CONSTITUTIONAL LAW – FALL 2013 OUTLINE
I.
INTRODUCTION TO CANADIAN CONSTITUTIONAL LAW
a. WHAT IS A CONSTITUTION?
i. What is a Constitution?
A set of fundamental principles that describe the organizational
framework of the state and the nature, scope, and limitations on
the exercise of state authority
ii. What is Federalism?
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Canada has a federal constitution
In a federal system, sovereignty is divided between two orders of
government, with each level of government being restricted to the
areas of jurisdiction assigned to it, and neither being able to
control or direct the activities of the other
In a federal system, the distribution of powers between the
national and local governments is exhaustive, in the sense that
there are no fields of jurisdiction that are not distributed to either
the federal or the local level of government
iii. Elements of the Canadian Constitution
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The Canadian constitution includes a core set of documents and
provisions that are constitutionally entrenched
These core documents include:
1. The Constitution Act, 1867
2. The Canadian Charter of Rights and Freedoms
3. Identified in the Constitution Act, 1982
iv. Sources of the Canadian Constitution
1. The Common Law
 Case Law
 Aboriginal Rights
 Parliamentary Privilege
 Prerogatives
2. Statutes
 Ordinary Canadian Statutes
 Ordinary British Statutes
 Canadian Constitutional Statutes
3. Conventions
b. THE NATURE OF CONSTITUTIONAL LAW
i. Unwritten Principles of the Canadian Constitution
1.
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4.
5.
Federalism
Democracy
Constitutionalism and The Rule of Law
Protection of Minorities
Aboriginal Rights
ii. Reference Re Succession of Quebec (SCC, 1998)
There are 4 unwritten constitutional principles
Three questions posed by the Federal government
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1. Did Quebec have the right under the Canadian constitution to
declare its sovereignty from Canada unilaterally
2. Whether international law permits Quebec to unilaterally
secede from Canada
3. Whether domestic law or international law would prevail in
Canada in the event of a conflict between them
Question 1: NO
Secessions legally possible through a constitutional amendment
under section 41
Court confirmed that the secession of Quebec would require an
amendment to the Constitution of Canada and that such an
enactment could not be enacted by the province acting unilaterally
However, the federal government would have a constitutional duty
to negotiate secession following a clear majority favouring this
option on a clear referendum question
Constitution based on four general principles:
1. Federalism
2. Democracy
3. Constitutionalism
4. Rule of law
The court relied on the unwritten principles of democracy and
federalism to create a constitutional duty
This reliance on unwritten principles may effectively rewrite the text
of the constitution
The Court’s reasoning should be interpreted as supporting the use of
unwritten constitutional principles only when they are necessarily
implied by the constitutional text
Question 2: NO
Sovereigntists in Quebec had traditionally argued that although
secession may be prohibited under domestic Canadian law, the
international law principle of self-determination of people justified
unilateral secession
 Even if the right of self-determination might give rise to a
right of secession, these circumstances clearly did not apply
to or exist in the case of Quebec
The argument on Question 2 was based on two unrelated
propositions
1. Although international law did not grant any positive
entitlement to secede from their host states to sub-national
units, it did not prohibit attempts at secession. The issuance
of a unilateral declaration of independence was therefore not
a breach of any rule of principle of international law
2. Effectivity principle: the sole legal criterion according to
which an attempted secession is judged under international
law is its political success or effectiveness
The court argued against the first point by stating that the failure to
reach agreement on constitutional amendments following the
patriation of the Constitution in 1982 did not place Quebec in a
disadvantage position within the scope of the international law rule
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As for the second question the Court pointed out that unilateral
secession might eventually be accorded legal status in Canada in the
sense that if secession “is successful in the streets it might well lead
to the creation of a new state”. However, this does not support the
more radical point that it could be taken to mean that secession was
achieved under colour of a legal right
Question 3
Unnecessary to answer since both systems were consistent with
each other on the issues raised
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c. METHODS OF CONSTITUTIONAL ARGUMENT
Judicial Review and Legitimacy
i.
When an individual seeks to challenge the validity of
government action before the courts, that person is usually
described as an application for judicial review
The individual argues that there was no legal authority for the
decision or action and that it was therefore unlawful
Some of the most significant and far-reaching Charter decisions of
the Supreme Court have been based on the guarantee of life, liberty,
and security of the person under section 7
o In Canada (Attorney General) v. PHS Community Services
Society the Court held that the Minister of Health’s refusal to
provide an exemption from the possession provisions under
the Controlled Drugs and Substances Act violated section 7
rights of users of a safe injection site in Vancouver
Types of arguments
o Historical argument (purposive)
o Textual argument (originalist)
o Structural argument (analogy)
o Prudential argument (costs and benefits)
o Doctrinal argument (precedent)
o Ethical argument (ethos)
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II.
