CANADIAN CONSTITUTIONAL LAW 2004-2005; PROF. MARK ANTAKI
Summary by Kirk Shannon adapted from Derek McKee’s 02/03 summary
INTRODUCTION ....................................................................................................................... 3
Constitutional Principles ................................................................................................................. 4
Jean-François Gaudreault-DesBiens, “The Quebec Secession Reference…” (CBp.57) .................................................. 4
Reference re the Secession of Quebec............................................................................................................................ 4
Four principles .....................................................................................................................................................5
Legitimacy ...........................................................................................................................................................6
Executive and Legislative Powers and the Rule of Law ................................................................ 6
Rule of Law..........................................................................................................................................................7
Parliamentary Supremacy ...................................................................................................................................8
Rule of law tied to Parliamentary Supremacy .....................................................................................................8
Roncarelli v. Duplessis, [1959] SCR 121. ......................................................................................................................... 8
The Judiciary .................................................................................................................................... 9
Judicial Review and the rule of law .....................................................................................................................9
Judicial Independence .........................................................................................................................................9
Judicial Review Constitutionally Guaranteed ......................................................................................................9
Legitimacy of Judicial Review and Constitutional Interpretation ...................................................................... 10
Robin Elliot, “References, Structural Argumentation and the Organizing Principles of Canada's Constitution” (CBp.32)
....................................................................................................................................................................................... 10
Reference re Meaning of the Word “Persons” [1928] SCR 276./Edwards v. A.G. Canada [1930] A.C. 123 (H.L.)
(CBp.41) ......................................................................................................................................................................... 10
Section 96 and Administrative Tribunals .......................................................................................................... 11
Labour Relations Board of Saskatchewan v. John East Works Ltd. ............................................................................... 11
Reference re Residential Tenancies Act ........................................................................................................................ 12
Sobeys Stores Ltd v. Yeomans and Labour Standards Tribunal .................................................................................... 13
Ref re Amendments to the Residential Tenancies Act (NS) ........................................................................................... 13
McEvoy v. Attorney Gen of NB and Attorney Gen of Canada ........................................................................................ 13
Ref re Young Offenders Act (PEI) .................................................................................................................................. 14
Crevier v. Quebec Attorney Gen .................................................................................................................................... 14
FEDERALISM ......................................................................................................................... 15
Historical Chapters in Canadian Federalism ................................................................................ 15
The Late Nineteenth Century ........................................................................................................................... 15
Citizens Insurance Company v. Parsons (1880-1881), (CB p.90) .................................................................................. 15
Russell v. The Queen (1882), 7 AC 829 (PC) (CB p.97) ................................................................................................ 16
Hodge v. The Queen (1883), 9 AC 117 (PC) (CB p.101) ............................................................................................... 16
AG Ontario v. AG Canada (The Local Prohibition Reference) [1896] AC 348 (PC) (CB p.107) ..................................... 17
The Compact Theory (CBp.114) .................................................................................................................................... 17
The Early Twentieth Century ............................................................................................................................ 17
Reference re Board of Commerce Act and Combines and Fair Prices Act (1920-1922) (CB p.127).............................. 18
Fort Frances Pulp and Paper Company v. Manitoba Free Press Company [1923] (CB p. 132) ..................................... 18
Toronto Electric Commissioners v. Snider (1925) (CB p.137) ........................................................................................ 18
The King v. Eastern Terminal Elevator Co. [1925] (CB p.141) ....................................................................................... 19
H.E. Smith, “The Residue of Power in Canada,” (1926) (CBp.146)................................................................................ 19
J.R. Mallory, “Social Credit and the Federal Power in Canada,” (1954) (CBp.147) ........................................................ 19
Alan Cairns, “The Judicial Committee and its Critics,” (1971) (CBp.149) ....................................................................... 20
The Depression and the “New Deal” ................................................................................................................ 20
W.F. O’Connor, The O’Connor Report (1939) (CBp.183) ............................................................................................... 20
Proprietary Articles Trade Association v. AG Canada (1929-1931) (CB p.155) ............................................................. 20
Reference re the Regulation and Control of Aeronautics in Canada (1930-1932) (CB p.157) ....................................... 21
Reference re Regulation and Control of Radio Communication in Canada (1931-1932) (CB p.160) ............................. 21
A.G. Canada v. A.G. Ontario (Labour Conventions) (1936-1937) (CB p.168) ................................................................ 21
AG Canada v. AG Ontario (The employment and Social Insurance Act) ....................................................................... 22
F.R. Scott, “The Consequences of the Privy Council Decisions” (1937) (CBp.181) ....................................................... 22
AG B.C. v. AG Canada (The Natural Products Marketing Act) [1936] ............................................................................ 22
Federalism and the Modern Canadian State ................................................................................. 23
1
Richard Simeon, “Criteria for Choice in Federal Systems” (CBp.198) ............................................................................ 23
Bruce Ryder, “The Demise and Rise of the Classical Paradigm” (1991) (CBp.237) ....................................................... 23
Interpreting the Division of Powers ............................................................................................... 24
Validity: Pith and Substance............................................................................................................................. 24
R v. Morgentaler [1993] 3 SCR 463. (CB p.213) ............................................................................................................ 24
Katherine Swinton, “The Anatomy of Constitutional Interpretation” (1990) (CBp.205) ................................................... 25
W.R. Lederman, “Classification of Laws and the British North America Act” (1981) (CBp.208) ..................................... 25
Validity: Necessarily Incidental or Ancillary ...................................................................................................... 25
General Motors of Canada Ltd. v. City National Leasing [1989] 1 SCR 641. (CB p.225&371) ....................................... 26
Validity: Double Aspect .................................................................................................................................... 26
Multiple Access Ltd. v. McCutcheon [1982] 2 SCR 161. (CB p.232 and p.260) ............................................................. 26
W.R. Lederman, “Classification of Laws and the British North America Act” (1981) (CBp.231) ..................................... 27
Applicability: Interjurisdictional Immunity .......................................................................................................... 27
McKay v. The Queen, [1965] SCR 798. (CB p.242) ....................................................................................................... 27

Reading down ................................................................................................................................................................. 28
Commission de la Santé et de la Sécurité du Travail v. Bell (Bell #2) [1988] 1 SCR 749. (CB p.246) ........................... 28
Irwin Toy Ltd. v. Quebec (AG) ........................................................................................................................................ 28
Operability: Paramountcy ................................................................................................................................. 29
Ross v. Registrar of Motor Vehicles, [1975] 1 SCR 5. (CB p.255).................................................................................. 29
Multiple Access Ltd. v. McCutcheon [1982] 2 SCR 161. (CB p.232 and p.260) ............................................................. 29
Bank of Montreal v. Hall, [1990] 1 SCR 121 ................................................................................................................... 30
Peace, Order and Good Government ............................................................................................ 31
Monahan on POGG (pp.255-273) .................................................................................................................................. 31
Reference re Anti-Inflation Act, [1976] 2 SCR 373. (CBp.281) ....................................................................................... 31
Katherine Swinton: Laskin and Beetz (CBp.276)............................................................................................................ 33
The Beetz-Lederman Thesis (Monahan, p.266) ............................................................................................................. 33
R. v. Crown Zellerbach Canada Ltd., [1988] 1 SCR 401. (CBp.303) .............................................................................. 33
Friends of the Oldman River Society v. Canada (Minister of Transport), [1992] 1 SCR 3. (CBp.318) ............................ 34
Economic Regulation ..................................................................................................................... 35
Provincial Powers over Economic Regulation .................................................................................................. 35
Carnation Co. Ltd. v. Quebec Agricultural Marketing Board [1968] SCR 238. (CBp.330) .............................................. 35
Manitoba Egg Reference (1971) (CBp.334) ................................................................................................................... 35
Burns Foods Ltd. v. AG Manitoba .................................................................................................................................. 36
Re Agricultural Products Marketing Act .......................................................................................................................... 36
Canadian Industrial Gas and Oil Ltd. v. Govt. of Saskatchewan [1978] 2 SCR 545. (CBp.345) .................................... 37
Central Canadian Potash Co. Ltd. v. Govt. of Saskatchewan [1979] 1 SCR 42. (CBp.350)........................................... 38
Federal Powers over Economic Regulation ..................................................................................................... 38
1. Interprovincial / International Trade ...................................................................................................................................... 39
The Queen v. Klassen (1960), 20 D.L.R. (2d) 406 (Man.C.A.). (CBp.357) ..................................................................... 39
Caloil Inc. v. A.G. Canada [1971] SCR 543. (CBp.361) ................................................................................................. 39
Dominion Stores Ltd. v. The Queen [1980] 1 SCR 844. (CBp.362)................................................................................ 40
2. GENERAL BRANCH OF T&C ............................................................................................................................................ 41
Labatt Breweries of Canada Ltd. v. A.G. Canada [1980] 1 SCR 914. (CBp.366) ........................................................... 41
General Motors of Canada Ltd. v. City National Leasing [1989] 1 SCR 641. (CB p.225&371) ....................................... 42
Criminal Law ................................................................................................................................... 43
Federal Powers over Criminal Law .................................................................................................................. 44
Margarine Reference, [1949] SCR 1. (CBp.390) ............................................................................................................ 44
RJR MacDonald Inc. v. Canada (Attorney General), [1995] 3 SCR 199. (CBp.392) ...................................................... 45
R. v. Hydro-Québec, [1997] 3 SCR 213. (CBp.400) ....................................................................................................... 45
Reference re Firearms Act, [2000] 1 SCR 783. (CBp.413) ............................................................................................. 46
Provincial Powers over Criminal Law ............................................................................................................... 47
Re Nova Scotia Board of Censors v. McNeil, [1978] 2 SCR 662. (CBp.416) ................................................................. 47
Westendorp v. The Queen, [1983] 1 SCR 43. (CBp.421)............................................................................................... 48
Rio Hotel Ltd. v. New Brunswick Liquor Licensing Board [1987] .................................................................................... 48
2
INTRODUCTION


According to s.52 [CA1982], “The Constitution of Canada is the supreme law of Canada, and any law that is
inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect.”
The preamble to CA1867 lacks any inspiring language—it talks only of a union of colonies with a constitution
“similar in principle to that of the United Kingdom”; it talks of the “welfare of the provinces,” the “interests of
the British Empire.” The preamble to CA1982 is equally uninspiring.
1) Constitutional Law  turned to the words
 Id of key words in latin
o Latin – Stare – To stand –
o Caused to stand  The state is caused to stand
o Look at CONstitution. To mean together – to stand together [Con is descriptive in and of itself
(vs. restitution or institution) ]
o Different words for types of laws must also be examined (droit vs. loi, gesetz vs. rechts, law)
 Written vs unwritten
o What is meant to be written into the constitution? Many things that are important are not.
 A constitution does not “set up the framework” - “It is the framework.”
 Presupposition that ‘it’ is written. Need not be written.  Not all countries necessarily
have written constitution but rather may rely on a group of principles that ARE a
constitution (UK).
 Writings just capture those rules that (at one point) already govern our interaction
 When you write down a constit. it becomes a super-legality  entrenched in framework.
Must investigate how to change it.
 See secession Ref summary (para 54)
 Constitution vs. Limitation (How do these two relate?)
o What is Con Law
 Limitations placed on Gov’t (expressed in the language of rights)
 Balance of rights of citizens
 Recourse given, right to a remedy
 Sovereignty/federalism
 Framework
 Freedom from something and rights to something.
 An obiligation tends to be a carollarie
 See Secession Ref summary below (para 56)
2) CCL: Ch 1
Defn of Constitutional Law: An open-ended set of rules, principles and practices that represent efforts to
identify, define and reconcile competing rights, responsibilities and functions of gov’ts, communities and idivids
 The consit of a society is an assortment of important rules, principles, and practices relating to the
governance of society. - Constit’s deal with the structures, procedure and powers of governmental instits and the nature and scope
of individual rights and responsibilities in the face of public power.
Four features of Canadian constit.: 1) parliamentary democ, 2) federalism, 3) individ and group rights and 4)
Aboriginal rights.
 The rule of law is another element of the constit.
Sources of the CDN Constit: the common law (found in statutes, others in conventions that are not legally
enforceable, but are followed)
 Supreme court created in 1875 – 1949, Brit Privy Council was no longer the highest body.
3
Constitutional Principles
Principle: something that comes first
CDN Constit not a typical Democratic Document  not on the face of it, not “we the people…” -- different
rhetorical form from other democratic constitutions
 The constitution includes:
 contitutional texts
 quasi-constitutional statutes
 constitutional conventions (the existence of which lends support for the notion of “unwritten principles)

Quebec Secession Reference: “legality and legitimacy are linked”
Jean-François Gaudreault-DesBiens, “The Quebec Secession Reference…” (CBp.57)
 Gaudreault-DesBiens says that the QSR turns on conflicting notions of history and memory,
especially memory as intertwined with the identity narrative of the community. Gaudreault-DesBiens
says that one cannot seriously approach constitutional interpretation while ignoring these narratives.
This leads him to three observations:
1. Identity narratives are material and legitimate, and courts should be open to them.
2. This does not mean that courts should accept mythologies uncritically.
3. Narratives are often contested within a community.
Reference re the Secession of Quebec
[1998] SCC
Facts:
Decision:
 The court unanimously found that the case was
 Questions asked – 1) Under constit of
Canada, can quebec seced unilaterally
justiciable, and went on to rule that neither the
Canadian constitution nor international law
 2a) Does international law allow for unilateral
provided for Quebec’s unilateral secession.
secession?
However, it also found that in the event that a clear
 2b) is there a right to self determination that
majority of Quebeckers voted “yes” to a clear
under international law that would give the
question about secession, the federal government
national assembly, legislature or gov’t of Que
and the other Canadian provinces would be obliged
the right to affect the secession of Quebec
to negotiate constitutional changes with Quebec.
unilaterally
Ratio:
 3) Conflict between international and
 Dealing with Justiciability of courts in this reference
domestic law
first. (see 2nd page of the handout)
Issues:
 Objections to questions being too theoretical or
 Justicibility  is a ruling by this court within
speculative  acting in an advisory role only,
purview of the court and is the court constituting
question are able to be interpreted and are not too
itself as an international court
vague. There is enough information to produce
 Constitutionality  Is s.53 of the supreme court
opinion
act Constitutional? Original jurisdiction allowed by

Too political in nature  questions and answers
showing that a court of appeal has done it before.
confined to legal framework
If shown then s. 53 stands.
 Constitutional principles: Federalism, democracy,
 Legality  Do these questions fit under s. 53?
constitutionalism and the rule of law, respect for
 Ripe for consideration?  speculative, political
minority rights
nature,?
 Quebec must enter negotiations after a referendum
 Can Quebec Gov’t or head of gov’t or legislature
on a clear question with a clear majority (up to
secede unilaterally
political actors to decide what clear means)
 Recognition by international law should it decide
to secede unilaterally
McKee Raito: There was no explicit answer in the text, so the SCC used a structural approach. It began by
giving a potted history of Confederation, emphasizing its voluntary nature, the balancing of regional interests,
and how the federal-provincial arrangements had been devised. It said, “The vision of those who brought about
Confederation was to create a unified country, not a loose alliance of autonomous provinces.”
4
It then went on to describe four “underlying principles,” which it called the “lifeblood” of the constitution (it said
this list was not exhaustive):
 federalism: The SCC applauds both the “democracy” and “community” aspects of federalism, noting how it
has given Quebec significant autonomy.
 democracy: The SCC says that democracy means more than majority rule; it has an “institutional” and an
“individual” aspect. It drew on the principles laid out in Oakes.
 constitutionalism and the rule of law: “The law is supreme over the acts of both government and private
persons. There is, in short, one law for all.” There needs to be an order of positive law which reflects the
normative order. And the relationship between the state and the individual must be regulated by law.
Constitutions are entrenched beyond the reach of simple majority rule in order to safeguard human rights,
protect minorities against assimilation, and divide power between different levels of government.
 respect for minorities: The fact that many of Canada’s regimes for protecting minority rights arose out of
historical compromises does not detract from the principle behind them. Although “Canada’s record of
upholding the rights of minorities is not a spotless one,” it has been the goal all along.
The court emphasized also that none of these principles is absolute to the exclusion of the others.
Notes:
 [para 53] A written constit promotes legal certainty and predictability, and it provides a foundation and a
touchstone for the exercise of constitutional judicial review
 [para 54] in the process of constit adjudication, the court may have regard to unwritten postulates which
form the very foundation of the constit of Canada
 [para 56] it is up to the courts to control the limits of the respective sovereignties (ie provincial and
federal legislatures)
Discussion of rules and values (they are not interchangeable even though the court uses them interchangeably)
Four principles: (in para 49) Four principles are unwritten and “no single principle can be defined in isolation
from the others”. They function in symbiosis. No one trumps or excludes the operation of another
 All first – how can all be first?
 All unwritten
 1) Democracy: demos -‘the people’
 (either direct–rule themselves – or indirect-rule by elected)
 Still distinction b/n ruler and ruled.
 Majority rule (procedures that will allow will of majority to be identified)
 Self-limitation  brings us to rule of law, constitutionalism
 Cannot exist without the rule of law (para 67 Secession ref)
 2) Federalism:
 - separation of powers  not clear where ultimate sovereignty resides.
 different jurisdictions
 3) Constitutionality and the Rule of Law:
 Constitutionalism and amendments thereof must be performed by an ‘enhanced majority
(para 77 sucessions ref.)
 4) Protection of Minorities:
Constitutional Principles
Four Principles are presupposed and therefore unwritten. They are “similar in principle of the UK constit” which is
unwritten and are “Vital unstated assumptions upon which the text is based” (para 49). There is an idea of a
‘basic constitution structure’ – individual elements of the constitution are linked to one another and must be
interpreted in reference to one another (para 50). The Reference also spoke of touchtones of written constit, eg.
preamble to constit, 1867
 What are points of contact b/n unwritten principles and written statutes of the constitution
5
Legitimacy
A social science concept  A popular belief in an individ’s claim to a certain position
o Moral values, legality
o Validity, arbitrary
Para 67 as a ref point in Succession Ref.
“To be accorded legitimacy, democratic institutions must rest, ultimately, on legal foundations. That is, they must
allow for the participation of, and accountability to, the people, through public institutions created under the
constitution. Equally, however, a system must also possess legitimacy, and in our political culture, that requires
an interaction b/n the rule of law and the democratic principle. The system must be capable of reflecting the
aspirations of the people. But there is more. Our law’s claim to legitimacy also rests on an appeal to moral
values, many of which are imbedded in our constitutional structure. It would be a grave mistake to equate
legitimacy with the “sovereign will” or majority rule alone, to the exclusion of other constitutional values.
Political power might be a form of legitimacy
- Parl Supremacy, and grounds for it and Parl allows for discussion, ideas (liberalism or exchange of
ideas).
Executive and Legislative Powers and the Rule of Law



