Sharon Zheng | LAW 100 | Fall 2011| Hester Lessard
CHAPTER 5: INTERPRETATION DOCTRINES
A. CLASSICAL PARADIGM OF FEDERALISM – MUTUAL MODIFICATIONS AND WATERTIGHT COMPARTMENTS (JCPC)
Citizens Insurance Company v. Parsons (JCPC 1881-1882) - leading case on jurisdiction and the economy
Facts: Parsons brings actions against two insurance companies who claimed he violated his fire insurance policy. P says
that the policy wasn’t printed in the manner required by Ontario statute. D is federally incorporated and
interjurisdictional, argues that statute was ultra vires Ontario and thus it doesn’t apply.
Fed
Prov
91(2): Trade and Commerce
92(13): Property and Civil Rights
POGG power
Issues: When an interprovincial company makes transactions wholly within a province, is it subject to the commerce
regulating statutes of that province, or would that application be ultra vires?
Held: Statute (and provincial jurisdiction) upheld. Parsons gets his insurance coverage.
Application of the Mutual Modification Test:
S.91(2), trade and commerce is a narrow power, applies in two areas:
1. Cross border (international and interprovincial) trade
- First branch is interpreted as imports/exports
- Parson’s doesn’t address general trade across provincial borders
2. The general regulation of trade affecting the whole Dominion (“general branch”).
- Was almost obsolete until General Motors
- Unclear what this actually means
s.92(13), property and civil rights is a broad power, applies to the regulation of a single trade/ businesses wholly within a
province
- Looking at the text of the contract, since the economic transaction was made within the province, easily 92(13)
Ratio: HUGE amount of power given to the provinces + watertight spheres of non-overlapping jurisdiction
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B. MODERN (LIVING TREE) PARADIGM OF FEDERALISM – PITH AND SUBSTANCE / INCIDENTAL EFFECTS (SCC)
R. v. Morgentaler (1993): leading case on pith and substance/ incidental effects
Facts: After the Criminal Code provisions on abortion are struck down, NS passes regulations under the Health Act and
Hospitals Act (March regulations) prohibiting abortion. These eventually become the Medical Services Act, which
combined abortion with a few other services and levied huge fines for its practice outside of hospitals.
Fed
Prov
91(27): Criminal Law: addressing
92(13): Property and Civil Rights: regulation of medical profession
public evils (health, moral standards
92(16): Residual powers in local/ private matters
etc.)
92(7): Hospitals
92(15): Provincial penalty power (ancillary to 92(7) or 92(16))
Issues: Is the Medical Services Act ultra vires the province of Nova Scotia?
Held: Yes, law struck down. The Medical Services Act is a direct attempt to prohibit abortion, and is pith and substance
criminal law
Application of the Pith and Substances Test:
1) Determine the “matter” or pith & substance of the legislation
- Dominant aim or purpose of legislation (the “matter”) must fall within the appropriate jurisdiction’s class of
subjects
1. Intrinsic Evidence (“Legal Effects”, four corners of the statute and regulations):
a. Examine title, preamble, purpose provision
i. Misleading
b. Rights and liabilities
c. Offences and penalties
i. Very punitive
d. Administrative regime
2. Extrinsic evidence (beyond the four corners):
a. Background and circumstance of enactment
b. Legislative History
c. Hansard: legislative debates
i. Limited weight, unreliable since there’s not single intent of legislature
ii. Used to be only considered in issues of colourability – now more accepted
d. Related legislation
e. Policy reports (white papers, royal commissions)
3. Practical Effects: Actual impact of the operation of the legislation.
a. Can show that re: purpose of legislation, a law is ultra vires in its effects. But a lack of ultra vires
practical effects doesn’t necessarily suggest its intra vires:
i. Empirical evidence speculative since law just introduced
ii. Even when around a long time, impacts of a law are hard to measure
iii. Practical effects don’t necessarily reveal parliamentary intent (could be incidental effects)
2) Look at competing subject classes in s.91/92. What is the scope of the classes of subjects and what class of subject is
the matter included in?