PRINCIPLES OF INTERPRETATION
a. EVOLUTION OF THE DIVISION OF POWERS
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Values Informing the Division of Power
The BNA Act, now the Constitution Act of 1867, stated that a
general parliament for Canada was to be established with authority
to enact laws for the “peace, welfare, and good government of the
Federated Provinces”
A detailed list of 37 specific subject matters that were especially
assigned to the General Parliament was also included, most of
which were later included in section 91 of the BNA Act: regulation
of trade and commerce, the raising by any mode of taxation,
defence, criminal law, currency and banking, shipping, and
interprovincial works
There was also a listed of provincial powers
The provinces were granted power to enact laws in relation to
property and civil rights
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ii.
The BNA Act did not properly address how the roles and
responsibilities would be shared between different levels of
government
It largely fell to the courts to structure a division of powers for
Canada
Citizen’s Insurance v. Parsons (PC, 1881)
The JCPC’s Watertight Compartments View
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iii.
The leading case of section 91(2)
Case involving a challenge to an Ontario statute regulating
the terms of insurance policies
First asked whether the Act fell within section 92, and found
that it did
o But it could also be argued to be within section
91(2): regulation of trade and commerce
This conflict could not have been intended and the two
sections must be read together in order to avoid any
apparent overlap
The analysis of federal trade and commerce power has been
interpreted as establishing two distinct branches
1. The dividing line is based on a distinction between
interprovincial and export trade on the one hand and
local trade on the other. The provinces have power to
regulate trade within the province, while Parliament
has power to regulate trade between provinces or
with foreign states
2. “general regulation of trade and commerce”-less
clearly defined, seems to invite an assessment of the
relative importance of an economic activity to the
national economy
Privy Council almost ignored the second branch entirely
because they preferred categorical reasoning
The case was resolved on the simple and straightforward
basis that the trade and commerce power does not
authorize regulation of a particular trade in which
Canadians would otherwise be free to engage in the
provinces
Act applied to insurance companies whose business was
conducted entirely within particular provinces
The federal government was ultra vires
This interpretation of section 91(2) was precisely the
opposite of that intended
Russell v. The Queen (PC, 1882)
The Pith and Substance Doctrine
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Early but short lived trend of broad federal power
Validity of the Canada Temperance Act, a federal statute
permitting local areas to prohibit the sale of intoxicating
liquor
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iv.
Individual charged argued that the statute was
constitutionally invalid because it dealt with property
and civil rights, which was a provincial matter
The fact that liquor could be held as property did not
prevent Parliament from restricting its use when this
was deemed dangerous to public health or safety
Parliament could enact laws under the POGG power that
incidentally affected property and civil rights as long as it
did for a valid purpose
In assessing the validity of legislation, it is necessary to
determine the statute’s true nature and character. This
can only be ascertained by considering the underlying
purpose or objective of the legislation
Russell was significant because it represented the first
attempt to articulate what came to be known as the pith
and substance doctrine
If a federal law is, in pith and substance, in relation to a
federal head of power, then the law may have incidental
effects on a provincial head of power without being
rendered invalid (and vice versa)
o The pith and substance doctrine focuses on the
purpose of the legislation, rather than its
incidental effects
Opens the door to substantial overlap in jurisdiction
precisely because it ignores the incidental effects of
legislation in determining constitutional validity
if incidental effects were to be regarded as the primary
focus of the analysis, the federal POGG power would be
rendered insignificant
The pith and substance doctrine would allow Parliament
to legislate on matters of national importance, even
though such laws would also inevitably have incidental
effects on property rights in the provinces
Hodge v. The Queen (PC, 1883)
The Double Aspect Doctrine: subjects that for within one
aspect fall within s.92 can for another aspect fall within s.91
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The Privy Council upheld an Ontario statute regulating the
sale of liquor
Subjects which in one aspect and for one purpose fall
within section 92, may in another aspect and for another
purpose fall within section 91
While it was true that Parliament could enact temperance
legislation to deal with federal aspects of the problem, the
provinces could enact legislation dealing with its local
aspects
The legislation was entirely local in its character and
operation, and did not interfere with federal legislation on
the same subject
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v.