The fact that executive power is “vested in the Queen” (s.9, CA1867) is misleading. “The Crown” includes the
queen, the governor-general, the prime minister, the cabinet, the civil service, the armed forces, the police: all
of the executive branch.
 The Crown has constitutional powers as well as statutory powers.
The text of CA1867 does not reflect the real powers of the executive: There is a disjunction between what is
written in the constitution and what’s happened in practice.
With the rise of the administrative state, the power of legislatures has diminished. The power of the executive
is now mainly checked by:
 Federalism
 The Charter
Dicey’s “rule of law” had three meanings:
1. “…no man is punishable or can lawfully be made to suffer in body or goods except for a distinct breach
of law established in the ordinary legal manner before the ordinary Courts of the land.”
2. “…not only that with us no man is above the law, but (what is a different thing) that here every man,
whatever be his rank or condition, is subject to the ordinary law of the realm and amenable to the
jurisdiction of the ordinary tribunals.”
3. “…the general principles of the constitution (as for example the right to personal liberty, or the right of
public meeting) are with us the result of judicial decisions determining the rights of private persons in
particular cases brought before the Courts”
 John A. Macdonald’s idea of the British constitution included:
 political rights (participation)
 civil rights (negative rights: speech, religion, property, etc.)
 protection of minorities
This was a thin “Diceyan” conception of the rule of law, which meant that it could be discriminatory as long as it
was consistent in its application.
Dicey  The general fear of arbitrariness moves society towards parliament rather than a single ruler
o The law is what gives parliament its power.
o He privileges the courts as interpreters of the law  crucial to his conception of the
rule of law.
o Parliamentarians are the speakers. They speak the language of the law
- Language of parliamentarianism  universal reason, debate, plurality of people  links with rule of law
6
Rule of Law
 what is it compatible with (forms of political power)? What forms of political organization does the rule of law
encourage?
- Comes from concept of legality  can have punishment without a crime, can’t have crime without a law
- Relationship b/n legal goodness and moral goodness as it relates to the rule of law
o Does the rule of law have to link to this moral goodness
o Eg British tradition is tied to free market, liberalism
Formulations (para 71 of succession ref)
o “source of power in legal rule”
o Law is supreme over the acts of both government and private persons.
o “The rule of law requires the creation and maintenance of an actual order of positive laws which
preserves and embodies the more general principle of normative order.”
o The exercise of all public power must find its ultimate source in a legal rule. Put another way, the
relationship b/n the state and the individual must be regulated by law. Taken together, these
three considerations make up a principle of profound constitutional and political signif.
Constitutionalism considered to be the pinnacle of Rule of law
o Written constitution as part of a culture of the rule of law. Can have the rule of law without a
written constitution.
o Discussion of how written constitution encourages culture of rights rather than a culture of
democracy. Go to courts rather than articulation through election. Some would argue that, after
charter in 82, we have moved from an état de driots to an état de lois (Charter has moralized
law)
-
In preamble to both constits some reference to the rule of law (actually written in 1982 and in “similar in
to UK constit”
Executive only acts in the way dictated by legislature (people wearing two hats) and rule of law might be
better with more separation of powers
Relation b/n “rule of law” and “rule BY law”  idea of rule of law comes out of rule by law
Rule of law becomes an aspiration
Spectrum of conceptions of the Rule of Law  American and Cdn more material whereas UK is more formal
- Formal in rule of law
o subjection of executive under rule of law
o More letter of the law
o Political actors must be empowered by statute
o Procedure, general laws and principles
o Anything that is entrenched
- Material
o Point of the rule of law is to protect certain things
o Identification of the so-called values the rule of law is there to protect.
o Reflection of certain ways of governing ourselves
o Court has discussion with legislature to protect certain parts of the constit. Certain rules of justice
that parl cannot depart from unless they are very clear – sense of interpretation
 see Roncarelli : Public officers operating within their duties (CBp.643) See case below
o Could be very much formal procedure
o Could be material concept of the rule of law (ie. idea that certain laws cannot or
should not be made)
o Must conform to some sort of framework that is known by people
7
Parliamentary Supremacy
When a body is supreme means that is has a responsibility to keep its power and might not be able to
delegate this power.
- Monahan = Responsible Gov’t as internal limit on Parl Supremacy
- How does apply in Canadian context? 
o Limited by federalism
o Charter limits and Aboriginal rights certain things can’t do as these are
entrenched…But….Still s.33 (notwithstanding clause) which over-rides charter
rule…..
o Democratic deficit that will become apparent if continues use of s. 33
o Still could amend charter, supremacy exists…but only to a certain extent and under
certain conditions
- From Monahan Ch3
- In 1867 act, Privy Council’s theory seemed to be that, as long as parl or legislatures stayed
within bounds of s. 91,92 of the act, that they had the supreme power possessed by the Brit
Parl (Wasn’t in text of the constit until 1982)
-
See Ref re Agricultural Marketing Act (in economic reg chapter) where Pigeon says high degree of
deference should be give to joint ventures  when working together, it seems, they can come close to
being supreme.
Rule of law tied to Parliamentary Supremacy
-
Is Rule of Law a limitation on Parl supremacy, a result or consequence of parl supremacy?
Rule of law and Parl Supremacy answer different questions but are compatable  Questions of Who
and How exercises power connect them.
(Incompatable In UK context, both claim to be supreme  How is that possible?)
In Canada, rule of law defines boundaries of parl supremacy.
 Display that the rule of law applies to all
Roncarelli v. Duplessis, [1959] SCR 121.
Facts:
o Roncarelli owned restaurant and had
his liquor licence revoked as result of
dispute
o He bailed Jehovah’s Witnesses out of
Jail when they were arrested for
distributing literature (an illegal act at
the time)
o Subsequently forced to close
restaurant
Issue:
o Revocation of a privilege (liquor
licence) – was it punitive and a
message of power
o Does it fall under ‘discretion’?
Decision:
o For Roncarelli  with damages
Ratio:
o the administration acting according to its arbitrary
likes and dislikes and irrelevant purposes of public
officers acting beyond their duty, would signalize a
beginning of the disintegration of the rule of law as a
fundamental postulate of our constitutional structure
o Not discretion as discretion implies good faith in
discharging public duties
o Liquor law, criminal code  law to revoke licence
did not allow Dup. to do so. Ie., used liquor licence
to deal with issues in the criminal code.
o See above pg. formal v. material
Notes:
- Crux: Were Roncarreli’s rights violated?
- Court was lucky that that it had the facts it did  was able to trace this.
- Examination of the rule of law. Dup. didn’t follow it as he did not use those laws which applied to liquor
licence to revoke licence
- Language of rights in case  Privilege to a liquor licence (not a right) but the court tries to protect this
privilege
- Non-rights that become crucial to people’s lives (liquor licence or taxi medallions)  therefore courts try
to protect them
8
The Judiciary
Judicial Review and the rule of law
Defn of Judicial Review (from CCL): power of the courts in Canada to determine (when asked) whether an action
taken by a govn’tal body or legal actor (eg Parl of Canada or a member of RCMP) is or is not in compliance with
our constit – if not, to declare it unconstitutional
Monahan, chapter 4, pp. 125-138
 This section explains the court system and judicial independence. Some points:
 There are very few appeals to the SCC “as of right”; the SCC grants leave to appeal to 12-15% of the 500
applications it gets each year. (p. 131)
 The Federal Court deals with cases federal statute law and “federal common law,” which may or may not
exist. The Federal Courts also have “concurrent jurisdiction” in lawsuits against the Crown. (p.134)
 There are two aspects of judicial independence:
 Judges must be autonomous and independent of other branches of government.
 Judges must be immune from the consequences of their actions as judges.
 s.99 [CA1867]: Federally-appointed judges hold office on good behaviour, but are removable by
Parliament. Under the Federal Judges Act, the Canadian Judicial Council must investigate and endorse
any complaint against a judge.
 s.100 [CA1867]: Judges’ salaries cannot be reduced (both federal and provincial). Non-discriminatory,
across-the-board reductions may be possible through certain procedures.


Part VII, ss.96-101 [CA1867] establishes the federal-provincial division in the judiciary.
s.11(d) of CA1982 gives Canadians “the right to be presumed innocent until proven guilty according to law in
a fair and public hearing by an independent and impartial tribunal.”
Constitutional review can claim
 1) to claim that the decision or action was unauthorized b/c it failed to comply w/ the terms or
requirements of the law under which the gov’t was acting.
 2) Or – Constitutional Judicial Review – ie the statute under which the gov’t was operating is itself invalid
Judicial Independence

Judicial independence requres, among other things: financial security (pay), security of tenure, immunity from
lawsuits, a system of appointment (although this cuts both ways), freedom from political interference, and
institutional independence.
Judicial Review Constitutionally Guaranteed

Constitutional judicial review is the idea that any act or law of the state or government can be assessed by
judges as to its constitutional validity. This must be contrasted with administrative judicial review, which deals
with the question of whether government officials are acting within their authority, especially their statutory
authority (as in Roncarelli v. Duplessis).
9
Legitimacy of Judicial Review and Constitutional Interpretation
Robin Elliot, “References, Structural Argumentation and the Organizing Principles of Canada's
Constitution” (CBp.32)
Elliot summarizes six forms of constitutional interpretation used by American courts, as identified by American
scholar Philip Bobbitt:
1. historical: This is the “framers’ intent” approach, which carries much less weight in Canada than it does in
the United States.
 Is the framers’ intent “congealed”? In the Persons case (see below), the JCPC distinguished
between framers’ intent for statutes and for the constitution.
 What about the fact that there were multiple understandings at the time of framing?
2. textual: This uses a “literal” interpretation of the text; the present meaning of the words. This has been
widely used in Canada.
3. doctrinal: This is a common law approach, relying on precedent. According to Elliott, it is probably the
predominant form of constitutional argumentation in Canada. It can include:
 past decisions of the SCC and JCPC
 comparative constitutional decisions from other countries
4. prudential: This form of argument is pragmatic (perhaps utilitarian?) asking what would produce the best
result for society; in the federalism context, it asks which level of government can best deal with the issue
(as in the national concern branch of POGG).
 I am conflating this with what Sheppard called the extrinsic evidence/social context approach,
which she says owes a lot to feminist advocacy.
5. ethical: This appeals to national values, ideals and identity (not necessarily embedded in the constitution).
 This is never a strict source of authority, but it is often mixed up with other principles.
6. structural: This is based on inferences from the structure of the constitution as a whole and perhaps its
“unwritten principles.” The Provincial Judges Reference and the Quebec Secession Reference are
perhaps the best examples of this form of argument in Canada. It is a well-established form of argument in
Canada.
Reference re Meaning of the Word “Persons” [1928] SCR 276./Edwards v. A.G. Canada [1930] A.C. 123
(H.L.) (CBp.41)
Facts
This is the famous “persons” case, over the question of whether women could be appointed to the
Senate.
Did the term “qualified persons” in s.24 of the BNA Act include women?
Issues
Holding
SCC: No. JCPC: Yes.
Ratio
 The SCC distanced itself from any political aspect of the question and used a “framers’ intent”
approach. (This approach was sanctioned by standard British rules of statutory interpretation.)
While it allowed that the word “persons” standing alone would include women, it noted that the
inclusion of women would have been revolutionary in 1867, and argues that if the framers of the
constitution had really intended to include women, they would have said so. The basic idea was
that the constitution should be interpreted in 1928 the same way it was in 1867.
 Sankey: The JCPC, on the other hand, said it was relevant to consider “external evidence” as
well as the BNA Act itself. Although most of the external evidence, in the form of historical
precedent, pointed toward the exclusion of women, the JCPC did not find this conclusive,
because it was derived from the customs and traditions of other times and places, not on law
per se. As for the Act itself, Lord Sankey said that it had “planted in Canada a living tree
capable of growth and expansion within its natural limits”—it needed a “large and liberal”
interpretation. There was also a textual argument, based on the fact that ss.41 and 84 had
explicitly excluded women, whereas s.24 had failed to do so.
SCC: If they wanted women, they would have said so explicitly. Since they haven’t said so we
should take a conservative reading. Furthermore, the “he” in s.23 indicates men only.
JCPC: If they didn’t want women, they would have said so explicitly. S.23 does not name male
gender as one of the “qualifications”. The male pronoun “he” includes women. Where women are
to be excluded, it is explicit. See the voting rights section.
10
Antaki on Persons
- Radical change b/n superior court’s decision and the privy council’s decision
- Examination of the relation to the past  should the definition of a word remain as the definition that was
intended by the framers of the constit
Constitutional metaphors  Language of a tree, will grow, blossom, new things will come out, will adapt, not
unresponsive
What is it to interpret constitution
 Burden for constit is more strict for Parl  Parl must say if it wishes to exclude women
Section 96 and Administrative Tribunals
-
Formal reading in S.96  GG shall appoint. Formal (literal) would allow s.96 to be given away.
o Connected to the rule of law  need this core set of functions set independently.
Functonal reading will care about protecting something. Core functions or inherent functions of superior
courts that cannot be given away.
o Could be seen as drawing a principle from formal interpretation.
Looks like a mere appointing power but do we need to read it in another way? Looking at it from the Formal
[looking just at what it says without examining framework it sets up  appointing power] v. Functional (see CCL
502 (Laskin J) where says it is more functional  the preserving power)
o What is danger in looking at it merely formally? (GG will still get to appoint Superior court judges
but, if use formal interpret, all powers of court could be given to courts with other names)
Arguments on jurisdiction of courts (CCL 474)
o Deals with appointing power of the Governor General in:
 Superior Courts, District, County

Legislatures cannot set up administrative tribunals and insulate them completely from judicial review. Most
“privative clauses” which attempt to do this have been struck down or interpreted very narrowly. (e.g. Crevier
case p. 501).
 Such legislation, it is said, would create a s.96 court.
 Nevertheless, the SCC will often defer to administrative tribunals and will not quash their decisions unless
they are patently unreasonable.
First Set  Whether provincially appointed Tribunals can exercise s.96 powers
Labour Relations Board of Saskatchewan v. John East Works Ltd.
Facts: - Board issued orders for the
reinstatement of workers at John East
- John East appealed to PC and
orders were quashed
Issue: - did Board exercise juridical
power?
- if so, was the tribunal analogous
to a superior court
1949, Privy Council
Decision:
- Tribunal may be clothed with power formerly exercised by a s.
96 court so long as that power is merely an adjunct of, or
ancillary to, a broader administrative or regulatory structure
- If impugned powers form dominant aspect of the function of
tribunal, then it is acting ‘like a court’ – ultra vires
Ratio:
- First major case dealing with Provincial Tribunals
- Existence of tribunals was allowed but was given limitations
- Did not exercise powers held by s.96 courts at Confederation
- Examinations of s. 96 of Con Act 1867 and the s. 96 test
Notes:
- Tension between Industrial politics
How do you describe it  adjudication of rights or issues of balancing of social peace b/n classes
11
Reference re Residential Tenancies Act (ON)
Facts:
- Ontario Gov’t awarded powers to
Res Tenancy Commission (RTC) in
Res Ten Act of 1979
- given authority to evict tenants and
to require landlords and tenants to
comply with act
- Purpose: Resolving tenant landlord
disputes
1981, SCC
Ratio:
- Refining of ‘s.96 tests’ which are called now ‘Residential
Tenancies test’
- Test is as to deals with power of superior courts at time of
Confederation
- 3 part test per Dickson:
- 1) Whether power or jurisdiction conforms to the power or
jurisdiction exercised by superior, district or county courts
at the time of confederation (identical or analogous
powers as s. 96 court at confed)
- 2) Look at the function within its institutional setting  is it
considered a judicial function (judicial function vs. Policy
 principle vs. policy)
- 3) If yes, then what is the context in which power is
exercised  are they subsidiary or ancillary to its
administrative purpose? (per Antaki, a “saving step”)
Issue:
o Do the powers conferred on the RTC
by the Res Ten Act create a body
that is operating “like a s. 96 court”
Decision:
- Appeal dismissed  Powers are
unconstitutional as the answers to
the s. 96 test (below) show that the
Per step 2  Tribunal is charged with analysing the law, apply the
impugned provisions are held to be
law and make an order  therefore performing judicial function as
ultra vires  fails all three steps
per step 2 of the test
Notes:
- Discussion of exclusive power of section 96 or was it a concurrent power shared with inferior courts.
Examined later.
- Defining ‘Institutional setting’ is broad and slightly ambiguous  tied not to policy but more functional or
operation
- Third question might deal more with policy of legislation
This judgement has received strong criticism from Peter Hogg and others. According to Hogg:
 Each of the three steps is vague, and small differences in the histories of provinces can make for
exceptions.
 There are problems with the “self-interest” of courts, a conflict of interest.
 An amendment to the constitution is needed in order to deal with this problem.
This case is also remembered for its use of extrinsic evidence, following the Anti-Inflation Reference—and picked
up again in the Nova Scotia Morgentaler case.
Difficulties with Test
Vague w/ regards to ‘confederation’ in terms of
o Time
o Where and if joining late (who do we look at)  also if 2-2 tie then we go to UK (See case
Sobeys Store for resolution of problem)
o Description of jurisdiction or level of generality (if you describe broadly might fit into s.96 court or
go narrow and might be able to distinguish)
 Problems with step 1 and 3 and language in the way you describe
 Language used by some judges is modern in Step 1 while others wait until step 3 to use
modern lang
o Relation steps 2 and 3. Where is institutional context (and structure) important? What language
are you forced to use
o Resloved? [CCL 492] Call by McLauchlin to have a narrow defn of step 1 (is it a novel
jurisdiction??)  Different articulation of test from 1981
Over-arching themes that relate to the class as a whole
o At stake is separation of powers and independence of judiciary and rule of law
o At stake is formal vs functional (how do we read s.96)
o Core and periphery and Primary and ancillary (therefore level of generality)
12
o
o
o
Does the rule of law make sense  can we privilege s.96 courts
Question of the past  constitutional story telling in order to prove point
Political vs. legal (judicial function)
Sobeys Stores Ltd v. Yeomans and Labour Standards Tribunal
Facts:
- Yeomans worked for Sobeys for over ten
years
- Was manager when dismissed
- Complained to LST (NS) that was dismissed
w/out just cause
- Ordered reinstated and pay for lost wages
- NS A.C. allowed appeal. Said unconstit as
conferred s.96 powers on a tribunal
Issue:
- Do the impugned sections of the Code (that
governs the LST) create a body that is
operating ‘like a s.96 court’
1989, SCC
Decision:
- Appeal allowed – Impugned sections that govern the
LST are intra vires as
Ratio:
- Based on Step 3 of the test  tribunal is
incidental aspect of the broader social policy
- Tribunal allowed to exist as:
- 1) Failed first part of test as in UK legislative
package was under equivalent of superior
courts
- 2) Was acting sufficiently like a court and could
not pass this part of the test
- 3) It is an incidental aspect of the broader social
policy
Notes:
- Historical test refers to the four provinces at the time of confed (if 2 to 2 look to the UK)
- Dissent LaForest: Would pass step one of the test  legislation could not be in sharper contrast to that
which existed at Confed and as such is novel jurisdiction and therefore OK.
- NOTE  if jurisdiction shared pre-confed with inferior courts then can be jurisdiction of a tribunal 
leads to Régie du logement has the right to operate
Ref re Amendments to the Residential Tenancies Act (NS)
[1996] 1 SCR
Facts:
Decision:

 Powers intra vires as is a novel jurisdiction
Issue:
Ratio:

 McLauchlin: Novel jurisdiction test  What is required to create a new jurisdiction is a
unifying concept or goal, and a sufficiently novel philosophy to belie any analogy with the
powers previously exercised by superior .
 Comparison of the nature of the powers conferred on the inferior tribunal and the powers
exercised by Superior Courts at the time of confederation to see if the powers are analogous
Notes:

Lamer CJ : RE First Step  Residential tenancies is substantially different  phenomena of modern and urban
society  balancing act as doesn’t attack core powers of s.96 courts and there is huge volume of cases
Second Set  Can Parliament give s.96 powers to other courts
Examination of s.97 ansd s.96  authority of Parliament to give away Superior Court jurisdiction to another court
McEvoy v. Attorney Gen of NB and Attorney Gen of Canada
SCC, 1983
Facts:
Decision:
- NB act to creat provincially appointed court to - Appeal Allowed – and answer questions in the
try cases under Criminal Code
negative (see issue)
- NB A.C. decided in favour of the creation of
Ratio:
such a court
- Criminal cases part of s.96 courts in 1867
Issue:
- Cases are not ancillary or incidental but the
- Is it intra vires the Parliament or legislature of
purpose of such a new court
13
a province to take jurisdiction from a s.96
(superior) court and confer it onto another
court?
-
-
Parliament can no more give away constit
powers than Provinces can uspurp them (CCL
494)
Cannot give away GG”s s.96 right to appoint
judges
Comment:
- Does not address whether Parl can transfer jurisdiction from Superior Courts to Federal Courts
- Second, does it prevent only wholesale removal of jurisdiction (ie everything under criminal code) or is it
possible to do piecemeal removal?
- IMPORTANT in terms of Rule of Law  not just protecting Feds from Prov trying to take away powers
but…..protecting the system as a whole and the rule of law
Notes in Class:
 S. 96 says that GG ‘shall appoint’ not ‘may appoint’
 Are they applying same test?
Ref re Young Offenders Act (PEI)
Facts:
- Creation of Young Offenders court (taking
some powers of s.96 court)
SCC, 1991
Decision:
- Court allowed to exist
Ratio:
- novel jurisdiction  jurisdiction that did not exist at
the time of Confed
Issue: Is this possible?
Notes:
 MacMillan Bloedel Ltd v. Simpson decision states that Superior Courts are crucial to the rule of law as
no other court has the same core jurisdiction
Third Set  Can Parl. protect tribunals from review by s.96 Courts
Notes:
Attorney Gen of Que v. Farrah, 1978,scc  Constitutionality of a Transport Tribunal for appeals to decisions of Transport
Commission  ruled was ultra vires as sole purpose was as court and appeals from Tribunal were not heard  acted as
appellate court.
o Interesting as the tribunal was ancillary to administrative body but still tribunal’s primary function was to
exercise judicial power previously held by a s.96 Court
Crevier v. Quebec Attorney Gen
Facts:
- The Professional Code (Que) governed 38
professional corps
- Discipline committees were created for each
profession
- Professions Tribunal was appellate to committees
and code stated that (even though art.33 of CcQ
makes bodies subject to superintending power of
Superior Court) art 33 didn’t apply to this tribunal
Issue:
 Insulation from review by Superior Court
14
SCC, 1981
Decision:
- Appeal Dismissed
Ratio:
 upon insulating the court from the
superintending powers of a s.96 court,
the powers of the tribunal are ultra vires
CCL 502 at top Good Quote
o “It is true that this is the first time that this court has declared unequivocally that a provincially
constituted tribunal court cannot constitutionally be immunized from review of decisions on
questions of jurisdiction”
 Who gets to decide if the tribunal is acting within their jurisdiction? Rule of Law issue as should this
tribunal be insulated from review, they are their own bosses
 After crevier, in order to look into Tribunal, must use language of Jurisdiction
 On Interpretation of the law of the act, the tribunal is final  can only appeal to superior court on a
jurisdictional basis
 Don’t forget that Tribunal must have passed Residential tenancies test first to exist in the first place
FEDERALISM
Historical Chapters in Canadian Federalism

These three chapters demonstrate:
 a formalist approach to constitutional interpretation
 different visions of federalism
Prof. Baker’s lecture:
1. He made connections between developments in private law and contemporary developments in
constitutional law.
2. He pointed out the underlying economic interests, and the impact that a centralist or decentralized
government could have on the national economy.
3. He acknowledged British imperial/colonial motives.
4. He showed how the language of provincial autonomy was linked to the language of formal rights:
“autonomous rights-bearing provinces.”
Federalism  Where does sovereignty reside
 Everywhere and nowhere?
 Each Province is sovereign?
 Idea of Federalism to deny sov or to break it up
The Late Nineteenth Century


From 1867 to 1982, most cases were about the federal-provincial division of powers.
 Many of these cases revolved around businesses and the question of economic regulation, especially in
the early 20th century and the Great Depression.
 There were also a few cases about judicial independence.
 Cases concerning Aboriginal rights were not argued in constitutional terms; they were property law cases.
Early Canadian cases could also be appealed to the JCPC.
 Some believed it was illegitimate that a British court should have so much influence on Canada. The
JCPC “turned the document on its head” by giving such a broad reading to provincial powers.
 Others argue that the JCPC’s geographical distance also gave it the critical distance necessary to
balance federal and provincial demands.
Citizens Insurance Company v. Parsons (1880-1881), (CB p.90)
Jurisdiction Ontario
Facts
Two insurance companies refused Parsons’s claim due to contractual terms which violated an
Ontario statute. The insurers argued that the legislation was ultra vires. Parsons (and Ontario) won
at the trial level and the appeal court.
Issues
Was insurance regulation part of “regulation of trade and commerce” (s.91) or “property and civil
rights” and “matters of a merely local and private nature” (s.92)?
15
Holding
Ratio
Comments
SCC: s.92; JCPC: s.92
At the SCC, the majority (expressed by Ritchie CJC) upheld the legislation, based on “property
and civil rights” and “matters of a merely local and private nature.”
 Gwynne J, dissenting, aruged that it fell under “regulation of trade and commerce,” and gave a
policy argument (floodgates, basically) about the risks of allowing the provinces to encroach
on such areas. Neither majority nor dissent justified its decision through any particular
interpretive technique.
At the JCPC, Sir Montague Smith set up a test for provincial legislation  Parson’s Test
 Step 1: See if the legislation falls within any of the enumerated classes of s.92. If it doesn’t it is
invalid (ie Federal powers are residual). If is does, go to;
 Step 2: See whether the legislation does not also fall within one of the enumerated subjects in
s.91, in which case it is invalid.
Smith then based his decision on the consistency of the BNA Act as a whole. He argued for an
expansive definition of “property and civil rights” based on s.94 and the distinction between
Quebec and the common law provinces. He narrowed “regulation of trade and commerce” to not
include the regulation of specific trades.
This is the leading case on the “trade and commerce” power—Smith’s interpretation has been
followed. It is remarkable that the Ontario government was already regulating insurance at this
stage. Oliver Mowat argued Parsons’s case at the SCC.
 Sir Montague Smith’s two-step test makes it clear that the federal powers are residual,
because the courts looked at s.92 first.
Russell v. The Queen (1882), 7 AC 829 (PC) (CB p.97)
Jurisdiction New Brunswick
Facts
Russell was a tavern owner who was prosecuted for selling liquor contrary to the terms of the
Canada Temperance Act. Russell argued that this Act was ultra vires the federal government.
Issues
Did the regulation of liquor fall under any of the enumerated sections of s.92?
Holding
No.
Sir Montague Smith used the 2-part test he had set out in Parsons. He found that the “true nature
Ratio
and character” (p.99) of the legislation was POGG and that effects on property and civil rights and
local nature (not under 92(9),(13),(16)) were incidental.
Comments This is an early formulation of the “pith and substance” doctrine. This is also one of the rare early
cases decided in favour of the federal government and POGG. It was contradicted by many later
cases, especially the Local Prohibition Reference.
Why did Sir Montague Smith use the same two-step test for federal legislation?
Note:
 Note use of effects based interpretation (as opposed to pith and substance interpret) as s.91
and s.92 are not water-tight compartments
 Interpretations bring up questions of law and politics – what is a judge? What is his role??
Hodge v. The Queen (1883), 9 AC 117 (PC) (CB p.101)
Jurisdiction Ontario
Facts
Hodge, a tavern-keeper, was charged under regulations made by Toronto licence commissioners.
Issues
1. Did the provincial government have the power to make such laws (or did it fall under “trade and
commerce”)?
2. Did the provincial government have the power to delegate authority to the Boards of
Commissioners?
Holding
Yes, yes. The JCPC dismissed the appeal.
Ratio
Lord Fitzgerald:
1. The licensing of taverns is “of a merely local and private nature.” whereas temperance is of
POGG. Possible for aspect doctrine.
2. Provincial powers are not just delegated to the province; the province is supreme within its
sphere of authority; therefore it can delegate.
Comments The important thing about this case is the “double aspect” doctrine: The idea that different aspects
of a single subject (in this case, the liquor trade), could fall under different jurisdictions. Thus there
is supposedly no conflict between this case and Russell.
16
What happened to constitutional interpretation in these cases? There is a dichotomy between a formalist
approach and a functionalist approach:
 Legal formalism argues in terms of abstract categories, bright lines and fixed meanings; it claims to be
scientific and apolitical.
 In the modern era, legal formalism is often mixed with policy reasoning.
 Functionalism openly discusses social, political and economic realities; it treats law as a response to
historical experience and is sometimes openly political.
 Functionalism can easily evolve into a kind of formalism: what are interpreted as unwritten
principles can evolve into written principles!
 The critical legal studies movement argues that all law is political:
 Marxist/feminist branch: law reflects dominant interests
 postmodern branch: law is indeterminate
AG Ontario v. AG Canada (The Local Prohibition Reference) [1896] AC 348 (PC) (CB p.107)
Jurisdiction Ontario
Facts
In 1890, the Ontario had passed a statute which gave municipalities the power to introduce
prohibition (similar to the Canada Temperance Act). In 1894, while contemplating total prohibition,
Ontario asked the courts about the legality of pieces of legislation.
Issues
Does a province have the power to legislate prohibition?
Holding
SCC: No. JCPC: Yes.
Ratio
The SCC relied on “trade and commerce,” and also used historical/framers’ intent arguments.
In the JCPC, Lord Watson found that the provincial legislation fell under “property and civil rights”
and “local or private nature.”
 Cannot be under T&C as T&C is regulation and not prohibition
 Watson separated POGG from the enumerated s.91 powers and used the last lines of s.91 to
narrow POGG.
 He ruled that POGG could only be used for matters “unquestionably of a Canadian interest
and importance,” and could not encroach upon or incidentally affect enumerated s.92 powers.
This effectively meant that the “pith and substance” and “aspects” doctrines could not be used
to support POGG.
 Controversy – is the federal law exhaustive with this matter  No! Room for Ont law.
 Interestingly, Watson also articulated the “paramountcy” doctrine, that if there is “collision,”
“provincial must yield to Dominion legislation.” However, he did not find conflict since it was
possible to comply with both laws by complying with the stricter of the two.
Comments The JCPC’s judgment could be seen to directly contradict Russell. This case represents a major
turn toward provincial rights. Watson’s use of s.92(16) “local or private nature” elevates it almost to
the same status as POGG. This case used a text-based legal formalism which is not altogether
convincing, and also boring to read!
The Compact Theory (CBp.114)
The “compact theory” provided a way of understanding the JCPC’s defence of provincial powers. It
argued that the provinces had never renounced the powers they held before Confederation; they had
agreed to create the federal government “only for interprovincial objects.” The theory is associated with a
Quebec judge, T.L.L. Loranger. This theory was popular among Quebecers and among common law
lawyers in the late 19th century, but it lost its popularity in English Canada by the turn of the century
because it was at odds with the prevailing formalist approach to constitutional (and legal) interpretation.
The Early Twentieth Century

During this period, the government became more active in regulating the economy.
 WWI was a major turning point/catalyst in this regard.
 According to some historians, the Canadian state was already more interventionist than the US because
of a concern for safeguarding key resource industries.
17
Reference re Board of Commerce Act and Combines and Fair Prices Act (1920-1922) (CB p.127)
Facts
The federal statutes in question were designed to limit cartels, monopolies and mergers as well as
speculative hoarding. The Board of Commerce encountered resistance, and arranged for a
Supreme Court reference. Violations punished with fine and possible prison
Are federal board and Acts intra vires the Feds
Issues
SCC: No (3-3 split). JCPC: No.  ultra vires feds
Holding
Ratio
 SCC: Those who would have upheld the statutes relied on “trade and commerce” but also on
POGG and criminal law. Those who would have overturned them relied on property and civil
rights. Duff J said that one must look at the “immediate operation and effect of the legislation”
rather than the “ultimate social economic or political aims of the legislator.”
 JCPC: Viscount Haldane said that s.92 powers must be “untramelled” by the enumerated
powers in s.92 and that POGG could only be used in emergency situations like war or famine.
He narrowed the interpretation of Russell to “abnormal circumstances.”
 He also began the limiting of the federal trade and commerce power (which was confirmed in
Snider.) T&C can only be used in furtherance of a general power or enumerated head.
 He said criminal cannot save legislation as crim provisions are only ancillary (CBp.130)
Comments - This is the first of the decisions Monahan calls “infamous.”
- This case is good evidence that the JCPC was not committed to formalism—it was not clear
what basis Haldane had for making these decisions.
- Seen as the death of POGG
Fort Frances Pulp and Paper Company v. Manitoba Free Press Company [1923] (CB p. 132)
Jurisdiction Ontario
Facts
During WWI, under the War Measures Act, the federal government had regulated the price of
newsprint; in 1917 it established the Paper Controller. In 1919 the Controller ordered Fort Frances
to reimburse Manitoba Free Press for excessive prices. Fort Frances refused.
Issues
Were the circumstances in the present case enough of an emergency to justify overriding “property
and civil rights” in the name of POGG?
Yes. – intra vires Dominion Power as long as emergency persists.
Holding
Ratio
 JCPC: Viscount Haldane wrote that, although the war had ended, the conditions arising out of
war may have continued, and that the federal government could be justified in continuing to use
some emergency powers under POGG.
 Must have very clear evidence that emergency is over
Comments Although it’s remarkable that Haldane upheld the federal legislation, he did so by taking the
emergency doctrine (as put forward in the Board of Commerce case) for granted. Haldane wrote,
“…as a general principle, the Dominion Parliament is to be excluded from trenching on property
and civil rights in the Provinces of Canada…”
Toronto Electric Commissioners v. Snider (1925) (CB p.137)
Jurisdiction Ontario
Facts
A labour dispute arose between the Toronto Electric Commissioners and some of its employees.
The TEC argued that the federal Industrial Disputes Investigation Act was ultra vires. The Act
allowed feds to appoint board to solve dispute.
Issues
Could the legislation in question be justified by “trade and commerce” and “criminal law”?
JCPC: No. – ultra vires feds
Holding
Ratio
 JCPC: Lord Haldane found that the pith and substance of the legislation was property and civil
rights.
 He limited the trade and commerce power, declaring that it could only be used “in aid of” other
s.91 powers.
 He also emphasized the emergency nature of POGG and narrowed Russell rereading it as an
emergency situation.
 Not criminal as crim provisions are ancillary
Comments This case seems to have bypassed the SCC.
18
This case had the effect of making labour law a provincial matter.
Lord Haldane’s limiting of the trade and commerce power was effectively reversed in obiter in
Proprietary Articles (see p.20).
The King v. Eastern Terminal Elevator Co. [1925] (CB p.141)
Jurisdiction Ontario
Facts
Eastern Terminal Elevator company, which operated a grain elevator at Thunder Bay, refused to
pay a certain percentage of the proceeds from the sale of its “dockage” (foreign matter in the
grain). It argued that provisions of the Canada Grain Act which aimed to limit the profits of terminal
elevator companies were ultra vires.
Issues
Could the impugned provision be justified under POGG?
SCC: No. ultra vires Feds
Holding
Ratio
 SCC: The majority found that the legislation really dealt with property and civil rights on a local
scale, even if the grain trade was of national importance.
 However, Duff J. suggested that the federal government could use s.92(10)(c) to declare that
the elevators were “for the general advantage of Canada,” and this is what it did.
 Fallacy 1: to say that difficulty to coordinate among provinces or the need for subsidiary
legislation to do so necessarily gives power to dominion parliament
 Fallacy 2: Although grain trade was largely export trade (a federal power under T&C) legislation
cannot be justified as it still encroaches on local trade matters which are provincial  effect
would allow Feds to take over any trade in Canada  cannot be.
Anglin CJC, dissenting, lamented Lord Haldane’s limiting of the “trade and commerce” power in
Snider. He would nevertheless uphold the legislation under POGG as a matter of national
importance. He also says that he would have allowed the provision to stand based on the validity
of the Act as a whole (using the “necessarily incidental” approach).
Comments This case is a good example of dialogue between the courts and the executive.
What modes of interpretation were used in these judgments?
 doctrinal: The courts had to deal with the Russell case, applying, distinguishing or reinterpreting it.
But does case law have effect on the outcomes of the case? Jurisprudence appears very malleable.
 textual: But the text proved to be highly indeteminate.
 historical (framers’ intent):
H.E. Smith, “The Residue of Power in Canada,” (1926) (CBp.146)
 Smith ridicules the arbitrary rule that had developed in English jurisprudence which stated that the framers’
intent (or other extrinsic evidence) could not be used in interpreting a statute.
 He blames this rule for the ahistorical reasoning which produced the Snider (TEC) decision.
 He laments the fact that, by the Snider decision, provincial “property and civil rights” has emerged into an
almost general grant of power to replace POGG.
 He says that no one reading the Confederation debates would doubt that POGG was intended as a general
grant of power.