FINDING:
- Health is Double Aspect: both levels of govt can legitimately legislate
o Large portion under 92, small portion under 91
- Doctrine of Colourability: despite being in a primarily provincial area (health), it is in pith and substance
regulating morality by limited access to abortion not health = invalid leg made to look valid
o Very punitive (duplicates legal effects of the crim code provisions struck down)
o History and context
- Doctrine of severance: SCC in Morgentaler: no, all other provisions were just to hide the abortion provision
RATIO: Modern approach of pith and substance/ incidental effects + colourability no longer an evidentiary doctrine, we
always conduct a more contextual analysis including extrinsic evid and practical effects
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Sharon Zheng | LAW 100 | Fall 2011| Hester Lessard
Same Sex Marriage Reference: Living Tree Principle
Facts: Federal govt has legislated very little in the area of marriage – provinces had made a defacto C/L authorizing same
sex unions. Federal govt tries to pass the Proposed Act Respecting Marriage. Constitutionality challenged: is same sex
marriage within the exclusive federal authority?
Fed
Prov
s. 91(26) Marriage & Divorce: capacity to
s. 92(12) Solemnization of Marriage:
marry. Requirements: age, opposite sex, two
performance of marriage (= form of marriage)
persons, consanguinity (= capacity of
marriage)
Issue: Reference Question 1/4
1. Is there a ‘natural’ limit to the meaning of marriage? AKA is the heterosexual part of C/L marriage inalienable to
it.
o If no, same sex marriage is caught under marriage
o If yes, then same sex marriage is a new subject matter
Held:
- Living Tree Principle: allows an evolving definition of ‘marriage’
2. Does this kind of change simply fall out of all jurisdiction?
Held:
- Principle of Exhaustiveness: no. This matter is within the boundaries of powers given under the Constitution
3. Is this change too drastic? Too high an impact on existing law?
Held:
- No: provincial course have already been ruling in favour of same sex unions
Pith and substance/ Incidental Effects:
- Act is about the capacity to marry, therefore under 91(26), federal
Issue: Reference Question 4/4
1. Is the opposite sex requirement for marriage for civil purposes, consistent with the Charter
Held: This question is not justiciable. A decision here may upset existing unions based on provincial judgements,
court answering yes would affect the uniformity of laws across Canada.
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C. JUSTICIABILITY DOCTRINE (Same Sex)
D. ANCILLARY DOCTRINE
General Motors of Canada Limited v. City National Leasing – leading case on the Ancillary Doctrine
Quebec (Attorney General) v. Lacombe – aerodrome case re: Ancillary Doctrine
Facts: Cottagers unhappy with float planes landing in certain lakes in QC, bylaws (bylaw 210, amended to bylaw 260) are
put in place to restrict aerodromes. Owner of an aerodrome argues that bylaw 260 is unconstitutional since aeronautics
is within federal jurisdiction.
Issue:
Fed
Prov
POGG (aeronautics)
92(13): Property and Civil Rights
Held:
Pith and Substance:
- Legal effects (intrinsic evidence)
o Preamble: bylaw is about balancing recreational vacation uses and commercial uses
o Substantive provisions: actually about where you can place an aerodrome by banning them from
cottage areas, not really balancing recreational/commercial use
- Extrinsic evidence, precedents say:
o Jurisdiction over flying and landing of planes is exclusively under federal POGG
o Zoning is provincial, but zoning is about rationalizing land use
 This bylaw doesn’t do this – it just prohibits aerodomes in some places
- Therefore: ultra vires
AGQC then argues: Ancillary Doctrine to save the provision
- Argument fails, even though it only mildly encroaches into federal POGG jurisdiction (for same reason as failing
pith and substance)
Argument dissent could make:
1) Intrusion is only incidental to federal POGG and therefore it should actually be looked at under
paramountcy: where no conflict, both can be valid
2) This is a double aspect field with two valid matters, and both jurisdictions can validly legislate. From here,
would move to paramountcy again
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Sharon Zheng | LAW 100 | Fall 2011| Hester Lessard
E. PARAMOUNTCY DOCTRINE AND
F. DOUBLE ASPECT DOCTRINE
Multiple Access Ltd. v. McCutcheon (1982) – double aspect, adding dual compliance and federal frustration
Facts: Shareholders of Multiple Access try to sue McCutcheon, who is accused of insider trading. Fed statute (CB ) has a
statute of limitations that has expired, so the suit proceeds under the provincial statute (Securities Act). McCutcheon
argues that the Securities Act is ultra vires under paramountcy
Issue: Is the Securities Act ultra vires in whole or in part?