Local Prohibition Reference (OC, 1896)
Federal POGG Power, paramountcy issue when double aspect
doctrine is applied
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vi.
The aspect doctrine essentially asks whether Parliament or
the provinces have a sufficient interest in a particular
social or economic problem such that they should be
permitted to regulate it
The JCPC saw the aspect doctrine as a problem because it
seemed to embroil the judges in political decision-making
Until this case the precise relationship between POGG and
the enumerated heads of power in section 91 had not been
clearly settled
2 views of POGG
1. Broad view: POGG constituted the general grant of
power to Parliament, and the enumerated heads
were illustrative only (supported by Russell)
2. Narrow view: gave primacy to the enumerated
powers in both sections 91 and 92, and relegated
POGG to a purely residuary position. In this view
POGG was only applicable to matters that did not fall
within s. 91 or 92
In the Local Prohibition Reference Lord Watson opted for
a narrower view, making a clear distinction between POGG
and section 91
POGG needed to be strictly confined to such matters as are
unquestionably of Canadian interest and importance, and
not ought to trench upon any of the powers enumerated in
section 92
The pith and substance and aspect doctrines could not be
applied to support legislation enacted under POGG
o Could not “encroach upon” or “incidentally affect”
matters under section 92
Significantly limited scope of POGG power, not used much
afterwards
The Early 20th Century
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POGG powers were narrowed even further
Effectively marginalized the aspect doctrine and POGG
powers so that they could not be used to uphold federal
legislation in “normal circumstances” (Reference Re Board
of Commerce Act)
b. DEPRESSION AND THE NEW DEAL
vii.
Reference Re Aeronautics (1931)
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ix.
Aerial navigation falls within s. 91
Reference Re Radio
Depression and the New Deal
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From the JCPC’s point of view the emergency doctrine of
POGG constituted a clear bright line that made the task of
delineating it simple
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In 1938 the federal government initiated discussions with
the Provinces and the BNA Act was enacted by Westminister
in 1940
c. PITH AND SUBSTANCE
i. Pith and Substance Doctrine
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ii.
R v. Morgentaler (SCC, 1993)
Federalism Pith and Substance Test
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iii.
In order to determine whether particular laws enacted by
Parliament or the provincial legislatures are valid, the courts
have applied what has been termed the “pith and substance”
doctrine
The doctrine has two steps:
1. Requires the court to determine the “pith and
substance”of the law
2. Involves a determination of how the law fits within
the heads of power set out in the Constitution Act,
1867
The court determines the pith and substance of the law by
examining both the purpose of the law and its effects
Emphasis on the form of legislation, as opposed to its
underlying purpose or function
Supreme Court struck down criminal code provision for
abortions
The Province of Nova Scotia enacted the Medical Services Act
prohibiting abortions and made contravention of the Act a
summary conviction offence
The Supreme Court struck down the provisions
The majority argued that a province cannot invade the
criminal field by attempting to stiffen, supplement or replace
the criminal law
It is in “pith and substance” criminal law, which is under the
federal heads of power
Pith and substance test
1. What’s the matter or the mischief that the
legislation is intended to respond to (pith and
substance)?
2. What is the purpose and effect of the legislation?
3. What is the scope of the applicable heads of power
(ss. 91 and 92 of the Constitution Act 1867)?
Colourability: where a statute is in appearance, but not in
substance, what it claims to be. (When a level of the
government passes legislation saying that they doing so for
one reason, when it is really for another)
Reference Re: EI (SCC, 2005)
Have to take into consideration changing times and expand
government powers accordingly; “living tree”
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The pith and substance doctrine tends to result in the
enactment of overlapping federal and provincial legislation
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The doctrine permits both levels of government to enact
legislation with similar effects, as long as the purposes being
pursued are distinct
Provided that the courts are able to characterize the laws as
having distinct purposes, and provided that each law has a
purpose that is in relation to a legislative power conferred on
the enacting legislature, both laws will be upheld
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d. OVERLAP AND INTERJURISDICTIONAL IMMUNITY
i. Ancillary Powers/Necessarily Incidental
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Way to decide federalism cases without exclusive reference
to the pith and substance doctrine
 In cases where a constitutional challenge is brought against
a particular provision in a statute as opposed to the statute
as a whole
 3 step process:
1. Consideration of the impugned provision to ascertain
whether it intrudes on the jurisdiction of the other
level of government
2. Whether the impugned provision is contained within
a valid regulatory scheme
3. The fit between the impugned provision and the valid
regulatory scheme
 The point of the analysis was that, even when a particular
provision of a law intruded on the jurisdiction of another
level of government, it may still be upheld if it can be
characterized as being ancillary or necessarily incidental to
an otherwise valid regulatory scheme
 The extent of the intrusion is the important factor
 Where the intrusion is small it may be sufficient for the
impugned provision to be “functionally related” to the
regulatory scheme
 If the intrusion is more significant, the test for validity will be
stricter and the enacting government will be required to
demonstrate that the provision in question is necessarily
incidental or truly necessary to the regulatory scheme as a
whole
ii.
