: Endagers the lives, health or safety of Canadians and is of such proportions or
nature as to exceed the capacity or authority of ap rovince to deal with it, or
b. Threatens the ability of the gov of Canada to preserve the sovereignty, security and territorial
integrity of Canada and that cannot be effectively dealt with under any other law of Canada
c. Public welfare emergency: natural phenomenon, disease, accident or pollution creating danger
to life, property, societal bonds – Gov Gen has to believe on reasonable grounds such
emergency exists.
(public Welfare emergency, public order emergency, international emergency, War emergency).
Can enact powers before an emergency actually occurs (preventative measures to contain it)
Idea that one province can’t deal with it alone
Specifies civil liberties should be protected even in times of emergencies
Act shall be exercised so that it will not duly impair the ability of the provinces to take measure under
the prov. Legislature to deal with an emergency in the province.
Ref Anti-Inflation act: POGG National Concern Doctrine
Period of high inflation and prices. Act was to set up controls with the fed freezing wages for private
sector firms and professions. Inflation became matter of serious national concern, and thus
necessary for federal reg.
Does Act fall under POGG as crisis legislation? If so, is presence of emergency essential to its validity?
R test to see if supportable as crisis legislation:
1. Form: act supported to be for POGG based on terms or object of legislation
2. Purpose: Parliament introduced legislation based on what they saw as a serious national
concern
3. Rational basis: Based on extrinsic evidence, it was rational to put in effect the Act as a
temporary measure to meet the economic crisis
4. Beyond local/prov. Concern: This is a matter of social and economy policy = federal.
Dissent: National Concern Doctrine shouldn’t apply bc Act is aimed at a more general program to reduce
inflation (PS). Emergency power is extraordinary, and this is not an extraordinary instance.
National Concern Doctrine (matters of National and Local Concern):
Environment: overlaps between all 3 levels
Fed can use powers in POGG
 Main sources of their power:
emergency prong: environmental disaster element
 National concern prong: sub-issues of the environment under this branch (environment alone is too
broad)
 Criminal law: different from regulation, but fed gov can regulate on prohibitions/penalties
National Concern Doctrine Test: leading authority (anti-inf. Ref.)
1. Is the matter separate and distinct from the national emergency doctrine?
2. Is this a new matter which did not exist at Confederation?
a. Or is this a matter of merely local and private nature that has become a matter of
national concern?
3. Does matter have singleness, distinctiveness, and indivisibility that clearly distinguishes it from
provincial concern?
4. Provincial inability test: what are the effects on other provinces if the provincial fails to deal with
the inner-provincial aspects of the matter?
a. Functionalist concern; for it to be regulated effectively, must be done at nat’l level since
province can’t do it alone
b. Underlying policy concerns about why the matter needs to be regulated at national level
Once it passes the test, the legislation becomes Intra vires for the Fed gov forever
If it does NOT pass the test, but a new matter is identified, it would likely be provincial power.
Overlap:
Incidental effects:
Double aspect: both levels can legislate on the same matter
Ancillary powers: both levels can legislate, with role justified by its own particular powers
Ability for gov to step over jurisdiction provided the intrusion stems out of its own jurisdiction
War Measures Act:
Gives broad powers to gov to maintain seucirty and order.
Used in WW1,2, 1970 October Crisis – After it was replaced with more limited Emergencies Act
Used ti limit the freedom of Canadians by imprisoning those of certain descent
Health, Safety, and Morality (criminal matters)
These concerns can come under emergency, national concern, or criminal law (fed.)
Morality:
something that of merely local or private nature?
Property and civil rights?
Subsidiarity might play a role – in the end both levels can legislate
Provincial Health:
Management of hospitals, local and private nature, and property and civil rights depending on
circumstances
Federal Health: quarantine power for public health
POGG:
 Emergency Powers: Security/Epidemic
 National Concern: any domain under health safety or morality that is specific enough to be under
National Concern
Federal Criminal Law – protection of public health, safety, morality linked to criminal law
Law considered Crim Law if it constrained prohibition coupled with penalty
Substantive requirement (to not intrude too far on provincial power)
Can use criminal matters for environmental pollution and industry monopolistic practices (water,
natural gas, telecoms, electricity)
Parliament can purpose criminal purposes partly (prohibit tobacco ads, NOT consumption)
Possibility that crim law could substantially expand fed. Reg., but that power might be reaching its limit.
POGG V Criminal Law: More scope and freedom under POGG; form restrictive in Crim law bc must have
prohibition and penalty
Criminal Law Test:
1. Substance: Does the legislation have criminal law purpose (P&S, heads of power)?
2. Is there a prohibition
3. Is the prohibition backed by a penalty?
Colourability: where the effects diverge from stated aim, law is colourable or where the actual purpose
diverges from the state purpose of the law.
If PS falls within head of power of enacting gov, then it’s valid EVEN If it had incidental effects.
Structure:
1. Identify legal issue
Outline the law (key provisions, doctrinal tests)
Apply the law to the specific problem (outline arguments and counterarguments)
Conclusion: the real matter or dominant purpose of the legislation