Michael Gerstein’s Con Law Outline – 2010
Amending Formula
1. General Amending Formula – s.38-40
o Amendment must be approved by
o HOC
o Senate (may be dispensed with by s. 47 –HOC resolution)
o Legislatures
 2/3 = 7 &50
o Must be absolute majority – not just members there - s.38(2)
o Province can opt out – s.38(3)
o Fed must provide compensation –s.40
 Citizen’s still paying tax
 Eg: Education and cultural matters
2. Unanimity Formula – s.41
o HOC, Senate and all Legislatures
o Applies to s.41 a-e
o Amendments to amending formula
o Note: arguments about whether Supreme Court change requires Unanimity
or not?
o Peter Hogg – no – provisions are just in Supreme Court Act, no need to
pretend like they are in Constitution unless explicitly expressed
o On other side – central public institution
3. Some, but not all, Provinces Formula – s. 43
o Must be approved by
o HOC
o Senate
o Provinces that would be affected by the amendment
 Eg: From Hogg – language laws in Manitoba and Sask
4. Federal only – s.44
o Initiated by parliament
o Amendments dealing with Executive, HOC, senate
o Subject to s. 41 and 42
5. Provinces only – s. 45
o Amendments to provincial constitution
o Subject to s. 41
The Secession Reference
Reference re Secession of Quebec
o Reference Question Is…
o All levels of government given power to ask questions to the court
o Advisory opinion that carries huge amount of weight
o Criticism – undermines independence of the court – Australia
o Question asked in 1996
o SCC Decision in 1998
o Argument 1
o Should not reference power
o Supreme Court Act s. 53 – gives power
o A - interpretation of the constitution acts
o B - Hearing and consideration on important questions of law or face
o Argument 2
o The court should decline
o Will only answer about the legality
o Can decline if non-justifiable
o 1 – too theoretical or speculative
o 2 – too political in nature
o 3 – not yet ripe for judicial consideration
o Quebec would not participate (despite many judges being from Quebec)
o Court appointed an amicus curiae (friend of the court)
o Question 1 – Under the Constitution of Canada, can the National Assembly,
legislature or government of Quebec effect the secession of Quebec from Canada
unilaterally?
o Do not actually answer the question, instead talk about general principles –
draw an obligation – say it is binding but the court will not enforce it
o Acknowledged it would be an amendment, but only hinted at which
method
o No right to pursue secession unilaterally without negotiation
o But they could unconstitutionally declare secession, leading to a de facto
secession
o Reasons for Question 1 Answer:
o Court References constitutional principles that would effect an attempt of
secession
o Unwritten principles of the constitution
o Federalism
o Two levels of govt – each have their own sphere
o Sovereign in their own spheres
o Each rely on each other
o Accommodates cultural diversity
o Quebec exists due to the structure of both fed and prov powers
o Democracy
o Quebec argues – democratic supremacy in secession of Quebec by people of
Quebec should be enough
o Court replied – succession would affect more than just Quebec
o Must not ignore Canada – both levels depend on each other
o Federalism and Democracy are closely tied together
o Constitutionalism and the Rule of Law
o Rule of law is the ultimate source of public power
o Principles of law should have stability
o Government should act through its own rules, not operate in capricious
fashion
o Constitutionalism emphasizes that all levels of government should operate
under the Constitution
o Rule of law governs through legal institutions – supported by organized
establishments
o Respect for minorities
o Constitutional structure must take into account the minority opinions
o Groups within Quebec would be affected
o Eg: first nations were strongly opposed
Parliamentary Sovereignty
o
o
o
o
Dominance of Parliament within the legal system
Allows Parliament to do what it wants within limits of it’s authority
Constitution Act 1982 has made Canada more of a constitutional sovereignty
Parliament = those who can survive the popular vote in HOC
o Ministers of the crown
Democratic Decision-Making as the First Principle of Contemporary
Constitutionalism - Jeremy Webber
o A constitution fashions a public voice
o Marshalls democratic opinion
o Determines who should speak for majority
o Forges a pubic opinion on issues
o Representative govt – constituents voice grievances directly to MP’s
o Argues reasons to generally prefer democratic means to forge this voice
o There’s good reason to allow equality
o There’s good reason to allow participation
o Federalism is a way of defining who speaks for the provinces
Consideration on Representative Government – John Stuart Mills – 1861
o Participating in democracy has value
o Freedom existing in participation
o Today, we see freedom being insulated from government action
o Government – way for people to obtain liberty
o Broad participation in govt can correct injustice in social order
Canada (House of Commons) v. Vaid
o Idea that parliamentary autonomy to govern should be protected
o Parliamentary privilege to protect autonomy
o Should be protected by law for the purposes of achieving their prescribed
parliamentary roles (also applies to judiciary)
o Only applies while members are in the house
o Dimensions of this autonomy:
o Control over own processes
o Discipline own members
o Immunities with respect to what is said in the house
o What is the scope of this privilege?
o Not a question of if it exists
o Not written in constitution – key unwritten principle – court will not touch
o Test – what is required for efficiency of the house
o Held: hiring/firing of employees working for the HOC is ultra vires to
parliamentary privilege
Can Parliament Bind Itself?
Reference Re Canada Assistance Plan 1991 SCC (CAP)
o Background
o Canada Assistance Plan (CAP) was an Act of Parliament in which government
entered into profit sharing with the provinces
o BC agreed to pay for 50% of welfare payments
o Program existed for 20 years
o Mulroney amended CAP – reduced funding to wealthier provinces – BC,
Alberta, Ontario
o BC appealed
o Question 1 – Has the government of Canada any statutory, prerogative or
contractual authority to limit its obligation under the Canada Assistance Plan
and its agreement to pay 50%
o Yes
o Used an ambulatory style of interpretation – amount was not fixed
o As oppose to static – amount was decided when agreement made
o Uses s.41 of Interpretation Act – every act be so construed as to reserve to
Parliament the power of repealing or amending it…
o Reflects parliamentary sovereignty
o Question 2 – Does the original agreement give rise to a legitimate expectation
that no new bill will limit the obligation without the consent of BC
o No
o Argument 1
o Doctrine of legitimate expectation binds the executive not parliament
o If the government conducts itself in a certain way, should not
revert
o Here, it’s the legislature taking action
o Court does not meddle with the procedures of Parliament – this is a
procedural question
o Argument 2
o Even though the executive is introducing the bill, they are doing so
as a member of parliament – no other way to bring money bills in
o Argument 3
o Even if explicitly stated that they would not change without
permission from the province, this would be ineffective because