Matter: Prohibition of insider trading
Fed
Prov
s. 91 POGG: Corporations Act – regulation of
s. 92(13) Property and Civil Rights: Securities
internal relationships within corporations
Act – trade and securities
Held: Appeal allowed. Double aspect can apply in securities regulation and federal and provincial laws can apply
concurrently.
Ratio: Dual compliance is possible, and it doesn’t frustrate parliamentary purpose
Bank of Montreal v. Hall – an example of frustrating parliamentary purpose
Facts:
 Special loan for farmers set up under the Bank Act: very high loans but if you default, the Bank will be present
immediately to seize equipment
 Hall defaults on loan and bank moves in the seize the equipment
 In SK, statute in place that creditors must get court approval before they seizing property.
Issue:
Fed
Prov (Sask)
91(15) Bank Act
Act saying that creditors need court approval
before seizing property
 Is dual compliance possible?
Held:
 It would frustrate parliamentary purpose to have dual compliance: in the Bank Act, farmers get these terms and
the quid pro quo is that the moment you default it’s gone
Govt of Sask v. Rothmans, Benson and Hedges (SCC) – an example of NOT frustrating parliamentary purpose
Facts
- Federal and provincial tobacco acts intra vires, regulating tobacco advertising. Prov act more stringent.
- Rothman’s is charged under provincial act, argues there should be paramountcy
Issue
- Matter: Regulating tobacco advertising
Fed
Prov (Sask)
Criminal Law Power – Federal Tobacco Act,
92(13) Property and Civil Rights - Tobacco Act,
provisions show it’s primarily concerned about does not allow advertising in any retailer
youth, but spec. allows advertising in corner
where young people are permitted
stores
Held
- Dual compliance would not frustrate parliamentary intent: both intent to prevent ads reaching youth
o Exemptions in federal law under criminal law power is unusual – it’s meant to demarcate the scope of
the offence
o Provincial statute more specifically demarcates the scope of offence – that’s okay
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G. INTERJURISDICTIONAL IMMUNITY
Note: Courts dislike finding IJI
- Inconsistent with modern pith and substance/ incidental effects approach
- Has a centralizing tendency: applied in an apparently lopsided way
o Although provs (esp QC) prefer clear bright lines and find this less threatening than paramountcy
- Creates legal vacuums and gaps
- Principle of subsidiarity
o Derived from the EU, preference for assigning jurisdiction to the government that’s most effective and
closest to the citizens
- Inconsistent with cooperative federalism - governments to work out and negotiate, NOT courts to decide
Canada Western Bank v. Alberta – IJI
Facts: Two valid laws dealing with insurance, CWB doesn’t want to comply with Alberta’s laws. Banks have, in the past,
been an area granted IJI.
Issue: Is bank insurance an area of federal IJI?
Fed
Prov (Alberta)
91(15) – Bank Act
92(13) Property and Civil Rights – Alberta
Insurance Act
Held: No IJI
1. Core: insurance is not at the core of the federal jurisdiction of banks. The insurance is packaged with loans they
banks provide, and is therefore only collateral, not vital and essential
2. Impairment: CWB doesn’t require all people who get loans to get loan insurance, so it doesn’t impair their ability to
function
And bigger policy reasons: banks aren’t the only entities providing insurance, wouldn’t be fair to give them exemptions.
INSITE Case: Canada (AG) v. PHS Comm Services Soc. (2011) – IJI in a Double Aspect Field
3 Arguments from the claimants
1. Controlled Drug and Substances Act is ultra vires
- But encroachment into the medical consent is only incidental effect to the CDSA
o The dominant purpose of the CDSA is not to regulate medical practice and there are things regarding
medical practice you WOULD want the CDSA to control
2. s 4(1) and 5(1) of CDSA should be read down, as not applying to INSITE
o If statute will bear the meaning of reading down and that will make it constitutional, then it can be used
3. Interjurisdictional immunity
Held: NO IJI
- 1. No precedent
- 2. Exclusive core is hard to delineate, too large to delineate with bright lines
- 3. IJI is hard to apply to double aspect fields (based on past evidence)
- 4. Legal vacuum
o Would prevent federal criminal law to regulate important legal moral issues
 Ex. human cloning, euthanasia
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Sharon Zheng | LAW 100 | Fall 2011| Hester Lessard
CHAPTER 6: DIVISION OF POWERS AND ABORIGINAL PEOPLES
A. S.88 INDIAN ACT
Natural Parents v. Superintendant of Child Welfare (1976) – Adoption and Federal Aboriginal Jurisdiction
Facts: Aboriginal child goes to hospital for neglect (60s scoops – key legal principle: “best interests of the child”, narrow
view of individual, excludes community). Natural parents argue that he should be raised by relatives in the native
tradition. Provincial Adoption Act erases birth parent relationships for all purposes. Adoption Act requires consent of
birth mother, but judges tended to dispense with its need wrt Aboriginal women. There’s no fed law re: adoption so no
paramountcy. This case is a constitutional challenge to the whole 60s scoop.