iii.
Double Aspect
In cases where Parliament and the provinces have enacted
virtually identical laws for similar purposes, the courts have on
some occasions upheld both laws on the basis that the subject
matter has a “double aspect”
 In cases where Parliament and the provinces have enacted
virtually identical laws for similar purposes, the courts have
on some occasions upheld both laws on the basis that the
subject matter has a “double aspect” (Multiple Access Ltd v.
McCutcheon)
Interjurisdictional Immunity
Provides that certain entities may be immune from the application
of valid laws. Although the law remains valid and generally
applicable, the law is “read down” by the court such that a
particular person or entity is exempt or immune from the law’s
application
 There is a “core” of legislative powers that cannot be
encroached upon by laws enacted by the other level of
government
 The doctrine of interjurisdictional immunity is an exception
to the pith and substance doctrine
iv.
Lacombe (SCC, 2010)
Ancillary Doctrine
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v.
The incidental affects rule applies when a provision, in pith
and substance, lies within the competence of the enacting
body but touches on a subject assigned to the other level of
government. It holds that such a provision will not be invalid
merely because it has an incidental effect on a legislative
competence that falls beyond the jurisdiction of its enacting
body
The by-law was not saved by the ancillary powers doctrine,
because the ban being imposed was not rationally or
functionally connected to the by-law
Pilots Association (SCC, 2010)
It is now settled that the test is whether the provincial law impairs
the federal exercise of the core competence
e. PARAMOUNTCY
i. Operability
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The courts have developed the doctrine of federal
paramountcy to deal with the situation in which federal and
provincial laws conflict
The paramountcy doctrine provides that when there is a
conflict, the federal law prevails
The provincial law is rendered inoperative to the extent that
it is inconsistent with the federal law
There are two types of conflict that may engage the doctrine
of paramountcy
1. Operational conflict: it is impossible for a citizen
to simultaneously comply with valid provincial
and federal laws
2. The application of the provincial law may
frustrate the purpose of a federal enactment
Early cases assumed that the doctrine of paramountcy was
limited to cases of true operational conflict. Therefore, even
though a federal and provincial law might be pursuing
conflicting purposes, both laws would be upheld if it were
possible for private citizens to comply with each (Ross v.
Registrar of Motor Vehicles)
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ii.
Multiple Access Ltd v. McCutcheon (SCC, 1982)
Double Aspect Doctrine
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III.
If the provincial legislation is held to be in conflict with the
purpose of federal legislation, it becomes inoperable
(Mangat)
If it is possible to comply with both the federal and provincial
statutes (by complying with the stricter provincial statute)
and there is no conflict in the underlying legislative purposes,
there is no conflict between the statutes and the provincial
statute remains operative (Rothman, Benson & Hedges)
Operational conflict occurs where there is an express
contradiction between the two laws, such that compliance
with one necessarily involves a breach of the other
o Where one enactment says yes and the other says no
The Court in Multiple Access held that federal and provincial
laws regulating insider trading did not conflict since it was
possible to comply with both laws simultaneously
PEACE, ORDER AND GOOD GOVERNMENT
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HISTORICAL DEVELOPMENT
i.
Historical Development of POGG
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ii.