parliament cannot bind itself in form to the accent of an outside
party
o Also – executive cannot bind parliament
o Rationale – it’s essential to allow subsequent governments to make
changes that hey wish
o Only repercussion to no upholding prior agreements is political
o Max binding – 5 years (maximum duration of a parliament)
o Manner and form requirements
o Executive can bind future parliaments with “manner and form” requirements
o Restrained not in substance, but in procedure which must be followed to
enact future legislation
o If wish to bind procedurally – must explicitly say so
o In CAP – no the case
o Court says this is “more substantial”
o In past – things like Bill of Rights and R. v. Mercure have “constitutional
nature”
o No here
Canadian Bill of Rights S.C. 1960 c44
o Ordinary statute of parliament
o Declares a series of rights
o S. 2 – Can be used to strike down future legislation
o Only do so by procedural requirement (manner and form requirement)
o Can expressly declare that new legislation will operate “notwithstanding” the
Canadian Bill of Rights
o This saves the bill from going too far
o Does not restrain in substance
o Only manner and form
o Serves to be a warning to the public when a piece of legislation should
receive extra attention
R. v. Mercure 1988 SCC
o Wants to plea to speeding ticket in French
o Bilingualism was not constitutionally entrenched in Sask (like Mantioba)
o NW Territories Act
o Parliament had intended to put French necessity manner and form
requirement
o For law to be valid, but be in both languages
o Sask govt argued that this requirement had lapsed because they discontinued
using it
o Court says no – must expressly repel such a requirement
o This is an acquired right now – court will not repel
o Must follow procedure
o Principles of stability, transparency, democratic principles, etc
o Accordingly, Sask repelled the provision in
o both English and French
o Retroactive application was allowed
Abdication/Delegation
Re: The Initiative and Referendum Act (1919)
o After WWI – Manitoba – use referendum as a means of enacting legislation
o Some might view as more democratic
o Case highlighted the coordination between fed and province
o Province
o Question: Is this a valid was to adopt legislation
o Answer: No. Invalid.
o S.92 – cannot create a new and endow a new legislative power not
created by the act to which it owes it’s own existence
o Analysis
o 1 – this is a bypass of LGG – cannot do this according to constitution
o Powerless, but integral part of the system
o Could imagine the act still working
o 2 – Cannot go so far that it essentially delegates its authority to an equal
power body – can delegate authority, but not too far
o Against Argument – keep power in elites - people could make laws
directly. Judicial conservatism
o For Arguments – If happened, popularist vote could do anything eg: set
up dictatorship
o This would upkeep Parliamentary sovereignty
o Cannot set up an institution that would be equal in power – could lose
control
o Executive normally controls regulation process
o Would lose control
Reference Re: Regulations in Relation to Chemicals (1943)
o WWII, Parliament delegated huge amount of power to the executive
o Pretty much adopt any legislation they wanted by Executive Act, by way of
order in council
o Even could amend legislation adopted by parliament
o Question: Was this an abdication of power?
o NO - the power was delegated to the executive, but parliament still controls
the War Measures Act, so it can revoke the powers and change executive
orders in council
o This retention of authority may distinguish from Initiative and
Referendum Act
o OK to delegate authority to a subordinate body
o Equal – stepping over the line
o BUT – Executive did not have proper authority to delegate as much power to
the Controller of Chemicals
o Struck down part of what Controller did
o Executive Authority
o Crown Prerogative
o Executive still hold some inherent powers
o Eg: internal relations – declare war, enter into treaties
o Privileges and Immunities
o Immunity from application of statues – unless clearly expressed
o Immunity from suits – eg: Calder case – had to get permission – now
abolished
o Crown privilege – internal documents of cabinet can not be disclosed
during proceedings
The Case of Proclamations (1610)
o
The king hath no prerogative but that which the law of the land allows him
Considerations on Representative Government – John Stuart Mills
o Ultimate controlling power is through electing people
o Legislature as a means for airing arguments
o Political morality – executive subject to everything parliament does
o Constitutional conventions not enforced by courts – done through the
political process
o Executive must still get approval of legislature to pass laws
Executive Authority
Roncarelli v. Duplessis 1959 SCC
o Duplessis = both Premier and AG of province
o Roncarelli = owned restaurant – been providing bail for members of Jehovah’s
Witness
o Duplessis revoked R’s liquor license (told would never get one again)
o D ran strictly conservative govt associated with Catholic faith
o R cannot sue liquor commission without permission from AG
o 1st problem – D sued without permission
o Court answer – this is in relation to a decision outside the scope of
power given by statute. This is a personal act. Can sue him.
o 2nd problem – no authority in this court to review this decision – all that
has happened is that the liquor board has exercised their authority
o Court – actions were “turning power to unintended ends”
o Significant for human rights and constitutional reasons
o Held: for Roncarelli, D was violating Civil Code
o Court looked at statute – liquor commission
o Cannot cancel with absolute authority
o Public duty to exercise authority in “good faith” – rule of law issue
o Public officials cannot act beyond their duties
o Executive must remain in statutory constraints
o Executive is under parliamentary control, delegation, framed by
legislation
o Government power does need to be restricted
The Judiciary
The Judiciary in the Constitution CA 1867
Creation
o s. 92 (14) – Province jurisdiction over the creation and maintenance at both civil
and criminal
o s. 101 – Fed have jurisdiction to create a general court of appeal, courts for
better admin of the law
Appointment
o s. 96 – fed appointment
o s. 97/98 – selected from bar in the province it is situated
o s 92(14) – provinces choose their judges
Procedure
o 92(14) – Provinces over civil
o 92(15) – Provinces over non-crim penal matters
o 91(27) – Fed over crim
o 101 – fed over all federally constituted courts
Tenure
o s.99, 101, 92(14), 11(d) of the charter
Salary
o s.99, 101, 92(14), 11(d) of the charter
o 11(d) – the be presumed innocent until proven guilty according to the law in a
fair and public hearing by an independent and impartial tribunal
Four types of Courts:
o 92(14) - Prov established and appointed
o Includes inferior courts – traffic courts, small claims, provincial admin
tribunals
o 96 & 92(14)– Prov established, fed appointed
o Courts of general jurisdiction – Superior Courts
o Eg: BC Supreme Court and BC Court of Appeal
o S. 101 – Fed established and appointed
o For federal laws
o S. 101 – Fed established and appointed
o Supreme Court – Special role as superintendent of all courts – ultimate
authority
Superior/Supreme/Court of Queens Bench – Provincially established under 92(14)