Issue: Does the Adoption Act encroach on exclusive federal 91.24 jurisdiction over “Indians and lands reserved for
Indians”?
Fed
Prov (Alberta)
91(24) – Indians and lands reserved for
92(13) Property and Civil Rights and (16)
Indians:
Matters of a merely local or private Nature in
the core of this “Indianness” is an area of IJI
the Province – Adoption Act
that can’t be encroached by provincial
incidental effects
Held: Aboriginal people and lands is an area of IJI, but the Adoption Act does not encroach on the fed jurisdiction
 Adoption Act is an incidental effect  and therefore paramountcy applicable as the act erases status
 Three-way split – no majority finding over whether S.88 is declaratory
o Laskin (himself plus 3 judges) – referential incorporation
 Agrees with the band that there is a large, exclusive jurisdiction space around the Indian family
relationship (IJI core of “Indianness”, which replaces “vital and essential aspects”)
 However, not the same reasons as the band
 Views it as federal regulated space (not indigenous regulated space)
 Finds that regulatory usefulness of the family tie brings it within the notion of Indianness
 Therefore, finds for IJI, however, finds that S.88 is referential incorporation (therefore, provincial
law applies)
 While the argument can be made under limit 3 of S.88 (“exception to extent of inconsistency with
Indian Act”) Lasking doesn’t accept this and rejects paramountcy
o Martland (himself plus 1 judge) – incidental effects
 Finds it doesn’t go to the heart of IJI
 Agrees with the band that S.88 is declaratory (no ref incorp), but should consider it is an incidental
effect and raise paramountcy
 However, it does not trigger paramountcy because the conflict is insufficient and therefore no
inconsistency (dual compliance)
o Beetz (himself plus 2 judges)
 Both routes lead to same decision, which means that it’s unnecessary to determine which route is
accurate
 In Dick, he decides on the Laskin route
o Issue of justice: the right of the child to adoption
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R. v. Dick (1986)
Facts: Aboriginal man from the Alkali Lake Band is charged with hunting out of season.
Issue: Does a restriction against year round hunting in the provincial Wildlife Act impair the capacity of the Shuswap
band and invade the fed jurisdiction under 91.24? Does it go to the heart of “Indianness”?
If yes, is it a provincial law of general application that has been referentially incorporated by s.88 and therefore impacts
Dick anyways?
Held: The law goes to the heart of Indianness (Shuswap provided a lot of evidence that hunting and fishing has a core
impact on the community), but it is referentially incorporated by s.88 and therefore applies to Dick regardless. Also, this
is a law of general application - despite the high impact on Indians, SCC rejects that it ‘singles out’.
Ratio: Provincial laws of general application may regulate Indians in their Indianness because they are invited into
federal law by referential incorporation under s. 88 if they don’t trigger any of the exceptions.
Kitlkatla
Facts: Under the Heritage Conservation Act, culturally modified trees are considered a heritage object and their removal
is at the discretion of the BC Minister of small business, tourism, and culture. Minister allows the removal of CMTs for
the exploration of resources, Kitkatla Band brings action, objecting the logging permit
Issue: Does the Heritage Conservation Act encroach on exclusive federal 91.24 jurisdiction over “Indians and lands
reserved for Indians”? Ie. Are the culturally modified trees at the core of the Kitkatla cultural heritage?