Parliament is authorized to enact laws for the Peace, Order,
and Good Government of Canada, in relation to all matters
not coming within the classes of subjects by this Act assigned
exclusively to the Legislatures of the Provinces
The JCPC adopted a narrow interpretation of POGG
Since matters in section 92 were automatically subtracted
from the purely residual POGG power, POGG was rarely
invoked as a basis for upholding federal laws by the JCPC
By the 1920s, POGG had been reduced to essentially an
emergency power, available only in cases of war or other
similar national crises
The Supreme Court had broadened the scope of the POGG
power somewhat
There are now three branches that can be relied on to
support federal legislation
1. Emergency Power (established by the JCPC)
2. Gap or residual power of POGG: the power to
legislate in relation to matters not included within
any of the enumerated classes of subjects in sections
91 or 92
3. National Concern Branch: the power to legislate in
relation to distinct matters of inherent national
concern
Reference Re Anti Inflation Act (SCC, 1976)
There is a difference between the national concern and
emergency branches. Must be explicit when using emergency
branch of POGG power.
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National concern – when applied effect is permanent, but
limited by the identity of the subject newly recognized to be
of national dimension
Crisis/Emergency – power to make laws knows no limit
other than those dictated by the nature of the crisis, but the
limits are temporary
Federal government in the fall of 1975 wanted to impose a
comprehensive program of control on wages, prices, and
profits
The regulation of such intraprovincial activities or
transactions had always been regarded by the courts as
falling within exclusive provincial jurisdiction, pursuant to
the property and civil rights power in section 92(13)
A number of public sector unions launched a constitutional
challenge to the legislation on the basis that it regulated
matters coming within the exclusive jurisdiction of the
provinces
The federal government’s main constitutional argument was
that inflation was a problem of inherent national concern
and, therefore, the legislation could be justified under the
national dimensions branch of the POGG power
The Court rejected this argument but held that the legislation
could be supported on the basis of the emergency branch of
the POGG power
The court appeared to assume that the burden was on the
parties challenging the legislation to establish that inflation
did not constitute a national emergency
It would also be necessary to find that Parliament did not
have a “rational basis” for regarding inflation as a national
emergency
The legislation was also temporary, which supported the
validity of the Act as an emergency measure
The controversy was that Parliament had tried to use
national concern, and not national emergency
The dissent said that Parliament could not rely on the
emergency power unless it clearly declared the existence of
an emergency
o The majority argued that Parliament did not have to
use the word “emergency”
Some argue this allows Parliament to apply the emergency
power at will
o Overstated given the Court’s limited ability to
determine the existence of an emergency situation
requiring legislative intervention
RECENT DEVELOPMENTS
i.
R v. Crown Zellerbach Canada (SCC, 1988)
Matter of national concern has singleness, distinctiveness or
indivisibility that distinguishes it from matters of a provincial
nature
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ii.
The Supreme Court held that marine pollution was a single
matter of national concern
The majority set out the following 4 propositions that were
“firmly established” by the earlier cases:
1. The national concern doctrine is separate and
distinct from the national emergency doctrine of the
peace, order, and good government power
2. The national concern doctrine applies both to new
matters which did not exist at the time of
Confederation as well as to matters which, although
originally matters under provincial jurisdiction, have
since become matters of national concern
3. To qualify as a matter of national concern, a matter
must have “a singleness, distinctiveness and
indivisibility that clearly distinguishes it from
matters of provincial concern and a scale of impact
on provincial jurisdiction that is reconcilable with the
fundamental distribution of legislative power under
the Constitution”
4. It is relevant to consider what would be the effect on
extraprovincial interests of a failure to deal
effectively with the control or regulation of the
intraprovincial aspects of the matter
Newness: if a subject has only recently emerged into public
debate, it is unlikely that the provinces will have a firmly
entrenched claim to jurisdiction over it. Thus, placing such a
matter under federal authority will not intrude onto areas
of established provincial jurisdiction, nor will it upset the
existing equilibrium of the constitution
Distinctiveness: federal legislation be aimed at a matter that
has defined boundaries, so that recognizing this matter as
subject to POGG will not unduly interfere with or negate
existing provincial regulatory powers
Provincial Inability Test: focuses on the effects in other
provinces of a failure by one province. It is not a necessary
condition for the national concern branch of POGG
R v. Hydro-Quebec (SCC, 1997)
Protection of environment is a valid criminal law purpose
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The federal government sought to uphold provisions of the
Canadian Environmental Protection Act, dealing with the
regulation of toxic substances on the national concern
branch of POGG
The majority of the court upheld the provisions on the
basis of the criminal law power and did not consider POGG
The dissent, however, found that the legislation could not
be justified on the basis of the criminal law power
They went on to find that the environmental provisions at
issue lacked the singleness and distinctiveness necessary
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iii.
