1
Adil Khan
Constiutional Law – Midterm Outline (Promislow)
I.
Introduction
i.
ii.
II.
Sources, principles, institutions
History, narratives and fundamental principles
Interpretation and Institutions
i.
ii.
Interpretation
Judicial Review
a. Imperial Tobacco
b. Christie
c. The “living tree”: …Persons Case
iii.
The Judiciary
a. Separation of Powers and Section 96
i. Reference re Residential Tenancies Act
ii. Sobey’s Stores Ltd
iii. Re Amendments to the Residential Tenancies Act
iv. MacMillan Bloedel
v. McEvoy v. AG of New Brunswick and AG of Canada
b. The Independence of the Judiciary
i. Reference re Provincial Court Judges
II. Federalism and the Division of Powers
i.
Historical development and interpretation
i. Early federalism cases
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1.
2.
3.
4.
5.
Parsons
Russell
Hodge
Local Prohibition Ref
Board of Commerce
ii. Depression era cases
1.
2.
3.
4.
5.
6.
ii.
Propriety Articles Trade Association (PATA)
Aeronautics Reference
Radio Reference
Labour Conventions
The Employment and Social Insurance Act
The Natural Products Marketing Act
Doctrines
a. Pith & Substance (validity)
i. R. v. Morgentaler (SCC, 1993)
ii. Reference re Employment Insurance Act
iii. Quebec (AG) v Lacombe, (2010 SCC)
b. Double Aspect and Ancillary doctrines
i. Multiple Access Ltd. v. McCutcheon (SCC, 1982)
ii. General Motors of Canada Ltd. v. City National Leasing (SCC, 1989)
c. Inter-jurisdictional immunity (applicability)
i.
ii.
iii.
iv.
McKay v. The Queen (SCC, 1965)
Bell #1 & #2
Canadian Western Bank (SCC, 2007)
COPA (SCC, 2010)
d. Paramountcy (operability)
i.
ii.
iii.
iv.
Ross
Multiple Access
Hall
Rothmans
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iii.
Focus on POGG, economic regulation, and criminal law
a. POGG
i. Reference re Anti-Inflation Act (SCC, 1976)
ii. Crown Zellerbach Canada Ltd (Scc, 1988)
iii. Friends of the Oldman River Society
b. Economic Regulation
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1.
2.
3.
4.
5.
6.
7.
Provincial Black v. Law society of Alberta
Canadian egg marketing agency v. Richardson
Carnation Co. Ltd. v. Quebec Agricultural Marketing Board
AG Manitoba v. Manitoba Egg and Poultry Association
Re Agricultural Products Marketing Act
CIGOL v. Saskatchewan
Potash v. Sask
ii. Federal
1. Regulation of Interprovincial and International Trade
a. The Queen v. Klassen
b. Caloil Inc. v. AG Canada
c. Dominion Stores Ltd. v. The Queen
2. General Regulation of Trade
a. Labatt Brewers of Canada v. AG Canada
b. GM Canada v. City National Leasing
c. Kirkbi AG v. Ritvik Holdings Inc.
c. Criminal law
i. Federal
1.
2.
3.
4.
5.
Margarine Reference (SCC, 1949)
RJR MacDonald Inc. v. AG Canada
R v. Hydro-Quebec (SCC, 1997)
Reference re Firearms Act (SCC, 2000)
Reference Re Assisted Human Reproduction
ii. Provincial
1.
2.
3.
4.
5.
iv.
I.
Re Nova Scotia Board of Censors v. McNeil (SCC, 1978)
Dupond
Westendorp v. The Queen (SCC, 1983)
Rio Hotel Ltd v. New Brunswick Liquor Licensing Board
Chatterjee
Beyond the courts – the spending power, agreements and politics
Introduction: Sources, principles, institutions
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Constitutions outline the function of government
 A body of laws about making laws- law about law
 Constitution is a primary set of rules defining how the other rule and functions of society
are made or changed
 Every law must be in accordance with the constitution
o Reasoning is that state officials have no inherent power to authority. Must be
exercised through some valid jurisdiction from the constitution.
Explains which bodies can exercise:
 Legislative authority- making law
 Executive authority – implementing law
 Judicial authority- interpreting and adjudicating law
Quebec Secession Reference [SCC, 1998]
 To determine whether the constitution permits secession the judgment explores how
the state was constituted
o Secessionist sentiment that developed shortly after confederation was
suppressed by the British
 Federalism was meant to accommodate diversity
Documents of colonial history
 Royal Proclamation (1763): British conquest of New France, enshrined aboriginal rights
 Quebec Act (1774): allowed French civil law to continue to exist in Quebec
 Constitutional Act 1791: Divided Quebec into Upper and Lower Canada
 The Report of the Earl of Durham: Proposed the legislative union of the Canadas
o Recommends responsible government, abolishment of appointed Councils
 Union Act, 1840: Created United Canada, uniting upper and lower
BNA Act (1867): Confederation
 3 major outcomes
o Reorganized legal structures of ‘Canada’
o Added NB and NS as partners in the federation
o Provided for expansion westward
 The internal difficulties of the Province of Canada
o Durham’s recommendations had come to no avail
o Evenly divided English and French segments made the government incapable of
functional governance
o Expansion offered political escape, as federalism could insure balance between
local and national interests
 Economic motives were also very important
 Strategic and Economic Motives
o The security threat of a U.S. not divided by slavery forced the British to consider
uniting all their colonies
o Economic motives for upper and lower Canada
 Great Coalition of 1864 (Toronto & Montreal elite)
 The Terms of Union
o Macdonald wanted a centralized federal regime
 Based on the top-down authority of the monarchy
 Compromised to get Maritimes and Quebec
 Close association with Britain to try draw support
 Hierarchical political institutions and judiciary
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To nation-hood
 British Statute of Westminster (1931): no statute enacted in Britain applies to Canada,
formal recognition of independence
 1949: appeals to the Privy Council removed. SCC takes seat at apex of judicial structure
Constitution Act, 1982
 Charter of rights and Freedoms: gives courts new role to overseeing government action
II.
Interpretation and Institutions
Forms of argumentation on constitutional matters:
iv.
Historical argumentation looks at the intent of the drafters (American approach)
v.
Textual argument looks at the specific wording of the document
vi.
Doctrinal argument is based on precedent (predominant form of argumentation)
vii.
Prudential argument look at the costs and benefit analysis, a practical argument
viii.
Ethical argumentation looks at normative notions of national identity and ethos
ix.
Structural argumentation looks at overarching themes and structures
a. Quebec secession reference invoked four organizing principles- federalism,
democracy, the rule of law, and the protection of minorities.
x.