but federally appointed
o Tribunals – fall under s.92(14) or s.101
o S.101 eg: Tax Court
The Case of Prohibitions (1607)
o Judges are delegates of the King
o BUT the law is founded upon learned reason
o King has not studied the law and he is under the law
The Act of Settlement (1701)
o Judges should serve on “good behavior” rather than “at the pleasure of the
crown”
o This is now seen in s. 99 and s. 100
o Establishes further independence of judiciary
Protection of s.96 Courts
o Court wants to distinguish between a provincial tribunal and a s.96 court
o Develops a three part test
o Not about independence of the court, but recognizing when something is a
court, and when it is an administrative tribunal
o Administrative tribunals may have experts from the area making
important decisions that appear judicial
o When will these people have too much authority and be making
decision that are too much like the function of a s.96 court
o This is a functional test
o Issue – these courts are suppose to have federally appointed judges
Reference Re Residential Tenancies Act (1981) SCC
o Questions:
o 1) Is it within the provincial authority to empower Residential Tenancy
Commission to make an order evicting a tenant by way of the Residential
Tenancies Act.
o 2) Is it within provincial authority to empower the Commission to make
orders requiring landlords and tenants to comply with obligations imposed
under the Act?
o Need to determine if tribunal is acting as a s.96 court – that’s a no no
o Used the 3 step test
o 1. Historical test – does the jurisdictional power broadly conform to the
power given to s.96 courts at the time of confederation?
o If no- test is over.
o 2. Is the tribunal exercising a “judicial function”
o Judicial – dispute between private parties, through an application of
recognized rules consistent with fairness and impartiality.
o Might look judicial in procedure, but not really be judicial
o Might be dealing with issues among a whole bunch of individuals –
not private parties.
o Might be dealing with policy consideration – going beyond private
dispute realm, becomes political, economic matter.
o 3. Contextual consideration – is the judicial power part of a broader
function that is not judicial
o Judicial function cannot be sole or central function of tribunal
o Ok if just part of a broader mandate – merely subsidiary or ancillary
to general administrative functions.
o Are they trying to achieve a broader policy goal?
o Eg: Tomko – ok to order cease and desist order as part of a broader
legislative scheme.
o Also note: some s.96 powers are so inherent to superior court that
you cannot remove them
o Held: Residential Tenancy Commission is charged with impugned powers to
enforce contractual rights and interpret contracts – too much like a s.96 court –
invalid.
Nova Scotia (A.G.) v. Sobey’s Stores Ltd (1989) SCC
o Facts – Direct of labour standards reinstated a dismissed employee.
o Three step test
o 1 – Historical test – Look to 4 original provinces – ON, QB, NS, NB – if tie look
to UK
o If power always existed with inferior courts – OK
o If solely belonged in superior court - fail
o Here – SCC – should be a functional test – need to adopt powers of
superior courts narrowly
o Here – this is a historical s.96 function
o 2- Making a judicial like decision
o 3 – Power to reinstate employees is a necessarily incidental function to a
broader social policy goal of providing minimum standards of protection to
non-union workers.
Classic Problems
o Issuing injunctions or special remedies – superior court function
o Power of review that superior courts have over other tribunals
o Establishing new tribunals
o Some function that were shared but so inherent to superior courts that you
can(**not) remove them
McEvoy v. A.G. and A.G. Can [1983] SCC
o NB tried to set up unified crim court to deal with both summary and
indictable offense
o Indictable offense – obviously s.96 power
o Invalid whether jurisdiction was exclusive or concurrent
o “Parliament can no more give away federal constitutional power, that a
province can usurp them”
o Federal courts must be federally appointed
Reference Re Provincial Judges (1997) SCC
o Question – whether s.11(d) of charter guarantees judicial independence?
o Lamar (maj)
o Uses the preamble – foundation for an implied guarantee
o “With a constitution similar to that of the United Kingdom”
o Implied principles in constitution
o Full faith and audit – respect for judgment in other jurisdictions
o Fed paramouncy
o Rule of Law
o Parliamentary Privilege
o Implied bill of rights – implied guarantee of freedom of expression
even prior to the adoption of the charter but hesitant in judgments
o Looks at broader objective
o Believes protection should be extended to all courts
o Held: PEI and Alberta salary reductions programs infringed on s.11(d)
o But, there are certain circumstances that prov can reduce salary
o Need to ask court first :D
o LaForest (dis)
o Also believes judicial independence is important
o But must look for protection in Charter
o Not PREAMBLE
o Elevates vague open language above text
o UK is not even like Canada
o They have no written constitution
o Their courts have no power to hold an act of parliament invalid
or unconstitutional
o Only superior courts were given this protection
o Judicial independence power derived from s. 96-100 and s.11(d)
o Using normal means of Charter interpretation
o BUT what is a court? Where to stop?
o Clearly protection when related to crim matters
Division of Powers
Ryder: “The Demise and Rise of the Classic Paradigm in Canadian Federalism
o History
o Double Aspect
 Fed and Prov can both have jurisdiction over the same issue
 From different aspects!
 Courts have historically tried to minimize overlap
o Classic Paradigm
o Watertight compartments
 Spillover effects not tolerated
 Either by ruling law ultra vires or “reading them down”
o Strong theory of exclusivity
o Mutual modification of federal/prov jurisdiction
 Mutual modification – s.91 and 92 must be read together with
heads in one modifying those in the other
o Ensures provincial autonomy
 Limits the ability of fed govt to pass laws intruding on prov
areas of jurisdiction
 BUT also limits the scope of prov jurisdiction
 Compromises principle of exhaustiveness
 Contemplates judicial activism
 Effective regulation as a whole is left to the unpredictable fate
of attempts at intergovernmental cooperation
 Main criticism – in complex, interdependent world, social
problems don’t fit neatly into jurisdictional boxes
o Modern Paradigm
o Layer cake – governance requires flexibility and overlap
o Weak theory of exclusivity
o “Pith/Substance”/incidental effects
 Focus on dominant aim of legislation
 Spillover in ancillary areas ok
o Federal paramouncy in instances of strong conflict
o Judicial restraint
 More deferential to govt’s crossing the line
o Ensures principle of exhaustiveness
o Main Pro – allows for areas of social life to be subject to
concurrent or overlapping powers
o Missing
o Recognition of Aboriginal level of government
 Third level?
 Neither CA 1867 or CA 1982 recognizes this third layer
 Royal Proclamation of 1763
 Legally recognized First Nations
 Remains in force today
 Crown recognizes its horizontal, nation to nation,
relations with First Nations
Mutual Modification: Watertight Compartments
Citizens Insurance Company v. Parson (1881)