Friends of the Oldman River v. Canada (Minister of
Transport) (SCC, 1992)
Distinctiveness
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IV.
to be supportable under the national concern branch of
POGG
They also held that provisions did not meet the provincial
inability test
Argued that the provinces had exclusive jurisdiction over
certain aspects of the environment and that a federal
environmental assessment scheme was therefore ultra vires
on inapplicable to provincial projects
The court stated that the environment was an allencompassing category that lacked the necessary definition
to serve as a constitutional category under sections 91 or 92
This meant that either levels of government could pass laws
with environmental purposes or effects
The federal legislation must be aimed at a matter that has
defined boundaries, so that recognizing this matter as being
subject to POGG will not unduly interfere with or negate
existing provincial regulatory powers
ECONOMIC REGULATION (TRADE AND COMMERCE)
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PROPERTY AND CIVIL RIGHTS
i.
Property and Civil Rights
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ii.
The most important power assigned to the exclusive
jurisdiction of the provincial legislature
The Privy Council held that any laws regulating or dealing
with legal right in a province fell within the subject of
property rights (pretty much everything except for criminal
law)
Enumerated categories in section 91 were upheld even
though they had an incidental impact on property and civil
rights
It was interpreted to authorize any provincial regulation
over any transaction or activity that occurred within the
province
The Privy Council upheld a statute with powers to control
the marketing of a natural product in BC on the basis that it
applied only to transactions that would be completed within
the province (Shannon)
Provincial Powers over Economic Regulation
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Since Parsons it has been accepted that, in general,
intraprovincial trade and commerce is a matter within
provincial power, and the federal trade and commerce
powers is confined to interprovincial and international trade
and commerce, and “general” trade and commerce
Provinces can indirectly affect extra-provincial trade by
decisions which affect cost of production, or decisions which
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iii.
Canadian Egg Marketing Agency v. Richardson (SCC, 1971)
legislation was aimed at the regulation of interprovincial
trade, ultra vires provincial powers
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iv.
The legislation not only “affects” interprovincial trade but
was aimed “at the regulation of such trade” and was
therefore unconstitutional
Ultra vires the provincial powers
Designed to restrict or limit the free flow of trade between
provinces
Constitutes an invasion of the exclusive legislative authority
of the Parliament over trade and commerce
Some argued it was indistinguishable from Carnation
But decision was right, otherwise provinces could under
section 92(13) erect protectionist and discriminatory
barriers creating 10 separate economies in Canada
Carnation Co v. Manitoba Egg and Poultry Association (SCC,
1968) In “pith and substance” the regulation of a local
transaction, the effects were not relative, intra vires
provincial powers
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v.
affect retail sales within a province
Provincial regulatory schemes are likely invalid if they
directly affect extra-provincial movement by limiting
production.
Expansive interpretation of provincial trade powers
One potential difficulty is that provinces might impose
conditions or restrictions that favour local producers and
effectively bar the sale of cheaper or more desirable
imported goods
Provinces have a political incentive to establish
discriminatory schemes because local producers may be less
organized and lack political clout in the province (Manitoba
Egg Reference)
One of the underlying objectives of the confederation was to
make sure Canada would operate as a single market
Provinces are not permitted to impede the free flow of goods,
services, labour, and capital across provincial borders
Expansive approach to provincial jurisdiction over trade
matters carried forward from the Privy Council
While the provincial legislation might affect interprovincial
or export trade, this was not it’s primary purpose
The main object, or the pith and substance of the law, was
the regulation of a local transaction
Reference re Agricultural Products Marketing Act (SCC,
1978) Federal legislation with effects on local trade upheld
due to cooperation
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Court upheld a federal legislation that regulates local trade
where the federal legislation is part of a comprehensive and
cooperative federal-provincial marketing scheme
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vi.
Provincial Jurisdiction over Natural Resources
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vii.
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The province of Saskatchewan enacted legislation imposing a
royalty surcharge on oil produced in the province
CIGOL produced crude oil in Saskatchewan, and virtually all
its product was then exported
CIGOL argued the surcharge would affect the price of its
product in the extra-provincial market, and the legislation
intruded on trade and commerce
Similar to Carnationgood destined for export
Difference: scheme was driven by and structured around
international market events
Opposite conclusion from Carnation
Reinforced by Manitoba Egg Reference, it was clearly no
longer open to a province to assume that legislation that
fastened on a transaction occurring within the province was
automatically valid, it mattered whether the ultimate aim of
the legislation was a matter outside the province
Central Canada Potash (SCC, 1978) True nature of legislation
was to regulate the export market, ultra vires provincial
powers
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Extended the more restrictive approach to provincial powers
setout in the Manitoba Egg Reference
Section 92(A) was introduced to undo the decision in Central
Canada Potash by giving explicit power to provinces to enact
laws in relation to the primary production of natural
resources found within the province
Canadian Industrial Gas & Oil v. Saskatchewan (SCC, 1978)
legislation was ultra vires provincial powers because
ultimate aim was a matter outside the province (opposite of
Carnation where the true nature of legislation was
irrelevant)
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viii.