Judicial Review and the Legitimacy issue
Judicial review can be defined as the power of the courts to determine, when properly
asked to do so, whether government action (i.e. legislation) t is in compliance with the
Constitution and to invalidate that action when it is not.
o Constitution Act, 1982, resolved question of legitimacy over this power
a.
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British Columbia v. Imperial Tobacco (SCC, 2005)
Facts: BC enacts an Act that allows retroactive action against Tobacco companies for
costs incurred by the healthcare system from their products. Big Tobacco hits back that
the Act is unconstitutional because:
o 1. Violates the division of power
o 2. Compromises judicial independence
o 3. Undermines the rule of law
Decision: BC Supreme Court says unconstitutional on ground 1. BC Court of Appeal
overturns. SCC deems act valid.
Reasoning by Major J.: Agreed w/ CA. Judicial independence not compromised by Act
that merely lays out the court’s adjudicative role in settling suits brought forth by the
act. The appellants understanding of what qualifies as the rule of law and the court’s
duty to uphold it is vague and misplaced.
Obiter: Courts can strike down law on the basis of judicial independence, but not on the
argument about the rule of law.
o Judicial independence maintained by: security of tenure, financial security,
and admin independence
Rule of law: Argument that the legislation violates the right to a free trial
o The case narrows the challenges available on this principle
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i. Rule of law in Imperial Tobacco vs. in the Que.
Secession Reference
Secession Reference: 3 elements
Imperial Tobacco: translating/applying the 3 elements
None of the principles that the rule of law embraces
speak directly to the terms of legislation …..
Law is supreme over the acts of both government
and private persons: one law for all.
The first principle requires that legislation be applied
to all those, including government officials, to whom it,
by its terms, applies.
Requires the creation and maintenance of an
actual order of positive laws which preserves and
embodies the more general principle of normative
order.
The second principle means that legislation must exist.
The exercise of all public power must find its
ultimate source in a legal rule. I.e., the relationship
between the state and the individual must be
regulated by law.
The third principle, which overlaps somewhat with the
first and second, requires that state officials’ actions
must be legally founded…
b. BC (AG) v. Christie (SCC, 2007)
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Facts: Dugal Christie ambitiously challenged a provincial tax on legal services, as it
would limit his ability to provide pro-bono legal services to his clients violating their
right to access justice and thus violating the rule of law.
Decision: BC Courts agree with Dugal. SCC does not.
Reasoning: The general right to be represented by a lawyer does not have a
constitutional basis, certainly not under the heading of rule of law.
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The ‘living tree’ --- The Persons Case (SCC, 1928)
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Facts: Women’s rights movement in Canada takes on the prohibition of women being
appointed to the Senate. Takes to the SCC a question of whether the BNA qualification
for Senators as ‘qualified persons’ applied to women as well.
Decision: SCC says no. Appeal to the PC.
Reasoning of SCC by Anglin CJ: A historical approach lead to the conclusion the word in
1867 was not meant to include women, thus relying on the intent of the drafters.
Edwards v. Canada (AG) [1930] Privy Council
o Appeal successful in overturning the sexist ban. Take a textual interpretation of
the Act to establish a different conclusion than the originalist and contextual
approach taken by the SCC.
o Include notion of a living tree, which is an analogy that is still relevant
i. Narrative of continuation in BNA, pragmatic undercurrents to Canadian
Constitutionalism contrast to American notions of original intent
ii. Modes of interpretation for the constitution departs from the
interpretation of other legislation
1. A large liberal approach
2. Constitutions require flexibility to be long-lasting
The Judiciary
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Common law of England is characterized by complicated court structure
Occurrence of ‘forum shopping’: looking to different courts for a preferable verdict
Creation of SCC and other federal courts is justified by s. 101
o Where the mandate for the federal govt to create new courts is written
o Superior courts include the SCC and the federal courts
‘Inherent jurisdiction’ comes from the constitution and not granted by statute
o Neither SCC or federal courts have it
Federal Court Act created federal courts, considered superior courts
o Concurrent jurisdiction on constitutional matter b/w fed and provincial courts
o Inferior courts and tribunals can consider constitutional matters
Provincial SC and CA are superior courts, while the statutorily defined courts (family,
small claims, youth, criminal) are inferior courts
S. 96 courts include the superior, district, and county courts: all of which have
federally appointed judges operating under provincial jurisdiction
S. 96 ensures that the executive and legislative branches cannot pass judicial function to
administrative agencies without explicit directions to its function, use, and purpose
o By design it ensures the rule of law and a separation of powers
iii. Reference re Residential Tenancies Act (SCC, ’81)

Formulates the three-pronged test to determine the constitutionality of the transfer of
jurisdiction to an administrative body:
o 1. Whether the power of jurisdiction conforms to the power or jurisdiction
exercised by courts specified in s.96 at the time of confederation (historical)
  If yes, go on to step 2. If no, there is no s. 96 bar to the impugned
regime.
o 2. Are the questions the impugned tribunal decides ‘judicial’ in nature?
(procedural analysis)
  If yes, go on to step 3. If no, there is no s. 96 bar to the impugned
regime.
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3. Whether the function of the tribunal as a whole is judicial? (institutional
setting) Is the judicial function of the impugned tribunal primary, as opposed to
ancillary, relative to the administrative function?
  If yes, the impugned regime is unconstitutional. If no, it is
constitutionally valid.
Decision: Residential tenancy board unconstitutional
o
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iv. Sobey’s Stores Ltd v Yeomans and Labour
Standards Tribunal (NS) [SCC, 1989]
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Labour relations regime: idea that not every dispute between employee and employer
needs to go to court
Decision by Wilson J. allows the tribunal to continue as by the third aspect of the test
Grapples with an ambiguity brought on by the historical analysis of cases involving
unjust dismissal.
o Don’t focus on the type of dispute, but on the relationships being regulated
o Narrowing of the characterization of the jurisdiction
v. Reference re Amendments to the Residential
Tenancies Act (NS) [SCC, 1996]