 Critics said it was necessary to use history to solve historical problems.
 Prudential or ethical reasoning—visions of provincial autonomy—is only rarely stated openly.
These cases mainly talk about the text and case law: They only make passing references to other modes
of interpretation.
J.R. Mallory, “Social Credit and the Federal Power in Canada,” (1954) (CBp.147)
 Mallory says that Haldane’s decisions might be better explained in terms of laissez-faire versus
interventionism (or “individualism” versus “collectivism”) rather than provinces versus the centre. Most of the
federal legislation he struck down was economic regulation.
 However, this is hard to explain because Haldane was a Labour party supporter.
 It also doesn’t fit with the Fort Frances case.
19
Alan Cairns, “The Judicial Committee and its Critics,” (1971) (CBp.149)
 Cairns argues that the JCPC’s provincial bias was in harmony with contemporary political trends in favour of
regional pluralism. It’s important to remember that during this time Canada grew from four provinces to nine,
and province-building was happening at the same time as nation-building. Although Ontario led the struggle
in the courts, all of the provinces had movements toward autonomy.

It is worth noting that these courts were very activist courts—they were not afraid to strike down legislation in
the name of the constitution.
The Depression and the “New Deal”


Federal jurisdiction was upheld in three important cases early in the 1930s (Proprietary Articles, the
Aeronautics, and Radio).
Trends: Academic commentary during this period saw a continuation of what happened in the late 19th and
early 20th century: a restrictive reading of federal powers and a continuing concern for provincial autonomy,
the striking down of numerous federal initiatives (especially those set up to deal with the economy).
 Academic commentary was now more directly critical of the JCPC, but also of the SCC.
W.F. O’Connor, The O’Connor Report (1939) (CBp.183)
 O’Connor did a detailed formalist analysis of ss.91 and 92, and concluded that the JCPC (especially Watson
and Haldane) had erred in setting aside the general grant of power to Parliament, and concentrating on the
enumerated powers. His formalist analysis was much more thorough than that of H.E. Smith and others. He
traced the “path of error” through Watson and Haldane’s judgments, and argued that not much needed to be
fixed if these decisions could be overruled.




Even in the midst of a clear emergency, POGG was ignored.
The federal government might have relied on POGG to deal with the devastating effects of the Depression,
but it didn’t. When King was re-elected in 1935, one of the first things he did was to refer Bennett’s “new deal”
economic legislation to the SCC.
 Another factor in this was the way the legislation was drafted—it could have been framed to reenforce its legitimacy under POGG, but it wasn’t.
The government shifted between the Liberals and Conservatives; neither Bennett nor King was committed to
Keynesian economic policies.
Academics such as W.P.M. Kennedy (p.165) felt that the federal government’s hands were tied during a time
of national tragedy. Kennedy lamented the loss of the federal “general power,” and thought that appeals to the
JCPC should be abolished, that its past decisions should be overturned, and that the BNA Act should be
repealed and the constitution rewritten (p.180).
Proprietary Articles Trade Association v. AG Canada (1929-1931) (CB p.155)
(PATA)
This case concerned the legality of the federal Combines Investigation Act and a section of the
Facts
Criminal Code which gave the federal government power to investigate cartels and mete out
criminal sanctions. The PATA was allowed to participate in the reference.
Issues
Could the Combines Investigation Act be upheld under “criminal law”?
SCC: Yes. JCPC: Yes.  both the Act and section of Criminal code are intra vires
Holding
Ratio
 SCC: Duff J. refuted the argument that the list of crimes had been frozen in 1867. (This was a
rejection of a historical/framers’ intent approach.) He put forward a kind of definition of crime,
mentioning “a violation of generally accepted standards of conduct as to deserve
chastisement… the views of community as to what deserves punishment changes from
generation to generation…”
 The JCPC (Lord Atkin) agreed seeing “criminal law in the widest sense.” Putting forward a
purely positivist definition of crime (acts that are “prohibited by the State and that those who
commit them are punished”).
 In obiter, the JCPC also distanced itself from Lord Haldane’s narrowing of the “trade and
20
Comments
commerce” power in B of C. B of C is fact based not general law. T&C is independent
enumerated head.
- Were these laws really targeted at trade unions?
- This judgement took a decidedly “living tree” rather than “frozen rights” approach: it’s worth
comparing to the Persons case, which was decided around the same time.
- Why mention T&C when decision is not resting on it – support of federalism.
Reference re the Regulation and Control of Aeronautics in Canada (1930-1932) (CB p.157)
Facts
After WWI, Canada entered into an international convention about aeronautics (signed by the King
on behalf of the British Empire). The federal government then enacted legislation regulating
aeronautics.
Issues
Can aeronautics be assigned on the basis of sections 91 and 92?
Holding
SCC: a series of divided judgments. JCPC: No but is valid under s.132.
Ratio
 JCPC: Lord Sankey made a plea for interpreters of the constitution to “remember the object with
which it was passed” and not to give so much weight to case law.
 He decided that aeronautics did not obviously fit into either s.91 or s.92, but that this didn’t
matter:
 he based his decision on s.132 (the power to perform treaty obligations). Sankey also
mentioned the national concern of aeronautics.
 Fits partially in 3 enumerations in s.91 and rest into s.132
 Adds up to – the whole field of aeronautics is the feds
Comments Lord Sankey is the same judge who wrote the decision in the Persons case.
 Reinterprets Aeronautics  Says b/c treaty is with Brits, Power resides in s.132  Not same in Labour
 Radio  True ground of decision was that the subject could not be found in s.91 or s.92 and therefore
POGG used as residual power  Again, not same and Federal parl does not have treaty implementation
power
Reference re Regulation and Control of Radio Communication in Canada (1931-1932) (CB p.160)
Facts
Canada entered into international agreements about radio; the federal government enacted
legislation and referred it to the SCC.
Issues
Did POGG give the federal government power to regulate radio?
Holding
SCC: Yes. JCPC: Yes.
Ratio
SCC: POGG (The SCC did not refer to s.132)
 JCPC: The treaty power (s.132) could not be invoked since this treaty (unlike the aeronautics
treaty) had been signed by the federal government, not the entire British Empire. (This is a good
example of a “textual” approach to constitutional interpretation, concentrating on the present
meaning of the words.)
 However, radio could be assigned to the federal government under POGG (either a “national
concern” or a “purely residual” version, it seems).
 These three cases demonstrate a shift toward federal power. Nevertheless, commentators at this time
continued to perceive the JCPC as biased toward provincial rights.

The JCPC did however strike down federal economic regulation, as in these three cases:
 Labour Conventions
 Employment and Social Insurance
 Natural Products Marketing
A.G. Canada v. A.G. Ontario (Labour Conventions) (1936-1937) (CB p.168)
Facts
The reference had to do with labour legislation (maximum working hours, etc.) which the federal
government had enacted following ILO conventions.
Issues
Could the federal government use s.132 to enact legislation within a provincial sphere in order to
implement an international convention it had signed?
Holding
SCC: 3-3 split. JCPC: No.
Ratio
 JCPC: Lord Atkin found that the conventions were acceded to by the Canadian executive of its
own volition; the executive cannot “clothe itself” with treaty-making power in order to override
21
Comments
provincial powers.
 Water-tight compartments – not enough to say it’s too hard for provinces to work together
 Radio doesn’t stand for federal treaty implementation power – use of POGG as residual – there
is no federal treaty implementation power
 POGG use limited to times of emergency
The JCPC articulates something of a vision of provincial autonomy on p.171.
This case contains Lord Atkin’s famous statement: “While the ship of state now sails on larger
ventures and into foreign waters she still retains the watertight compartments which are an
essential part of her original structure.”
AG Canada v. AG Ontario (The employment and Social Insurance Act) [1937] PC
Facts:
Decision:
 Appeal Dismissed – ultra vires feds
 Reference by
Ratio:
Crown to court for
the above act
 Lord Atkin: Feds cannot give taxation moneys to the people if legislation
Issue:
infringes on provincial head of power
 Is the Act ulra
 Spending powers must still fall under s.91 or 92 – not just taxation powers
vires federal
 Not under POGG as not considered an emergency
power?
Note: In 1940 - constitution was amended to give the fed gov’t power over unemployment insurance: s.91(2A)
The provinces were willing to give up jurisdiction if the federal government would pay.
 The academics of the 1930s put forward an essentially functional critique. They favoured federal government
action because they thought it would be more effective.
F.R. Scott, “The Consequences of the Privy Council Decisions” (1937) (CBp.181)
 Scott had a social-democratic critique of the JCPC. It appeared that the JCPC was defending laissez-faire
capitalism and striking down all attempts at government intervention in the economy.
 Scott also criticized the JCPC’s handling of the Natural Products Marketing Act. The legislation had involved
a good deal of federal-provincial cooperation, and each of the provinces had enacted complementary
legislation to set up Marketing Boards. Yet the JCPC ignored this and struck down the federal legislation.
The JCPC lost credibility over this.

The “legal realist” movement was a reaction against undue formalism. Some of its principles were:
 Law should be informed by and connected to changes in society.
 Law is not objective; judges make value judgements and political decisions.
 Conflicts of rights require a subjective balance.
 Stare decisis is a myth: precedent is manipulable and indeterminate.
AG B.C. v. AG Canada (The Natural Products Marketing Act) [1936]
Facts
Act’s focus was on products whose principle market was outside province of production
Ulra vires feds?
Issues
SCC: Yes. JCPC: Yes.  Ultra vires feds
Holding
Ratio
 SCC: Duff CJC - T&C  although does not allow for regulation of specific trade in local sense, it
does embrace the regulation of external trade and interprovincial trade (from Parsons)
 Falls in s.92 and the only time POGG could be employed is in times of emergency
 JCPC Atkin: Following Eastern Terminal Elevator Feds cannot legislate under T&C where
matter is in substance of local and provincial nature (control of local trade by legislating over
interprovincial and external trade)
 Cooperation b/n Federal and provincial will be difficult and “will not be achieved by either party
leaving its own sphere and encroaching upon that of the other.”  water-tight compartments
Comments Straight forward application of Eastern Terminal Elevator. High Threshold of care for Feds to enact
legislation of such a trade as will end up controlling trade within a province
22
Federalism and the Modern Canadian State
Richard Simeon, “Criteria for Choice in Federal Systems” (CBp.198)
Simeon says that federalism is not an end in itself, and that people usually assess federalism in terms of one of
three distinct bodies of theory:
1. community (or diversity):
 Federalism can accommodate a balance between different notions of community. In the contemporary
world, most people belong to multiple communities, ranging from the family to humanity in general;
federalism acknowledges this. Conflicts arise (e.g., Quebec nationalism) when different parts of the
country hold different ideas of the balance between local and national community identity.
 Some people see this as a “minority rights” argument.
 counter-argument: Some communities might not end up being recognized, if they are minorities within
provinces or states.
 examples of federal governments safeguarding minority rights:
 Aboriginal rights in Canada
 blacks in the southern US
 counter-argument: Provincial divisions are artificial and do not really represent communities.
2. functional effectiveness: (also cf. “subsidiarity”)
 In this view, institutions and levels of government are assessed according to their ability to respond to
citizens’ needs.
 It tends to be liberal and individualist (relying on economics).
 Functionalists are concerned with the burden of duplicating institutions, and the possibility of
governments “passing the buck.”
 As Prof. Sheppard put it, “arguments about efficiency and effectiveness often cut both ways.”
3. democracy: (also cf. “subsidiarity”)
 One aspect of this theory is separation of powers, checks and balances, and limiting the role of the
state. (However, modern critics associate federalism with excessive government.)
 Another aspect is the idea of citizen participation and government accountability.
 However, there is the counter-argument that confusion between different levels of government
reduces transparency. This is especially true where “executive federalism” takes over.
 There is also the classic problem with federalism, that it may frustrate the will of the majority. Federalism
doesn’t solve the dilemma of majorities and minorities.


Most constitutional cases in the late 19th and early 20th centuries dealt with federalism. Since then, the
number of cases dealing with federalism has declined, but there has been a corresponding rise in executive
federalism. Rather than going to court, the federal government and the provinces are more likely to negotiate
(e.g. health care spending).
 Of course, going to court is still an option.
Federalism has also changed due to the changing role of government: The environment, regional
development, culture, health, social welfare, housing, human resources development, consumer protection:
none of these are enumerated powers.
Bruce Ryder, “The Demise and Rise of the Classical Paradigm” (1991) (CBp.237)
Basically, Ryder critiques the classical paradigm for being too deregulatory, but he criticizes the modern
paradigm for being too inclined to compromise provincial autonomy.
Classical paradigm (Beetz)
Modern paradigm (Hogg)
 exclusivity; “watertight compartments”; powers
 allows overlap; “pith and substance”
“mutually modified”
 judicial activism
 judicial restraint
 deregulatory
 maximizing legislative powers
 safeguarding provincial autonomy
 risks compromising provincial autonomy due to
“paramountcy” rule
 associated with JCPC (pre-1949), but:
 associated with SCC (post-1949), but:
 used for economic regulation
 used for social and moral issues
23
Interpreting the Division of Powers


The various doctrines interweave, and can provide different analyses of the same issue:
 pith and substance
 necessarily incidental or ancillary
 double aspect
These are not unwritten constitutional principles; they are rather judge-made law.
Validity: Pith and Substance