The federal regulation of local trade was reinforced by
provincial legislation, which mirrored the requirements of
the federal law
The existence of a provincial law should, strictly speaking, be
irrelevant to the constitutional validity of a federal law
Legislation upheld despite its effects on local trade due to the
cooperation between the federal government and provinces
Similar approach to CIGOL
Saskatchewan tried to stabilize the North American market
for potash by limiting production
Argued that property and civil rights gave them power to
impose controls on production of natural resources within
the province
Purpose of the legislation was to stabilize international
prices
FEDERAL POWERS OVER ECONOMIC REGULATION
i.
Regulation of Interprovincial and International Trade
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ii.
Federal Powers Over Economic Regulation
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iii.
The Federal government can regulate an entire industry in
order to regulate the extra-provincial/export portion of the
industry
Labatt Breweries of Canada v. AG Canada (SCC, 1980)
Regulation of a single trade/industry is not of great national
concern and national ownership of a trade or undertaking or
national advertising of products are not sufficient to
authorize the imposition of federal trade and commerce
legislation
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v.
The Privy Council ruled that Parliament may not directly
apply controls on the production or local marketing of a
product even if such local regulation is merely incidental to a
scheme aimed at controlling interprovincial or international
trade
The inability to control local production or trade effectively
precluded the federal government from regulating trade at
the interprovincial or international level
The Caloil case is the SCC early departure from the Privy
Council’s restrictive approach
The fact that the regulations might affect local transactions in
the imported product did not change the fact that they were
in pith and substance aimed at international tradeintra
vires federal government (Caloil)
The Queen v. Klassen (SCC, 1960)
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iv.
Parliament has exclusive legislative authority to regulate
international and interprovincial trade
Provincial jurisdiction is limited to the regulation of trade
within a province
Doubts have risen about Parliament’s ability to regulate local
and intraprovincial trade (Margarine Reference)
First branch of Parsons (fed power over
interprovincial/export trade) was not applicable as the
impugned regulation was concern with local sale and
production
Second branch of Parsons (general trade power) was
inapplicable
→ Regulation of a single trade/industry is not of great
national concern
→ National ownership of a trade or undertaking or national
advertising of products are not sufficient to authorize the
imposition of federal trade and commerce legislation
Provisions were concerned with production in a single
industry that was substantially local in character
General Motors of Canada v. City National Leasing The
Revival of the General Trade and Commerce Power
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vi.
Reference re: Securities Act (2011) Act must be filling a gap
in order to be valid under the second branch of the trade and
commerce test
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V.
Comprehensive and important restatement of the
jurisprudence on the second branch of the trade and
commerce power (Parsons Test)
5 part test
1. the impugned legislation must be part of a regulatory
scheme
2. the scheme must be administered by the continuing
oversight of a regulatory agency
3. the legislation must be concerned with trade as a
whole rather than with a particular industry
4. the legislation should be of a nature that the
provinces jointly or severally would be
constitutionally incapable of enacting
5. the failure to include one or more provinces or
localities in a legislative scheme would jeopardize the
successful operation of the scheme in other parts of
the country
Described as a five part checklist which is an indication of
validity under the trade and commerce power
This case was to determine whether the Combines Act could
be upheld under trade and commerce power as oppose to
criminal law power, to place a greater emphasis on
regulation as opposed to criminal sanctions
Held that the legislation met all 5 parts of the test and was
supportable under the second branch of Parsons
It has been argued that proposals for federal securities
legislation and a national regulator can be upheld as
constitutionally valid under the second branch of the trade
and commerce power
Others argued that it fell within section 92(13) and 92(16)
matters of a merely local or private nature
The court held it was unconstitutional
The court cautioned against an overly broad application of
the second branch of the trade and commerce power
The court said the matter must be genuinely national in
importance and scope
And must be something that the provinces, acting either
individually or together, would not be able to achievethere
must be a gap the federal government is trying to fill
They also said the fact that a federal scheme would be more
efficient was irrelevant
MORALITY AND THE CRIMINAL LAW
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FEDERAL POWERS OVER CRIMINAL LAW
i.