Fed
Prov (BC)
91(24) – Indians and lands reserved for Indians 92(13) Property and Civil Rights – cultural
objects
Held: 1) The Act is ex proprio vigore intra vires because a) the ultra vires provision is incidental b) IJI doesn’t have to be
triggered since the CMTs are deemed not part of the Kitkatla cultural heritage’s core Indianness. 2) The law applied to
Indians because it’s of general application – it singles out aboriginal objects but not aboriginal people.
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Sharon Zheng | LAW 100 | Fall 2011| Hester Lessard
CHAPTER 7: DIVISION OF POWERS AND THE POGG POWER
Section 91, Constitution Act, 1867: It shall be lawful for the Queen, by and with the Advice and Consent of the Senate
and House of Commons, to make Laws for the Peace, Order, and good Government of Canada
A. WHAT IS THE POGG POWER?
1. General Theory of POGG
- POGG is the ENTIRE power of the federal jurisdiction
o (91) is a list of things to clarify it
- Therefore fed jurisdiction is everything EXCEPT what is given to the provs in 92
- This was exhaustive and grammatically the most logical (plain meaning) way to read it
- Centralist view.
R v. Russell 1882 (JCPC considered prohibition laws; alcohol not in s. 92, therefore it was considered federal
jurisdiction).
2. Residual Theory of POGG (accepted today)
- Almost the entire federal power is enumerated in 91
- POGG is just a residual backup to ensure exhaustiveness
- Emergencies became the primary use of the POGG power
Local Prohibition (1896)
o Beginning of double aspect areas (prov leg that does the same thing as fed leg
 Sustained prov leg under property and civil rights and local and private matters
o Indicates that areas with a local nature under prov leg can take on national dimension
Parsons Case
o JCPC looks at whether the feds have the power to regulate within province insurance companies:
feds don’t have the power to regulate industries wholly situated within the province
o Increased provincial power: enlarged conception of property and civil rights and local and private
matters – perhaps Property and Civil Rights has taken the place of a residual power.
B. HISTORIAL PROGRESSION OF THE POGG POWER
1. National Concern (Russell, Local Prohibition)
2. Emergency Doctrine
o During a time of “war, pestilence, famine", setting aside division of powers to address emergency
 Fort Frances (1923 JCPC)
 Japanese Canadians (1947 JCPC) – decision to detain/ deport Japanese Canadians
 Wartime Leasehold regulations (1950 SCC) – Fed gov operating in provincial property and civil
rights sphere
3. National Dimensions
- Canada Temperance Federation (JCPC 1946): true test of POGG is whether matter goes beyond local
concern, POGG power not confined to emergency power. Revival of old national concern language.
- SCC becomes final court in Cda and picks up here, agrees that matters of a local and private nature can take
on national concern
o Johanesson (1952 SCC)
 Aeronautics is federal jurisdiction under the NATIONAL DIMENSIONS notion of POGG
o Munro (1966 SCC)
 Legislating about the National Capital Commission (Ottawa) = of single national concern and
justified under POGG
 Kind of like contemplating a double aspect area occurring
o Anti Inflation Reference (1976 SCC)
o Language shifts – national dimension or concern becomes the overall rubric
 Emergency power is part of this
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C. THE EMERGENCY POGG POWER
1. Massive intrusion into provincial jurisdiction,
2. Invoked in a national emergency which only the feds can effectively deal with,
3. Temporary alteration of the division of powers
4. The identity of the subject matter (pith and substance) is the emergency
Reference re: Anti-Inflation Act (Canada), 1976 (SCC) – leading case in the emergency pogg power
Facts:
1. Federal government identifies inflation as an issue of serious national concern (but no mention of emergency in
act)
2. Creates legislation to restrain profit margins, prices, dividends and compensation on federal government, its
agents, large private sector firms, and professions.
3. Does not apply to prov. govs unless they enter into agreement with feds
Issue: (1) Is the Anti-inflation Act either in whole or part ultra vires parliament?
(2) If yes, is the agreement with Ontario effective and binding on Ont’s public sector.