“Pith and substance” is defined as the “matter” of the law, its dominant feature, its true meaning, how it can be
characterized, or what it is about.
The test has two steps:
1. One has to identify dominant features of law, then
2. assess if it falls under federal or provincial power.
Once one identifies a law’s dominant feature, if it comes within the dominant head of power, it can be
sustained even if it intrudes incidentally into another level of government’s jurisdiction. This is seen as
reflective of the modern approach to constitutional interpretation, willing to engage the various levels of
government in an area of law.
Legislators may include a “stated purpose” in the legislation, but courts may second-guess this, and look for
the “actual purpose” of the law, as in the Nova Scotia Morgentaler case:
R v. Morgentaler [1993] 3 SCR 463. (CB p.213)
Jurisdiction Nova Scotia
Facts
In January 1989, Morgentaler announced his intention to open an abortion clinic in Nova Scotia. In
March 1989, the Nova Scotia government enacted the Medical Services Act, whose stated
purpose was to prohibit the privatization of medical services in order to maintain a high-quality
public health care system. Certain medical services, including abortions, could only be performed
in hospitals, not privately-run clinics. Morgentaler opened a clinic anyway and performed abortions;
he was then charged.
Issues
Was the Medical Services Act valid provincial hospital legislation?
No.  Ultra vires Provinces (NS)
Holding
Ratio
 The Medical Services Act was in pith and substance criminal law, and therefore ultra vires the
Nova Scotia government. Sopinka J looked at the “four corners” of the legislation as well as
extrinsic evidence: The course of events and Hansard showed that the actual motivation behind
the legislation was the prohibition of abortion clinics.
 P&S Criminal: Restrictions on abortion have historically been part of the criminal law 
Legislation establishes local standard of morality and stiff fines  this is the classic ends of the
criminal law
 Sopinka J laid out a detailed procedure for the classification of laws:
1. Identify the ”matter” of the legislation
2. purpose and effect:
(a) the effect includes the strict legal effect—“how the legislation as a whole affects
the rights and liabilities of those subject to its terms”—as well as the practical effect.
The social or economic purpose of the legislation is also relevant.
(b) the use of extrinsic materials: Hansard is OK
3. scope of applicable heads of power: here the court assessed the scope of (a) criminal
law and (b) provincial health jurisdiction, before discussing (c) the regulation of abortion
and the fact that it fit under criminal law.
Comments  This is an example of “colourable” legislation. Why don’t they use language of colourability?
According to CCL this is the perfect example
 The SCC appears to be a little pissed off that the Nova Scotia legislature was not respecting the
SCC’s 1988 decision.
 The SCC could have found just the provision on abortion invalid, but instead struck down the
whole statute.
24
Defn Colourable legislation: legislation that is determined by the courts to, on its face address matters within its
jurisdiction but, in pith and substance it is directed at matters outside its jurisdiction
 defn in Fire arms ref  Substantial divergence from the stated aim of the law (CBp. 223-224)
- Sopinka J. in Morgentaler, Present legislation is criminal leg on its face and therefore do not need to
invoke colourability doctrine
o This could be considered colourability doctrine regardless of what Sopinka said. On it’s face,
looks like criminal law.
o Colourability Doc deals with “stated purpose” of legislation – in Morgentaler is health. Stated
purpose is not actual purpose.
o Sopinka just says, on its face is criminal so we don’t even have to worry about colourability
o Question: How central is the “stated purpose” of the legislation to the colourability doc.
Katherine Swinton, “The Anatomy of Constitutional Interpretation” (1990) (CBp.205)
 One of the biggest controversies in the interpretation of ss.91 and 92 has been over the POGG power:
 Some, such as Laskin, saw it as a general grant of power to Parliament.
 Others, such as Lederman, thought the enumerated powers were the express grants of power.
 ss.91 and 92 are not exhaustive of all the possible areas of legislation: new areas have emerged.
 According to Abel, there are three steps in determining which category to assign legislation to:
1. Identify the “matter” of the legislation.
2. Delineate the scope of the various powers.
3. Determine which power the legislation falls under.
 In practice, the courts tend to collapse these steps.
 The first step is controversial, because it’s unclear whether the courts should focus on the purpose or the
effects of the legislation.
 This depends partly on ideas of judicial deference or activism.
 Contrary to this three-step test, the double aspect doctrine allows courts to uphold overlapping
legislation.
 Swinton acknowledges the role of many different modes of interpretation, including historical, textual, ethical
and prudential. She emphasizes that precedent plays an important role.
W.R. Lederman, “Classification of Laws and the British North America Act” (1981) (CBp.208)
 The enumerated powers in ss.91 and 92 are concerned with classes of laws, not classes with facts: “the
regulation of trade and commerce” rather than simply “trade and commerce.”
 This means that overlap between the sections is inevitable, in spite of the last lines of s.91.
 The opening lines of each section, which refer to “all matters coming within the classes of subjects next
hereinafter enumerated,” really mean “laws coming within the classes of laws next hereinafter
enumerated.”
 Lederman thought it a “false antithesis” to distinguish between the purpose and the effects of a rule. He
would prefer to throw all such considerations together and to try to decide what is the most important
“feature of meaning” of the legislation.
 He advocates the use of prudential and ethical approaches. (“Who is to be the physician?”)
 He qualifies this by advising the use of the doctrinal approach (stare decisis).
 However, he qualifies stare decisis by referring to changing circumstances and conditions.
Validity: Necessarily Incidental or Ancillary


“…if the larger scheme of which the impugned provision is part is constitutionally valid, the impugned
provision may also be found to be valid because of its relationship to the larger scheme.”
This approach was invoked by Anglin CJC in his dissent in Eastern Terminal Elevator.
25
General Motors of Canada Ltd. v. City National Leasing [1989] 1 SCR 641. (CB p.225&371)
Jurisdiction Ontario
Facts
City National Leasing (CNL) sued GM for its discriminatory pricing policy, as authorized by a
provision of the Combines Investigation Act. GM argued that the provision was ultra vires the
federal government because the creation of civil causes of action is part of “property and civil
rights.”
Issues
Was the impugned provision sufficiently integrated into the federal statute (truly necessary or
functionally related) to sustain its constitutionality?
Yes.  Act and provision are intra vires
Holding
Ratio
The SCC found that, although the impugned provision appeared to encroach on provincial sphere,
it passed both the functionally related and necessarily incidental test within the Combines
Investigation Act, which was valid as a whole.
 Creation of rights for civil action is incidental to the purpose of the Act
 Dickson CJC’s judgment became a three-part test for the necessarily incidental doctrine:
1. Does the impugned provision intrude on the other level of government’s jurisdiction?
2. Is the impugned provision contained within a valid regulatory scheme?
3. Is the impugned provision “truly necessary” or “integral” part of the impugned legislation
(Necessarily incidental test) or functionally related (Functionally related test)?
 Dickson CJC also set out five criteria for the general trade and commerce power (see
p.38), adding two conditions to a list begun by Laskin CJC.
Comments Dickson CJC’s test may be adapted to a kind of “sliding scale” analysis: If the impugned provision
interferes significantly with the other level of government’s jurisdiction, then the “fit” with the
regulatory scheme will have to be close: i.e., one may have to establish that the government has to
include this provision in order to achieve its regulatory objectives. In this case, the SCC found that
the interference with provincial jurisdiction was minimal.
 One way to apply the necessarily incidental doctrine is to develop a good pith-and-substance analysis, and
then see if exceptions, such as this one, are an issue.
 According to some, this doctrine is just another version of “pith and substance.”
Validity: Double Aspect



This doctrine overlaps with the other two doctrines. The pith and substance doctrine works well when there is
one key dominant dimension that can determine the validity of the legislation. The double aspect doctrine,
however, works well when provincial and federal purposes co-exist.
The double aspect doctrine has its origin in Hodge v. the Queen (see p.16 and CBp. 102)
Leads commentators to say there is a state of concurrency (overlapping
Multiple Access Ltd. v. McCutcheon [1982] 2 SCR 161. (CB p.232 and p.260)
Jurisdiction Ontario
A shareholder sued Multiple Access Ltd. under the Ontario Securites Act alleging that insiders had
Facts
traded on inside information. The alleged insider traders argued that the Ontario statute could not
apply because Multiple Access was a federally regulated company, registered under the Canada
Business Act, which also contained provisions dealing with insider trading. According to the
paramountcy doctrine, they claimed, the federal legislation on insider trading should have applied
instead, and the provincial legislation should have been rendered inoperative.
Issues
Which of the two insider trading laws are valid, provincial or federal?
Holding
Both!
Ratio
 Dickson J found that the Ontario legislation was valid under “property and civil rights,” and that
the federal legislation was valid as a regulation of a company.
 With regard to the double aspect doctrine, the insider trading provisions were equally important
to both regulatory schemes, so it was not easy to make one trump the other (see Lederman
CBp.231). (for paramountcy, see operability section below)
26
W.R. Lederman, “Classification of Laws and the British North America Act” (1981) (CBp.231)
 Lederman says that overlapping of ss.91 and 92 powers is inevitable. While some of this can be dealt with
through “mutual modification” (e.g., “trade and commerce”), some overlap inevitably remains. There are two
ways the courts can deal with this:
 The necessarily incidental doctrine: This involves a judgment that the provincial legislation is less
important than the federal legislation.
 The double aspect doctrine: If the courts find that both pieces of legislation are equally important, they
can allow both of them to stand (following Hodge).
 A problem thus arises if the two pieces of legislation are totally inconsistent. Then the paramountcy
doctrine can be applied. (Lederman takes a “narrow” view of conflict of laws.)
Applicability: Interjurisdictional Immunity
Interjurisdictional Immunity Doctrine (IID): A break away from the P&S doctrine and a move toward exclusivity
of jurisdiction. In matters where this doctrine applies, provincial laws are not allowed to have even an incidental
effect on matters falling within federal jurisdiction (no double aspect)
- Applied originally to federally incorporated companies
- Extended to federal works and undertakings



This doctrine carves out spheres of exclusive federal jurisdiction into which a province cannot reach.
This doctrine never challenges the validity of the law itself, just its application to federal entities.
The Bell #1 case in 1966 had stated that a valid provincial law (in this case, minimum wage legislation) could
not apply to federal undertakings if it affected a vital part of their operation or management.
 Tends to be unidirectional
 Not nec clear how far this doctrine will go as in Bell #2 there is statement that this is more of a general rule
applying to exclusivity of federal core of legistlated jurisdiction  therefore how far can you extend it? Not
clear.
NB. There does not have to be a federal law in the picture – only a provincial law which is being applied to
federal undertaking.
Question is – what is the core of the federal jurisdiction. Environment does not nec become part of the core
whereas labour law (as in Bell) seems to be part of the core. IF part of the core then Federal law applies (or,
rather, Prov law does not apply). If not part of the core, then provincial laws of general application.)
(Bell#1): Commission du Salaire Minimum v. Bell Telephone Co. of Canada [1966] SCC
Held: that Quebec minimum wage laws could not affect Bell Canada as it was “an interprovincial undertaking”
and therefore subject to exclusive legislative control of the feds  affect vital parts of federal undertaking
- Prior to this case, the “Sterilization Test / impairment test” had applied whereby Prov legislation could
stand as long as it did not impair the status or essential power of the fed undertaking
McKay v. The Queen, [1965] SCR 798. (CB p.242)
Jurisdiction Ontario
Facts
The McKays put an sign on their lawn during a federal election, and were convicted under a
municipal by-law which prohibited lawn signs in general.
Issues
Could a municipal (i.e., provincial) law be applied to the sphere of a federal election?
Holding
No.
Ratio
Cartwright J., for the majority, wrote that federal elections are an exclusive federal sphere, so
interjurisdictional immunity applied. Martland J., for the dissent, found that nothing in the federal
power over elections gave anyone a specific right to erect a sign, and that the legislation was in
pith and substance property and civil rights.
Comments The casebook notes that the interjurisdictional immunity doctrine has become obsolete as a way of
protecting rights since the advent of the Charter.
27


The OPSEU case in 1987 concerned provincial legislation prohibiting provincial civil servants from
running in provincial and federal elections without taking a leave of absence. In this decision, the majority
upheld the legislation and distinguished McKay. Dickson and Lamer JJ would have overruled McKay
altogether.
Reading down: Princ of interpret  construe a statute as within the power of a legislature
o McKay (majority: interjurisdictional immunity so read legislation down so as not to target federal
election signs)
o Reading down here was tied to Applicability (ie interjurisdictional immunity)
Commission de la Santé et de la Sécurité du Travail v. Bell (Bell #2) [1988] 1 SCR 749. (CB p.246)
Jurisdiction Quebec
Facts
A pregnant employee of Bell Canada sought to be reassigned to a safer task, following Quebec
labour laws.
Issues
Could a Quebec labour or health law apply to employees of Bell Canada?
Holding
No.
Beetz J. considers the interjurisdictional immunity doctrine at length, including a discussion of Bell
Ratio
#1 and Hogg’s criticisms of it. He clarifies the doctrine by saying that interjurisdictional immunity
applies only when the application of provincial laws would “bear upon [federal] subjects in what
makes them specifically of federal jurisdiction.”
 Thus, as working conditions and management in federal corporations, like Bell #1, are essential
and vital to the operations of Bell, the provincial legislation cannot apply  Vital part test.
Comments  This case was part of a trilogy dealing with the application of provincial health and safety laws
to federal undertakings.
 Beetz J. is known for being a provincial rights advocate, and yet here he empowers the federal
government.
 The term “interjurisdictional immunity” was invented by critics of the doctrine.
 Following Hogg’s criticism, couldn’t this case have also been decided on the basis of
paramountcy? Only if one takes the “broad” approach to conflict of laws.
Tension b/n IJI and P&S 
- IJI says some incidental effects are not ok (McKay Cartwright for majority uses IJI and reading down)
- P&S says some incidental effects are ok (McKAy Martland dissent uses P&S)


It’s been suggested that the interjurisdictional immunity doctrine has been used by provincial rights advocates
as a way of dodging the more powerfully centrist paramountcy doctrine.(examples?)
Hogg argues that there is no need for an interjurisdictional immunity doctrine. He says that interjurisdictional
immunity is only relevant in the absence of federal legislation, because otherwise the paramountcy rule could
apply. In such situations, the federal government should just legislate!
 Prof. Sheppard gave as an example the Paul case, in which there was no federal family law to
protect an Aboriginal woman on a reserve getting a divorce.
Irwin Toy Ltd. v. Quebec (AG)
[1989] 1 SCR 927
Facts:
 Province of Quebec put in place a ban on advertisements that targeted children who were under 13
years old.
 An advertiser argued that this law impeded the essential and vital functions of broadcaster
management’s undertakings.
Held:
 No, it was not directly vital because it affected advertisers and not the broadcast companies
themselves.
Note:
 This should have been decided along the lines of Bell #2, but because the SC was concerned with the
ability for Quebec to legislate for cultural reasons the legislation was allowed and this new wrinkle
introduced.
28


In the Irwin Toy case, a Quebec law prohibited advertising aimed at children under 13. The toy company
argued that this limited freedom of expression and that it encroached on the federal sphere of television
broadcasting. The SCC allowed the law because it applied to advertisers rather than to broadcasters
themselves. (This case added a new layer of complexity to the doctrine.)
There is no corresponding provincial doctrine to counter interjurisdictional immunity.
Operability: Paramountcy
The Paramountcy Doctrine: provides that in cases of conflict b/n federal and prov laws, the federal law is
paramount and the prov law is inoperative to the extent of the conflict (the prov law is not invalid, just part of it is
inoperative)



When there are two pieces of legislation, federal and provincial, the courts will assess the validity of each. If
both are valid, paramountcy might be applied.
This doctrine was crafted entirely by the courts.
The confusing part is how to determine whether there is really “conflict” between the two pieces of legislation.
 The narrow version of the paramountcy doctrine states that there is only conflict when it is impossible
to comply with both laws. (“express conflict” or “impossibility of dual compliance” e.g. Multiple
Access)
 The broad version of the paramountcy doctrine states that if the federal government has legislated
within a certain area, provincial law is redundant, and therefore inoperable. (“covering the field” or
“negative implication” e.g. Ross)
 Incompatibility if legislative purpose eg B of M v. Hall
Ross v. Registrar of Motor Vehicles, [1975] 1 SCR 5. (CB p.255)
Jurisdiction Ontario
Facts
Ross was convicted for impaired driving, and was sentenced under federal criminal law to have his
license suspended for six months, except that he could drive to and from work. The Feds ordered
that his license was NOT to be taken away. The provincial law that regulates drivers’ licenses
totally suspended Ross’s license for three months.
Issues
If there was a conflict between the federal and provincial legislation, would the rule of paramountcy
mean that the provincial legislation would not apply?
Holding
No.
Ratio
 Pigeon J. holds that the right of a judge to distribute punishments for driving impairment, under
s. 238(1) of the Criminal Code, is limited to time and place. It should not deal with suspensions
of licenses, as this subject is one of provincial jurisdiction.
 Fails Covering the Field Test: The federal government, when enacting this legislation under
the Criminal law provision, did not intend to occupy the entire field of licensing. (Pigeon used the
narrow version of conflict.)
 No direct conflict b/n laws and both laws are valid
Comments  Dissent – Judson and Spence JJ.: the Highway Traffic Act is in direct conflict to the Criminal
Code; thus, the federal legislation should operate under paramountcy.
 This was a very narrow definition of conflict.
 It appears that the courts’ underlying objective in many of these cases is to uphold both pieces of legislation.
Multiple Access Ltd. v. McCutcheon [1982] 2 SCR 161. (CB p.232 and p.260)
Jurisdiction Ontario
A shareholder sued Multiple Access Ltd. under the Ontario Securites Act alleging that insiders had
Facts
traded on inside information. The alleged insider traders argued that the Ontario statute could not
apply because Multiple Access was a federally regulated company, registered under the Canada
Business Act, which also contained provisions dealing with insider trading. According to the
29
paramountcy doctrine, they claimed, the federal legislation on insider trading should have applied
instead, and the provincial legislation should have been rendered inoperative.
Issues
Which of the two insider trading laws should apply and operate, provincial or federal?
Holding
Both! No use of paramountcy as the two enactments are not in conflict.
Ratio
 (see Multiple Access case, p.26. for double aspect doctrine)
 And as for paramountcy, Dickson J the doctrine could only apply in circumstances where the
provincial law was in conflict with the federal law.
 Dickson applied the “impossibility of dual compliance test”, which stated that the duplication
of laws was the ultimate in harmony – it was the hallmark of the federal system – and one law
should only be inapplicable where one enactment says ‘yes’ and the other says ‘no’ –
compliance with one is defiance of the other. Not so here.
 Used the narrow version of conflict, finding that it was possible to comply with both laws, so
there was no conflict. He quoted Lederman to say that duplication is “the ultimate in harmony.”
 There is no true repugnancy in the case of merely duplicative provisions since it does not matter
which statue is applied
 Provincial law not rendered inoperable.
Comment
 In this case, and according to this logic, the strictest legislation will win so long as their pith and
substances are aligned.
Language of compliance
o Limiting, prohibiting - To bend to someone’s will to that of the law
o Misleading for Antaki…but…Language of compliance can be saved by shifting the actor (he who
must comply) from citizen to the judge  legislative compliance
Bank of Montreal v. Hall, [1990] 1 SCR 121
Jurisdiction Saskatchewan
Facts
Hall, a farmer, borrowed money from the Bank of Montreal to buy some machinery, with the
machinery as security. He failed to pay the loan, so the bank seized the machinery according to
the federal Bank Act, but in contravention of certain procedures required by the Saskatchewan
Limitation of Civil Rights Act which required notice prior to seizure.
Issues
Could the provincial law apply?
Holding
No.  Paramountcy applies and provincial law inoperable
Ratio
 La Forest J. held that both acts were valid
 Federal law gives the right to not give notice which is in conflict with the obligation to give notice
 Incompatibility of legislative purpose test: The purposes in this case were in direct conflict.
The uniformity of security realization laws could not coexist with the specific restriction of the
Civil Rights Act limiting the collection of security (CBp.266).
 There was a conflict between the federal and provincial laws. La Forest J. used a “broad” notion
of conflict. He held that the “essence” of the federal legislation, which was to provide banks with
a national regime of security for loans, would have been undermined by allowing the provincial
legislation to apply.
Comments  This seems totally inconsistent with the Multiple Access and Ross judgements; it would have
been possible for the bank to comply with both the federal and provincial legislation.
 By invoking paramountcy (and not IID) leaving prov to legislate but have no effect in certain
cases  Had used IID would severely limit Prop and Civil Rights
 Change in the language of compliance  judge as having to comply with both laws. Here there
is a focus on a different actor (judge rather than the citizen)
 Another case in which the courts took a broader view of conflict was Law Society of British Columbia v.
Mangat, 2001 SCC 67, which concerned a federal law allowing legislation to be made allowing non-lawyers to act
as counsel in immigration hearings. This appeared to conflict with a provincial law prohibiting non-lawyers from
acting as counsel for money. Technically, it may have been possible for anyone to comply with both laws by
becoming a lawyer, but to limit the law thus would have been contrary to Parliament’s intentions. “Dual comp with
both statutes is impossible without frustrating Parl’s purpose”
30
Peace, Order and Good Government