Review: PATA
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ii.
Federal Powers Over Criminal Law
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iii.
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In order for legislation to be upheld under section 91(27) it
must contain 3 elements:
1. A prohibition
2. Backed by a penalty
3. With a valid criminal law purpose
Found that a provision of the Dairy Act Industry could not be
upheld under the criminal law power
It met the first two elements, but not the third, it was for an
economic purpose
Trade purpose, not criminal purpose
RJR Macdonald v. Canada (SCC, 1995) Regulating public
health is a valid criminal law power
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v.
Privy Council held that in order for legislation to be valid
under the criminal law power, there must be a prohibition
coupled with a penalty (Margarine Reference added a third
criterion)
Differs from POGG and Trade and Commerce in that it can be
read more broadly
Reference re Validity of Section 5(1) of the Dairy Industry Act
(SCC, 1949) Federal legislation not valid under criminal law
power because the Act did not have a criminal purpose
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iv.
Parliament has jurisdiction over criminal law in broad sense
– it can define what is criminal conduct, based on what
violated generally accepted norms of conduct in the era
Court upheld the Tobacco Products Control Act under
criminal law
Act prohibited the advertising and promotions of tobacco
products
Applied to all dealings with tobacco
The court of appeal argued that Parliament cannot
criminalize an ancillary activity when the principal activity
remained legal
Criminal law must be applied “in the widest sense possible”
Since prohibitions were accompanied with penal sanctions, it
indicated that the Act is criminal law
The legislation did not “colourably” invade areas of exclusive
provincial jurisdiction
The court held that any law that takes the form of a
prohibition accompanied by a penalty will be valid as
criminal law as long as it is directed at an identifiable matter
of legitimate public concern
Health was considered a public concern
Reference re Firearms Act (SCC 2000) The findings of a valid
criminal purpose is not enough to be classified as valid
criminal law, there must be a prohibition backed by a penalty
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Retreated slightly from the expansive approach to the
criminal law power set out in RJR Macdonald
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vi.
Reference re: Assisted Human Reproduction Act (SCC 2010)
Parliament need only have a reasonable basis to expect that
its legislation will address a moral concern of fundamental
importance to enact a criminal law
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Reference regarding the constitutional validity of the federal
Firearms Act
Parliament had expanded the Criminal Code provisions
regarding firearms in 1995
Alberta argued that the amendments dealt with matters that
did not raise legitimate concern relating to public safety, and
were a colourable attempt to regulate property right of
firearm owners
The SCC held that the legislation satisfied the three
requirements of criminal legislation and was thus
constitutionally justifiable on the basis of Parliament’s
jurisdiction over criminal law
This case involved the presence of prohibitions backed by
penalties
Contained prohibitions on various activities including
cloning
The majority of the Court applied a very broad application of
the criminal law power
PROVINCIAL POWERS TO REGULATE MORALITY AND PUBLIC ORDER
i.
Provincial Power to Regulate Morality and Public Order
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ii.
Nova Scotia Board of Censors v. McNeil (SCC, 1978)
Provinces have broad powers to enact penal laws as long as
they are primarily regulatory and preventative
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iii.
Provincial legislation enacted controlling showing of films
Found that provinces have broad powers to enact penal laws
as long as they are primarily regulatory and preventative
Province can legislate where local moral matters are
involved, as long as provincial legislation does not conflict
with valid federal legislation
Westendorp v. The Queen (SCC, 1983) Prostitution is a
federal law power
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iv.
Section 92(15) grants provinces the power to enact “quasicriminal legislation”
The question when the provinces enact legislation that is also
subject to criminal prohibitions found in the Criminal Code is
whether they are making a colourable attempt to enact
criminal legislation
Calgary by law prohibiting prostitution by claiming by-law
was to deal with a public nuisance
The SCC found that the by-law was trying to control or
punish prostitution directly
R v. Morgentaler (SCC, 1993)
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Emphasis on the form of the legislation, as oppose to its
underlying purpose or function
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Legislation prohibited abortions other than in a hospital
Abortion historically part of the criminal law
A province cannot invade the criminal field by attempting to
stiffen, supplement or replace the criminal law power