Held:
Dissent: Beetz & de Grandpré
1. Need to draw a clear distinction between national concern and emergency power
a. This law was written as being a national concern
2. Emergency power is an overt intrusion into provincial powers (no pretense that this is authorized by other
powers). Looks at the substance of the Act
a. The standard for usage is very high and in this case it clearly falls short.
b. Requires parliament to be explicit and comprehensive: preamble doesn’t cut it
c. Matter of the legislation must be emergency with support w/i 4 corners of Act
d. No requirement for terminology of past cases “war, famine, pestilence” as they do not set the scope of
power: peacetime emergency are possible (inflation could qualify) and parliament can anticipate
emergency.
e. Requires newness (historical or evolutionary—things that “become” national), singleness, degree of
unity, specificity and minimal impact on division of powers
f. Requires temporariness (time-limited); the bill can be extended by the house and this is acceptable.
g. Pith and substance analysis: emergency legislation would not allow powers to opt in; this is not
emergency legislation.
3. National concern – requires clear limits
a. “In order to characterize an enactment, one must look at its operation, at its effects and at the scale of
its effects rather than at its ultimate purpose where the purpose is practically all embracing.”
 “Containment and reduction of inflation” is the nature of the act only; the proper
characterization of its matter is regulation of local trade, contract, and property and civil
rights—all fall within provincial powers.
b. National concern doctrine applies, in the absence of national emergency, to single, indivisible matters
which did not fall within any of the specified heads of provincial or federal legislative jurisdiction.
 Containment and reduction of inflation does not meet the test of singleness or indivisibility
Majority (2 Groups)
1. Both groups do not discuss national concern power.
2. Both groups require some indicia of an emergency and that emergency needs to be ongoing at time of
enactment.
Ritchey Group (3)
1. Adopts Beetz reasons on National Dimensions
2. Standard for use of emergency power is “urgent and critical situation”
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3. Look at whether parliament had a rational basis for using emergency power by looking at what parliament
actually had before it. Read legislation in conjunction with supporting materials (ie. white paper on inflation).
Admits extrinsic evidence
4. If there was clear and convincing evidence to the contrary, could rebut reasonable basis and claim fails.
Laskin Group (4 plurality not a majority)
1. Is there enough evidence in the Act to support the existence of a “crisis” given the language used?
a. Preamble is enough, although not determinative it carries enough weight to define purpose. Forgiving
of drafting oversight, don’t need to explicitly say “emergency”
b. Extrinsic evidence is admissible because of the debate on whether parliament is responding to a crisis
c. Standard is whether parliament had a reasonable belief that there was a crisis (rational basis test) to
exercise emergency power
2. Court is not to look at the quality of the act only its purpose: no need to be specific, no need to be
comprehensive, no need to act immediately, no need to cooperate first with provinces and no need to be
effective in addressing emergency (draws line between law and politics, deferential to politics)
3. Must be temporary (possibility of extension is OK), have evidence to show rational basis of a crisis (the standard
is whether parliament had a reasonable belief), firm control of feds over monetary policy
D. THE NATIONAL CONCERNS POGG POWER
1. Invoked where a formerly local matter has grown into a national concern effecting other provinces.
2. It creates a permanent federal head of power.
R. v. Crown Zellerbach Canada Ltd. (1984)
Facts: Logging company violates a federal statute (Ocean Dumping Act) by moving wood waste into Beaver Cove
(provincial marine waters). There is federal jurisdiction over territorial seas, but Beaver Cove is within the “internal
waters of British Columbia” and outside fed jurisdiction. The company contests the constitutionality of the statute.
Issue: Is s.4(1) of the Ocean Dumping Act ultra vires the government of Canada?
Held: Marine pollution, because of its national nature, is an area of national concern.
Majority reasoning:
- National concern because of its predominantly extra-provincial and international character (international
treaties referenced to determine this).
- Indivisibility – the regulation of both territorial sea and internal marine waters is indivisible since it’s difficult
to ascertain the physical boundary between the two
- Singleness – the difference between salt water and fresh water is sufficiently distinct to make the control of
marine pollution by the dumping of substances a single matter
Dissent: This should be covered under existing federal fishery powers
- -position of dissent (Laforest and Beetz) is that this is an aggregation of old matters, and there is a basis for
federal jurisdiction in internal waters from pre-existing matters
- -based on the ancillary doctrine, you can have bald-faced intrusions on provincial jurisdiction, but as long as
they are ancillary to a broader scheme, it’s okay
R v. Hydro Quebec (1997) (see in Criminal Law Power)
Dissent re: national dimensions argument:
- 1. Newness? Yes - analogizing with Crown Zellerbach
o Environmental protection not considered in 1867, so it does fit something that the constitution did
not initially engage with
- 2. Singleness, distinctiveness and indivisibility
o There is a divisibility (diffuse, uncontainable), and could be addressed through an aggregate of
existing matters, therefore not eligible for POGG power
o Provincial equivalency: suggests that there isn’t provincial inability and that provinces would be able
to do it
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o
-
Extra provincial effects? But it’s so broad in its defn of harm that it also captures very localized
harms
3. Scale of impact on provincial jurisdiction
o This is an extensive area of provincial jurisdiction that’s being infringed upon, btu the court doesn’t
address this since step 2 was not met
CHAPTER 8: DVISION OF POWER AND THE CRIMINAL LAW POWER
A. Federal Criminal Law Power
Margarine Reference re: s.5(a) of the Dairy Industry Act
Facts: S. 5(a) says that you can’t import, possess or sell any margarine that is not made from milk or cream.