Further discussion and clarification in how to approach the first prong of the test.
Because how you characterize the jurisdiction determines whether you halt the inquiry
there or continue onto the rest of the test
o If the jurisdiction in question was “broadly co-extensive” b/w superior and
inferior courts at the time of confederation, the regime is constitutionally
permissible (Sobeys)
o Assessing the exercise of jurisdiction “at the time of confederation” refers to
conditions in the 4 original provinces of confederation, and in the UK where
necessary (Sobeys)
 Majority by McLachlin J: The landlord-tenant relationship has been
under the purview of superior courts since before confederation
 Novel can’t just mean modernized
 Dissent: Lamer C.J. (formalist in his approach to rule of law and
separation of powers): thinks this area of law represents a ‘novel
jurisdiction’ and thus the tribunals pass the s.96 test
vi. MacMillan Bloedel
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Lamer adds the idea of ‘core’ to the s.96 test
o Impermissible to take away core powers of s.96 courts, by transferring it
to an inferior court
o Constitutional amendment needed to allocate core away from superior courts
McLachlin disagrees: Idea of ‘core’ jurisdiction adds rigidity to Canada’s constitution
o Strict separation of powers has no precedent
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vii. McEvoy v. AG of New Brunswick and AG of
Canada (SCC, 1983)
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
Moving from tribunals set up by provinces, to courts set up by the federal govt (as
allowed by s.101)
Landmark case in how s.96 also limits the federal parliament from creating courts that
try certain criminal offenses
o In regards to setting up Youth Courts
c. The Independence of the Judiciary
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
S. 96-100 designed to protect judiciary from executive or legislative meddling with
financial and professional security through tenure
The Judicial Appointment Process
o Committee usually formed at the behest of the Minister of Justice to advise the
PM and Cabinet about possible nominees
o There has been an attempt at adding transparency to the SCC appointment
process, but there is a tension between openness and compromising the
independence of the judges
i. Reference re Provincial Court Judges [SCC, 1997]
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II.
Emphasized judicial independence as an unwritten constitutional principle
Spoke of three aspects
o Financial security
o Security of tenure
o Institutional independence
Deemed the salary reductions by three provinces to be unconstitutional as a commission
is needed to property determine an adjustment to judicial compensation
o Reductions impinged upon “financial security”
Federalism and the Division of Powers
v.
Historical development and interpretation
a. Federalism – the challenges of the depression, centralizing
interpretations and competing visions
i. Early federalism cases
The Late 19th century: The ‘story of provincial rights’
 Ideological conflict in early confederation between federalists like Conservative
Macdonald and advocates for provincial rights
 Major changes to nation with addition of several new provinces and territories
 Provinces won; especially in terms of solidifying the use of the disallowance power
o Parliament was not supreme after all because courts could interpret the validity
of their actions through the BNA Act
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1. Citizens Insurance Company v. Parsons
(SCC and PC, 1881)
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Facts: Case in Ontario about an unpaid fire insurance claim is reduced to questions
about the legitimacy of provincial legislation regulating such contracts.
Majority by Ritchie CJ: Justifies provincial powers on the grounds that their
jurisdiction over other matters of property make it necessary for them to be able to
legislate in regards to such contracts
o Dissent by Gwynne J: slippery slope argument. If this sector goes to the
province, what will stop the next?
o Sir Montague Smith of the PC: Insurer appeal dismissed.
Courts and PC narrows the federal jurisdiction by expanding the power of the province
to manage property rights
o Cite Quebec Act and 92(13)
Get us to an initial method for deciding division of powers:
o Comparing the sections of 91 & 92
o Applying SI to constitution
2. Russell v The Queen (PC, 1883)
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Under scrutiny is the Federal Temperance Act
o Set up a regime for communities to control the sale and distribution of alcohol
Russell case reinforces federal powers by upholding Act.
Fed residual power: if it’s not in 92, it’s in 91. Known as POGG
o Read prohibition as not falling under the property and civil rights segment
3. Hodge v. The Queen (PC, 1883)
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Facts: Question still on prohibition, but this time about the Crooks Act, which was
provincial legislation regulating the use and sale of alcohol. Two tavern-keepers on trial.
Argued that Russell gave control over liquor to the Dominion.
Decision: appeal dismissed. Legislation upheld
o 1. Legislation local in character – 92(16)
o 2. Provincial parliament acting within its legislative powers – 92(13)
o 3. Not imposing criminal law but rather fines
Important doctrines emerge:
o 1. Both province and federal govt can have jurisdiction over this area
 Read Russell down: narrows decision
 In doing that it puts forward the idea of ‘Double Aspect’
o 2. Also says provincial govt cannot further delegate authority to boards
 You cannot further delegate powers without statute stating thus
 PC rejects this: says that provincial parliaments are supreme,
notion of coordinate sovereignty
o 3. Fines can be implemented by province. Not the same as criminal punishment.