91(2) – Trade and Commerce
92(13) – Property and civil rights
Ontario enacts statue that says insurance companies can’t put conditions in
fine print
o Parsons tries to collect insurance (didn’t read fine print)
 Tries to sue under statute
o Insurance company says statute is ultra vires
Three step process
o First Question – does Act fall within s.92
 Ontario act deals with insurance – falls within 92(13)
 Need to interpret broadly
 “Civil rights” used in BNA Act
 Court looks to Quebec Act – used to include contracts, torts and
property – private law relations
 Accepts that 92(13) is fine.
o Second Question – does it also fall within s.91
 91(2) – could potential cover all business activity




BUT a broad interpretation would obliterate big chunks
of private law in 92(13)
 Court narrows the focus to be three main elements
o Political arrangements in trade and sanction of
commerce
o Regulation of interprovincial and international
trade
o General regulation of trade effecting the whole
dominion.
o Third Question – is it overborne – if yes, likely that provincial will be
struck down ass ultra vires
Held: the issue dealing with provincial insurance is intra vires and is valid in
force.
Historical case to show the older notion of “watertight compartments”
Also, how the court applied the doctrine of mutual modification
o These are features of the classical paradigm
Pith and Substance
R. v. Morgentaler (1993) SCC

Background
o Years earlier SCC strikes down provisions in Criminal Code that limit
abortions – violated Charter
o Was valid legislation before then – Criminal Law – 91(27)
o M plans to open an abortion clinic
o NS places restrictions on privatization of medical sources –
procedures that can only be done in hospital
 Provinces have authority over health
 92(13) – Property and civil rights in the Province
 92(16) - Generally all matters of a merely local or
private Nature in the Province
 92(7) – The Establishment, Maintenance, and
Management of Hospitals, Asylums, Charities, and
Eleemosynary Institutions in and for the Province, other
than Marine Hospitals
o Held: NS legislation is ultra vires

