Fall
Dec 10
Constitutional Law (Narain)
John Simpson
Fall Semester 2012
Cell #: 514-772-3710
Table of Contents
INTRODUCTION TO CANADIAN CONSTITUTIONAL LAW
4
CONSTITUTION ACT, 1867: S.91, 92, 96, 101
CONSTITUTION ACT, 1982: S.1-35.1, 52
4
4
THE RULE OF LAW
4
KAPLAN, “STATE AND SALVATION: THE JEHOVAH’S WITNESSES AND THEIR FIGHT FOR CIVIL
RIGHTS” (674-677)
DICEY, “INTRODUCTION TO THE STUDY OF THE LAW OF THE CONSTITUTION” (672-673)
RONCARELLI V. DUPLESSIS, [1959] (677-682)
4
5
5
SOURCES OF CONSTITUTIONAL LAW
6
CASEBOOK: INTRODUCTION (3-11)
*REFERENCE RE SECESSION OF QUEBEC, [1998] (17-25)
MCLACHLIN, “UNWRITTEN CONSTITUTIONAL PRINCIPLES: WHAT IS GOING ON?”
HOGG, “CONSTITUTIONAL LAW OF CANADA”
6
6
8
9
JUDICIAL REVIEW AND CONSTITUTIONAL INTERPRETATION
10
GAUDREAULT-DESBIENS, “THE QUEBEC SECESSION REFERENCE AND THE JUDICIAL ARBITRATION OF
CONFLICTING NARRATIVES ABOUT LAW, DEMOCRACY, AND IDENTITY”
10
ELLIOT, “REFERENCES, STRUCTURAL ARGUMENTATION, AND THE ORGANIZING PRINCIPLES OF
CANADA’S CONSTITUTION” (40-43)
11
CASEBOOK: “JUDICIAL REVIEW AND THE LEGITIMACY ISSUE” (29-43)
12
BRITISH COLUMBIA V. IMPERIAL TOBACCO CANADA LTD., [2005]
12
BRITISH COLUMBIA (ATTORNEY GENERAL) V. CHRISTIE, [2007]
14
PRENTICE, “CANADIAN WOMEN: A HISTORY” (43-60)
15
REFERENCE RE MEANING OF THE WORD “PERSONS” IN SECTION 24 OF THE BNA ACT, 1867,
[1928]
16
EDWARDS V. CANADA (ATTORNEY GENERAL), [1930]
16
CASEBOOK: TRIGGERING JUDICIAL REVIEW AND PROCEDURAL ISSUES (54-60)
16
FEDERALISM AND THE MODERN CANADIAN STATE
18
NORRIE, SIMEON, AND KRASNICK, “FEDERALISM AND THE ECONOMIC UNION”
SIMEON, “CRITERIA FOR CHOICE IN FEDERAL SYSTEMS”
18
18
VALIDITY: CHARACTERIZATION OF LAWS– PITH AND SUBSTANCE DOCTRINE
19
LEDERMAN, “CLASSIFICATIONS OF LAWS AND THE BRITISH NORTH AMERICA ACT”
R. V. MORGENTALER, [1993]
19
20
VALIDITY: CHARACTERIZATION OF LAWS– DOUBLE ASPECT DOCTRINE
22
LEDERMAN, “CLASSIFICATION OF LAWS AND THE BRITISH NORTH AMERICA ACT”
MULTIPLE ACCESS LTD. V. MCCUTCHEON, [1982]
22
22
VALIDITY: CHARACTERIZATION OF LAWS– ANCILLARY DOCTRINE (NECESSARILY
INCIDENTAL)
24
2
GENERAL MOTORS OF CANADA LTD. V. CITY NATIONAL LEASING, [1989]
RYDER, “THE DEMISE AND RISE OF THE CLASSICAL PARADIGM IN CANADIAN FEDERALISM:
PROMOTING AUTONOMY FOR THE PROVINCES AND FIRST NATIONS” (247-249)
24
APPLICABILITY: INTERJURISDICTIONAL IMMUNITY DOCTRINE
26
26
MCKAY V. THE QUEEN, [1965]
27
COMMISSION DU SALAIRE MINIMUM V. BELL TELEPHONE CO. (BELL #1), [1966]
27
BELL CANADA V. QUEBEC (COMMISSION DE LA SANTÉ ET DE LA SÉCURITÉ DU TRAVAIL) (BELL #2),
[1988]
28
CANADIAN WESTERN BANK V. ALBERTA, [2007]
30
CANADA (ATTORNEY GENERAL) V. PHS COMMUNITY SERVICES SOCIETY, [2011]
31
OPERABILITY: THE PARAMOUNTCY DOCTRINE
33
MULTIPLE ACCESS LTD. V. MCCUTCHEON, [1982]
BANK OF MONTREAL V. HALL, [1990]
ROTHMANS, BENSON, & HEDGES INC. V. SASKATCHEWAN, [2005]
33
34
35
PEACE, ORDER AND GOOD GOVERNMENT: NATIONAL EMERGENCY POWER
37
REFERENCE RE ANTI-INFLATION ACT, [1976]
37
PEACE, ORDER AND GOOD GOVERNMENT: NATIONAL CONCERN DOCTRINE
39
R. V. CROWN ZELLERBACH CANADA LTD., [1988]
39
LECLAIR, “THE ELUSIVE QUEST FOR THE QUINTESSENTIAL ‘NATIONAL INTEREST’”
41
FRIENDS OF THE OLDMAN RIVER SOCIETY V. CANADA (MINISTER OF TRANSPORTATION), [1992] 42
POLICY INSTRUMENTS & FLEXIBLE FEDERALISM: THE SPENDING POWER,
INTERGOVERNMENTAL AGREEMENTS, AND DELEGATION
44
BANTING, “THE PAST SPEAKS TO THE FUTURE: LESSONS FROM THE POSTWAR SOCIAL UNION” (463478)
44
REFERENCE RE CANADA ASSISTANCE PLAN (BC), [1991]
46
COUGHLIN V. ONTARIO HIGHWAY TRANSPORT BOARD, [1968]
46
AMENDING THE CONSTITUTION
47
CASEBOOK: “THE CANADIAN PROCESS FOR AMENDING THE CONSTITUTION” (485-501)
REFERENCE RE SUCCESSION OF QUEBEC, [1998]
47
49
FEDERALISM WITH RESPECT TO ABORIGINAL PEOPLES: CONSTITUTIONAL
ENTRENCHMENT OF ABORIGINAL RIGHTS
49
R. V. SPARROW, [1990]
R. V. VAN DER PEET, [1996]
HENDERSON, “THE SUPREME COURT’S VAN DER PEET TRILOGY”
R. V. GLADSTONE, [1996]
50
51
53
54
3
Introduction to Canadian Constitutional Law
Constitution Act, 1867: s.91, 92, 96, 101
Provincial Powers under s.92:
direct taxation in the province for provincial purposes,
natural resources,
prisons (except penitentiaries),
charitable institutions,
hospitals (except marine hospitals),
municipal institutions,
licences for provincial and municipal
revenue purposes,
local works and undertakings (with certain exceptions),
incorporation of provincial companies,
solemnization of marriage,
property and civil rights in the province,
the creation of courts and the administration of justice,
fines and penalties for breaking
provincial laws,
matters of a merely local or private nature in the province,
education
Federal Powers under s.91:
National Defence
Criminal Law
Etc.
Constitution Act, 1982: s.1-35.1, 52
Constitution Act, 1982, the provinces can amend their own constitutions by an ordinary
Act of the legislature. They cannot touch the office of Lieutenant-Governor; they cannot
restrict the franchise or qualifications for members of the legislatures or prolong the lives
of their legislatures except as provided for in the Canadian Charter of Rights and
Freedoms. Of course the power to amend provincial constitutions is restricted to changes
in the internal machinery of the provincial government.
-Adds the Charter of Rights and Freedoms
The Rule of Law
Kaplan, “State and Salvation: The Jehovah’s Witnesses and Their Fight for Civil
Rights” (674-677)
At end of WWII ~10,000 Jehovah’s Witnesses (JW) in Canada, but fewer than 500 in
Quebec
Many towns passed bylaws against handing out literature in order to keep
JW out
Duplessis actively encouraged the persecution (huge amount of arrests/charges laid
against JW in Quebec, while barely any outside of the province)
4
Justice Ivan Rand (called to the bench of SCC by King in 1943)
Dicey, “Introduction to the Study of the Law of the Constitution” (672-673)

Rule of Law is threefold:
o No man is punishable, in body or goods, except for a distinct
breach of law established in the ordinary legal manner before the
courts.
o Every man, no matter rank or condition, is subject to the
ordinary law of the realm (Judges) rather than arbitrary power
(officials)
Founded on the law of jurisprudence (common law) through the accumulation of
decisions by judges (regular law) in individual decisions, and not through any code
(civil)
Roncarelli v. Duplessis, [1959] (677-682)
Facts:
Roncarelli was owner of Quaff Café in MTL. Disturbed by the number of Jehovah’s
witnesses being arrested, he posted bail for about 400 of them with money from
Café. In late November 1946, Duplessis publicly warned him to stop; Roncarelli
didn’t heed the warning. December 1946, Duplessis phoned chairman of the Quebec
Liquor Commission and told him to cancel R.’s Liquor license. Police then seized all
R.’s stock. R. then brought action for damages against Duplessis (Premier of Que) for
wrongful revocation of liquor license.
JH:
R. successful at Trial level, CA reversed.
Issue:
Did the Liquor License Act give Duplessis authority to revoke Roncarelli’s license?
Reasoning: (Rand J.)
Roncarelli’s license was taken away as means of halting the activities of the
Witnesses, punishing plaintiff (not only took away the license but barred him from
ever having one again)
No legislative Act can be taken to contemplate an unlimited arbitrary
power exercisable for any purpose.