What does “Peace, Order and Good Government” say about the role of the state?
The original draft said “Peace, Welfare and Good Government.”
The text literally extends the POGG power to all matters except the enumerated provincial powers.
Shrinking of POGG from Parsons to Eastern Terminal to really only a emerg power
Then expansion as residual power and, in some cases, treaty power.
Monahan on POGG (pp.255-273)
 According to Monahan, there are four branches to the POGG power:
1. emergency (pro-provincial rights)
2. purely residual (centralizing) (Russell may be an example of this.)
3. national concern (centralizing)
4. interprovincial concern (centralizing)
S. 91
o
o
o
o
It shall be lawful for the Queen, by and with the advice and consent of the Senate and H of C to
make 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 Provinces.
- Residual > General
o Montague Smith said General
o Fell into disfavour quickly which left it as a residual power
Local Prohibition
o Watson
o Intra Vires
o First use of words National Concern
B of C, Fort Francis, Snider
o Haldane
o Emergency takes over from National Concern
o Seemed the only way to justify POGG
o ET Anglin Dissent
Radio
o Find treaty power (external to treaty with UK)  Gap idea is b/c it is found in the POGG power
In AG Ontario v. Canada Temperance Federation [1946] (PC), Viscount Simon expands POGG power:
 For matters of national concern (National Concern Doctrine)
 Not limited to emergency (as was limited in rereading of Russell in Snider)
 Extended to prevention of emergency of national concern
In another case
 POGG used as basis for decision following Radio ref, that s.91 also authorizes federal legislation in
relation to subject matters not explicitly assigned to either level of gov’t
In Jones v. AG New Brunswick
 Legislation of Feds upheld on the basis that federal institutions are clearly beyond provincial reach and
fall into POGG b/c of the residual character of the legislative power thereby conderred
Reference re Anti-Inflation Act, [1976] 2 SCR 373. (CBp.281)
Facts
The federal government enacted a powerful series of price, income and profit controls for
professions and large businesses. The provincial public sector (education, health, etc.) was not
explicitly covered, but was addressed by federal-provincial agreements with eight of ten provinces.
(B.C. and Saskatchewan did not sign agreements, but they supported the Act nonetheless.) The
preamble to the Act called inflation “a matter of serious national concern” but did not use the word
“emergency” or “crisis.” Trade unions were outraged and the Canadian Labour Congress
intervened in the case.
Was the Act ultra vires in emergency times and (in general) under the national dimensions
Issues
31
Holding
Ratio
argument (National Concern Doc) of its POGG powers?
Intra vires feds in emergency times
 [Majority 7:2]: Act intra vires; supportable under the p.o.g.g. power as “emergency legislation”
 [Minority]: Act ultra vires
 [Note: court divided 5:4 in favour of the proposition that the Act was not supportable under the
“national dimensions” test (was held ultra vires under national concern)
 According to Laskin CJC, the question was not whether there was in fact an emergency, or
whether Parliament had declared there to be an emergency, but whether Parliament had a
rational basis (test)to believe that there was an emergency.
 Laskin CJC found that Parliament had such a basis. He based his decision on extrinsic
evidence: economic studies, etc. It was not the courts’ role to assess Parliament’s ability to
respond the emergency. However, he rejected the idea that Parliament could act on the mere
basis of “national concern.”
 Laskin identifies the POGG phrase in s. 91 as a “general power” – that is, it gives federal
Parliament a general power to legislate for Canada except on matters carved out in S. 92
 The form, the preamble, the lack of cooperation with provinces do not shut down legislation 
no need to explicitly say ‘emergency’ as “serious national concern” is sufficient coupled with
extrinsic evidence.
 Laskin CJC also suggested that the general branch of the trade and commerce power and
monetary policy are springboards for the legislation though enacted under POGG.
 Beetz, dissenting held that the Act directly interfered with prop and civil rights on a large scale
(not ancillary or incidental).
 Inflation is not subject matter  it is an aggregate. P&S of the Act is prop and civil rights 
scope of federal power would be too large and would undermine division of powers.
 Beetz J, thought that Parliament should explicitly use the word “emergency” if it wanted to rely
on the emergency powers. This “unmistakable textual signal” is necessary but not conclusive
 Beetz J. warned against the “national concern” branch of POGG Test for valid exercise of
NATIONAL CONCERN branch of POGG - The national dimensions doctrine is a branch of the
POGG power. When identifying a matter of national concern, consider (1) degree of indivisibility
and discreteness of subject matter; (2) scope of intrusion into provincial areas. (His reasoning
on this point was endorsed by a majority of the court.)
Comments  This case is perhaps best remembered for its discussion of the admissibility of extrinsic
evidence in constitutional cases.
 It seems ironic here that the trade unions were trying to limit federal powers: compare this to the
1930s when social democrats wanted more federal power.
 Wouldn’t this have been a lose-lose situation for the trade unions? If they had won the case, the
provinces could have enacted their own leglisation.
- For the 4 who do not endorse the existence of a National Concern branch, why do they invoke T&C, Monetary
policy, etc. even though they only rely on emergency branch of POGG?? ANTAKI FLAG!!!! NO ANSWER!!!!
32
Katherine Swinton: Laskin and Beetz (CBp.276)
Laskin’s Centralist Vision
 Laskin believed in a strong central government. He was influenced by F.R. Scott and other 1930s critics.
 Laskin used a functional approach: this would consider the ability of governments to meet existing needs
and allocate powers accordingly.
 He called for flexibility in interpreting the constitution.
 Laskin thought that the “aspects” doctrine should deal with the object or purpose of legislation rather
than the subject matter.
 He thought the “necessarily incidental” doctrine was unnecessary given the “aspects” doctrine.
Beetz’s Classical Federalism
 Beetz was concerned with safeguarding provincial rights (especially with Quebec in mind)
 He sought to limit judicial discretion; he valued stare decisis and the immutability of the BNA Act.
 He used a “conceptual” approach, with a clear separation between law and politics; he felt the functional
approach was too political.
 A conceptual approach preserves exclusive areas of jurisdiction for each level of government.


the “emergency” branch of POGG:
 There is a broad consensus that the federal government has the power to deal with emergencies.
 The subsequent Emergencies Act (1988) seems to reflect Beetz J.’s dissent in the Anti-Inflation
Reference. Although the Act does not restrict the federal government’s power to deal with emergencies,
its terms can only be invoked if the government declares an emergency.
The “national concern” branch of POGG is alive and well.
 It originated in the Canada Temperance Federation case (1946).
 Beetz J’s remarks in the Anti-Inflation Reference (see above) seemed to define a limited scope for such a
doctrine.
The Beetz-Lederman Thesis (Monahan, p.266)
 Lederman warned against sweeping grants of jurisdiction over general categories, such as culture, the
environment, or the economy. The preservation of a federal-provincial balance depended on grants of
limited and discrete subjects of power. Bigger subjects should be seen as outside the system and
subdivided for federal and provincial purposes.
 Beetz J. picked up on this with his remarks in the Anti-Inflation Reference, as did Le Dain J. in Crown
Zellerbach.
R. v. Crown Zellerbach Canada Ltd., [1988] 1 SCR 401. (CBp.303)
Jurisdiction British Columbia
The federal Ocean Dumping Control Act prohibited dumping at sea without a permit. Crown
Facts
Zellerbach was prosecuted for dumping woodwaste just off the shore of Vancouver Island, within
provincial territorial waters. It was not clear that the woodwaste would harm marine life or impede
navigation.
Issues
Could the federal government regulate pollution in provincial waters that had no demonstrable
effect outside the provincial waters?
Yes. Under POGG national concern doctrine intra vires Feds
Holding
Ratio
The majority found that the pith and substance of the legislation was to control marine pollution,
and it upheld the federal control of marine pollution on the basis of the national concerns branch of
POGG. Le Dain J. expanded on Beetz J.’s remarks in the Anti-Inflation Reference to summarize
the national concern doctrine in four points:
1) Doctrine applies to new matters (not existing at Confed) and to matters which were once of
a local nature but have become matters of national concern
2) Matter must have singleness, distinctiveness and indivisibility that clearly distinguishes it
from matters of provincial concern and a scale of impact on prov jurisdic that is reconcilable
with the fundamental distrib of power per const
3) Provincial Inability Test: Can consider the effect on extra-provincial interests of a
33
provincial failure to deal effectively with the control or reg of the intra-prov aspects of the
matter
 Le Dain found that there was a distinctiveness/singleness to marine pollution – extraprovincial and interntl in character. Close relationship b/n pollution in internal & external
waters. Hard to visually discern boundaries. – is one single thing
 Limited interference with provincial powers.
Dissenting, La Forest J. found that control of marine pollution failed to meet the indivisibility test.
“ocean pollution” is an aggregate. Would “gut” provincial powers
 problem w/ provision- it deals with ALL dumped substances, even ones that cannot be
demonstrated to pollute and therefore should not be under federal jurisidition as are of
provincial concern.
Comments  Not convinced that the case at hand satisfied Le Dain’s four-part test either.
 To what extent is this provincial inability test requiring evaluation of the provincial efforts? And
what is the connection b/n inability and then calling it “distinctive” matter?  perhaps this goes
back to the idea that, should province be unable to deal with something then it should be
considered something distinct from the provincial powers. (seems like rationalization)
 Brun and Tremblay (p.315) critique this judgment and basically show how all of Le Dain’s criteria are vague
and fluid. They accuse the Supreme Court of politically favouring the federal government.
Antaki on Tests
 To what extent does a test give an anwer?
 Oriented in a direction that will get you to think of certain considerations and then the onus is still on you (ie
judge) to use this direction in dealing with the responsibility of making the decision.
Friends of the Oldman River Society v. Canada (Minister of Transport), [1992] 1 SCR 3. (CBp.318)
Jurisdiction Alberta
Facts
The federal Department of Transportation did not follow proper environmental assessment
procedures when giving the Alberta government permission to build a dam on the Oldman River.
The Friends of the Oldman River Society brought a mandamus action. The Alberta government
challenged the constitutionality of the environmental assessment legislation.
Issues
Did environmental regulation pass the test for the “national concern” branch of POGG? Does the
federal law or provincial law apply…or both.
Holding
Does not fall under POGG. Both laws apply. Assessment must be made.
Writing for the majority, Laforest J. echoed his (minority) views in Crown Zellerbach, to the effect
Ratio
that environmental regulation was too diffuse and not distinctive enough to meet Beetz J.’s
requirements for the national concern branch in the Anti-Inflation Reference.
 Alberta’s claim that dam is a provincial undertaking is erroneous as implies IID for provincial
undertakings  this does not exist (only for federal)

In the Ontario Hydro v. Ontario (Labour Relations Board), [1993] 3 SCR 327 case, the majority found that
labour relations at a nuclear power plant fell under national concern.
 It was not a clear-cut case: the three Ontario justices dissented on the basis that labour relations were not
part of the “single matter” of nuclear energy.

It is therefore clear that Le Dain J.’s criteria for the national concerns branch are problematic: nuclear energy,
aeronautics, the national capital: none of them are indivisible.
Provincial Inability connection with singleness  Per Simeon – supports efficiency above all else
 -To what extent is this provincial inability test requiring evaluation of the provincial efforts? And what is the
connection b/n inability and then calling it “distinctive” matter?  perhaps this goes back to the idea that,
should province be unable to deal with something then it should be considered something distinct from the
provincial powers. (seems like rationalization)
 The national concern branch has been limited in scope.
 Monahan talks about “interprovincial concern”: How different is this from “national concern”?
 There is no indivisibility requirement; it doesn’t have to be exclusive.
 Could this be a new doctrine emerging to take the place of “national concern”?
34
Economic Regulation




East-West economic integration has been a huge part of Canadian nation-building: the idea of an “economic
union.”
The federal government has numerous economic powers, especially “the regulation of trade and commerce.”
The provinces have numerous economic powers, especially “property and civil rights.”
What do we mean by economic regulation?
 Production, trade, finance, banking, labour, taxation, subsidies/spending, consumer protection, etc.
Provincial Powers over Economic Regulation
92(13) and 92(16) give the provinces broad sweeping powers to regulate most intra-provincial matters,
particularly labor, capital and goods and services. This is the general rule.
Test
In order to determine whether there is a constitutional right for a province to legislate on a given area it is best to
ask
 (1) What is the pith and substance of the legislation?
 (2) try to determine where the impugned provision’s pith and substance fits into the constitution. If, for
example, the pith and substance is to legislate over inter-provincial or international trade then the legislation
will be found ultra vires
The provincial powers over “property and civil rights” and “matters of a merely local or private nature” basically
give the provinces residual power over anything intra-provincial.
Carnation Co. Ltd. v. Quebec Agricultural Marketing Board [1968] SCR 238. (CBp.330)
Jurisdiction Quebec
Facts
Carnation operated an evaporated milk factory in Sherbrooke. It bought its raw milk from Quebec
dairy farmers, but shipped most of the evaporated milk to other provinces. A price dispute arose
between Carnation and its suppliers. The Quebec Agricultural Marketing Board was empowered by
legislation to arbitrate such a price dispute, which it did. Carnation contested the price settlement
on federalism grounds.
Issues
Did the Board’s decision encroach on the federal field of interprovincial trade and commerce as
price settlement would effect the price of sale of milk iterprovincially?
No. Orders are intra vires provincial Board
Holding
Ratio
Martland J. found that the pith and substance of the act was to preserve the local milk industry and
to improve their bargaining position via Quebec purchasers (incidental effect of increasing costs
outside province).
 The purpose of the legislation was intraprovincial, and that its effects on interprovincial trade
were incidental.
 In Martland J’s words, “It is not the possibility that these orders might ‘affect’ the appellant’s
interprovincial trade which should determine their viability, but, rather, whether they were made
‘in relation to’ the regulation of trade and commerce....” It used the analogy of labour law: it
certainly affects the cost of doing business in the province, and it may therefore affect the
province’s external trade, but its main goal is internal.
Note
Distinction b/n aiming at T&C and having incidental affect on T&C
Manitoba Egg Reference (1971) (CBp.334)
Jurisdiction Manitoba
Facts
Marketing boards from within Quebec and Ontario gave preferential treatment to chicken and egg
producers within their own provinces – the Chicken and Egg War. This had particularly adverse
effects on producers from outside the province. The Manitoba provincial government framed
almost an identical piece of legislation and put it to the SCC as a reference in order to challenge
35
Issues
Holding
Ratio
Note
the legislation of the other provinces.
Was the marketing board in Manitoba – (which was really aimed at the one in Quebec & Ont) –
invalidly impinging on inter-provincial trade and commerce (an illegal system of indirect taxes
aimed at out of province producers)?
Martland J. – The legislation was ultra vires
 The statute did indeed aim to interfere with the free flow of interprovincial trade.
 Pith and Substance: This plan not only affects interprov trade in eggs, but aims at the regulation
of that trade. In order to achieve its purpose (create advantage for Man producers), the Plan
specifically controls and regulates the sale in Manitoba of imported eggs. It is designed to
restrict or limit the free flow of trade b/n provs which is under T&C
Laskin J. Concurring:
 Here, regulated product (the eggs) is coming from outside the province (distinguish from
Carnation). This is NOT, however, the test of validity. This scheme embraces products which
are in the current of interprovincial trade
The scheme is on its face an invasion of federal trade and commerce power. Reasons:
 [1] the direct object of the scheme is the regulation of the importation of eggs, and it is not saved
by the fact that the local market is under the same regime (Eastern Terminal);
 [2] to permit each province to seek its own advantage by sealing borders to goods from other
Provs would be to deny an object of confed
 Laskin expressed concern about answering the reference b/c there was no “factual underpinning
for the issues”  no factual economic background to the statute
 There was a criticism by Paul Weiler that the legislative scheme was not dramatically different
than that in Carnation. However, Monahan noted that the scheme in the latter was put in place
to maintain the viability of Quebec’s dairy industry. If it was not this way then the provinces could
legitimately erect legislation to discriminate against out of province producers.
 Wrong Question asked per Weiler: Manitoba forced court to look at blanket legality of such a
marketing scheme when the real issue was the discriminatory application of these schemes to
out-of-province producers. Thus, all schemes would be ultra vires even if they applied
favourably to extra-prov products.
Burns Foods Ltd. v. AG Manitoba
[1975] SCC
Facts: Manitoba hog marketing scheme that required all hogs to be purchased from prov Marketing Board 
required that in and out-of-province hogs be treated the same way.
Decision: legislation ultra vires b/c is in P&S an attempt to regulate the interprov trade in hogs.
 By subjecting price of “imports” to the same regs as local sales has effect of regulating interprov trade.
Fact that there is no discrim doesn’t make a real difference – gov’t could introduce discrim at any time.