Pith and Substance – matter, true substance of the law, constitutional
character
o Dominant aim or purpose
o No single test – approach is flexible
Legal Effects
o Intrinsic Evidence – start with evidence from the statute

Evidence within the four corners of the statute
 Title, what it grants, criteria, penalties,
 How the legislation as a whole affects the rights and liabilities
of those subject to its authority
o Extrinsic Evidence– looked to as part of attempt to discern PURPOSE
 Related legislation
 Eg: here CC
 Previous regulations (here March regulations)
 Legislative history – history of the actual statute
 Evidence of mischief – what is the directed toward
 Contextual events surrounding the creation of legislation
 Hansard – weak
 But may be useful if colourability is at issue


Practical Effects
o What are the real life impacts?
 NS – will not restrict access to abortion
 M – this is about restricting access to abortion
 Court – no going to go there
o Practical effect hard to judge ahead of time
 Only relevance if act looks intra vires but has substantial effect
on an ultra vires area.
o Legal effect is always relevant – it does not change over time
 Only go further if other evidence is unclear

Colourability Doctrine
o Hidden agenda – legislation made to look like one thing to deliberately
cover over what the real objective is
o Court will not just at form, but also substance to determine what
legislature is really doing
 Courts are slow to say legislation is colourable
 Sends a strong political statement
 Legislature can overstep bounds without trying to
disguise what they are doing

Doctrine of Severance
o Allows certain offensive provision to be cut out of legislation while
leaving the constitutionally valid part intact
 Remedial
o Test – can the part left survive independently,

Application to M’s case
o Catalyst for govt action was M opening his clinic
 This was the mischief
o Hansard – M’s clinic was central concern

o Older regulation – March regulations
o Look at penalties – quite severe
Conclusion
o Pith and Substance – the prohibition of the performance of abortions
with penal consequences
 Criminal matter
 Concern for women, or health care policy and regulation of
health care professionals was merely ancillary
 Approaches it from the viewpoint of public wrongs and crim
 Not from viewpoint of health care
o Colourable – probably, but don’t want to say
o Severance – no remaining “good part”
Reference re Same-Sex Marriage (2004) SCC
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Series of Charter challenges making their way up
Justiciability issue- court decides to not answer one of the questions
Incidental Effects – main principle in judgment
Living-tree principle – to counter “frozen concepts”
o Less about Pith & Substance

91(26) – authority in respect of “Marriage and Divorce”
o Capacity to marry
92(12) – authority in respect of “the solemnization of marriage in the
province”
o performance of marriage
If anyone is going to change definition of marriage – fed



FIRST QUESTION – Is the Proposed Act Within the Exclusive Legislative
Authority of the Parliament of Canada
o s.1 of Act – “marriage, for civil purposes, is the lawful union of two
persons to the exclusion of all others” (two “persons” , regardless of
gender are legally capable of being married)
 Dominant characteristics – capacity to marry
o Living Tree principle (Edwards decision – Persons case -women
eligible for senate)
 Constitution should not be frozen
o Must accommodate different generations and
changing circumstances

OBJECTIONS – Scope of 91(26)
o Originalist interpretation - Frozen concept argument
o CA 1987 – definition of marriage is frozen
o Natural definition – at it core heterosexual
o Customs argument – institution of marriage “outside the law”
 Embedded in custom, a natural institution
 Countered by “persons” case
o Scope would trench on provincial sphere
 Fed legislation would certainly impact the provincial sphere
 Issuance of licenses, registration of marriage, property
issues eg: dissolution of marriage
 Incidental Effects – do not relate to the core powers over
solemnization and property & civil rights
 Permissible as long as the act is not in pith &
substance related to provincial head of power
o Not watertight compartments

SCC strikes down s.2 of the Act
o Relates to the solemnization of marriage and religious freedom
o Any legislation protecting freedom of religion with respect to
marriage must be done by the province.

NEXT QUESTION
o Was common law inconsistent with Charter
 Were Appeal courts right when they rules opposite sex
requirement was unconstitutional
 Non-justiciable – refuses to answer
 Unwise and inappropriate
 Government says its going to enact the legislation
regardless of answer, so answer would be purely for
political reasons and have no effect on law
 Already decided in lower courts
o Proper time for appeal has already passed
o No compelling reason to answer a question that
might go against lower court and cause
confusion
 There are same-sex couples that have
already obtained a right
 Do not want to jeopardize an
acquired right if not necessary
Paramouncy and Interjurisdictional Immunity
Canadian Western Bank v. Alberta (2007) SCC

Intro
o Banking introduced insurance line
Must they abide by Alberta’s Insurance Act?
 91(15) – Banking, Incorporation of Banks, and the Issue
of Paper Money
 92(13) – Property and Civil Rights in the Province
o Insurance trad. falls here
Pith and Substance
o Reference Morgantaller
o Dominant purpose is decisive
o Incidental effects – ok
o First do pith and substance, then move onto Paramouncy and II
 Want incremental approach, case by case