Discretion necessarily implies good faith in discharging public duty (680)
Rand: “To deny or revoke a permit because a citizen exercises an unchallengeable
right totally irrelevant to the sale of liquor in a restaurant is equally beyond the
scope of the discretion conferred” (681).
“The act of the respondent through the instrumentality of the Commission
brought about a breach of an implied public statutory duty toward the
appellant; it was a gross abuse of legal power expressly intended to
punish him for an act wholly irrelevant to the statute” (681) (respecting
economic/property interests of citizens)
Holding:
Appeal allowed. Damages to plaintiff for 33,123.53$
Ratio:
5
Legislators have an implied statutory duty of good faith towards citizens under their
jurisdiction (rule of law).
Roncarelli v. Duplessis important decision because:
o Everyone equal in front of the courts
Sources of Constitutional Law
Casebook: Introduction (3-11)
1. Parliamentary democracy (laws are made by leg. bodies)
2. Federalism (Division of power along territorial lines)
3. Individual/group rights (claims that individuals have against the state)
4. Aborig. Rights (Special rights recognizing Aborig. ppl as the first nations in N-A.)
5. Principle of Constitutionalism (gov. action can be held by the court to be of no
force or effect if a breach of the Const. is found)
6. The Rule of Law
7. Constitutional conventions
8. The Principle of judicial independence
o Legislative supremacy? Gov can enact legislature, but the court can
strike it down if it is found to be unconstitutional
Constitution is a guarantee against State abusing its privileges
A way to guarantee minority (including Aborig) rights
s.35(1) guarantees Aborig. and treaty rights
Quebec did not sign, future attempts to appease dissident groups and get everyone
onboard (Quebecois/Aboriginals in particular) at Meech Lake 1987/Charlottetown
Accord 1992 failed
*Reference re Secession of Quebec, [1998] (17-25)
Facts:
Case came before the court through a special process known as the Reference
Procedure (after the narrow failure of the Referendum in 1995)
 Asks the court to give advice on important legal matters
Issues:
1. Under the Constitution of Canada, can the National Assembly, legislature or
government of Quebec effect the secession of Quebec from Canada unilaterally?”
(answered No)
“2. Does international law give the National Assembly, legislature or government of
Quebec the right to effect the secession of Quebec from Canada unilaterally? In this
regard, is there a right to self-determination under international law that would give
the National Assembly, legislature or government of Quebec the right to effect the
secession of Quebec from Canada unilaterally?” (Answered No)
“3. In the event of a conflict between domestic and international law on the right of
the National Assembly, legislature, or government of Quebec to effect the secession
6
of Quebec from Canada unilaterally, which would take precedence in Canada?”
(Declined)
Reasoning: (By the SCC as a whole)
Constitution Act 1982 contains both written and unwritten rules
These unwritten principles exist because situations may arise which the text
of the constitution is not sufficient to deal with
The evolution of the Canadian Constitution has been characterized by adherence to
unwritten principles
The principles are “the vital unstated assumptions upon which the text is
based” (17)
No one principle trumps another; they exist in symbiosis
1. Federalism:
Recognizes the diversity of the component parts of Confederation, and the
autonomy of provincial governments to develop their societies within their
respective spheres of jurisdiction.
Facilitates pursuit of collective goals by cultural/linguistic minorities
(especially Quebec)
2. Democracy:
Expresses the sovereign will of the people; however this expression must be taken
in the context of the other principles mentioned
-Federalism and Democracy: There may be different and equally legitimate
majorities in other provinces
-Must respect the will of all provinces within the Federal state, not just
Quebec
Democratic principle must exist in relation to the Rule of Law as well; rests on an
appeal to moral values
*Democratic Principle necessitates dialogue, compromise, negotiation, and
deliberation
3. Constitutionalism and Rule of Law:
Vouchsafes citizens a stable, predictable, ordered society where individuals are free
from arbitrary state action (Roncarelli v. Duplessis)
Constitutionalism: requires that all government action comply with the
constitution
Rule of Law: all government action must comply with the law including the
constitution
The argument that the Constitution may be legitimately circumvented by
resort to a majority vote in a province-wide referendum is not persuasive.
Does the notion of popular sovereignty that created the Constitution also
permit the people, or a part of, to exercise that same popular sovereignty to
secede by majority vote?
No. The representatives of Quebec at Confederation bound the province to the
Constitution
It does not frustrate the will of the majority, it defines how it must be
expressed with respect to the other provinces, individual rights, and
minority rights
7
Without this relationship, the political will upon which democratic decisions
are taken would be undermined
Requires negotiation, discussion, and compromise between parts that
make up the whole
4. Protection of Minorities:
The protection of minority rights influences the operation and interpretation of the
Constitution
s.35: explicit protection for existing Aboriginal and treaty rights
The rights of minorities within Quebec represents an important factor (Aboriginal
peoples, minority English speakers, etc.)
Holding:
Constitutional amendment needs accord of many different levels of gov. in order to
assure that minorities are heard. Allowing Quebec to secede with a majority vote in
one Prov alone would be unconstitutional, but a “clear expression by the people of
Quebec of their will to secede from Canada would impose a reciprocal obligation
on all parties to Confederation to negotiate…changes to respond to that desire.”
Federalism
-Canada came together out of free-will, not because of a British statute
this commitment has to be respected by Quebec
-The respect of the will of minorities is also ingrained in the unwritten
Constitution however, so Quebec’s opinions must be recognized
Democracy
-Does federalism trump democracy?
o Court says none of the factors stand alone
-Court looked at Democ as the expression of the will of the people, but it has
to be perceived with Federalism and Rule of Law in mind, not to mention the
rest of Canada
Federalism makes unilateral secession unconstitutional, but Democracy puts
obligation on Canada to enter negotiation, etc. with Que as a duty of
democracy and Constitutional values
Constitutionalism and the Rule of Law
Constitution cannot be circumvented by a majority vote in a single province
Protection of Minorities
While unilateral secession is unconstitutional, the democratic will of the
people of Que imposes an obligation of negotiation upon Canada
McLachlin, “Unwritten Constitutional Principles: What is Going On?”
Do unwritten norms “cloak unelected and unaccountable judges with illegitimate
power”?
Unwritten constitutional principles refer to unwritten norms that are essential to a
nation’s history
Common Law leaves much unsaid:
8


This leaves much more need for the unwritten principles that underlie
our Constitution
o Not seen as positive aspect by everyone (Jeremy Bentham)
describes common system as not-unlike breaking a dog of a bad
habit (Dog Law: beat the dog after the bad deed)
Three Sources:
o *1. Customary usage (inherited from G.B.)
o *2. Inference from written constitutional principles
 Ex. Succession Reference: The unwritten principles of
the Constitution not only make unilateral succession
unconstitutional, but also obligate the fed/prov govs to
negotiate with citizens of Que to find common ground.
o *3. Norms set out/implied in international legal instruments to
which the state has adhered (UN decrees)
For Chief Justice McLachlin, the fundamental question is not whether judges should
have the ability to trump state-made laws using fundamental norms of justice. The
real question is rather to address why these norms justify such trumping.
Dilemma: always the risk of usurping legislative power through controversial
rulings
Three Problems of unwritten norms
Knowability: unwritten, therefore unidentifiable
Identification: how to identify them?
o Sources of these unwritten principles (explained above)
o Customary usage, Inference from written Const. principles, Norms
se out/implied in international legal instruments
Legitimacy: how can judges legitimately invoke unwritten principles to revoke
written laws (crossing the line between politics/judiciary?)
Succession Reference shows the active role that the SCC has taken in Canada
-It was a fundamentally politically charged question, asked by the parliament of
Canada to the Supreme Court, but was the SCC the only non-partisan body capable
of giving advice on the question?
Political Question with extremely important legal implications
(impossible to separate the two) the SCC looked at the legal
implications and set out a formula for them
Are reference questions all political by their very nature?
Hogg, “Constitutional Law of Canada”
Constitutionalism: the idea of a government limited by law
B.N.A. Act lacks a few things that are made up for through unwritten conventions
 Ex. System of responsible government is no where written down
o So Prime Minister, cabinet, etc. do not exist in BNA or in the
repatriated Const. of 1982
 Supreme Court of Canada
9
o Not included anywhere in the BNA; enacted through a normal
federal statute (still the case today)
 [So could it also be removed by a normal Federal statute?]
 No amending formula for the Const.
o Had to go through the Imperial Parliament in Britain
o this was changed in 1982
Parliamentary Privilege: (an unwritten convention?)
 This also includes freedom of speech in debates, and immunity from legal
proceedings for things said in debate
 Also the right of MoP to not testify in court proceedings while Parliament
or the Legislature is in session
 P-P is not contained in any statute or written instrument; it is the
courts who determine its existence and extent
Case Law:
 Unwritten principles of the constitution have frequently factored into the
decided cases made by Canada’s courts in the interpretative process (ex.
See Secession Reference (1998))
Judicial Review and Constitutional Interpretation
Gaudreault-DesBiens, “The Quebec Secession Reference and the Judicial
Arbitration of Conflicting Narratives about Law, Democracy, and Identity”
 Interplay of legality and legitimacy in the decision
Two referenda so far: 1980 and 1995
The refusal by the SCC to recognize Quebec’s alleged ‘veto power’ insofar as
concerned the repatriation of the Constitution, officially ended the dualist view of
Canada => French/English countries joined equally
 Efforts to rebuild this dualist relationship failed consistently
 Ex. Meech Lake (1987), Charlottetown Accord (1992)
 Quebec lost its distinctiveness so far as the Const. is concerned
Reference Question answered by the SCC are not binding on the Fed/Prov
governments or anyone else affected
 However, most adhere to the decisions nonetheless because of the
weight that the SCC decisions caries
The SCC can turn down decisions that it deems too political/vague, etc.