Issues: Is this provision intra vires the federal government?
Held: Criminal law must be prohibition + penalty + valid criminal law purpose (3 p’s). These purposes (“evils”) include
public peace, morality, security and order. The idea that margarine may be dangerous to health is not enough to carry
this provision as valid criminal law. This is in fact property and civil rights 92(13).
RJR MacDonald v. AG (Canada) – Leading case on the criminalization of ancillary matters, and therefore is itself not part
of the CC regime
Ratio:
Courts are becoming tolerant of a deviation from the formal criminal law structure
(1) If Parliament is entitled to address a public health evil in a direct way, can also legislate wrt areas ancillary to the
public purpose.
(2) The definition of criminal law is not frozen in time.
Facts: Parliament enacted the Tobacco Products Control Act, which prohibited advertisements of tobacco products for
sale, and imposed certain controls on promotions at cultural and sporting events. The tobacco companies challenged
the legislation as being ultra vires on the basis that it failed to come within the s. 91.27 criminal law power.
Held:
1. Prohibition? Yes, on advertising, sale w/o warnings, and promotion at special events.
Penalty? Yes, there is a fine.
Purpose? Problematic, but the majority decides that since tobacco is injurious to public health (they use extrinsic
evidence, eg. statistics), the marketing of tobacco products is itself a valid public purpose by association (even
though advertising is in itself not a crime).
2. The definition of criminal law is not “frozen in time”, or fixed to a certain activity. An activity doesn’t have to be
traditionally a crime to be considered a crime.
- Dissent: there should be come affinity towards the criminal law
3. Health is one of the ends served by the criminal law (from Margarine Reference).
4. Regulating things ancillary to the public evil is okay
a. The direct prohibition of smoking would be impractical because of the large number of people that smoke.
b. Maj: plus, this isn’t really a problem: prostitution and suicide aren’t illegal, but facilitating them is
c. Diss: those cases address issues that were traditionally criminal in the past, and both can be inherently
harmful
5. Although exemptions can indicate that a law is regulatory, not criminal, in this case it simply defines the boundaries
of the law
6. The criminal law need not be relegated to things that have a high degree of harm in society
- Diss: an activity should need to a reach of threshold of risk before it can constitute a criminal law matter
7. Note: the ancillary argument doesn’t fit here, because ancillary arguments need provisions that are ancillary to an
otherwise valid provincial scheme…there is no rest of the scheme in this legislation (they don’t ban tobacco itself)
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Sharon Zheng | LAW 100 | Fall 2011| Hester Lessard
Firearms Reference
Facts: Federal legislation requires the licensing and registration of firearms - failure to do so is an offence under the CC
(regulation + penalty, indicates the formal criminal law form). The provisions of the Act appear to be regulatory (includes
appointment of an administrative officer to issue/ deny licences).
Issue: Is the legislation within the valid federal criminal law power, or is it actually regulating property (under 92(13)
property and civil rights)
Held: Despite additions to the traditional form, this is still within the valid criminal law power. There is the traditional
form (prohibition and penalty) and a criminal law purpose (firearms, a traditional purpose). In addition, the animating
concerns include public safety, not property. Also, the dangerous activity is not ancillary. Also, there is a presumption of
constitutionality: burden is on the challenger to show that a law is ultra vires.
Ratio: Exemptions that require the exercise of discretion, and extensive licensing and registration regimes, are not fatal
to the criminal law power as long as the animating purpose is in the criminal law
R v. Hydro Quebec (1997) – a big stretch of the criminal law power and sequel to Crown Zellerbach, creates a new
valid purpose
Significance: The criminal prohibition can seem to be ancillary to a massive regulatory scheme, and it will still be seen as
criminal law.