The doctrine of “Double Aspect”: –“the subjects which in one aspect and for one
purpose fall within s. 92, may in another aspect and for another purpose fall within s.
91.” (Hodge, CB at 108)
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The doctrine of “coordinate sovereignty”: –Provincial legislatures are “supreme”
within the subjects defined in s. 92 and within their territory, having “the same authority
as the Imperial Parliament, or the Parliament of the Dominion” (Hodge, CB at 109)
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4. Local Prohibition Ref (1896)
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Facts: Province appeals that province does not have the power to impose prohibition.
Macdonald behind initiative to ensure federal authority in policy-area.
Decision by Watson of PC: Provinces possess the authority to prohibit alcohol
o New Canada Temperance Act and cases have caused much confusion in regards
to who has power to prohibit alcohol
o Assertion of doctrine of federal paramountcy rejected
o Both jurisdictions can exist until conflict arises
o POGG read narrowly to ensure provincial jurisdiction over local matters
5. Re Board of Commerce Act, 1919
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Facts: Regulatory boards set-up post-WWI come under scrutiny from business interests.
Questions of constitutionality of a board to set fair prices and other economic powers.
Decision: SCC is split, but upholds the board’s jurisdiction on s.91 (2). PC finds the
mandate unconstitutional as it needlessly infringes on the freedom of the
inhabitants of each province
• Parsons – decentralizing (insurance is a local property issue, not a federal T &C issue)
• Russell -- centralizing (national prohibition regime permitted)
• Hodge --decentralizing (double aspect permitted, gets around Russell),
• Local Prohibition Ref -- decentralizing (overlap without conflict permitted, POGG narrowed),
• Board of Commerce – decentralizing (more narrowing of POGG, narrow reading of T&C)
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Federalists bemoan the decentralizing trend in court decisions
The decisions of the 1880’s and 1890’s of the PC reflected the assertion of provincialism
in Canadian political, social, and economic attitudes
Other explanations for PC tinge towards provincialism: in the service of the empire
(with the possible application to how Ireland should be governed), influence of
political pluralist theory prevalent at the time
o Note: PC headed by Lord Watson and Haldane at this time
ii. Depression era cases
1. Propriety Articles Trade Association – PATA
v. Canada (AG) [PC, 1931]
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Question of the validity of criminal sanctions within the Combines Act (Competition Act).
Finding by Lord Atkin: The powers of the feds to legislate criminal conduct are wide
and far-reaching. Only when they are used in a manner that obviously encroaches upon
provincial rights can they be deemed invalid. Upholds federal authority.
PATA covers similar issues to The Board of Commerce Act
o Federal legislation regulating business practices
o 9 years later, the opposite result, a centralizing interpretation
o Back and forth over the criminal law power v. property and civil rights
o Provincial argument: you can’t just add some criminal law element to
legislation to make it under federal jurisdiction
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S.132 is involved with the next three cases (Aeronautics, Radio, & Labour)
 s. 132 gave the feds powers to implement treaties on its behalf of the imperial govt
o Not about making treaties, but about implementing colonial obligations
o In 1867 no contemplation of Canada as an international actor
o Power to make treaties now a matter of federal prerogative since Statute of
Westminster of 1931
2. Aeronautics Reference (PC, 1932)
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Question of whether aeronautics fell under federal jurisdiction when Parliament looks to
pass international conventions on air travel and safety.
Findings: Neither the Feds or the province clearly given such powers at confederation.
As that is so it seems to falls within s. 91 because of the POGG power. Also s.132 permits
the feds to fulfill Canada’s international obligations. Centralizing.
Notes:
o Interpreting a convention that was signed on behalf of Canada by GB in regards
to international aviation
o Idea of POGG as applying to the gaps (no notion of aviation in 1867)
 POGG gives residual power to federal govt
3. Radio Reference (PC, 1932)
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Another centralizing case similar to Aeronautics. POGG power was used to justify
federal authority
Characterized as a matter of national interest as Canada needed to assert its ability to
implement international commitments
o POGG as holding up national interests in the context of s. 132
4. Labour Conventions (PC, 1937)
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Split judgment on the validity of ILO conventions adopted by the federal govt. The feds
argued s.132 w/ analogy to Aeronautics and Radio, while the provinces relied on the
clear provincial authority over employment issues.
Context: Depression. Centralizing economic policies needed to address downturn.
o Beginning of social welfare programs and social safety nets
o Justifications for federal assertion of power: POGG in times of major economic
crisis, international obligations, trade and commerce powers
Decision: Dismissal of the POGG argument, and s. 132 argument
o REJECT that 91 empowered the federal legislature to enact such labour reforms
o No such thing as treaty legislation, look at what the matter that the subject is
o Introduces the notion of water-tight compartments: the exclusivist idea of
jurisdiction over certain subject-matter
5. The Employment and Social Insurance Act
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Federal attempt to legislate into the sphere of insurance (UE insurance) is rejected.
Such matters clearly fall under property and civil rights as said by the SCC and PC.
Decision upset lawyers and constitutional scholars as the provinces had agreed to give
UE insurance to the feds, the courts were too rigidly defining federalism.
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6. The Natural Products Marketing Act (’37)
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Fed regulation struck down as a violation of 92.13: property and civil rights
Reflective of the conservative nature of the PC, and how constitutional interpretation
had limited the fed power to kick start economic activity
Late 19th cent
Centralizing
Decentralizing
Russell (POGG)
Parsons (T&C, 92- P&C rights)
Hodge (coordinate sov.)
Local Prohibitions Ref (POGG)
1920s
1930-32
Bd of Commerce (T&C, POGG)
PATA (Crim power, POGG)
Aeronautics (s. 132, POGG)
Radio Ref (POGG, s. 132)
1937
Labour Conventions (s. 132, POGG)
Employ’t & Soc Insurance (POGG)
Natural Products (T&C, 92-P&C rights)
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vi.
Doctrines
a. Pith & Substance (validity)
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To understand the ‘matter’ to which the legislation addresses: ask what is the
mischief to which it is aimed
Where does it fit in the subject headings and general powers under the BNA Act, 1867…
Answering “what is the matter?” may involve looking at:
o Purpose of the legislation:
 Within the “4 corners” of the statute: Statutory context, looking at
legislation as a whole (intrinsic evidence)
 External to the “4 corners” (extrinsic evidence)
o Effects of the legislation:
 Effects of the law on the rights and liabilities of those it regulates
 Impact of legislation (extrinsic) – actual or predicted
i. R. v. Morgentaler (SCC, 1993)
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Facts: NS enacts Medical Services Act to restrict the ability of Morgentaler, well-known
pro-choice advocate, from opening mobile abortion clinics. Also legislates on other
medical procedures. Law challenged on constitutional basis.
Arguments:
o Crown: Within 92 (7:hospitals & 13:prop and civil rights & 16:local matters).
o Morgentaler:
 Violate women’s charter rights to security of person and equality
 Unlawful encroachment into criminal law jurisdiction
Decision: law found unconstitutional as it is criminal law in P&S
Reasoning by Sopinka: No valid evidence is presented that establishes that the act was
anything but a punitive response to Morgentaler’s abortion clinic proposal. Also the
regulation of abortion has traditionally been a criminal law matter.
o Colourability not mentioned due to the socio-political implications that such a
censure entails. BUT shapes analysis.
 This doctrine is invoked when “a statute bears the formal trappings
of a matter within jurisdiction, but in reality is addressed to a
matter outside jurisdiction”
 Maxim: “A legislative body cannot do indirectly what it cannot do
directly.” (Hogg)
ii. Reference re Employment Insurance Act(SCC,’05)
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Question over provisions in federal Employment Insurance Act, which dealt with
maternity and paternity leave and the support therein, received.
Quebec argued that this impugned provincial authority over insurance (Parsons)
SCC sided w/ feds and read the P&S to be replacement income and not insurance
o After the previous case of employment insurance during the depression the
constitutional amendment opens employment insurance to the feds
 Court expands 91.2A to make space for a social program
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o Quebec (AG) v Lacombe, (2010 SCC)
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Case involving provincial by-law restricting landing rights around a lake. The aerodrome
operator challenged the local ordinance; aeronautics is exclusive federal jurisdiction.
Finding by McLachlin: Law unconstitutional as it intrudes into federal jurisdiction.
Zoning law will need to be read-down as to not effect the aerodrome-landing site.
Double Aspect and Ancillary Doctrines
Means of accommodating overlap: ‘Classical water-tight compartments to modern flexibility’
 Mutual modification: reading in so as to logically avoid the overlap
o S.91 could say: regulation of interprovincial and intern’l trade and commerce
 Incidental affectation: the more important law is observed
 Double-aspect theory of interpretation: the challenged area legislated upon by either
o Necessarily Incidental Doctrine: Used in cases where the provision being
challenged is part of a larger scheme of legislation whose P&S is not contested.
 Permissibility of the encroachment depends how well the provision is
integrated into the legislative scheme
 Dominion paramountcy: federal laws take precedence
iii. Multiple Access Ltd. v. McCutcheon (SCC, 1982)
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Facts: Insider trading charges brought against Multiple Access. There are overlapping
provincial and federal laws on the matter. Defendants claim federal paramountcy
because the limitation period according to that statute had already elapsed.
Finding of Dickson: Applied double-aspect doctrine as laid out by Lederman to uphold
both provisions over the subject matter.
iv. General Motors of Canada Ltd. v. City National
Leasing (SCC, 1989)
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Facts: GM challenges a civil suit of price fixing by stating that the provision of the
Competition Act is ultra virus of federal jurisdiction.
Finding by Dickson:
o All legislation will necessarily effect the jurisdiction of the other government.
o Even though this particular provision is ultra vires, it is still valid as a vital and
remedial component of the larger scheme of the act
 Court upholds provision and legislation as a valid exercise of an
ancillary power
How the ancillary power analysis is built in and what does it mean to have a provision
essentially integrated into a legislative scheme?
o Intrusion into other jurisdiction is not indicative of unconstitutionality
o If the law can’t be justified in trenching on provincial jurisdiction incidental
effect serious enough to be challenged
18
Types of overlap

Incidental effects
o An impact of a law that is not the dominant characteristic
o The incidental effects rule applies where the main thrust of the law comes
within the jurisdiction of its enacting body, but the law has subsidiary effects
that cannot come within the jurisdiction of that body
o Generally permissible when legislation is otherwise valid under a P&S analysis
 Ex: criminal provisions prohibiting abortions outside of hospitals (pre
Morgantaler, 1988) had incidental effects on provincial jurisdiction
over hospitals, health services, and health professionals

Double aspect
o Concurrent jurisdictions (Hodge), viewed in relation to subject (Lacombe)
o Laws raising a double aspect come within the jurisdiction of their enacting
body, but intrude on the jurisdiction of the other level of government because of
the overlap in the constitutional division of powers.
o Generally permissible, unless there is a conflict (leads to paramountcy)
 Ex of no conflicts: regulation of dangerous driving under provincial
power over motor vehicles and federal power over criminal law
 Insider trading as a matter of provincial property & civil rights
and federal company law (91 – POGG) (Multiple Access)