The Constitution’s silence on the possibility of secession does not mean that
the province is outside of the constitutional gambit just from a ‘yes’
referendum vote
Focus on Democracy/protection of minorities by author in discussion of unwritten
principles
 Following the SCC decision, minority groups (Aboriginal/linguistic
minorities) will now have to be included in negotiating because of the
emphasis placed on them by the SCC decision in Reference re Succession
 Constitutional duty to negotiate (Rule of Law/Democracy)
10

o Respond, acknowledge, Respect
Under no circumstances would Quebec dictate the terms of secession
*The framing of the answers to the secession questions seen as asserting the SCC
judicial role in the Canadian democratic and federal system (Judicial Activism)
Finding of Constitutional duty to negotiate was contentious:
Links legality and legitimacy (political system must have legitimacy that requires
interaction between the rule of law and democratic principle)
Is the duty to negotiate enforceable?
o NO. Has to be left to the political processes
(it is, in the end, a political question, not a legal one)
Sucessionist established opposition between legality and legitimacy
Fed gov established opposition between legality and democracy
Criticisms
Political not legal question
There should have to be unanimity with Fed/prov gov for const. change
Court should not have gone beyond the text of the Const. in its rulings
Court shoudn’t have identified the duty to negotiate if it isn’t in the Const.
Legal framework in the decision is vague unpredictable
o [most of the criticisms are about the unwritten principles]
Gaudreault-DesBiens: (response)
1. Court contributed to the complexity of understanding of relationship between the
principles of democracy/rule of law by avoiding ‘totalizing applications’ of the
concepts
2. Contributes to the understanding of political communities and the importance of
a complex understanding of identity
3. Creates guidelines that encourage constitutional actors to heed each other and
create constitutional dialogue
future implications?
Widens protection of minority rights (through democ./rule of law)
Elliot, “References, Structural Argumentation, and the Organizing Principles of
Canada’s Constitution” (40-43)
Focuses on the recent use of interpretive argument by the SCC: (Driedger’s
Principle?)
Historical
Citing the intent of the original drafters of the Constitution
Textual
Consideration of the words of the provision in question
Doctrinal
Argument from previously decided cases re-used
Prudential
Interpretation of cost-benefit outcomes of an issue (proportionality test;
does society lose more than it gains from the Gov action in question?)
Ethical
11
Argument that interprets the collective values/principles of society
*Structural
Based on inferences from the existence of constitutional structures
(unwritten principles)
the Constitution Act, 1982 s.52(1): “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.”
Casebook: “Judicial Review and the Legitimacy Issue” (29-43)
Definition of Judicial Review: the power of the courts in Canada to determine,
when asked, whether action taken by a governmental body or legal actor (ex.
Parliament or an RCMP officer) is or is not in compliance with our Constitution.
The SCC gets its power/legitimacy from:
 The Constitution Act, 1982 s.52(1): “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.”
 Canadian Charter of Rights and Freedoms s.24(1): “anyone whose
rights or freedoms, as guaranteed by this Charter, have been infringed or
denied may apply to a court of competent jurisdiction to obtain such
remedy as the court considers appropriate and just in the circumstances.”
 Tradition: “the power of judicial review is a longstanding and accepted
tradition in Canada.”
 Put in place through a statute by the legislature that it is responsible to
check: Supreme Court Act: 1875, 1985
Is the legitimacy of Judicial Review upheld when decisions are made based not on
the textual elements of the Constitution, but on the unwritten principles thereof?
*Enforce rules of federal distribution of powers as set out in Const.
Review whether statutes violate provisions of the Canadian Charter
British Columbia v. Imperial Tobacco Canada Ltd., [2005]
Facts:
The Tobacco Damages and Health Care Costs Recovery Act [2000] authorized the
Gov of BC to pursue collective action against a manufacturer of tobacco products for
recovery of health care dollars used to treat people exposed to those products.
Liability hinged on group of people having been exposed to tobacco products
because of manufacturer’s breach of duty of care, and BC’s having spent mony
treating diseases cause by that exposure. The Act provided for special rules in
matters of evidence and procedure in collective action, intended to make it
easier for BC to succeed in its action than it would have been under normal
rules of Tort law. Tobacco companies challenge the Act’s Constitutional validity on
3 grounds:
1. Federal/Provincial division of power (extraterritoriality of the claims)
2. Principles of Judicial Independence
12
3. Rule of Law (new measures create unfair trial)
JH:
-The BC Supreme Court holds that the Act is unconstitutional on the first point #1,
but rejects the other two points.
-On appeal by the Appellant, the BC Court of Appeal overturns this decision
-Appealed to the Supreme Court of Canada by the Respondent
Issues:
1. Does the Act go beyond the territorial legislative jurisdiction of BC in its
application?
2. Is Judicial independence infringed upon by the Act?
3. Does the unwritten principle of Rule of Law prohibit the Act?
Reasoning: (Major J.)
1. Extraterritoriality of the claims: decision of the Appeal judge is held. The Act deals
with “property and civil rights in the province” [s.92(13) of Constitution Act 1867],
and the extraterritorial aspect was only incidental
2. Judicial independence is not infringed upon by the Act: the Act does not
impinge on the essential authority and function of the court, nor does it impinge on
the security of tenure, financial security, and administrative independence that are
the three core characteristics of Judicial independence ensuring freedom of court in
its adjudicative duty.
Therefore, to strike the Act down based on infringement of Judicial
independence would be akin to supporting a role of *“Judicial governance”
rather than real Judicial independence (a self-check by the courts).
3. jurisprudence does not show that any of the appellant’s assumptions about the
Rule of Law (“that legislation be 1. Prospective, 2. General in character, 3. Not
confer special privilege on the Gov except where necessary for proper governance,
4. Ensure a fair civil trial”) are valid.
To act under the Rule of Law in any of these assumed ways would “seriously
undermine the legitimacy of judicial review of legislation for
constitutionality.” (court is backing away from the use of RoL in
Roncarelli/Secession Ref.) None of the real principles of RoL are
violated by the Act
o
Charter s.11(d): “any person charged with an offence has the
right…to…a fair and public hearing.” So applying the Rule of Law
here to enforce a fair trial would override the written Constitution.
 Reference re Secession of Quebec cited at para. 53: “the
recognition of constitutional principles… [can] not be taken
as an invitation to dispense with the written text of the
Constitution.”
Holding:
The Act is constitutionally valid on all of the contested points
Ratio:
The SCC reaffirms the importance of the textual body of the Constitution
1. the rule of law is not an invitation to trivialize the Const. written terms
13
not a tool to avoid legislative initiative of which one is not in favour
2. RoL requires that courts give effect to the Const. text
3. Gov constrained by RoL only in sense that they must comply with legislated
requirements as to manner and form.
-None of the points brought up by ITC represented unconstitutional actions
-Imperial Tobacco/Christie show the SCC moving away from reliance on
unwritten principles, such as those used in Roncarelli/Succession
Moving towards a narrow interpretation of Rule of Law
British Columbia (Attorney General) v. Christie, [2007]
Facts:
BC passed Social Service Tax Amendment Act which imposed 7% tax on legal
services within the province. Dugal Christie, who worked with poor/low income
clietns in Vancouver, challenged the constitutionality of the Tax with an “Access to
Justice” argument, stemming primarily from the Rule of Law principle.
JH:
Trial- ruled for Christie finding breach of Constitutional right of access to justice
CA- upheld Trial decision
Issue:
Is there a Constitutional right under Rule of Law to general access to legal services?
Reasoning:
The general right to be represented by a lawyer is extremely broad, and would
represent a constitutionally mandated “legal aid scheme for virtually all legal
proceedings” that would place an enormous burden on taxpayers
 Charter s.10: Everyone has the right on arrest or detention
o (b) to retain and instruct counsel without delay…
 This Charter right assumes the existence of impending Criminal
charges, not the right to legal services in general
The constitution does not support the general access to representation by a lawyer.
The “right to counsel” is understood as being limited to representation in the
criminal context.
 The Rule of Law embraces the principles of: law as supreme over all
individuals, the existence of a body of positive laws which preserve and
embody the principle of normative order, and the regulation of the
relationship between the state and citizens by law. None of these
principles understand the general right to legal services.
Holding:
The Constitution does not imply a right to general legal services through the Rule of
Law. While the Charter gives the right in specific circumstances, interpreting the
Rule of Law in such broad terms is invalid. Decision of Chambre/Appeal court
overturned, the Act is deemed valid.
Can RoL be interpreted as anti-democratic? Too much judicial activism?
14

There should be specific constraint on the Judiciary when it comes to
questions of legislative validity
o Rainer Knopf: notion of judicial supremacy is most obviously
limited by the “notwithstanding clause s.33”
o Imposes the will of majority on the minority (criticism)
o So, continues to be controversial
But, can be seen as a check on judicial review (only used once by Quebec Gov to
strike down a ruling on language law: Ford v. Quebec (Attorney General) [1988]
requiring French only in all signs/posters/commercial advertising
*What is the difference between Roncarelli and these two cases?
Roncarelli challenged the constitutionality of the action of the legislator
(Duplessis), not the statute itself (Liquor Board)
Impulsive act of an individual (Duplessis) vs. legislation passed after careful
deliberation (Imperial/Christie)?
Challenged the legitimacy of the action, not the law
Imperial and Chrisie attempt to use the rule of law to challenge the
statute itself
Would it have been ok for unwritten principles to strike down the actual legislation?
Is it compatible with our principles of democracy and self-government?
Prentice, “Canadian Women: A History” (43-60)
Women received their enfranchisement in Manitoba, Alberta, Saskatchewan in
1916. BC/Ontario in 1917. Nova Scotia in 1918, New Brunswick in 1919, and PEI in
1922.
 In all cases except NB and ON the right to vote came with the right to hold
office. NB had to wait until 1934, Ontario had to wait until 1919.