Interjurisdictional Immunity
o Greatly limits it’s application
 Leads to “watertight compartments”
 Continued risk of erosion of provincial power
 In theory, resiprocal, but in practice now
 Want to use double aspect doctrine (and paramouncy) when
possible
 II creates uncertainty
o Difficult to define “core”
o Dis-favours incremental approach
o Could create legal vacuum
 Very rarely, but can protect:
 Federally incorporated companies
o If used:
 Needs to “impair” (not quite “sterilize”)
 Bell Canada: limited to “basic, minimum and unassailable
content”
 Now = core
o Transport cases
 Might be cases that overlap does not work well
 But still, fed transport undertakings must abide by
provincial speed limits
o Banking (here)
 Cannot be immune to “any” financial service
 Must be core

Federal Paramountcy
o How to determine the degree of incompatibility needed to trigger
application?
 If to broad – expands central powers
 If to narrow – give provincial governments more latitude
o Multiple Access Ltd v. McCutcheon (used in General Motors)
“except where there is actual conflict in operation as where
one enactment says “yes” and the other says “no”: “the same
citizens are being told to do inconsistent things”; compliance
with one is defiance of the other.”
 Provincial laws may add requirements or supplemental
requirement to federal legislation
o Hall, Mangat, Rothmans
 Don’t want to make this too broad
 To comply with provincial law would frustrate the purpose of
the federal law
 Even though it is not directly violating
 Onus is on the party relying on paramountcy to
demonstrate that the fed law purpose would be
frustrated
o Almost always start with Pith and Substance analysis
 Need to determine if both legislation in question is actually
valid
 II and Paramountcy then determine if law is applicable or
operative
 II should be reserved for situation already covered by
precedent
 Preferable to use federal paramountcy


Application to Western Bank
o Pith and Substance – Insurance Act is valid
 Insurance still falls under province despite banks starting it
o II – No – insurance is not a core function of the banks
 Bank Act does not even recognize as core function
o Federal Paramountcy
 Neither operational incompatibility nor frustration
 Operational
 Can comply with provincial regulation
 Frustration
 Eg of yes: Mangat
o Fed – enable non-lawyers to appear before
immigration proceedings (promote hearings that
are informal, accessible and expeditious
o Prov – prohibition against non-lawyers before
triubnal
 Here – no frustration
o Parliament documents show they want level
playing field for insurance
Alberta Government Telephones v. CRTC (1989) SCC

Interjurisdictional Immunity (cont)
o AGT deals with Communications
o 91(29) – such classes of subjects as are expressly excepting in the
Enumeration of the Classes of subjects by this Act assigned exclusively
to the Legislatures of the Provinces
o + 92(10) – Local works and undertakings other than such as are of the
following classes
 92(10)(a) – lines of steam or other ships, railways, canals,
telegraphs, and other works and undertakings connecting the
Province with any other or others of Provinces, or extending
beyond the limits of the boarder
o The two together = fed jurisdiction over
 Transportation and Communication works or undertakings
that extend across prov. or int. boarders
o 92(10)(c) – fed declaratory power – unilaterally define as fed
 Used for grain elevators
 Power has been infrequent in recent years – might be amended
o AGT
 Challenge the jurisdiction of fed body – CRTC
 Equipment and operations wholly within Alberta
 Cables and microwave equipment with other companies
across boarder
 Was not good enough to get them off the hook
 It provides local subscribers with services of interprovincial
and international nature.
 Various business agreements enable it to play role that
is national in nature.
 AGT could not separate itself from Telecom Canada
without fundamentally altering the fundamental nature of
AGT’s enterprise.
 Cannot separate Telecom Canada into various members
Consolidated Fastfrate Inc v. Western Canada Council of Teamsters (2009) SCC


Facts
o Niche market – freight forwarding
o Fastfrate – has branches across Canada
Interpreting 92(10)(a)
o History – Preference for diversity at regulatory authority
o Textual – Basket clause
 Decides all the previous examples have physical movement