Ancillary powers/necessarily incidental
o Applies where a particular provision is impugned within a legislative regime
that, when considered in isolation, appears to intrude on powers outside of
enacting body’s jurisdiction
o The ancillary powers doctrine concerns legislation that, in pith and substance,
falls outside the jurisdiction of its enacting body
o Permissibility dependent on “how well the offending provisions are
integrated into the [otherwise] valid legislative scheme”
 Permissible federal impact on provincial power over property & civil
rights: (power to create new civil causes of action) in General Motors
 Not permissible provincial impact on fed aeronautics power (Lacombe)
o General Motors -- approach to ancillary powers analysis
 1) Determine whether the impugned provision can be viewed as
intruding on provincial powers, and if so to what extent.
  If impugned provision doesn’t intrude, and leg regime is
valid, analysis is over
 2) Determine whether the regime is valid – i.e., P&S analysis.
  If legislative regime is not valid, analysis is over
 3) If legislative regime is valid, “the court must determine whether the
impugned provision is sufficiently integrated with the scheme”
  If sufficiently integrated, the provision will be valid. If not,
the provision will be invalid.
19
Inter-jurisdictional immunity (applicability)





Different from other doctrines which emphasize flexibility with overlap
o Interjurisdictional immunity emphasizes exclusive jurisdiction
o Doctrine invoked where no interference from other jurisdiction is permissible
o Often results in the reading-down of challenged laws
If law overstretches into exclusive head of power then overlapping law is inapplicable
o In paramountcy, overlapping law is inoperative
Logically you would go through interjurisdictional immunity test before getting to
paramountcy analysis (approach from Canadian Western Bank)
Scope of doctrine is quite narrow. Applies to federal undertakings
o Question of whether the feds control how these things are managed
o Example: regulation of Indian lands and territories
Criticism (from scholars like Prof Hogg)
o Inconsistent with the doctrinal approach to division of powers that
emphasizes flexibility
o From a policy perspective it seems unnecessary
 If they actually is a conflict we have paramountcy
o Courts argue that the constitutional calls for such a mechanism through the use
of the word ‘exclusivity’
20
v. McKay v. The Queen (SCC, 1965)



Facts: McKay convicted of violating municipal by-law that restricted his right to place an
electoral sign on his lawn during a federal election
Reasoning by Cartwright: the by-law cannot prohibit an activity that is permitted by
the Federal Parliament. No charter argument for freedom of expression made.
Dissent by Martland: cannot find any direct evidence that such a right to political
propaganda is enshrined in the constitution or other federal law. Sees it as a property
issue of the province. Didn’t use the language of interjurisdictional immunity.
vi. Bell #1 (1966) & #2 (SCC, 1988)

Bell #1 was about whether provincial labour laws applied to federally regulated
companies, and that answer was NO.


Facts: Do provincial health and safety standards apply to federal companies.
Reasoning by Beetz: Along the line of Bell #1, he decides that provincial regulation
simply cannot apply to an area of law exclusively within the federal powers- that
being the management and regulation of federal undertakings.
o Maintained “affect on a vital part” or “core” test from Bell #1
vii. Canadian Western Bank (SCC, 2007)



Facts: Essentially the bank doesn’t want to comply with provincial regime in regards to
banking regulations
Decision: there is no conflict of laws in relevance to the bank
Justice Binnie and LeBel lay out a revised more restricted approach to doctrine of
interjurisdictional immunity
o Takes the midpoint btwn “sterilization” and “mere effects” and creates test of
‘impairment of the core’
 Prov laws would be inapplicable/fed laws would be immune when the
prov laws impair the core of the federal exclusive leg powers
o Further reduce scope of immunity by saying doctrine should only apply
where precedent has already done so
viii. COPA (SCC, 2010)



Facts: Again about aeronautics. Provincial legislation isn’t banning the landing strip,
merely saying you need to get permission beforehand
Decision: Confirms scope reductions of Cdn Western Bank and persistence of doctrine
The Current Test:
o “The first step is to determine whether the provincial law trenches on the
protected “core” of a federal competence.
o If it does, the second step is to determine whether the provincial law’s effect on
the exercise of the protected federal power is sufficiently serious [i.e., causes
impairment] to invoke the doctrine of interjurisdictional immunity.”
21
b. Paramountcy (operability)




Paramountcy rule not in constitution b/c the exclusivity of s. 91 and 92 would suffice
Doctrine of federal paramountcy: provides that in a case of conflict between federal
and provincial law, fed is paramount and provincial law is inoperative (not invalid)
Key issue is how do you determine if a conflict exists:
o Narrow reading of conflict: use ‘express conflict’ and ‘impossibility of dual
compliance’ tests
 Where following one would be in breach of another? Can a person
comply with both pieces of legislation simultaneously?
o Broad reading of conflict: use ‘covering the field’ test or the ‘negative
implication doctrine’
 Does the provincial legislation frustrate Parliament’s purpose in
enacting the legislation?
Courts have shifted from a narrow interpretation to a broad interpretation nowadays
i. Ross v. Registrar of Motor Vehicles (SCC, 1975)





Facts: Ross charged with DUI. Judge orders his driving rights restricted but not
suspended in sentencing. Registrar of MV suspended his license anyway under the
provincial Highway Traffic Act. Ross took action that raised constitutional issue of
whether the provincial law was in conflict with the CC.
Decision: No conflict of laws. Both valid.
Reasoning by Pigeon J.: both laws restrictively cover the area designated to them. The CC
only deals with convictions in offenses related to driving, a realm which otherwise falls
entirely to the province. No application of paramountcy.
o No repugnancy made by the fact that the provincial regime is stricter.
Dissent by Judson and Spence: Highway Traffic Act provision is valid but inoperative
because it directly conflicts with the sentencing powers in s. 238 of the CC.
Note: Where the policy direction seems to point in the same direction the courts
generally don’t apply paramountcy
ii. Multiple Access v. McCutcheon (SCC, 1982)



Facts: Insider trading charges brought against Multiple Access. Nearly identical
overlapping provincial and federal laws on the matter. Defendants claim federal
paramountcy b/c the limitation period according to that statute had already elapsed.
Finding of Dickson: Applied double-aspect doctrine to uphold both provisions
Question of whether duplication was a kind of conflict?
o Dickinson argues against Lederman’s pov by saying that duplication is not
conflict because it does not cause an inconsistency
o Basis for the ‘express contradiction’ test
22
iii. Bank of Montreal v. Hall (SCC, 1990)





Facts: Hall, a farmer, defaulted on a loan from the BoM. In attempting to seize its security
asset according to the federal Bank Act, the BoM violated provisions of the provincial
Limitation of Civil Rights Act.
Decision: After flip-flopping in the lower courts, the SCC finds that the provincial law
limits the ability of the federal law’s purpose to be realized and thus finds a conflict
that requires an application of federal paramountcy.
Reasoning by La Forest: sees an operational conflict between the laws
Decisive question: whether the operation of the provincial act is compatible with the
federal legislative purpose? NO.
o ‘absent this compatibility, dual compliance (from Multiple Access) is impossible’
This was a broad definition of conflict, as there was no express contradiction, both
laws could in theory be applied to the situation and the security still taken by the bank
o But the two can be used together, so this is an expansion of the doctrine by
the court (note the judge’s discretion)
iv. Rothmans v. Saskatchewan (SCC, 2005)