Federally
 Military Voters Act, 1917 (nurses)
 Wartime Elections Act, 1917 (wives, widows, mothers, sisters, daughters
of those who served)
 Women’s Franchise Act, 1918 (every women over 21 who was a British
subject)
 1919 women officially allowed to become MP’s (1923 Agnes Macphail
was first woman MP)
o Was not as easy to get women into the Senate…
1919 Judge Emily Murphy passed resolution requesting that the PM appoint female
Senator (Meighen/King both stalled => under BNA 1867, women were not qualified
as ‘persons’)
 *Emily Murphy, Nellie McClung, Louise McKinney, Irene Parlby, and
Henrietta Muir Edwards petitioned gov for an Order-in-Council directing
the SCC to rule on the question
 SCC found that the term “qualified persons” in s.24 of BNA Act did not
include women
Decision was appealed to the Judicial Committee of the Privy Council in England
15

Oct. 18, 1929: Judicial Committee unanimously reversed the judgement of
the SCC
Reference re Meaning of the Word “Persons” in Section 24 of the BNA Act,
1867, [1928]
“Does the word “Persons” in section 24 of the BNA Act, 1867 include female
persons?”
focused on an appeal to history
 Members of the Supreme Court held that the decision had to take into
consideration the mindset of the makers of confederation; if women were
allowed to become senators in 1928, then it would be because they could
in 1867.
 Could women be considered ‘qualified persons’ and therefore be elected
to the Senate?
 This was not found to be the case: “by the common law of England…
women were under a legal incapacity to hold public office [in 1867]”.
 Lord Brougham’s Act: interpreted in Chorlton v. Lings as ‘man’ not
including women in that case which dealt with voting, therefore the
same precedent applied to the ‘persons’ case => answer is NO.
Edwards v. Canada (Attorney General), [1930]
Privy council finds the precedent of Lord Brougham’s Act’s interpretation in
Chorlton v. Lings dubious
 Lord Sankey: “Customs are apt to develop into traditions which are
stronger than law and remain unchallenged long after the reason for
them has disappeared.”
 Held that the word person is ambiguous on purpose to embrace both
female and male
 Mentioned as well the irrationality of applying rigidly the
decisions/reasons that were logical centuries ago to modern problems
First use of the “Living Tree” metaphor for Canadian Constitution
If women can become MP’s, why not Senators?
 “If Parliament had intended to limit the word “persons” in s.24 to male
persons it would surely have manifested such intention by an express
limitation, as it has done in ss.41/84.”
 The Const. is specific in these other areas, if persons was meant to be
exclusively male it would have been more clear
Changing the Constitution: Living Tree v. Watertight Compartment
The appeal to history was inconclusive
Casebook: Triggering Judicial Review and Procedural Issues (54-60)
How do constitutional issues get to court?
16
Ordinary Litigation and the Rules of Standing:
1. An accused person might raise a constitutional challenge to the provision
that is the basis of the criminal charges he’s faced with
2. A private person my seek a declaration of constitutional invalidity
o The “rules of standing” determine who has sufficient interest in a
legal issue to raise it before the court: requires that the
individual’s own interests be directly affected by the law he/she
challenges in a way different from the impact on the public at large
(“special prejudice test”).
3. A law being challenged on Federal/Charter grounds usually passes this
test automatically
4. Public Interest Litigation/Social Action Litigation
Recognition of the public interest in the legality of legislation; allows
public to challenge
5. The Reference Procedure
o
Prov cabinets send their Reference Question to
Provincial Appellate Courts, Fed cabinet sends them straight to the
Supreme Court of Canada
 Official name for references is “Abstract Review”
 Federal Reference power found in s.53 of Supreme Court Act [1985]
Notice Requirements
Governments have an interest in defending constitutional challenges to their
legislation
 When there is a case that involves constitutional questions, the Gov
(Attorney General) must be notified (can then act as intervener;
submitting oral/written submissions on constitutional issues)
Parties and Interveners
When someone starts an action directly challenging a piece of legislature it is
automatically the Attorney General (or other cabinet minister/gov official or body)
that is the respondent
s.55 Rules of Supreme Court: “any other interested and affected
persons/groups may apply to the Court to be allowed to participate as interveners
under the applicable procedural rules
Six types of Constitutional interpretation: (See Elliot)
Historical
Textual
Doctrinal (Jurisprudence)
Prudential/Practical: most desirable from a public policy perspective
Ethical: based on national constitutional ethos
Structural: holistic interpretation on Const. structure as a whole
17
Federalism and the Modern Canadian State
Norrie, Simeon, and Krasnick, “Federalism and the Economic Union”
The roles of both the Fed/Prov gov have been morphed since Confed within the
‘elastic bounds’ of the BNA Act
1. Huge increase in shared jurisdiction (ex. Social security/social policy, pension,
healthcare, etc.)
 Increase in spending power by both Fed/Prov
 Economic Development (Fed has stepped across Prov. Lines)
 Revenue raising (tax policies)
 New Areas (areas not specified in BNA)
2. Breakdown of clear rationale as to how responsibilities should be allocated
During WWII especially, the Fed Gov gained extensive powers
Continued in post-war years (welfare state, etc.)
People gravitated towards the gov that affected them the most
Ex. Teachers => prov.
 Competitive state building between Prov/Fed gov
 Many new areas didn’t fall neatly into a Prov/Fed jurisdiction, so always
battle for rights to those responsibilities
Interpreting divisions of power:
Three different ways to challenge statutes based on division of power:
Validity: Pith and Substance Doctrine dominant characters being beyond the
scope of the enacting legilsature’s jurisdiction
Applicability: Interjurisdictional immunity doctrine. Limits the applicability
of a particular statute to not infringe on matters that are within the other
level of gov’s legislative jurisdiction
Operability: Federal Paramountcy doctrine. Limit the operability of prov
statutes. Limits prov legislation to preserve the paramountcy of fed
legislation in cases where both levels of gov have legislated on the same
matter
*Transportation, New Areas, Health Care, Pension, Environment, etc. all issues of
concurrent jurisdiction between Prov/Fed Govs
s.91/s.92 concern the divisions of power
Executive Federalism:
Relationship between elected officials between Fed/Prov
Work out intergov relations
Key part of modern Canadian Fed
Simeon, “Criteria for Choice in Federal Systems”
Federalism can be evaluated based on
 Community
o How does differing community identity work within the larger Fed
context?
18


o Has to balance between regional/national political communities
(represented through Fed/Prov Gov relationships)
Democratic Theory
o Does Fed promote democracy?
o What are the consequences of different federal arrangements for
different conceptions of democracy?
 Protecting citizens FROM governments (Federalism as
system that divides up the powers to ensure no tyranny of
the majority)
o Does the recent phenom of ‘executive Federalism’ exclude the
citizens too much? (only involves the political Exec of the Govs)
Functional effectiveness
o Does it enhance/frustrate capacity of Gov institutions to act
efficiently?
o Which level can effectively carry out their responsibilities?
 Some Social Democrats have argued that Fed has slowed
down the operation of the Welfare State
Costs of sharing/overlapping responsibilities?
Validity: Characterization of Laws– Pith and Substance Doctrine
Lederman, “Classifications of Laws and the British North America Act”
Sections 91/92 of Constitution Act 1867: separate the national and regional
powers
Mutual exclusion is almost impossible; there is overlap between Prov/Fed
everywhere
How do you judge the intent of the legislation?
 A rule of law for the distribution of legislative powers is classified by
the feature of its meaning that is judged the most important (its Pith
and Substance)
Pith and Substance: the dominant features of the law
Validity: Pith and Substance doctrine dominant characters being beyond the scope
of the enacting legislature’s jurisdiction
*Identifying the P-S Doctrine:
1. Look at the legislative purpose (usually the prime indicator of P-S
doctrine)
o Act’s purpose
o Background/circumstances of enactment
o Evidence of mischief attended to
2. Legal Effect
o Legislation’s impact on rights and liabilities of those subject to it
3. Practical/unintended effects
o Social/economic effects
19
o The leglislative means effect eh purported purpose?
 If no, purpose may mask true purpose
Lederman: decisions use not just Justice but Policy in their decision making
Can’t be based on logic alone
*Colourable Legislation: one that really means something different from
what the words appear to mean
o In R. v. Morgentaler: legislation that is defended as health care
law, where it is really a law to punish/stop abortion clinics
R. v. Morgentaler, [1993]
Facts:
In response to Morgentaler’s intention to open a private abortion clinic in Halifax,
Nova Scotia passed Medical Services Act. One regulation made it an offence to
perform an abortion outside a hospital. Canada had already struck down Criminal
Code ban on abortion as unconstitutional. Morgentaler charged under the Act.
1976: Morgentaler v. The Queen (overturned by SCC)
1988: R v. Morgentaler (appeal from Ontario Superior Court: SCC deems it against
the bodily integrity of women protected, now, by the Charter: DECRIMINALIZED
ABORTION)
JH:
Both trial and appeal court held Act ultra vires provincial jurisdiction (“it was in pith
and substance criminal law”).
Issue:
Is the Act ultra vires provincial power by virtue of its pith and substance colourably
invading federal jurisdiction over criminal law?
Legal Reasoning: (Sopinka J.)
Upon hearing Morgentaler was planning to open a Halifax clinic, Nova Scotia took
action to prevent this – by passing Medical Services Act (prohibiting abortions
outside hospitals and denying insurance coverage for those abortions).
Morgentaler argued that Act was:
 Inconsistent with Charter and therefore invalid
 Unlawful encroachment on federal criminal law jurisdiction
NS argues that Act is:
valid provincial legislation under s.92(7), (13), (16) – particularly relied
on provincial right to regulate hospitals, health care, and medical
profession.
Begin with identifying law’s pith and substance
Approach must be flexible – not mechanical. May take into account:
 Legal and sometimes practical effects
 Related legislation
 Evidence of mischief at which it is aimed
Question for purpose of classification:
*Whether NS has through this Act regulated delivery of health care
services with aim of controlling quality and nature of health care
system (provincial objective) or whether it has done so with the view of
20
prohibiting performance of abortions outside hospitals as a means of
suppressing or punishing abortion as socially undesirable conduct
(federal).