o Jurisprudence
 Commonalities within the industry
 Differentiates from communication
o Communications can operate and provide
international and interprovincial communication
services from a fixed point.
o There is no line to draw line in transportation
o Definition of transport is physical mobility
 Does not like the “dominant approach” method
 Potential to sweep all into federal jurisdiction
Application
o Fastfrates operations are entirely intraprovincial
o Uses Empress Hotel
 CPR – fed company
 Patrons stay at the hotel
 Hotel is not subject to fed laws
 Hotel role in the system is not integral or essential
o Analogy of hotel to third-party contractors
transporters
o Fastfrate – integrated company branches across country
 Corporate structure is not determinative
 To customer – both ends of transaction are Fastfrate
Dissent – Binnie J (McLachlin CJ, Fish JJ)
o Maj lends to “checkerboard provincial regulation”
o AGT
 Different here - customer to customer interprovincial service
 Communication technology is different, but still same legal
test
 Functional test – what type of transport service does
Fastfrate undertake to provide service to customers
o Local or interprovincial
 Nature of service – not modalities of performance
o Should pay more attention to incremental case by case approach
 Maj drawing the line at physical transportation – looking at
entire industry – too broad a sweep
o Fastfrate is a single enterprise
 Alberta board meets “single enterprise”
 BUT each Fastfrate terminus is heavily dependent on each
other
 Cannot separate Alberta’s undertaking from
interprovincial works
o Same as AGT
Federalism with Respect to Aboriginal People
Natural Parents v. Supt. Of Child Welfare (1976) SCC
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Context: after residential schools, fed back out of child welfare programs.
Want provinces to do it.
Issue: adopting out aboriginal children to non-aboriginal families
Facts: natural parents speaking for community, customary that children
should go to aunt and uncle
91(24) – fed jurisdiction over Indians and Indian lands
s.88 – all provincial laws of general application from time to time
(anticipatory incorporation by reference) in force in the province apply to
Indians (general rule)
o Exceptions:
 1) Subject to treaty
 2) Subject to any other Act of Parliament
 3) Except to the extent of inconsistency with Indian Act
 4) Except to the extent that the Indian Act deals with the
matter
92(16) – Adoption Act – birth parent relationship with child is erased
Indian Act – doesn’t deal with adoption (can’t use that s.88 exception)
o BUT – does have a system for registering those who qualify for Indian
status
 So if you are adopted by non-Aboriginal family, you lose your
status
Natural Parents argument – Provincial Adoption Act conflicts with respect to
Indian status
o Entitled to it, but will lose status if adopted
o IJI – “Indianness” is fed
o Argued that Adoption Act goes to vital or essential core of Indianness
Q1) Is the provincial law a law “in relation to Indians”?
If actually “in relation to Indains” it is ultra vires the provinces
Answer: Does not single them out
Q2) Does adoption act apply on its own power to the adoption of First Nation
children?
Answer: Different opinions
Laskin CJ - No - family matters core of Indianness
Martland J –Yes
Q3) What is the scope of the area of IJI?
Answer: Different opinions
Laskin CJ – large – includes family relations
Martland J – smaller – if they have status or not
Q4) Is it incorporated by s. 88 of Indian Act? If so, what effect
Answer: Different opinions
Laskin CJ – incorporated by reference – with aboriginal kids – s.88 makes fed law
Martland J – s.88 just declarative


LASKIN CJ
o Large area of IJI around Indianness
o Adoption Act would encroach on federal power over Indians
o May apply through referential incorporation under s.88
o Are there exceptions?
 Abor argu
 Even if s.88 – irreconcilable inconsistence
 If applys, only allow Indians by Indians
 Laskin does repair job
 Gets rid of inconsistency:
o Allow Indians to keep their status even if they
are adopted by non-Indian parents
 Problem with this solution
o Children need to find birth parents and
community to get status
o Function problem still
Martland J
o Rejects argument of IJI
 Smaller conception of area
o Adoption Act does touch on Indianness – just incidental effect
o S.88 need not apply
o He says Indian Status can survive adoption theoretically
 So no need to go to paramountcy
 No conflict
Dick v. R. (1986) SCC
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Dick – member of Alkali Lake Band
o Charged $50 for killing a deer out of season
92(13) - Game Laws – Wildlife Act
91(24) – Indian Act – does not talk about hunting
Lambert J – strong dissent in Court of Appeals
o At core of Indianness
o Falls within scope of IJI
o Falls within scope of s.88
o Even if intruded, s.88 make it fed law

Beetz J – SCC ruling
o Does not agree/disagree with Lambert’s reasons
o Leaves question about core of Indianness open
o Even if IJI applies – s.88 makes fed law
 Does scope matter anymore?
o This is an anticipatory incorporatition by reference
 Settles the question about s.88 – goes with Laskin CJ
Note: s.35 of CA 1982 – protects Ab treaty rights against BOTH levels of gov’t
Charter protection – so don’t need to use the prov/fed protection as much
Kitkatla Band v. British Columbia (2002) SCC
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Comes after CA 1982
Makes argument using s.35
Also 91(24) – Indian Act
92(13) – Property and Civil Rights – Heritage Conservation Act
Indianness argument
o Should be IJI – culturally modified trees – core of identity
o Court – not enough evidence
 Not enough to establish CMT’s as core
 Narrow area of Indianness
 Not as broad as vital and essential part test that operates in the
undertakings area
 Leaves open large area of incidental effects flowing from
provincial laws
 Unwilling to look at practical effects – impact on Ab
communities
o Next Argument - S.88 won’t help (like in Dick) because the Act is
not of general application
 Singles out Native objects for special treatment
 99% of heritage objects are Ab cultural property
 Colourablility argument
o Court – GM TEST
 Pith and Substance of the Act is heritage
 Heritage of ppl of BC, not just Abp pl
 Disproportionate impact, but not singling out
 Parmountcy does not apply because no valid federal
legislation occupies the same field
 Unnecessary to consider s.88
Dissent – Prowse J
o Notes that 99% of heritage items are Aboriginal
 Would find ultra vires to the province