Many of the most contentious federal-provincial economic cases have revolved around natural resources.
 In the 1970s, these cases followed the same pattern as other cases: the SCC struck down provincial
regulations when they were in pith and substance trying to regulate interprovincial or international trade.
Re Agricultural Products Marketing Act
[1978] 2 SCR 1198
Facts:
 Federal-provincial cooperative scheme to regulate the market for agricultural products in order to
prevent the problems that arose in Manitoba Egg. It erected a comprehensive program for marketing
agricultural products, including setting up quotas for production at a local level. Ontario set up identical
provisions to the federal legislation. The legislation was challenged by local producers.
 Ontario sets its own quotas that were identical to Federal Quota
Issue:
 Is provincial scheme ultra vires the provinces b/c impinges on federal T&C power?
Decision:
 NO. Scheme is intra vires
Ratio: (1) control of production is prima facie valid because it is impossible to identify and regulate only those
36
goods being produced and sold in the province from those that are leaving the province; and (2) there should be
a high degree of deference with respects to federal provincial joint initiatives.
Pigeon: “Production Stage” is prima facie provincial jurisdiction
 Egg farms are local undertakings under 92.10.
 Carnation case is conclusive in favour of prov jurisdiction over undertakings where primary agri products
are transformed into other food products.
 The destination of the goods was irrelevant. The only thing that mattered was that the regulations
imposed constraints on local production. This distinguished the scheme from “marketing” and focused
on the “production” element.
 He also noted that the Ontario marketing board’s authority cannot extend to inter-provincial trade
There should be a high degree of deference when reviewing joint provincial-federal initiatives
 Thus, he finds that he has no problems to allow the provincial legislation to complement the federal one.
Notes:
 Distinction b/n “marketing” and “producing”. Latter is a local matter and so production quotas by
province are ok.
 Case comes back to Parliamentary supremacy issue in a different manner  that is, if working together,
feds and provs should be able to do anything.
 S.121 issue  scheme argued to prevent establishment of a single economic unit in Canada with
absolute freedom of T&C  Nope  all provinces are on board so there is no disadvantage to
one province (no customs or tariffs)


In the oil cases, oil-producing and oil-consuming provinces were battling over the difference between the
world market price of oil and the cost of producing oil in Canada. The federal government was caught in
the middle, trying to establish a single national price and reduce its commitments to subsidies and
equalization payments.
Cases in this area involved scope of provincial power to tax under 92.2 and scope of inter-gov immunity
from taxation under s. 125
Canadian Industrial Gas and Oil Ltd. v. Govt. of Saskatchewan [1978] 2 SCR 545. (CBp.345)
Jurisdiction Saskatchewan
Facts
Saskatchewan had enacted a “mineral income tax,” which was equivalent to 100% of the
difference between the current price of oil (in Canada) and the international price of oil prior to the
energy crisis. 98% of Saskatchewan’s oil was shipped to Eastern Canada and the USA.
Issues
1. Was the mineral income tax an “indirect tax” and therefore beyond provincial jurisdiction under
s.92(2)?
2. Was the tax in relation to interprovincial and international trade and commerce, and therefore
encroaching on the federal trade & commerce power?
Holding
1. Yes.
2. Yes. Scheme ultra vires province
Ratio
1. [not included in excerpt]
2. Martland J. found that the legislation was “directly aimed at the production of oil destined for
export and has the effect of regulating the export price…”
 regulation of price  though no specific setting of price, company would still have to pay same
in taxes (in effect setting price)
 The pith and substance of the regulations are to impose a price floor on the price of oil in order
to expropriate the benefits from the increase in the price of oil before it is exported extraprovincially.
 Provincial authorities cannot directly affect the price of exports – Carnation was distinguished
because it functioned as an indirect tax on exports and it was not simply a measure to line the
coffers of Quebec – without trenching on s. 92 (2) of the BNA
 Since the producer of exported oil has no choice but to comply with the taxes it is ultra vires
Dickson J, dissenting, would have upheld the tax as a form of direct taxation for the purpose of
raising revenue. He thought there should have been a presumption of constitutionality in favour of
the province, and that the suspicion of external objectives should not have been enough to
overturn this.
37
Comments
 Court must be sensitive to Legislatures safeguarding their legitimate interests.
 Nothing in this case suggests that the taxation measures are a colourable measure to assume
control of extra-provincial trade. The tax relates only to oil produced w/in SK. The transactions
are well-head transactions. There are no impediments to the free movement of goods. (as in
Man Egg)
 According to Monahan, this case can be distinguished from the Carnation case, because there
were no internal provincial motivations for the legislation except a desire to capture revenue.
 Carnation distinguished because it was not to “line the coffers of the provincial government”).
This is a benchmark case in poor economic decision-making
 Criticism of the decision: Tax is on a purchaser of the oil (the company) and therefore is a direct
tax and should be considered valid
Central Canadian Potash Co. Ltd. v. Govt. of Saskatchewan [1979] 1 SCR 42. (CBp.350)
Jurisdiction Saskatchewan
Facts
Almost all of Saskatchewan’s potash was sold outside the province, and 64% was sold to the US.
Fearing US trade sanctions, Saskatchewan instituted a “prorationing” scheme. In setting up the
scheme, the Saskatchewan government met with officials from New Mexico; Saskatchewan
officials issued “directives” regulating the used of potash exported to Europe, and so on. This
regulation prevented CCP from fulfilling a contract.
Was the prorationing scheme ultra vires the province?
Issues
Yes. Ultra vires Sask gov’t
Holding
Ratio
 the provinces can legislate on locally produced and traded goods; however, the regulation of
goods in pith and substance that are produced locally but bound for export cannot be
colourably regulated.
 The pith and substance of the regulations is to put a price floor on the extra-provincial sale of
potash in order to meet the extra-provincial market demand
 There is virtually no potash market in Sask.

In 1982, s.92A was added to CA1867, which gave provinces power over natural resources.
 This section was meant to “reassure” the provinces that the federal government would not use
s.92(10) to declare natural resources to be works under federal jurisdiction.
 s.92A(2) gives provinces the power to regulate exports of natural resources, so long as this does not
result in prices that discriminate against other provinces.
This subsection is qualified by s.92A(3), which makes federal paramountcy explicit in this area.
ANTAKI on Common link b/n cases
- Attempt by provinces to regulate an industry w
- In era of increasing economic integration what is the line for provincial control?
- Key Words
- Price fixing (to what extent is it important)?
- Transaction taking place entirely within province
- Production (provincial?)
- Distinction b/n production and marketing
- Opportunity for discrimination
- Colourability
Federal Powers over Economic Regulation
Introduction



S. 91(2): The Regulation of Trade and Commerce
Two Federal Trade and Commerce Branches of Power: These were outlined in Parsons. They are: (1) The
regulation of inter-provincial and international trade and commerce and (2) the “general regulation of trade
affecting the whole dominion”.
The JCPC initially circumscribed the application of both of these branches severely.
38

Doctrinal developments since 1960 have opened up possibility of larger federal role over trade and commerce
1. Interprovincial / International Trade

This can be used with the pith and substance doctrine to incidentally encroach on provincial law.
The Queen v. Klassen (1960), 20 D.L.R. (2d) 406 (Man.C.A.). (CBp.357)
Jurisdiction Manitoba
Facts
Klassen operated a feed mill in Manitoba. He bought 296 bushels of wheat from a nearby farm and
converted it into feed, which he sold to farmers in the immediate area (not crossing any provincial
borders). Klassen failed to record the purchase of the grain in his “delivery permit book,” as
required by the Canadian Wheat Board Act. (This Act declared that all grain elevators were “works
to the general advantage of Canada” and it enforced a quota system, assigning grain to elevators.)
Was the Canadian Wheat Board Act ultra vires in respect of Klassen’s feed mill?
Issues
Holding
No.
Ratio
Although the court conceded that the Act impinged on property and civil rights, they found that this
was necessarily incidental, because the legislation as a whole was aimed at
interprovincial/international trade. Even though the transactions in question were purely
intraprovincial, they could nevertheless “clog the channels of the marketing system” that the Act
was meant to regulate.
 Moreover, separating regulations so that they would affect intra and extra-provincial grain
producers, traders and exporters would make the system unworkable.
Comments  This was a revolutionary decision, allowing the trade and commerce power to apply to wholly
intraprovincial transactions.
 The SCC declined leave to appeal this decision.
 In an article in the Canadian Bar Review, Bora Laskin praised this decision for abandoning a
formalist distinction between intraprovincial and interprovincial trade.
 Klassen was a break from the bright lines approach to separating local and extra-provincial
trade regardless of the violence to a legislative scheme established by the JCPC since Parsons
 Klassen allows for a game of percentages to be played, where a central regulatory scheme can
operate if a certain percentage of goods are exported extra-provincially. (distinguished from
Eastern Terminal Elevator)
Antaki on Klassen
- What degree of scrutiny was the court willing to subject this regulatory scheme to?  why is the court not
willing to push in that direction like in Eastern Terminal.
- Klassen says cannot opt out. (or there is not clause say “if you produce more than X amount…”
- Another issue is allowing all to sell at same price
Caloil Inc. v. A.G. Canada [1971] SCR 543. (CBp.361)
Jurisdiction Federal
Facts
Caloil imported oil which it was licensed to sell in Atlantic Canada, Quebec, and part of eastern
Ontario. Federal energy regulations reserved the rest of the Ontario market for Canadian-produced
oil. Caloil violated these regulations by selling oil in Ontario west of the Borden line, and its license
was revoked.
Issues
Was this federal legislation a restriction on property and civil rights?
Holding
No  Pigeon J – there was no infringement on property and civil rights
Ratio
The federal government can regulate imports that have an incidental effect on local trade and
commerce if (1) it is necessary for the effective regulation of international or inter-provincial trade
and (2) it is a justifiable restriction in order to develop Canadian resources. This could be restricted
just to oil; however, it could be expanded to other goods.
 In order for the legislation to be valid the infringement on property and civil rights must be (1)
“necessary” for the effective regulation of international or inter-provincial trade. And, (2)
the regulation in the case at bar is a justifiable restriction on “imports” and inter-
39
Comments
provincial trade in order to develop Canadian resources.
 Thus, as the legislation was geared towards regulating extra-provincial trade in pith and
substance, and because it only applied to oil – the legislation was framed narrowly – the
necessarily incidental effects on provincial transactions could be ignored.
 Katherine Swinton points out that this decision is not as broad as it might seem. It only allows
the federal government to regulate intraprovincial trade if it is necessary for the purposes of
interprovincial or international trade.
 This would apply to an issue that was of general economic concern for the national economy as
a whole, even at the local production level
 The problem is that this power has the same ability to be as amorphous as the national
concerns branch of the POGG powers in encroaching upon provincial jurisdiction
Swinton, K. The Supreme Court and Canadian Federalism: The Laskin-Dickson Years
Caloil was welcome expansion of fed regulatory role over trade. Permitted fed regulation over trade matters in
provinces if such reg was “necessary” to effective regulation of interprov or international trade. Paul Weiler
claimed that there were no reasoned limits to Caloil test and that it would over-expand federal role in trade.
BUT…then come Dominion stores. This case held that fed leg was invalid b/c it could not be said to be
“incidental” to regulation of interprovincial trade.
Dominion Stores Ltd. v. The Queen [1980] 1 SCR 844. (CBp.362)
Jurisdiction Ontario
Facts
 Dominion Stores were charged with selling bruised apples under the inter-provincial trade name
of “Canada Extra Fancy” which was regulated both Federally (CAPSA) and Provincially. Did not
meet the Fed standards although were sold intra-provincially and therefore under the standards
voluntarily. —they applied only if the seller voluntary decided to use the trademark. There was
also an Ontario statute setting mandatory grading standards
 Moreover, there were provincial regulations that mirrored the federal regulations and were
mandatory
Issues
Were the standards provisions ultra vires the federal government as they applied to intraprovincial
trade?
Yes. (5-4 split) ultra vires
Holding
Ratio
 Estey J: Parliament is not empowered to regulate local trade simply as part of a scheme to
regulate extra-provincial trade – incidental effects are not to be tolerated notwithstanding
the pith and substance of the regulation.
 This has been the law since from Parsons (with two branches of T&C ((1)interntl and inter-prov
& (2)general trade power)) and Eastern Terminal
 Thus, in order to avoid wasteful (overlapping or) duplication in legislation, the section of the
statute in question must be found ultra vires
Dissent – Laskin CJ
It is a convenience for producers and consumers that producers should be able to avail
themselves of the same standards that apply to cases of interprov and international trade  were
voluntary.
Comments  Monahan: Disagrees Estey’s decision  (p.288) Validity of federal legislation should not
depend on the repeal or enactment of a provincial law. Sees Estey as confounding different
steps of validity, operability, paramountcy  Declaring invalid a Federal law b/c there has been
provincial activity in that area.
 In CCL (p. 364) – Somewhat surprisingly Estey relied on a pre-1950 interpretation and does not
take into account decisions such as Caloil
 Hogg also thinks this decision did not make sense: the credibility of the federal trademarks
would depend on their being applied consistently, whether the produce is traded locally or
interprovincially.
2. general
 This is similar to the “national concern” branch of POGG.
40
 However, there is no “indivisibility” requirement.
The “general” trade and commerce power had been dormant for several decades until Laskin
CJC suggested such an idea in the Anti-Inflation Reference.
Antaki on Dominion Stores
- Eastern Terminal Elevator stands for Parliament is not allow to regulate local trade under a scheme that
is aimed at inter-prov and internation trade.
- Ambiguous use of language of inapplicability. P.363  “inapplicable to local trade” but does not read it
as only apply to extra-prov trade. Odd use of language.
- Estey J. thinking that if the Fed law as to be found valid, Paramountcy would not apply and there would
be inefficient overlap (didn’t want to get to the operability stage)
- Bases his decision (therefore, in order to avoid this) on validity  the prov’ial law was there in 1937.

2. GENERAL BRANCH OF T&C
Swinton
P. 365
- Necessarily incidental doctrine wrt T&C power still required goods to move across provincial borders. Could
not use this doctrine to uphold federal regulation of economic problems where (1) cross-border flow did not
exist or; (2) court believed that some reg of intraprov trade was not necessary to the effective reg of
intraprov or international trade.
- Another approach to interp of T&C  fed govt’s power over “GENERAL REGULATION OF TRADE” 
Revived from Parsons in 1976 in Anti-Inflation (where it wasn’t applied but mentioned)
- Gen Reg of Trade Doctrine – does not preclude federal regulation of intraprovincial transactions provided
that there is a sufficiently impt national interest to warrant such regulation. Court must look beyond the
stage at which regulation is imposed – feds may regulate an economic prob of interest to the country as a
whole even if it does so at the stage of production or retailing in a province.
- Court must decide if there is a problem of national interest – this poses similar difficulties for Court as the
National Dimensions test of POGG.
- The inquiry is value-laden – much more so than the old test which was an objective inquiry (do the goods
cross a border?).
- Could be an analogy with National concern branch
Labatt Breweries of Canada Ltd. v. A.G. Canada [1980] 1 SCR 914. (CBp.366)
Jurisdiction Federal
Facts
Labatt was selling “Special Lite Beer” containing more alcohol than was allowed for “light beer”
under the federal Food and Drugs Act. The beer was locally produced in 8 out of 10 provinces and
normally locally distributed.
Issues
Was this an infringement on the provinces jurisdiction?
Estey J – Yes, this was an infringement (Ultra vires Feds)
Holding
Ratio
Estey J: Since the standards for “light beer” were mandatory even at a local level, they couldn’t be
claimed to be merely incidental to a scheme of interprovincial trade regulation.
 The “general” branch of the trade and commerce power could only be used to regulate a general
aspect of the economy, not a particular industry (as in this case)  There was almost no extraprovincial trade of light beer, so the first trade and commerce branch cannot be justified.
 Nor could it fall under the second branch because this regulates a specific trade. The regulation
under this branch must be “sweeping” and in the “general sense contemplated in Parsons”. The
federal government cannot under this power regulate “one industry or trade at a time, by a
varying array of regulations or trade codes applicable to each individual sector.”
 Dissent – Pigeon J.: this was the legitimate use of a national trade mark (you could argue that
it is an industry trade name that is too specific, like in Dominion Foods)
 Dissent – Laskin CJ – the federal standards are justified because of the concern in the
Constitution over the augmentation and preservation of the economic union (section 121). There
should be a federal power to impose uniform standards for trademarks, and Hogg seems to
41
agree with this in principle too.
Hogg thinks the standards should have been upheld under the criminal law power, for the purpose
of preventing consumers’ deception.
Antaki on Labatt
- See language of Parsons in the general vs. Single Trade
- Rejection of first branch  production is within province and sale is within province. Legislation could only be
justified under second branch
- How would this be distinguished from Dominion:
- Interferes with the local
- Common names of “beer” and “lite beer”  Not voluntary b/c it is such a common name (is therefore a
mandatory stardard)
- Different conceptions of labelling  Estey sees as just revealing content  whereas others believe labelling
to allow standards to be enforced
Comments