* Any provincial attempt to regulate abortion must by solidly anchored in one of the
provincial heads of power under s.92
 1. (Legal effect) Legislation is suspect on its face – it expressly prohibits
abortion under certain circumstances with penal consequences.
 2. (Legislative Purpose) Provincial legislation has been held invalid
when it is “virtually indistinguishable” from provision in Criminal
Code. Provinces may not invade criminal field by attempting to stiffen,
supplement or replace the criminal law or to fill in perceived gaps. While
duplication of Criminal Code provision does not necessarily determine
validity, supports inference that law was designed for criminal law
purpose.
 3. Events leading up to and surrounding enactment of Act do not support
NS’s contention that pith and substance relate to provincial jurisdiction
over health.
o Clear that catalyst was Morgentaler, and he was the “mischief” at
which it aimed.
 4. (Practical/unintended effects) Throughout most of legislative
proceedings, the concerns to which NS claims Act is primarily aimed were
conspicuously absent. Evidence simply does not support any of the
stated provincial objectives.
o Contributes to impression that privatization and quality
assurance (stated goals) were incidental at best.
 5. Although it might be exercised under provincial “morality” power, that
power has to have firm and independent anchoring in s.92 head of power.
o The fact that the evidence differs so much from stated
purpose suggests colourability.
 6. If real objective were to prohibit any surgical proceedings outside
hospitals, legislation would have simply done so (Westendorp).
 7. Final consideration is that severity of fines hints at criminal law
purpose (punishment).
Holding:
In pith and substance, Act is aimed at prohibiting abortions outside hospitals subject
to penal consequences – clearly within federal law power under s.91(27). Any effect
on privatization and health care in province are merely incidental to that primary
goal. Act ultra vires.
21
Validity: Characterization of Laws– Double Aspect Doctrine
Lederman, “Classification of Laws and the British North America Act”
Given the inevitability of overlap in jurisdictions between federal and provincial
powers, the courts have developed some techniques to deal with these conflicts.
 Mutual modification  limited generality of s.91 and s.92
o Example: 91(27) over “trade and commerce” read down to mean
over “interprovincial and international trade and commerce”
In the case where either federal or provincial purpose is clearly paramount relative
to the other, that power will be granted jurisdiction.
 If both claims are held to be equally relevant  double aspect theory of
interpretation
o Challenged rule could be enacted either federally or provincially
o With regards to subject matter, one aspect falls into federal and
the other into provincial.
*If two courses of conduct / effects are merely cumulative and not conflicting,
both may operate.
But, if the two rules call for inconsistent behavior and come into conflict, both
cannot be obeyed  federal rule will prevail and provincial one rendered
inoperative (dominion paramountcy).
Ways of dealing with overlapping jurisdiction:
Mutual modification:
Court’s way of limiting the generality of legislation so that they do not
infringe on other jurisdictions
Make them more specific
Declaration of Incidental Effects:
Court gives federal aspect of the law greater importance, the prov aspect of
the law is not given constitutional importance it is ignored as only an
incidental affectation of the provincial sphere (it is read down)
Declaring Double Aspect Area:
(See readings about/below) legislation deemed viable in both jurisdictions
Multiple Access Ltd. v. McCutcheon, [1982]
Facts:
Ontario Securities Act prohibited insider trading on Toronto Stock Exchange. The
Canada Corporations Act had almost identical provisions, applicable to corporations
incorporated under federal law. Shareholder action initiated against MAL, federally
incorporated company, with respect to trades on Toronto Stock Exchange.
Shareholder initiated proceeding under OSA. Respondents argue that Ontario
statute did not apply to their case because insider trading in federally incorporated
companies is under exclusive federal jurisdiction. Even if it did, federal
paramountcy would render Ontario statutes inoperative.
Issue:
22
Does pith and substance of the federal CCA fall within an enumerated head of federal
power?
Legal Reasoning: (Dickson J.)
Majority held that both statutes were valid and applicable on the facts.
3 Judges dissented
Invalidity of federal act would leave potential gaps in present regulatory scheme.
 Viewed in isolation, matter of impugned sections of federal act
would be trading in securities law (provincial). But, in context of the
Act, they are company law (Federal). Enactment by Parliament is
valid under company law power.
As both federal and provincial acts are valid under company law and securities law
powers respectively, must now apply double aspect doctrine test 
 double aspect doctrine test to be applied when contrast between the
importance of the two central features is not as sharp.
Is provincial statute rendered inoperative either by double doctrine test or by
federal paramountcy? No – court finds that neither doctrine applies.
Holding:
Both the federal and provincial statutes are applicable, as the matter in question has
a double aspect under company and securities law powers.
Ratio
Overlapping pieces of legislation may both be intra vires if they fall within a double
aspect area
Justice Dickson: employs double aspect doctrine
*If two courses of conduct / effects are merely cumulative and not
conflicting, both may operate.
Recap: Double Aspect Doctrine
-Implications for validity / incidental effects
-Yes, it is valid under a specific head of power, but can also have incidental
effects outside of a specified head of power (ex. Morgentaler: abortion falls
under Criminal Fed. Code, but incidentally affects Prov. Health, hospitals,
etc.)…
Typical of double aspect to cases to have incidental effects
Significance of duplication  Multiple Access/Morgentaler
Mere duplication is not a problem for constitutional validity
Must look at significance of duplication
*Pith and Substance v. Double Aspect
In Morgentaler = purpose of provisions were colourable
In Multiple Access = duplication achieved a “harmony”
23
Validity: Characterization of Laws– Ancillary Doctrine
(Necessarily Incidental)
(Allow governments to encroach on the power of another level of gov so long
as the most important features of the law remain within its jurisdiction)
[Incidental effects]
General Motors of Canada Ltd. v. City National Leasing, [1989]
Facts:
GM produces cars and trucks. CNL leases cars and trucks across Canada, purchasing
many indirectly from GM. CNL accuses GM of paying preferential interest rates to its
competitors. Claim that exclusion of CNL from this rate was a practice of price
discrimination under the CIA, and gives them cause for civil action under s.31.1. GM
argues that s.31 is ultra vires parliament and should not apply.
Issue:
1) Is the federal Combines Investigation Act valid under Fed jurisdiciton, and 2) is
s.31.1 of CIA valid in creating a civil cause of action for certain infractions under the
Act?
Legal Reasoning: (Dickson C.J.)
General Trade and Commerce Power:
Citizens Insurance Co. v. Parsons, [1881] established 3 propositions with regard to
federal trade and commerce power:
-Does not correspond to literal meanings of the words “trade and commerce”
-Includes not only interprovincial and international transactions, but may
include a general regulation affecting whole country.
-Does not extend to regulation of contracts of a particular business or trade.
Since Parsons, generally recognize 2 branches of federal trade and commerce
power:
-International and interprovincial trade
-General trade (under this second branch that CNL seeks to uphold s.31.1)
General Motors Test:
Laskin CJ  3 hallmarks of validity for federal legislation under general trade:
-Legislation must be part of a general regulatory scheme
-Scheme must be monitored by regulatory agency
-Legislation must be concerned with trade as a whole, not a particular trade.
Dickson CJ  adds two more criteria to Laskin’s test:
-Legislation is of a nature that provinces jointly or severally would be
constitutionally incapable of enacting
-Failure to include one or more provinces in legislative scheme would
jeopardize its successful operation in other parts of the country.
1) Does provision intrude on provincial powers? If so, to what extent?
24
By creating a civil right of action, encroaches on provincial powers.
But - encroachment is limited.
2) Is the act (or a severable part of it) valid?
 Does the Act constitute a regulatory scheme?
 Apparent that it does – Act as a whole embodies complex scheme of
economic regulation.
o Purpose of Act is to eliminate activities that reduce competition in
the market – detrimental to Canada as an economic unit.
Is the scheme valid under general trade and commerce power?
Operates under oversight of regulatory agency
Satisfies remaining 3 criteria – indicating that the scheme of regulation is
national in scope/that local regulation would be inadequate.
 Anti-competitive practices are injurious to Canada as a single economic
union. It requires regulation, and only federal government can
adequately regulate it.
3) Is the provision sufficiently integrated within the scheme that it can be upheld?
Act should be read down so that s.31.1 only applies to interprovincial trade.
Not only is Act meant to cover intra-provincial trade, it must do so to be
effective. Regulation of competition is clearly in national interest and
cannot be regulated by federal regulation if restricted to
interprovincial trade.
Holding:
1) CIA is valid under federal trade and commerce power, and 2) s.31.1 is valid by
virtue of being functionally related to the Act. (only incidental effects on Prov
power: allowing civil action which is usually Prov) Appeal dismissed.
*Evolution from Multiple Access (1982), to GM (1989), to Morgentaler (1993)
shows move towards “watertight compartments” approach to Federalism?
Compare this, though, with the tightening of reigns on Interjurisdictional Immunity
doctrine in Western Bank (2007) and Insite (2011) which shows more of a shift
back towards Lord Sankey’s “living tree”
The act valid under Fed power, provisions were incidental to the valid subject of the
Act (valid as well)
*Ancillary Doctrine Test (Justice Dickson)
o 1. Specific provision within the Act
 Prima facie infringement on provincial jurisdiction?
o 2. Validity of the act as a whole?
o 3. What is the level of intrusion of the provision?
o 4.. Sufficient integration of provision into the act? (to sustain its
constitutionality)
 If the incidental encroachments are only moderate, they
can be permitted (must be analyzed on a case by case basis)
*Ancillary Doctrine generally used when specific provisions are challenged,
not the entire Act
25
*Pith and Substance v. Ancillary Doctrine
-Ancillary doctrine was applied in GM v. City National Leasing because it
applied to a specific provision of the Act and not the Act itself.