Facts: Hydro Quebec was charged with violating an order by the Minister of the Environment to reduce CFC’s, which
came from the Canadian Environmental Protection Act. Feds had been operating in this area for quite some time.
Quebec Hydro claims that the two sections of the Act that were crucial to the charge, ss. 34 and 35, were ultra vires.
The federal government attempted to support these provision under both the POGG and criminal law power.
Held: This is a new criminal law purpose (it goes beyond public health!). Therefore the Margarine Reference list is open
ended
Majority: the impugned legislation was a valid exercise of the criminal law power and therefore didn’t find it
necessary to address the POGG arguments. The list of toxic substances included in CEPA is very toxic and very
limited, with an elaborate administrative regime in place for adding to the list.
Majority choses criminal law power over POGG because it’s more easily containable (must adhere to the
form). Although, ironically, the form is read flexibly (as long as there’s a prohibition and a penalty, addition of
other thigns is ok).
Dissent: This is not a criminal law purpose
- A committee is in place to decide what is included in the list and as such the list can be changed to add more
crimes
- If provinces have equivalent laws, they are not bound. Why would provinces have equivalent laws if this is
criminal?
- Consultation with stakeholders: in crim law, you don’t consult with potential criminals about what the crim
should be!
It doesn’t matter that in practical effect only the very toxic substances are caught, on its word it includes
many more substances, and even more toxic substances that
- Offences/ penalties are not about punishment, they’re about enforcement
o Ancillary to standard setting
- = Large departure from the traditional form!
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Sharon Zheng | LAW 100 | Fall 2011| Hester Lessard
B. Provincial Penalty Power
1. Provinces have jurisdiction over the administration of justice 92(14) and have an ancillary penalty power 92(15),
can use the classic criminal law form to create offences with penalties attached
2. Cannot use the penalty power to encroach into the criminal law power (either explicitly or colourable – ex.
Morgentaler)
3. There’s enormous judicial tolerance of provincial legislation operating in what might intuitively be a criminal law
area in a criminal law form (McNeil and Rio Hotel)
McNeil - High judicial tolerance for provincial presence in an area that looks a lot like criminal law
Facts: Nova Scotia Theatre and Amusements Act, sets up a film censorship board which must approve films. Prohibition,
but the only penalty is license revocation. McNeil shows an unapproved film in his theatre.
Issue: Does this provincial legislation fall intra vires (under 92(13) property and civil rights or businesses wholly situated
within the provinces (Parsons)) or does it impinge on the criminal law power?
Held: Majority in McNeil is willing to allow an explicit moral component to the regulation of property.
McNeil grounds an analysis to support provincial occupation of this field, where it is very close to the criminal law.
Majority says:
a. Dominant aim of this legislation is the regulation of property/ the trade
b. Regulating morality is secondary (ancillary to the dominant aim). There is an obscenity provision in the criminal
code (dissent says this kills the prov. Law). But the provinces can legislate to prevent crimes, as long as there
isn’t exact duplication which would give rise to paramountcy, it’s ok to operate here.
a. Not regulating public nudity in a free standing way
c. Case cited extensively (Bedard) where provincial law tried to regulate brothels, and there was a Criminal Code
provision also impacting them….hooked with property and civil rights, entry into the field of moral regulation
and apparent duplication of criminal law was explained through preventative entry into the field, and ability of
province to levy concurrent punishments to federal criminal law (if you are convicted, you lose your license to
practice etc.)
Rio Hotel
Illustrates that without the component of a deliberate strategy to enter into criminal law fields (as in
Morgantaler and Westendorp), the court is extremely deferential to the legislature. Explicit reference to strippers in
liquor licensing, court says it’s just a regulation in the sale of liquor.
Very similar to McNeil, there is an explicit moral regulation in a statute where you can make a credible argument
that it’s about property etc.
There was a Criminal Code provision on this, that’s still important evidence that this was either a traditional CC
area, or valid federal jurisdiction. Court felt that legislation was intra vires the provincial legislature as it fell within
property and civil rights power of New Brunswick and that it was possible to comply with both the federal and provincial
legislation.
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