Facts: Sask made the Tobacco Control Act that bans advertising from anywhere that
under-18s can go. It came after the federal Tobacco Act that regulated the marketing of
such products. The appellants take the province to court to make their law inoperative.
Decision: No conflict. Both laws upheld.
Reasoning:
o 1) Dual Compliance? Possible.
 The provincial law is designed to prohibit what the feds don’t.
o 2) Does the provincial law frustrate the purpose of the federal statute?
 Nope. Even the AG-Canada says so.
To understand whether the provincial law frustrates the purpose of the legislation one
must look at the mischief to which the legislation is intended to address
o Similar policy direction again mean no paramountcy used by the courts
23
Interjurisdictional Immunity v Paramountcy





Dickson J in Multiple Access speaks of his belief that overlaps are the basis of federalism
Binnie and LeBel in Cdn Western Bank see overlap as causing uncertainty. Paramountcy
as a means to address this
Beetz in Bell #2 addresses Dickson’s arguments. Overlaps have serious and
sometimes dangerous consequences because no one is essentially in charge
McLachlin in COPA. Judicially defined heads of power ensures predictability
Sum up of doctrines
o 1) is the law valid? Pith and substance, ancillary powers doctrine…
o 2) is the law applicable? Interjurisdictional immunity used to determine
whether the law will no impair on other authorities
o 3) is the law operative? Paramountcy deals with conflict
Order of Analysis
24
vii.
Focus on POGG, economic regulation, and criminal law
a. POGG
25






Russell and Board of Commerce seen as previous examples of the use of this method
Aeronotics decided under national concern doctrine
Two basis of description for POGG
o Broad GENERAL POWER
 Ideas that went into confederation. Strong confederation in contrast to
the divided US to the South.
o Narrow RESIDUAL POWER
Evolution of the use of POGG power
o 1) Gap filler (Limited application)
o 2) National Concern Doctrine: ‘must from its inherent nature be a concern of
the Dominion as a whole’
o 3) Emergency
Laskin CJ: Wanted flexibility from judiciary to allow effective govt policy responses to
problems [functional approach]
Beetz J.: Conceptual approach preserved exclusive areas of jurisdiction
i. Reference re Anti-Inflation Act (SCC, 1976)




Facts: Feds pass law to control inflation by regulating prices and wages. Reference to
determine whether a power not previously in the domain of the feds is justified because
of the ‘serious national concern’ (preamble) that the act purports to address.
Decision: Majority validated the act under POGG power.
o Laskin+3: Act valid under POGG via emergency branch, possibly supportable
under national concern but not decided
o Ritchie+2 concurring: Act valid, under POGG via emergency branch but NOT
under national concern.
o Beetz+1 dissent: Act is invalid, national concern doesn’t apply, no emergency.
Reasoning by Laskin:
o Two arguments:
 One related the subject to federal enumerated powers over trade and
commerce, currency, banking, etc…
 The other, to Canada Temperance. Not a local matter, but a national
matter of serious concern, amounts to an ‘emergency’
o Extrinsic evidence illustrate the dangers of inflation on the national economy as
a whole thus giving the legislation a rational basis
Dissent by Beetz:
o Upholds the emergency doctrine, but not for courts to decide.
o National concern:
 Doesn’t see a distinct legislative subject, inflation under clearly
enumerated powers of the province.
 Points to the waterfall effect to giving parliament control over subject
that isn’t residual.
 Even though this legislative regime is temporary, the
classification of subject-matter is permanent
26
ii. Crown Zellerbach Canada Ltd (SCC, 1988)





Facts: Defendant is charged with violation of Ocean Dumping Control Act due to log
dump maintained off the coast of VI. Lower courts find the provision of the act ultra vires
and dismissed the charges. Crown appeals under POGG, regardless of inert pollutants.
Decision: Appeal allowed. Federal provision deemed valid.
Issue: Can federal legislation regulate pollutants in provincial waters?
Reasoning by le Dain:
o Cites Inflation: ocean pollution national concern as it is marked by ‘singleness,
distinctiveness, and indivisibility’
o ‘Provincial inability’ test indicates likewise
 1) Negative extra-provincial externalities
 2) Collective action problems
 3) True provincial inability
o Cites the international character and implications of the Act in question.
Dissent by La Forest (w/ Beetz and Lamer):
o Focuses on the local nature of the operation in question, and the local
consequences of the log dump
o POGG power in this case can only be applied in an emergency or in waters
outside of provincial territory
o Warns of giving broad power over environmental control to the fed authorities
Le Dain’s 4 points
 1. The national concern doctrine is separate and distinct from emergency doctrine
 2. The national concern doctrine applies to both new matters which did not exist at
Confederation and to matters which, although originally local have since become
matters of national concern
 3. For a matter to qualify as a matter of national concern it must have a singleness,
distinctiveness and indivisibility that clearly distinguishes it from matters of
provincial concern
 4. In determining whether a matter has attained the required degree of singleness,
distinctiveness and indivisibility that clearly distinguishes it from matters of provincial
concern it is relevant to consider what would be the effect on extra-provincial
interests of a provincial failure to deal effectively with the control or regulation of
the intra-provincial aspects of the matter.
iii. Friends of the Oldman River Society (SCC, 1992)


Facts: Environmental group tries to force Alberta to get a proposed dam project
approved under the federal environmental review process. Lower courts dismiss.
Decision: Appeal to the SCC dismissed.
Reasoning by La forest:
o Unlike Crown Zellerbach this case has no international dimensions thus can’t be
characterized as a national concern. Since the environment is not clearly a
federal matter, there is no problem with the province handling the local aspect.
27
Economic Regulation


Remembering the motivations behind confederation:
o Economic union a key motivating factor
o S.121 sets up idea of a common market
o S.91 (2) big, bold, and broad powers to the feds over trade and commerce
Parson (1881, PC)
o Regulation of particular trade within the province is a provincial concern.
o Fed T&C power limited to interprovincial and international trade as opposed to
general regulation of trade, and “may” include general regulation of trade
affecting the whole dominion
Provincial
1. Black v. Law society of Alberta (SCC, 1989)


Facts: Rules restrict partnerships b/w resident and non-residents, found to violate
Charter s. 6(2)b – right to pursue livelihood in any province.
Decision: La Forest J. affirms the intent of the framers of the Constitution to create
a national economy comparable today to a common market. The Charter now gives
the court a means of striking down such rules that endanger the mobility rights of all.
2. Canadian egg marketing agency v.
Richardson (SCC, 1998)



Facts: federal egg regulations did not include producers like the respondent in NWT
cause eggs weren’t produced there when the law came into force. Case dismissed.
Majority: characterized s. 6 – mobility rights guarantee, as a human rights objective, and
thus cannot be challenged on the notion of discrimination to out-of-province producers.
Dissent by McLachlin: called the majority senseless as these provisions clearly violated
the economic rights of NWT producers guaranteed to them through s. 6.
3. Carnation Co. Ltd. v. Quebec Agricultural
Marketing Board (SCC, 1968)