-Pith and Substance in Morgentaler rather than Ancillary Doctrine because
the problem was with the essence of the Act itself
Ryder, “The Demise and Rise of the Classical Paradigm in Canadian Federalism:
Promoting Autonomy for the Provinces and First Nations” (247-249)
Classical Paradigm:
 based on exclusivity of responsibilities between Prov/Fed Govs
 areas of responsibility are “watertight compartments”
Modern Paradigm:
 Instead of seeking to prohibit overlap, seeks simply to prohibit each level
of Gov from enacting laws whose characteristics (“pith and substance”) is
the regulation of a subject matter within the other level of Gov’s
jurisdiction
 Exhaustive principle is served; ensures that all legislation is within the
competence of at least one level of gov. But at extreme, poses threat to
Prov autonomy “Living Tree” conception (see Lord Sankey in
Edwards v. Canada, [1930])
Classical represents the course of Judicial Activism, since the constraints on
Govs are more stringent
Modern is Judicial Restraint
 However, where Prov/Fed powers come into conflict, it is always the Fed
that prevails (“the rule of federal paramountcy”) does this compromise
Prov autonomy?
Ryder: It should not be an either-or choice; it has to be an interaction between the
Classical/Modern paradigms
Peter Hogg: Judicial restraint as appropriate interpretive posture of an
unaccountable judiciary (so supports Modern Paradigm)
Applicability: Interjurisdictional Immunity Doctrine
Triggered by Prov legislature which infringes on key areas of Fed jurisdiction/areas
of interest
Not striking it down, but re-interpretation (reading down)
Applicability: Interjurisdictional immunity doctrine. Limits the applicability of a
particular statute to not infringe on matters that are within the other level of gov’s
legislative jurisdiction
“Reading Down”: used almost always with Interjurisdictional Immunity
Doctrine; words of statute are interpreted as pertaining only to its own
jurisdiction (saves it from constitutional challenge)
26
McKay v. The Queen, [1965]
Facts:
Appellants displayed sign on their house supporting a candidate during federal
election period. Convicted of violating a municipal bylaw that prohibited display of
all signs (except certain specified exceptions). Appellants did not challenge validity
of bylaw, only its application in this case.
JH:
Conviction before a Justice of the Peace quashed in the High Court, but Court of
Appeal restored it.
Issue:
Is the application of municipal bylaw (preventing appellants from displaying sign
supporting federal electoral candidate) valid?
Legal Reasoning: (Cartwright J.)
The prohibition of the bylaw is extremely wide.
In interpreting, two useful rules of construction:
Verba generalia restringuntur ad habilitatem rei vel personae  In
interpretation of general words and phrases, meaning will be adapted to particular
subject matter.
1. If an enactment is capable of receiving a meaning according to which its operation
is restricted to matters strictly within its power, it shall be interpreted accordingly.
2. A municipal bylaw, receiving its power from an act of Prov legislature, cannot be
given powers that are ultra vires the Prov legislature
 A lawful political activity in a federal field can only be prohibited by
Parliament.
-Was not the legislator’s intent to prohibit actions having to do with Fed
affairs
-The province / municipality has no power to enact a prohibition which
would be a law in relation to proceedings at a federal election.
Exclusive Federal area; no question of Double Aspect
Dissent: (Martland J.)
There is no evidence of a federal Canada Elections Act granting an express or
implied right to erect a sign for the purposes of political propaganda.
As such, nothing in the bylaw runs counter to any of the federal provisions.
Argued that the Pith and Substance of the Bylaw was Provincial, and that it
had only incidental effects on Federal jurisdiction
Holding:
Bylaw should be read down so as not to prohibit the display of a sign supporting a
candidate in a federal election. Appeal allowed.
*Note that Martland J. disagrees with IJID in Mackay but agrees with it in Bell
#1
Commission du salaire minimum v. Bell Telephone Co. (Bell #1), [1966]
Issue:

whether Quebec Minimum Wage Act could apply to Bell, an undertaking
27
within exclusive federal jurisdiction under ss.92(10)(a) and (c).
Holding: (Justice Martland: warming up to IJID)
 Quebec minimum wage law could not apply to Bell or other federally
regulated undertakings operating in the province, even though no federal
minimum wage law existed.
o Significant doctrinal change  broadening test for
interjurisdictional immunity applicable to federal undertakings.
 In earlier cases had relied on “impairment or sterilization” test.
 After Bell #1  Valid provincial law could not apply to federal
undertakings if it affected a vital part of their operation or
management.
Controversial because it appeared to extend to federal government an exclusivity
not available to provinces and thus at odds with tendency of modern federalism to
allow for considerable overlap
Vital parts of the management of a Fed undertaking are considered intra vires Fed
jurisdiction wherever those companies may be found
o Ex. In the Bell cases
Impairment Test (previous test): a Prov legislation can apply to Fed one as long as
it didn’t impair the vital parts of Fed legislation
After Bell #1, more wide application of IJID
Hogg:
-IJID is inconsistent with the P-S doctrine, which allows for almost the exact
opposite; Prov law can have overlapping jurisdictions which validly affect a
Fed matter
It is never the validity of the law that is questioned, it is the Applicability that
is questioned by Interjurisdictional Immunity Doctrine
Critics of Bell #1 (Hogg): argue that IJID theory not only confers power on
Parliament but operates defensively to deny power to provinces.
Bell Canada v. Quebec (Commission de la santé et de la sécurité du travail) (Bell
#2), [1988]
Facts:
Part of trilogy dealing with application of provincial health and safety laws to
federal undertakings. Case deals with application to Bell Canada of a Quebec law
giving a right to protective reassignment to a pregnant worker.
Issue:
Can provincial health and safety law be applied to federal undertaking?
Legal Reasoning: (Beetz J.)
 General legislative jurisdiction over health belongs to provinces under
s.92(16).
 In principle, labour relations and working conditions fall within the
exclusive jurisdiction of the provincial legislatures under s.91(13).
28

Notwithstanding above, Parliament is vested with exclusive
jurisdiction over labour relations and working conditions when that
jurisdiction is an integral part of its primary and exclusive
jurisdiction over another class of subjects.
Precludes application of provincial laws relating to labour and working conditions,
because those are an essential part of the management and operation of federal
undertakings.
 Will still be subject to provincial statutes general in application, provided
it does not bear upon subjects in what makes them specifically of federal
jurisdiction.
No Double aspect theory :
 Double Aspect cannot be used to create infinite fields of concurrent
jurisdiction where paramountcy takes over
All but impossible to distinguish circumstances of the present case from those of
Bell #1.
Rule 
 General legislation on management and working conditions is provincial.
But particular legislation on management of federal undertakings is
exclusively federal.
 Double aspect doctrine doesn’t apply in this case, because both laws
were enacted for the same purpose and in the same aspect.
Rule 
 In order for inapplicability of provincial legislation to be given effect, it is
sufficient that provincial statute which purports to apply “affects a vital
or essential” part of that undertaking, without necessarily going so
far as to “impair or paralyze” it.
Holding:
The working conditions and management of a federal undertaking fall within
exclusive federal jurisdiction. Because QC’s Act affects a vital part of that
undertaking, it must be read down so as not to apply federally. Appeal
dismissed.
Ratio:
Provincial legislation can be inapplicable based on IJID if it affects a vital or essential
part of a Federal undertaking, without necessarily impairing or paralyzing it.
Beetz Responds to Hogg:
 Exclusivity rule is absolute, should not be an issue of distinction
Hogg mixed up distinction between concurrent/overlapping
o Constitution has provided for areas of concurrent legislation (ex.
Immigration) but not for ‘overlapping’
Double Aspect: could only apply to effects on different aspects
o But both legislations were trying to affect the same aspects with
the same legislation; no possibility of D-A, had to be strictly
defined
29
Canadian Western Bank v. Alberta, [2007]
Facts:
Alberta sought to promote “peace of mind,” a provincial licensing scheme governing
promotion of insurance policies. Legislation would be applied to provincial as well
as federally incorporated banks.
Issue:
Can the Alberta legislation apply to banks which are federal undertakings?
Legal Reasoning: (Binnie J.)
 Classes of subjects enumerated in ss.91 and 92 must be given a “basic,
minimum and unassailable content” immune from application of
legislation enacted by other level.
 Provincial legislation that impinges on that core of exclusive power will
be deemed inapplicable so far as it “affects a vital part of a federal
undertaking.” (By IJID)
Dominant Tide of Constitutional Interpretation does not Favor IJID
 In theory, IJID doctrine is reciprocal  but in practice, produces
asymmetrical results and has generally been invoked in favor of
federal immunity at expense of provincial legislation. (centralizing
tendency)
Dickson: In the absence of conflicting legislation, court should avoid blocking
(See Multiple Access)
 Broad application of IJID doctrine would challenge modern federalism by
undermining pith and substance, double aspect and paramountcy
doctrines.
Problems with IJID doctrine (concerns with ‘broad application’ in Bell #2):
 Increases risk of “legal vacuums”
 Runs risk of creating centralizing tendency in constitutional
interpretation
 Seems superfluous, because Parliament can always make its legislation
sufficiently precise so as to render any conflicting provincial laws
inapplicable.
A More Restricted Approach to IJID
Impairment Versus Affects
 Believe that law as it stood prior to Bell #2 better reflected Canadian legal
values. (Binnie disagrees with Bell #2)
 Not enough for the provincial legislation simply to “affect” that
which makes a federal subject or object of rights specifically federal
jurisdiction.
Prefer test of “impairment” – it must have adverse consequences.
The Vital or Essential Part of an Undertaking:
 In exercise of legislative powers, federal and provincial legislators create
“undertakings” – IJID relates to the “essential and vital elements” of such
undertakings.
 Vital = essential to existence; absolutely necessary; crucial
Appellant’s argument inflates out of all proportion what could be considered
30
“vital and essential” to their banking undertakings (insurance is certainly not
in this category).
Order of Application of the Constitutional Doctrines
 It is not always appropriate to begin analysis with IJID doctrine.