In the MacDonald v. Vapor Canada case (1977), Laskin CJC set out three criteria for the general
trade and commerce power:
1. The impugned legislation must be part of “a regulatory scheme.”
2. The scheme must be monitored by “a federally-appointed agency.”
3. The legislation must deal with trade as a whole rather than a particular industry.
General Motors of Canada Ltd. v. City National Leasing [1989] 1 SCR 641. (CB p.225&371)
Jurisdiction Ontario
Facts
City National Leasing (CNL) sued GM for its discriminatory pricing policy, as authorized by a
provision of the Combines Investigation Act. GM argued that the provision was ultra vires the
federal government because the creation of civil causes of action is part of “property and civil
rights.”
Issues
Was the impugned provision sufficiently integrated into the federal statute (truly necessary or
functionally related) to sustain its constitutionality?
Yes.  Act and provision are intra vires
Holding
Ratio
The SCC found that, although the impugned provision appeared to encroach on provincial sphere,
it passed both the functionally related and necessarily incidental test within the Combines
Investigation Act, which was valid as a whole.
 Creation of rights for civil action is incidental to the purpose of the Act
Comments
 Distinguishes from B of C saying that the General Trade power under T&C was not properly
interpreted in that case.
Dickson set out the five criteria under which the general trade and commerce power can be
applied (added onto from Vapour case per Laskin)
 [1] Leg must be part of a general regulatory scheme
 [2] The scheme must be monitored by the continuing oversight of a regulatory agency.
 [3] The leg must be concerned with trade as a whole rather than with a particular
industry.
 [4] Leg should be of a nature that the provs jointly or severally would be constitutionally
incapable of enacting.
 [5] Failure to include one or more provs in a leg scheme would jeopardize its successful
operation in other parts of the country
These 5 traits are not exhaustive and not determinative – need a careful case by case analysis
 However, this is not really a “test”: it’s not necessary to fulfill all five criteria.
42
Interprov/interntl Branch
Dominion (1980)
Cooperation, applicability, marketing
1937 – Dominion Trade v. Industry Case
Natural Products Marketing Act case (ultra vires
on similar grounds as Eastern Terminal)
Ontario Steps in
1955 CAPSA Part I – Intra - prov (voluntary)
- Standards
Part II – inter- prov (manditory)
 Part I is ostensibly optional however b.c this law
mirrors the prov law, the federal law is a parasite on the
federal law
 In effect, Part I federal law becomes mandatory on
intra-prov. Colourable
 Estey says at three point “if law is the way I
understand it to be…..Part I, if were to be mandatory, in
an of itself, would be ultra vires. Well, what if law isn’t
the way he sees it.
 Solution is to read down. Not invoking
Interjurisdictional immunity for a provincial law…..just
reading it down.
 Federal law was piggy-backing prov legislation and
was concrete example of provincial jurisdiction.
 Must be ultra vires as Feds could keep piggybacking. Prov could change law and Feds could mimic
and continue piggy-backing calling intra-prov part
voluntary.
 Since then, there has been a switch. Feds are now
controlling the trade names.
 now there is a coordinated food inspection program
now.
 What is problematic or Estey is that if Eastern
Terminal is Law then this cannot be intra vires. –
manner for Feds to encroach on Prov powers.
Language of Marketing:
- From ONt Statute: Includes advert, assembling,
packing, processing, storing, transporting…..etc.
Everything.
- Federal successor to CAPSA  broadly,
advertising packing etc….. opposed to production.
General Branch of T&C
GM
Combines Investigation Act  S.31.1
CNL feels that GM has given pref treatment to other
companies and want to avail themselves of Federal
law saying may take civil action
Hallmarks of Validity: Question – what does it have to
be integrated into to.
1. Impugned leg part of general reg scheme
2. Continuing oversight of reg agency
3. Trade as a whole, not part of industry
4. Provincial incapacity
5. Failure to include a prov  jeapordize
Anatki: thinks this is calling for bigger gov’t if wants to
regulate this.
Why are these the Hallmarks?
- Dickson says list is not exhaustive – don’t need to
fulfill all these criteria
- Not clear how many you need
- A vague test….as all must not be fulfilled
- Discussion of Fed T&C power – desire to balance
the powers
- Monahan says what 1) and 2) have to do with
anything
- Balance:
- Principle:  What is the logic of this protection.
There doesn’t seem to be one here. Just acting
as a road block to make it hard for feds to do it. 
could be protection of federalism.
- Analogy. Lord Haldane in Hodge saying that T&C
was only to be used in furtherance of another
power.
- Analogy: Provincial inability test. (which was not
really applied here – Monohan says no)
Application in the case at hand:
-
Criminal Law


s.91(27) assigns criminal law to the federal government:
 except the constitution of courts
 but including criminal procedure
s.92(14) assigns provinces the administration of justice in the province,
43

 including provincial courts “of civil and criminal jurisdiction”
 and including civil procedure
According to s.92(15), provincial laws can be enforced by fines, penalties and imprisonment.
- S. 91.27 gives feds power over criminal law. This gives rise to two issues: (1) scope of fed power; (2)
extent to which existence of fed power has constrained provincial attempts to control local conditions of
public order and morality.
Requirements
 The legislative power is found in s. 21(27) of the CA
(1) The Functional Requirement
A) Does the legislation have a valid criminal purpose?
 It must fit into the “categories” outlined by Rand J in the Margarine Reference and La Forest J in
Quebec Hydro
 Peace, Order Security, public morality, the environment and health
 These are not exhaustive. To be regulated under the criminal power “it must be an evil and have an
injurious effect on the public”
B) Does it have a colorable purpose?

This is the only real constraint, and, like in the Margarine Reference the primary concern is one that the
government might use the legislation for economic regulation.
(2) The Formal Requirement
 The legislation must have (1) a prohibition and (2) a penalty
 Note: civil penalties can be ancillary – the Firearms Reference
 Note: the term “prohibition” was given a very broad definition by LaForest J in Quebec Hydro and could
potentially be used in a regulatory manner (e.g. a tariff to constrain production). However, this expansive
definition may have been relaxed in the Firearms Reference. However, the term is still somewhat unclear.
 The only true constraint on the criminal law power is a colorable purpose.
(3) If (1) and (2) are satisfied then a displacement of the division of powers is justified.
Federal Powers over Criminal Law

In Proprietary Articles (see p.20), the JCPC had defined criminal law by the existence of a prohibition with a
penalty attached. It had refused to look at the content, purpose or function of the criminal law.
Margarine Reference, [1949] SCR 1. (CBp.390)
The federal government referred section 5(a) of the Dairy Industry Act, which banned the
Facts
manufacture, sale, or possession of margarine, to the Supreme Court.
Issues
Was the federal government justified in evoking the criminal law power to ban margarine
imports?
Ultra vires feds under criminal power. Can keep provision re importing marg under T&C
Holding
Ratio
 Rand J. found that, while the impugned provision met the test of being a prohibition with a
penalty attached, its “purpose” was economic, i.e., to protect the dairy industry.
 Must determine if the prohibition is enacted with a view to a public purpose which can
support it as being in relation to criminal law. Ordinary ends of the criminal law include
public peace, order, security, health morality.  the Act does not – trade protection to
the dairy industry
 Colourable  aimed at regulating the dairy industry.
Comments  Rand J.’s criteria for a criminal purpose were extremely broad and amorphous.
 A crime is an act which the law, with appropriate penal sanctions, forbids. BUT…there
must also be some evil or injurious or undesirable effect upon the public against which
the law is directed. That effect may be in relation to social, economic, or political
44
interests; and the legislature has had in mind to suppress the evil or to safeguard the
interest threatened.
RJR MacDonald Inc. v. Canada (Attorney General), [1995] 3 SCR 199. (CBp.392)
Jurisdiction Quebec
The federal Tobacco Products Control Act prohibited the advertising of tobacco products
Facts
and specified penalties for violating this ban. RJR MacDonald challenged this, saying that it
was in pith and substance property and civil rights, and that it violated freedom of
expression under the Charter.
Issues
Could the ban be upheld as criminal law?
Holding
Yes, but it was struck down on Charter grounds, for violating freedom of expression.
Ratio
 Following Rand J.’s judgement in the Margarine Reference, La Forest J. (for the majority)
found that the ban was criminal law, especially as it was directed against the public
health hazard of smoking with prohib and penal sanction.
 It did not matter that the law was more regulatory than prohibitory.
 1) How can not ban evil yet ban advert? -- Parliament can take a circuitous path to
accomplish goals so long as goals are constitutionally valid
 2) Doesn’t address conduct that has affinity with a traditional criminal law concern 
criminal law is not frozen in time.
 3) Criminal law can’t contain exemptions.  Criminal law may validly contain
exemptions w/o losing its status as criminal law. Exemption helps to define the crime by
clarifying its contours.
 The dissent argued that the regulatory nature of the law meant it couldn’t be criminal law:
it just banned tobacco advertising without addressing smoking itself. The fact that
imported magazines were exempted from the ban also seemed to indicate that this was
not really criminal law.
 Issue of exemptions  While exemptions don’t necessarily take a statute out of criminal
law, broadly based exemptions are a factor which may lead a court to conclude that the
proscribed conduct is not criminal. How is something not criminal for US publications but
is for Cdn.
Comments While La Forest J. was one of the greatest opponents of an expansive “national concern”
branch of POGG, he has promoted an expansive federal criminal law power.
Note the Requirement of Form in Criminal Law
- One of the main constraints on the federal criminal law power – requirement of standard form (prohibition,
penalty enforced by the courts)
- Presence of regulatory features (admin agency with discretion, detailed regulation, civil remedies) may make
law unsupportable under crim law power.
- Courts have allowed deviation from criminal form in some cases where clear crim purpose was found:
- RJR case: criminal despite exemptions; also, established federal gov’t undisputed power to regulate unsafe
food and products under crim law (regardless of form?)
- Hydro Quebec case: regulatory scheme w/ lots of admin discretion satisfied crim law formal requirements.
- Ancillary remedies have been upheld under the criminal law power
- Departure from form (i.e. requirement of punishment) has been allowed also where purpose of law is
prevention of crime.
R. v. Hydro-Québec, [1997] 3 SCR 213. (CBp.400)
Jurisdiction Quebec
The Canadian Environmental Protection Act allowed the federal government to regulate the use of
Facts
toxic substances. The law was evidently drafted to be justified under the national concern branch
of POGG. Hydro-Québec was found to have violated a federal government order regulating PCB
emissions. (The order was made by Lucien Bouchard’s environment department!)
Issues
Could the federal government use the criminal law power to justify environmental regulation?
Yes. Intra vires Feds
Holding
Ratio
 La Forest J., writing for a narrow 5-4 majority, Prohibition must have a public purpose 
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protection of clean enviro is legit public purpose
 Purpose of Crim Law is to underlie and protect our fundamental values  enviro is such a
value.
 The prohibition of certain toxic substances in Part II is a limited prohibition applicable to a
restricted number of substances (the most dangerous ones). The prohibition is enforced by a
penal sanction and is undergirded by a valid criminal objective, and so is valid criminal
legislation.
Comments
 The dissent argued that the law was regulatory rather than prohibitory, especially as it did not
define the general terms of offences but rather enabled bureaucrats to make specific orders
about what would be an offence.
 Environmental protection is a legitimate public purpose but the impugned provisions are an
attempt to REGULATE rather than to prohibit or proscribe.
This decision was extremely controversial, drawing criticism from some such as David Beatty, who
argued that it was an absurd abuse of the criminal law power, since it eliminated the requirement
of a prohibition and a penalty. Beatty felt it should have been upheld under the national concern
branch of POGG. On the other hand, Jean Leclair applauded the decision, saying that it upheld
Canadian values and was constructive of Canadian identity.
Regulatory vs. Criminal (Hydro QC case)
- How elaborate is the scheme? (more elaborate = more likely that exemption is reg and not criminal)
- What is the subject matter of the law?
- Are there blanket prohibitions?
- Are there lots of exemptions?
- Does it cover a narrow field of dangerous activity or a broad area of concern?
- Can the prohibition be self-applied or is the crime created by “discretion”?
- Is there deference to provincial regulatory schemes?
- Are the regulations limited to matters falling within the criminal purpose?
Reference re Firearms Act, [2000] 1 SCR 783. (CBp.413)
Jurisdiction Alberta
The federal Firearms Act, enacted in 1995, required licensing and regulation for all guns and made
Facts
it a criminal offence not to comply. The Alberta government challenged the Act on the basis that it
was regulatory, not prohibitory: it made a reference to the Alberta Court of Appeal, which upheld
the Act. The Alberta government appealed to the Supreme Court. While there was no problem with
regard to the purpose of the legislation, the form was a bit more complicated.
Could the Firearms Act be upheld as criminal law?
Issues
Yes – intra vires Feds
Holding
Ratio
 The SCC focused on the prohibitory aspects of the legislation. A certain amount of
administrative discretion was allowed, but offences (possessing a firearm without a proper
licence and registration) were clearly defined by the Act.
 Therefore the Act contained a prohibition and a penalty, for a criminal purpose.
 The complex, regulatory nature of the Act did not preclude it from being considered criminal law.
 The court explicitly responded to the dissent’s concerns in the Hydro-Québec case.
 The court found that the civil consequences of the Firearms Act were necessarily incidental.
Comments Although the court upheld the legislation, its approach to the criminal law power was more
moderate here than in the Hydro-Québec case. La Forest J. had retired by this point.


It seems, after all this, that the fundamental principles of the federal criminal law power haven’t changed:
1. The law must have a criminal law purpose (broadly defined to include health, security, etc.)
2. It must take the form of a prohibition and a penalty.
Why was La Forest J. so open to an expansive interpretation of the criminal law power, when he was
opposed to expanding the national concern branch of POGG?
 It may be that, as an enumerated power, the criminal law is perceived to have limits.
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Antaki on Federal Criminal Law
Propostions of Crim Law
1.  Criminal regulations = prohibition + Sanction +
Purpose
2. Valid Objectives (syn with evils, purposes,):
- Enviro
- Health
- New purposes can arise
3. Exemptions
- Criminal law containing exemptions has been found
to be valid
- What kind, what is an exemption, and more Antaki
questions
4. - Can regulate (not only prohibit) incidentally
- Can regulate specific issue (eg. toxic substances)
but not entire industry
- Cannot be colourable law
- Though it seems like you can regulate in a broad
way, there seems to be shift in the Court with RJR and
Hyrdo where there are significant dissents.
5. To what extent can the substance of a crime not
actually be found in the law - can the scope of
criminal law extend so far it will not only be in a statute
but rather must look in a regulation.
- trend in Criminal law away from tradition view of
criminal law and towards regulatory – under the
charge of bureaucrats
6. Self application
7. Parl has the latitude to apply criminal law where it
has a practical
8. Can Parl criminalize something and not criminalize
the evil.
Case
1. Marg Ref
Hydro
RJR MacDonald
Hyrdo
RJR
RJR
Provincial Powers over Criminal Law


The provinces have numerous powers related to criminal law:
 s.92(6) “public and reformatory prisons”
 s.92(13) “property and civil rights”
 s.92(14) “the administration of justice in the province”
 s.92(15) “the imposition of punishment” (However, this is ancillary to other heads of power.)
 s.92(16) “matters of a merely local or private nature”
Provinces don’t have power over criminal law per se. But they have been allowed a certain amount of power
to legislate with regard to morality and public order.
Re Nova Scotia Board of Censors v. McNeil, [1978] 2 SCR 662. (CBp.416)
Jurisdiction Nova Scotia
Facts
Nova Scotia legislation created a board of censors, with the power to ban films. If any cinema
showed the banned film, it could be fined or lose its licence. McNeil, a private citizen, sued to
overturn the banning of Last Tango in Paris.
Issues
Did the Nova Scotia government have the power to ban films on the basis of morality?
Holding
Yes. (5-4 split)
Ratio
 Ritchie J, writing for the majority, emphasized that the Board of Censors was regulating
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Comments

“property and civil rights.”
 He also said that in “a country as vast and diverse as Canada,” laws dealing with morality had to
be “of a local and private nature.”  variety of tastes and standards. (sounds like at the whim of
the board)
 Caloil (among others) to stand for intra-provincial transactions are provincial
 Of a regulatory nature rather than a penal nature.  Loss of a licence is not a penal punishment
 Does strike down provision dealing with indecent performances as is to similar to criminal law
Laskin CJC Dissent was strongly opposed, This is backdoor punishment – backdoor criminal law.
– is intrusion into the field of criminal law.
 Ought not be able to do what it cannot do directly in an indirect way (like Dominion stores)
 Could Double Aspect be invoked here?
A series of provincial laws relating to morality were upheld:
 the Ontario Adult Entertainment case (1997)
Westendorp v. The Queen, [1983] 1 SCR 43. (CBp.421)
Jurisdiction Alberta
Facts
Westendorp was charged under a Calgary by-law which prohibited being on the street for the
purpose of prostitution.
Issues
Did a ban on being in the street for the purpose of prostitution invade the federal criminal law field?
Yes. Ultra vires Provinces
Holding
Ratio
The SCC unanimously found that the by-law dealt with criminal law, since it only regulated being
on the street for prostitution, not the mere fact of being on the street. (The Alberta Court of Appeal
had upheld the legislation, because it only dealt with prostitution on the street (purportedly as a
public nuisance), not the mere fact of prostitution.)
 Larger penalty than any other section in the act.
Colourability – taking criminal power under morality and public order and nuisance.
 Such provincial laws are only likely to be problematic if they come into direct contact with federal law.
Most cases revolve around municipal by-laws.
Rio Hotel Ltd. v. New Brunswick Liquor Licensing Board [1987]
Jurisdiction NB
Facts
- Under Liquor control Act, liquor licensing board could attach conditions to liquor licenses
- The Rio Hotel had been given a license with a condition precluding nude performances.
- Hotel owner challenged the condition on the basis that it related to public morality and thus fell
w/in jurisdiction of criminal law; he noted that Criminal Code had numerous provisions relating
to public nudity
Issues
Is there an intrusion on the criminal powers of the Feds?
No – intra vires the province
Holding
Ratio
 S.C. confirmed provinces’ ability to prohibit nude entertainment as part of a liquor licensing
scheme notwithstanding related Criminal Code provisions
 Prohibition part of a comprehensive scheme of regulation and licensing
 Leg is in relation to property and civil rights and matters of a purely local nature
 There are no penal consequences for breach of the provincially-imposed conditions.
 There are similar provisions in the criminal code but there is no conflict
 Distinguishable from Westendorp b/c no colourable intrusion
 Aspect Doctrine
 Clarity up front in rules. They will not change with times unlike Nova Scotia Board of Censors.
 Dealing with marketing tools by the owners of licenced premises to boost sales of alcohol.
Property and civil rights.
 Possible to comply to both Federal law and Provincial law
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