S.88 would not work either
Weber notes:
o court does bad job of separating the steps
o Slips from interjurisdictional authority into GM test
o Articulates three step test
 1) Intrusion
 2) Validity of act as whole
 3) Degree of integration
 Balance context of intrusion vs integration
o In DICK – hinted that prov may never tailor for ab rights
o HERE – quite diff
 Will allow provinces to adapt their role specifically to adapt for
ab ppl
 Flexible approach to interjurisdictional authority
 The idea that only fed makes ab laws is highly eroded here
 Province can adapt their regimes to deal quite specifically with
ab ppl
 1) Characterization - is it a valid prov enactment?
 2) IJI – does this touch core area of Indianness
o Here – does not fall within core
 3) Accordingly – they do not need to look at s.88
o This case – more flexible approach to Characterization
Powers of Good Government – POGG
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

Term comes from intro to s.91
Initially was a general word for fed powers
o Later – more restricted
THREE branches of POGG
o 1) Residual Branch (Hogg – Clear Gaps)
 fed absorbs ‘residual’ powers not accounted for by the
enumerated powers
 but, enumerated powers are so broad, they do cover most
matters
o 2) Emergency Branch
 see anti-inflation
o 3) National Dimension/Concerns Branch
 see Crown Zellerbach
Reference re Anti-Inflation Act (1972) SCC
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Anti-Inflation Act was evaluated from the perspective of emergency branch
and national concerns branch
o Residual did not apply
o This is leading authority on emergency branch
 “serious national concern”
Majority – uphold ultra vires on basis of emergency branch
Laskin J – what is the matter/dominant aim? Is it emergency power?
o looks at legal effects/ 4 corners analysis (extrinsic evidence matters)
o Is there enough evidence in the Act to support the existence of a
‘crisis’
 Preamble – enough in there – don’t need to explicitly say
‘emergency’
 Weak but good enough extrinsic evidence to back up
o Standard is rational basis of a crisis
o Whether there is clear evidence to the contrary (extremely low
standard)
Beetz J – dissent – picked up later
o Wants clear distinction between emergency and national dimensions
o Emergency power is an overt intrusion into prov powers
 Standard is high
 In this case falls short
 Parliamnet should be explicit
 Preamble does not cut it
 Strict manner/form requirement
 Emergency with support of 4 corners of the Act
 Does not have to be about war
 Peacetime OK – Inflation could qualify
 Could be anticipation of emergency
 Must be temporary!
o National Dimensions
 Dealing with the addition of a permanent class of subjects to
s.91
 Like a judicial amendment to the constitution
 Need to be very careful
 Does not want a “repackaging” of already existing
powers
o Eg: environment
o Eg: culture
o Eg: inflcation
 Already powers distributed to prov and
fed
 Cannot change the allocation of powers
 Cannot just give it a new label
 Things that do fit under this branch
o Aeronautics – cannot be divided between prov
and fed
 Unlike radio (divided)
o Radio communications
o National Capital Region
o Atomic Energy – ok under declaratory as well
FEDS CODIFY BEETZ dissent
 Emergencies Act 1988
o Defines emergency as urgent critical situation
o Parliament shall declare that there is an emergency in Act and
elaborated on the situation and get provincial agreement
Regina v. Crown Zellerbach Canada Ltd (1988) SCC
 Webber notes:
o Important for two reasons
 1) Consolidation of ND branch
 2) Discusses environment
 Context:
 Feds pass Ocean Dumping Control Act – is it ultra vires?
o Environmental protection is prov jurisdiction
 Political sense that things have changed
o When drafted CA 1867 – envi was prov – local and private matter
o But today, more like fed
 Treaty Obligations
o Feds pass Act as upholding International Treaty obligation
o Other countries – signing would make domestic law
o Try to enact into Canadian law
o Provincial jurisdiction vs fed Treaty act
o Let’s use POGG - National Dimension
 Facts
o Logging company moved a bunch of leftover wood from one part of a
cove to another
o Beaver cove is clearly internal waters
 Therefore provicinal jurisdiction
o Company gets charged under Fed Act
 Le Dain – majority
o Pith and substance – Marine Pollution
o What fed powers?
 Fisherises
 Don’t use because burdensome to prove damage to fish
and then deal with regulations

 Criminal
 Shipping and navigation
o Could use Ancillary power – concede ultra vires then show not
dominant effect
 Have to keep pollution out of internal waters in order to keep
p[pollution out of territorial waters
 But then again, regulatory constraint issue
o Criteria for invoking national dimensions
 1) National concern doctrine is separate and distinct from
national emergency doctrine
 temp nature
 2) National concern applies to both new matters which did not
exist at Confederation and to originally matters of a local or
private nature that have since, in the absence of an emergency,
become matters of national concern
 3) To qualify
 Singleness, distinctiveness, indivisibility
o Clearly distinguishes it from matters of prov
 4) In determining (3) must consider
 What would be the effect on extra-provicial
interests of a provincial failure to deal effectively
with the control or regulation of intraprovincial aspects
of the matter
 PROVINCIAL INABILITY – provinces cannot cooperate,
can’t regulate effectively
o If one province didn’t deal effectively with the
problem, would it hurt citizens of another
province? – then feds could go in
o LeDain – Marine pollution meets these requirements
 Not necessary said that it first under POGG national dimension
branch
 But Webber thinks it’s there
Dissent
o Really just an aggregate of existing matters
 Should be convered under fed fishery power
o Danger of conferring broad powers to fed
o Indivisibility issue – quite seriously affects balance of power
o Scale of impact concern
o Image: stand on beach in province and throw a stone in the water …
fed jurisdiction now