 If a case can be resolved by application of pith and substance / federal
paramountcy, that approach would be preferable.
 IJID should be used with restraint; should be reserved for matters
already covered by IJID by precedent
Holding:
The Peace of Mind legislation is a valid exercise of Provincial powers (s.92(13)) IJID
fails because insurance is not a ‘core’ part of banking, and Federal Paramountcy
doesn’t apply because the Prov legislation does not conflict with any Fed legislation.
Peace of Mind can apply to all banks in Alberta. Appeal dismissed. (ruled in favour of
Alberta)
*Why doesn’t IJI apply? “Peace of mind” legislation does not fall within core of
banking power.
The IJID doctrine is being shut off to cases that can follow the precedent
(or else extremely narrowed)
Insite case reaffirms the narrow interpretation of IJID set down by Binnie in
Western Bank v. Alberta
Canada (Attorney General) v. PHS Community Services Society, [2011]
Facts:
Insite is a safe injection facility in Vancouver’s downtown eastside that provides
medical supervision to intravenous drug users. Has operated since 2003 under an
exemption from the prohibition on possession of illicit drugs in the Controlled
Drugs and Substances Act. In 2008 the federal Minister of Health failed to extend
Insite’s CDSA exemption, which brought about this action. The claimants: the
operator and clients of Insite, argued that the division of powers makes the federal
CDSA prohibitions:
o 1. inapplicable to the provincial health activities of Insite staff and
patrons.
o 2. The claimants also submitted that sections of the CDSA were of
no effect because they violated the claimants’ s.7 Charter rights
by not exempting Insite from the CDSA
JH:
-Trial judge found that CDSA violated claimants’ rights under s.7 of the Charter
-CA dismissed the appeal by Canada on grounds of IJID
Issues:
1. Is the removal of the exemption ultra vires Federal power because of IJID
2. Is the removal of the exemption an infringement on the Charter rights of the
operators/clients of Insite?
31
Reasoning: (McLachlin CJ; unanimous decision)
Interjurisdicitonal Immunity Doctrine Argument:
-McLachlin CJ reaffirms need to avoid IJID as first reaction
1. immunity of the provincial health power had never been recognized in
the jurisprudence (rule set down by Binnie in Canadian Western Bank)
*2. the claimants “failed to identify a delineated ‘core’” of the provincial
health power, which is large and overlaps substantially with federal
jurisdiction (in conflict with Cooperative Federalism: where Prov/Fed
govs cooperate to solve problems)
3. granting interjurisdictional on the facts might result in a “legal vacuum”
where neither government is able to legislate
o The court was careful to affirm that the doctrine of
interjurisdictional immunity has been narrowed, not abolished
o the judgement implicitly suggests that future interjurisdictional
immunity arguments should be limited to invoking previously
identified “core” undertakings (reaffirming Binnie in
Canadian Western Bank).
Charter Infringement Argument:
o The court found that the prohibition of possession in the CDSA
engages the claimants’ s.7 right to liberty since its breach can
result in imprisonment.
o It also engages Insite clients’ s.7 rights to life and security of the
person by denying them access to “potentially lifesaving
medical care.”
 *these limitations do not run afoul of the principles of fundamental
justice
 While the statute did not violate the claimants’ s.7 rights, the court held
that the Minister’s decision did.
o Following Suresh v. Canada [2002], the Minister’s exercise of
discretion must conform to the Charter.
o The Minister’s decision engages the s.7 rights of the claimants for
the same reasons that the CDSA does.
 Unlike the CDSA, however, the Minister’s decision was arbitrary and
disproportionate in its effects.
o Arbitrary: because the purpose of the CDSA is to protect health
and public safety, and exempting Insite from the CDSA would
further these goals
o Disproportionate: Denying the life saving services that Insite
provides is grossly disproportionate to the benefit of having a
uniform drug policy.
Holding:
The federal CDSA provisions do apply to provincial health activities. While the
provisions do not violate the claimants’ s.7 rights, the Minister’s failure to provide
an exemption does.
Ratio:
32
Valid legislation must be applied with conformity to the Charter and in a way that is
not arbitrary or disproportionate to its effects.
*Reaffirmation of Binnie’s ruling in Canadian Western Bank v. Alberta insofar as
application of IJID goes
Narrowing the application of IJID
Operability: The Paramountcy Doctrine
Paramountcy: There has to be a Federal/Provincial law in question, both must me
valid, both must be inconsistent with eachother
*1. Establish Validity of both (Pith and Substance in Fed/Prov heads of
power)
*2. Determine whether the two laws are inconsistent with each other
Narrow Reading: allows both Fed/Prov laws to operate, unless it is impossible for
subjects to comply with both (Compliance with one means contradiction of the
other)
Hogg: this is course of judicial restraint; allows Prov law to survive as long as
it doesn’t expressly contradict Fed law
Generally speaking, the SCC has interpreted the paramountcy doctrine
narrowly (shown through Multiple Access v. McCutcheon)
Multiple Access Ltd. v. McCutcheon, [1982]
Facts:
Ontario Securities Act prohibited insider trading on Toronto Stock Exchange. The
Canada Corporations Act had almost identical provisions, applicable to corporations
incorporated under federal law. Shareholder action initiated against MAL, federally
incorporated company, with respect to trades on Toronto Stock Exchange.
Shareholder initiated proceeding under OSA. Respondents argue that Ontario
stataute did not apply to their case because insider trading in federally incorporated
companies is under exclusive federal jurisdiction. Even if it did, federal
paramountcy would render Ontario statutes inoperative.
Issue:
Does pith and substance of the federal CCA fall within an enumerated head of federal
power? (is the Prov legislation in conflict with Fed laws?)
Legal Reasoning: (Justice Dickson J.)
Majority held that both statutes were valid and applicable on the facts.
Three dissenting judges held federal provisions invalid.
Invalidity of federal act would leave potential gaps in present regulatory scheme.
 Viewed in isolation, matter of impugned sections of federal act would be
trading in securities law (provincial). But, in context of the Act, they are
company law (Federal). Enactment by Parliament is valid under
company law power.
33
As both federal and provincial acts are valid under company law and securities law
powers respectively, must now apply double aspect doctrine test 
 double aspect doctrine test to be applied when contrast between the
importance of the two central features is not as sharp.
Is provincial statute rendered inoperative by federal paramountcy? No – court finds
that it doesn’t apply.
Holding:
Both the federal and provincial statutes are applicable, as the matter in question has
a double aspect under company and securities law powers.
Ratio:
Overlapping pieces of legislation may both be intra vires if they fall within a double
aspect area
Once it’s determined that a federal law is inconsistent with a provincial law the
doctrine of federal paramountcy stipulates that the provincial law must yield to the
federal law
The Prov law is not repealed; it is rendered inoperative to the extent of its
inconsistency (read down)
*Duplication is not enough to invoke paramountcy; there has to be a
conflict between the two
1. Mr. Justice Henry (Trial) found that the two sets of statutory provisions could
“live together and operate concurrently.”
Duplication does not mean conflict or inoperability
Vs.
2. Mr. Justice Morden (CA) adopts the older and more prevalent view of the
commentators that “The authorities establish one of the implications of Dominion
paramountcy to be that provincial duplicative legislation is suspended and
inoperative. Simple duplication by a province is not permitted”
*Double aspect vs. Parliamentary Paramountcy (Narrow reading vs.
Broad reading)
Lederman: our country is increasingly moving away from the older classical
federalism of “watertight compartments” with provincial legislatures and federal
parliament carefully keeping clear of one another. We seem to be moving towards a
cooperative federalism (Lord Sankey’s Living Tree Instead of the Executive
Federalism of Parliamentary Paramountcy)
Bank of Montreal v. Hall, [1990]
Facts:
When Hall (farmer) defaulted on his loan payment, bank had security interest over
piece of farm machinery and seized it under provisions of Federal Bank Act.
However, they didn’t abide by conditions of Saskatchewan Limitation of Civil Rights
Act, which required notice before seizure. Hall argues that they had to abide by
provincial legislation, bank argues it is rendered inoperative.
Issue
Does the bank have to comply with provisions of the LCRA, or is it rendered
34
inoperative by virtue of conflict with Federal Bank Act and the doctrine of federal
paramountcy?
JH:
Trial court ruled provincial legislation was rendered inoperative, CA reversed.
Appeal to SCC.
Legal Reasoning: (La Forest J.)
Test: (1. Validity of both, 2. Is there conflict?)
1. Validity of provincial act: valid under property and civil rights
Validity of federal act: valid under federal banking power, aimed at creating
nationwide, uniform security mechanism to facilitate such transactions.
 Departs from narrow interpretation of conflict in Multiple Access 
“conflict in operation” arises in the sense that the legislative
purpose of Parliament stands to be displaced if the bank is required
to defer to provincial legislation.
2.Conflict = provincial gives judge discretion as to whether the pledged article can
be returned to the secured party, whereas federal provides for immediate seizure
and right to sell.
 1. Compliance with federal statute would entail defiance of
provincial counterpart.
 2. Requiring bank to defer to provincial statute frustrates federal
legislative intent (uniformity in securities scheme).
New Rule  dual compliance will be impossible where a provincial statute can
fairly be said to frustrate Parliament’s legislative purpose.
The two statutes differ to such a degree in their approaches taken to the problem
that they render dual compliance impossible.
Holding:
Dual compliance of both pieces of legislation is impossible – conflict arises because
compliance with provincial act frustrates Parliament’s legislative purpose.
Provincial Act rendered inoperative. Appeal allowed.
*Notion of “conflict in operation” satisfied by either impossibility of dual
compliance or incompatibility of legislative purposes.
Beetz J. = Suggests that a “practical and functional incompatibility” is sufficient to
trigger federal paramountcy.
Gonthier J. = Where there is an enabling federal law, the provincial law cannot be
contrary to Parliament’s purpose, and it cannot be impossible for a citizen or judge
to comply with both.