Facts: Carnation not happy with the high prices set by the Marketing Board, accuses the
Board of effectively regulating a product that is destined to go out of province.
Issue: Is the marketing board decision ultra vires?
Appeal dismissed against provincial board on the grounds that it doesn’t matter if it is
regulating produce that mostly ends up out of province, if the production is all in
province than the extra-provincial effects are merely incidental
o Regime is not dominantly aimed at regulating good for exports (incidental
effects), it is intended to affect local milk production
28
4. AG Manitoba v. Manitoba Egg and Poultry
Association (SCC, 1971)

Facts: Interprovincial egg and chicken war legislation found ultra vires as it extended
into federal realm of interprovincial trade
o Although regulates sale and mkting of products wholly in the prov, reg is aimed
at imports from other provinces
o No functional difference with Carnation, odd contrasting results
o Court finds it unconstitutional because in pith and substance is to address the
extra-provincial effects
5. Re Agricultural Products Marketing Act
(SCC, 1978)



Provincial act to try harmonize interprovincial egg trade found intra vires as it regulated
provincial matters
o Question that comes forward in the case, is the Ontario egg producers who
argues that the regulation is unfair
Looks at Carnation and says this realm is the province’s
o Court distinguishing between marketing and production
o And rules that production is provincial
Scheme involves a national agency regulating eggs
o Inter-delegation between the federal and provincial governments
o Set quotas and prices for export and local production
6. CIGOL v. Saskatchewan (SCC, 1978)



Following oil price boom Sask places taxes on mineral extraction, which are found to be
indirect taxes that can only be enacted by the federal govt. Ultra vires.
A majority of the oil is used outside of province; relevant to what is being regulated
According to the majority: they are basically trying to set the price for export
o But as a country Canada at the time was trying to avoid those international
prices through domestic production
o At its base, the court is ignoring the economists to ensure the policy
objectives of Canada in regards to oil prices
7. Potash v. Sask (SCC, 1979)



Provincial licensing scheme found to be ultra vires because in P&S it was meant to
regulate interprovincial and international commercial activity
Like CIGOL, it’s a product mostly aimed for export
o Object here again to regulate export price
Notes s. 92A: Grants provinces additional powers over natural resources
29
iv. Federal


Parsons establishes “two branches” of the federal Trade & Commerce power:
o 1) the power to regulate interprovincial and international trade, and
o 2) the power to regulate ‘general’ trade.
Privy Council decisions confirm narrow view of federal T&C, under both branches:
o Board of Commerce (1922): T&C does not support anti-combines legislation.
o Natural Products Marketing Act Reference (1937): T&C does not support a
marketing scheme were products were principally or in part aimed at markets
outside of the province of production because it covered some transactions that
were completed within the province.
1. Regulation of Interprovincial and
International Trade


See application of ‘necessary incidental’ doctrine in relation to the trade and
commerce power, allowing federal reg over Interprovincial and International Trade
Applies when goods move across borders; picks up on the issue of defining the line btwn
91(2) and 92(13)
a. The Queen v. Klassen (Man CA, 1960)



Facts: grain operator found in violation of Canada Wheat Board provisions. But his grain
was never intended for anything but local use. Appeals the conviction.
Decision: Appeal dismissed. Federal regulation inter vires.
Reasoning:
o ‘incidental’ effects on property and civil rights acceptable in the broader
picture of regulating produce that could be exported
 P&S is not intra-provincial
o The dominant purpose of the scheme was aimed at the regulation of
interprovincial trade and export of grain.
o Ancillary powers doctrine used to uphold the scheme.
b. Caloil Inc. v. AG Canada (SCC, 1971)



Facts: Fed law that limits the importation of oil challenged by an oil company that had its
license application rejected.
Decision: Federal law upheld
Reasoning:
o Imported products are international trade issues under federal regulation
o Confirmed Klassen in upholding legislation that affected intra-provincial
transactions but with a dominant purpose of addressing the control of
imports to achieve extra-provincial trade policy
 Again, ancillary powers doctrine used to uphold the scheme.
30
c. Dominion Stores Ltd. v. The Queen
(SCC, 1980)



Facts: Feds try to go after apple producer for compromising on Canada Agricultural
Standards Act. But his apples were only intra-provincial, and there did already exist
provincial regs to look over such things.
Decision: By 5-4 fed regs found ultra vires
Reasoning:
o Provincial regulation should cover this area of the law
o The part of the federal legislation that affected intra-provincial sale of
agricultural products (apples) through voluntary adherence to standards
governing extra-provincial trade is found to be invalid.
2. General Regulation of Trade



Expansion of necessary incidental doctrine still meant goods needed to move across
provincial or national boundaries for courts to enforce federal reg
General regulation of trade test demands court find a national interest at stake
o Not about regulation of specific commodities or products or business but does
address intra-provincial trade.
Issues regarding when the “general” branch might be invoked to justify federal
legislation answered by approach set out in General Motors
o Some similarity in concerns and approach as are addressed in the
“national concerns” branch of POGG.
a. Labatt Brewers of Canada v. AG
Canada (SCC, 1980)





Facts: Alcohol producer challenges validity of Food and Drugs Act.
Decision: upheld for the plaintiff. Act ultra vires as to liquor (single industry)
Reasoning;
o Doesn’t qualify under the interprovincial or international trade
o Nor does it qualify under the general trade power. Not a national concern
Dissent by Laskin:
o Cites general trade power to enforce uniform standards over the entirety
of the economic union
Federal powers to address such standards relegated to criminal law (public safety,
health). Commercial aspects –protection of consumers – beyond federal T&C power.
b. GM Canada v. City National Leasing
(SCC, 1989)



Facts: Action taken against GM in a civil suit permitted by the Combines Investigation Act
(Fed reg). GM alleges that a civil cause of action has to do with property and civil rights
and is ultra vires of fed powers.
o Revisits federal powers to legislate anti-combines/competition law rules
(rejected as falling under T&C in Board of Commerce; allowed under criminal
law power in PATA)
Decision: Legislation upheld as valid under general trade and commerce power
Reasoning:
31
o
o
o
Reasons that the limited encroachment on provincial power is permissible
Sets out 5 criteria for determining whether general branch of T&C applies
 (1) Presence of a general regulatory scheme;
 (2) Regulatory scheme is overseen by a regulatory agency;
 (3) Legislation is concerned with trade as a whole rather than a
particular industry;

(4) Legislation is of a nature that the provinces jointly or severally
would be constitutionally incapable of enacting;
 (5) Failure to include one or more provinces or localities in the
legislative scheme would jeopardize the successful operation of the
scheme in other parts of the country.
The provision in question fulfilled the ‘functionally related’ test and is thus
sufficiently integrated (ancillary powers doctrine)
c. Kirkbi AG v. Ritvik Holdings Inc. (SCC,
2005)



Facts: Kirkbi takes Ritvik to court for the tort of ‘passing off’ as described under the
Trademark Act. Defendant claims the civil remedy the act suggest makes it ultra vires.
Decision: Legislation upheld on similar grounds to GM v. CNL
Reasoning:
o Minimal intrusion onto provincial powers (ancillary powers doctrines)
 Sufficient integration of questionable provision
b. Criminal law


Balance between allowing the federal power enough leeway to effectively execute its
duty, and not encroaching upon provincial jurisdiction
Older cases related to Criminal law:
o PATA (1931): Atkin explicitly undoes what established in Bd of Commerce
case. Criminal law requires penalties
o Margarine (1949): add another element to the PATA criterion
 Criminal law needs to address ‘typically criminal purpose’
i. Federal
1. Margarine Reference (SCC, 1949)





Facts: Feds ask SCC if a law creating barriers to the importation of butter is permissible
Decision: Court rejects the arguments presented by the Feds to defend the act under
criminal law power. Ultra vires
Reasoning by Rand J:
o Doesn’t appear to have to do with criminal jurisdiction
o Has form w/ prohibition and penalty, but no underlying public purpose for
criminal sanction
o Fundamentally deals with property and civil rights
 Pith and substance used to find out the act is about regulating an
industry and not about criminal law
Case departs from PATA by narrowing the criminal law power
Margarine reference test= A valid criminal law purpose; i.e., public peace, order,
security, health, morality & form (prohibition + penalty)
32
2. RJR MacDonald Inc. v. AG Canada (1995)




Facts: Big Tobacco challenges constitutionality of the Tobacco Products Control Act.
Decision: SCC finds it intra vires of criminal law power, but provision restricting
advertising are in violation of charter guarantee of freedom of expression.
Reasoning by La Forest;
o Uses form and purpose test from Margarine
 Form is easy. Purpose to tackle public health evil of smoking
o Criminal law power over health matters is broad, especially in regards to
dangerous goods
o Rejects plaintiff argument about traditional criminal law realm on the basis that
criminal law is adaptable (‘not frozen in time’)
Dissent by Sopinka J:
o Deems tobacco use a ‘lesser threat to society’, not warranting the exercise of
criminal law power
o The underlying evil that the act purports to battle, is still legal – an absurdity
considering the rationale behind the act
o Describes form as a regulatory measure designed to reduce consumption
3. R v. Hydro-Quebec (SCC, 1997)





Facts: Hydro challenging charges laid by the Feds from the Environmental Protection Act.
Decision: Narrowly found valid application of criminal law
Reasoning by La Forest:
o Pollution is an evil that Parliament are addressing (public purpose)
o Environmentalism described as a national value that the Feds must uphold
through criminal law
Dissent by Lamer and Iacobucci:
o While a legitimate public purpose, the so-called prohibitions backed by
penalties act more like regulations
o No intent to prohibit use of toxins, it merely regulated use
Again the form requirement is more contentious here: dissent says the complexity
and importantly the discretion of administrative agents makes this a regulatory scheme
4. Reference re Firearms Act (SCC, 2000)





Facts: tough new gun control legislation is challenged by Alberta. Gun registry and other
provisions critiqued as regulatory measures
Decision: Legislation upheld as valid use of criminal law power
Reasoning:
o Here, purpose was easy. But form was challenging
o Complexity does not mean its not criminal in nature
o Ban is indirect like RJR MacDonald. Not banning firearms, but rather restricting
their use and distribution.
o Court says like Hydro Quebec, the complex form is not an issue
Regulatory effects incidental, as P&S is criminal law. Not a severe intrusion
Province can still regulate gun ownership (double-aspect doctrine)
5. Reference Re Assisted Human Reproduction

Act regulates new technologies in respect to reproductive health issues
33

Court rules legislation is ultra vires as it is in P&S intended to deal with medical matters
o Appeal pending
ii. Provincial power to regulate morality and public order
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92(14) implies that the federal CC is provincially enforced
Conditional legislation enacted by feds to allow input to adapt law to local issues
o Concurrent jurisdiction over certain subject matter (double-aspect)
1. Re Nova Scotia Board of Censors v. McNeil
(SCC, 1978)
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Facts: NS Act creates Board to issue permits to screen films. Also includes power to
penalize for showing films without a permit. Challenged.
Decision: NS SC finds it ultra vires. But in appeal to SCC it is found as valid legislation.
Concurring by Ritchie:
o Act falls under 92(13) in regulating the local film industry
o Morality is not always co-extensive with criminal law
o Penal provision not central to the act
o Provincial purpose: local standards in local transactions
Dissent by Laskin:
o Regulating morality cannot be separated from the criminal law – addressing a
‘public evil’
o The form of criminal law is evident as well
2. Dupond v. City of Montreal (SCC, 1969)
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Facts: Bylaw restricted ability of citizens to organize demonstrations. Penalties included
Decision by Beetz: Found intra vires of municipalities to regulate the public domain.
Provincial purpose – local matters; preventative rather than punitive
Dissent by Laskin: alarmed at disregard for civil liberties in both Dupond and McNeil.
3. Westendorp v. The Queen (SCC, 1983)
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Facts: Plaintiff charged on Calgary bylaw for the solicitation for prostitution. Challenges.
Decisions: After flip-flops at the lower courts, the SCC decides the by-law was ultra vires
the municipality’s jurisdiction
Reasoning by Laskin:
o Disagrees that double-aspect doctrine could apply to this area
o Simply too similar to the CC provisions dealing with these very matters
o Colorable legislation: meant to deal with peace on the streets, but in P&S
addresses criminal matters
4. Rio Hotel Ltd v. New Brunswick Liquor
Licensing Board (SCC, 1978)
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Facts: Liquor Board restricted licenses to strip bars. Hotel owner challenged on
constitutionality considering the relevant provision of the CC.
Decision: Provincial legislation upheld
Reasoning by Dickson:
o Distinguishes the provincial provisions and the CC provisions dealing with the
regulation of strip bars. ---- Matter is local in nature
o Applies the double-aspect doctrine
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Doesn’t see the legislation as penal, in pith and substance connected to
regulatory procedures related to liquor licensing
5. Chatterjee v. Ontario (AG) (SCC, 2009)
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Facts: Provincial statute, Civil Remedies Act, adding a consequence that may occur under
the CC: forfeiture of proceeds of crime. Laws related to seizure of property acquired by
criminal means. Challenged.
o Province argue that they should be able to recoup cost since they are
responsible of enforcing criminal law
Provincial purpose (admin of criminal justice) in recouping costs, deter crime;
significant dbl aspect
Decision: Found intra vires with ‘valid provincial objectives’
viii. Beyond the courts – the spending power, agreements
and politics
Reference re Canada Assistance Plan (BC) [SCC, 1991]
 Facts: Feds trying to limit funding of provincial programs they agreed upon in ‘have’
provinces (those that do not receive equalization payments). BC checking validity of the
move. Challenging federal autonomy over spending power.
 Decision: BC’s consent needed for changed to agreement
 Reasoning by Sopinka: Uses interpretation act to deduce that the law carried with it
contractual obligations
 Limitation on CAP unconstitutional because it resulted in regulation of a head of
power outside of federal jurisdiction
 Court rejects limitations on federal spending policy
o Agreements made between the feds and province cannot restrict the
sovereignty of parliament (which decided to adjust the budget)
Coughlin v. Ontario Highway Transport Board (SCC, 1968)
 Facts: Plaintiff takes action against provincial Board which parliament has imbued with
federal powers via statute. (Delegation issue)
 Decision: Constitutionality upheld
 Reasoning: Parliament as sovereign can delegate its authority to other bodies
 Dissent: exclusive powers of parliament cannot be granted to provincial bodies. Goes
counter to the BNA Act and thus unconstitutional.