Rothmans, Benson, & Hedges Inc. v. Saskatchewan, [2005]
Facts:
Federal Tobacco Act stipulates that retailers may display tobacco products or
accessories, including price and availability of tobacco products. Saskatchewan’s
Tobacco Control Act bans all advertising, display and promotion of tobacco products
in any premises in which persons under 18 are permitted. Respondents (R,B &H)
35
charged under Prov TCA, claim it is rendered inoperative because of conflict with
Fed TA.
Issue:
Is the Saskatchewan TCA sufficiently inconsistent with the federal TA so as to be
rendered inoperative pursuant to the doctrine of federal legislative paramountcy?
Legal Reasoning: (Major J.)
While narrower interpretation only regards “express conflict” as triggering
paramountcy, wider interpretation holds that inconsistency also arises when
provincial legislation displaces or frustrates Parliament’s legislative purpose (see
Bank of Montreal).
Is the operation of the provincial Act compatible with federal legislative
purpose?
 1. Can a person simultaneously comply with both the TCA and the
TA?
 2. Does the TCA frustrate the federal legislative purpose in enacting
TA?
Purpose of Federal Act and provision is to define with greater precision the
prohibition on the promotion of tobacco products.
Dual compliance is possible in this case:
 Retailers can either admit no one under 18, or not display the
tobacco products.
 TCA simply prohibits what TA chose not to prohibit (no conflict, just
addition).
 The only way impossibility of dual compliance would arise would be if
Parliament granted retailers a positive entitlement to display tobacco
products.
Parliament’s legislative purpose is not frustrated:
 TCA rather appears to further Parliament’s stated purposes (protecting
young people from being induced to buy / exposed to tobacco products).
Holding:
There is no inconsistency between the two Acts – dual compliance is possible and
federal legislative intent is not frustrated. Paramountcy is not triggered. Appeal
allowed.
*Paramountcy Test:
1. Valid federal and provincial legislation (no problem of validity)
2. Determine whether or not there is conflict:
A) Impossibility of dual compliance (Multiple Access v. McCutcheon)
B)Frustration of federal legislative purposes (BMO v. Hall/Rothmans v.
Saskatchewan)
36
Peace, Order and Good Government: National Emergency Power
POGG Power (s.91)
Gives federal government the power to make laws for the peace, order and good
government of Canada, in relation to all matters not coming within classes
exclusively assigned to provinces under s.92.
POGG power has 3 branches:
Gap Branch
o Doesn’t happen much (very few gaps)
o Fills in gaps in legislation not specified in ss.91/92
o A little redundant, since Federal Paramountcy makes this stuff fall
to Fed in either way
National concern / national dimension
o Open-ended, raw interpretation of POGG power
o Matters can become national in scope even if initially local or
provincial in nature
o Ex. Where there is need for one national law, Prov failure to deal
with the problem/issue that can’t realistically be resolved by
interprovincial cooperation, etc.
Emergency power
o Distinguished from national concern in both scope and limits
o Very broad in scope
o Time limited / temporary
o Cannot invade provincial jurisdiction merely by classifying it as
“emergency”
o Also fulfills gap-filling function
Reference re Anti-Inflation Act, [1976]
Facts:
Anti-Inflation Act established system of price, profit and income controls.
Applied to specific sectors (federal and provincial) deemed of strategic importance
to scheme.
 Justification: Inflation in Canada at its current level is contrary to
interests of all Canadians and has become a matter of “serious national
concern.”
Governor in Council directed reference to SCC to determine:
 1. Whether the Act was ultra vires federal power
 2. Whether the Ontario agreement, purporting to make the Act applicable
to the Ontario public sector, was valid.
7-2: Act is supportable under POGG as emergency legislation
5-4: Is the existence of an Emergency essential to the Act’s validity? 5 held that
emergency was essential to Act’s validity, rejecting National Dimensions argument
Reasoning: (Laskin J.)
Arguments from AG Canada:
37
Not in provincial jurisdiction:
 Matter beyond local, private or provincial concern
Engages national interests (e.g. integrity of Canadian monetary system)
 Economic crisis amounting to emergency is sufficient to warrant
federal intervention.
Issue #1  The exclusion of the provincial public sector in the ambit of the Act does
not infer a lack of urgency; provision is made for covering this area under the
Guidelines by agreements under s.4(3)/s.4(4)/s.5.
Issue #2  Doesn’t matter that the exact word “emergency” wasn’t used in
preamble of Act. Clear that it was a matter of “serious” national concern.
 *While absence of emergency in preamble might weaken case, doesn’t
mean it’s not emergency legislation.
 In this case, wording sufficiently indicative of emergency state.
*Issue #3  Relevancy and weight of extrinsic evidence – need only go so far as to
persuade the court that there is a rational basis for the legislation.
 Evidence from stats-Can, etc. used to prove the point
 Respondent argues that federal government didn’t act on rising inflation
until now – but this is irrelevant if the conditions still existed at time of
enactment. The wisdom, expediency, or likely success of legislation is not
subject to judicial review. Only jurisdictional matters.
Find that Canada did have a rational basis for acting.
Issue #4  Inflation = monetary phenomenon = exclusive federal jurisdiction.
 Valid under POGG
 Suggests it would also be valid under federal trade and commerce power
(general, not directed at any particular trade)
Holding:
Anti-Inflation Act is valid legislation for Canada under Emergency POGG and does
not invade provincial legislation. (Laskin majority 7-2)
Dissent: (Beetz J.)
1. Canada’s first submission = Anti-Inflation Act aimed at containment and
reduction of inflation which goes beyond provincial concern and is justified under
Fed POGG power. (Beetz disagrees)
 Since practically any activity affects the GNP, would be hard to see
what would be beyond the reach of federal government.
 This would destroy federalism, division of powers would dissolve.
 While he accepts that inflation was the occasion/reason for enactment, it
is NOT the subject matter of the act. Subject matter of the act is
regulation of trade and civil /property rights within provinces.
(there are other ways to respond to inflation problem without
encroaching on Provincial jurisdiction)
 Trying to maintain the balance between Prov/Fed powers
2. Canada’s second submission: inflationary situation at time of enactment =
national emergency. (Beetz Disagrees)
 National concern and emergency are not the same thing.
Must be careful with emergency power:
38

Amounts to temporary amendment of Constitution by unilateral
action of Parliament.
 Gives Parliament broad powers (which would normally be provincial) to
deal with emergency situation.
Because national emergency power enables Parliament to override provincial laws
in potentially every field, it must be made explicit. Anti-Inflation Act fails test of
explicitness – nothing in act showing direness of situation.
Emergency power must be explicitly stated: Fed didn’t pass this test
here (it cannot be inferred by the Court)
 There’s nothing in preamble of Act to say that it has been enacted in
response to an emergency (must be explicit)
*Extrinsic evidence doesn’t show that Act was enacted under Emergency;
economist called upon says there isn’t a significant threat
Dissent Holding: Act is ultra vires so far as it applies to provinces, but no severability
was pleaded, so whole act would be ultra vires.
Laskin: strong centralized government + flexible interpretation of constitution
(Pro Emergency)
 Wanted to safeguard federal jurisdiction
 Living tree/shared jurisdiction
 Fed gov as logical institution to deal with important problems
Beetz: strict adherence to principles/rules + narrow judicial discretion (Pro
National Concern)
 Concerned with provincial autonomy
 Watertight compartments
 BNA supposed to preserve divisions of power; he favours exclusivity
Courts should be analytical with limited judicial discretion
Emergencies Act, [1988] repeals the War Measures Act, [1914]
(replaces it)
Peace, Order and Good Government: National Concern Doctrine
POGG deals with:
Gap branch: Old man river
Emergency branch: Reference re Anti Inflation
National Concern branch: Zellerbach
Emergency Act replaces the War Measures Act, but can be used for a broad
spectrum of issues? Ex. Inflation ‘emergency’?
R. v. Crown Zellerbach Canada Ltd., [1988]
Facts:
Federal government passed Ocean Dumping Control Act to regulate dumping of
39
substances at sea as a measure for prevention of marine pollution. S.4(1) of the Act
prohibits dumping of any substance at sea except in accordance with terms of a
permit. Defines “sea” as including internal waters of Canada other than fresh
waters. Respondent maintains log dump on water lot leased from BC government.
He was charged under s.4(1) despite the fact that there is no evidence of his
products having any adverse effect on marine life / navigation.
Judicial History:
Trial judge found s.4(1) ultra vires. Decision reversed on appeal. Now at SCC.
Issue:
Does Federal power to regulate and prevent marine pollution extend to regulation
of provincial marine waters? Is s.4(1) valid under POGG National Concern Doctrine?
Legal Reasoning: (Le Dain J.)
General purpose = regulate dumping of substances at sea to prevent harm to marine
environment.
 Respondent challenges federal jurisdiction to control dumping in
provincial waters of substances not shown to have pollutant effect in
extra-provincial waters.
 Respondent and BC AG contend that s.4(1) should be read down so as not
apply to dumping in provincial waters.
 Federal government submits that control of dumping in provincial
marine waters is a single matter of National Concern/dimension
(prevention of marine pollution)  falls under POGG.
SCC holds that no basis for federal legislative jurisdiction over the control of marine
pollution can be found in any of the specified heads of s.91. (so turn to POGG to see if
it’s a National Concern)
“National dimension / National Concern Doctrine”
Characteristics:
 1. National Concern branch is distinct from emergency branch
 2. Newness
 3. Singleness, distinctiveness, and indivisibility
 4. Provincial inability
POGG clause bestows only residual powers – existence of National Concern
justifies no more federal power than is necessary to “fill the gap” in provincial
powers.
 Not emergency power – national dimension doesn’t give Parliament
plenary jurisdiction to legislate in relation to that matter (including intraprovincially).
Marine pollution = clearly a matter of national concern, clearly federal jurisdiction.
BUT question is whether control of pollution by regulating dumping in marine
waters, including provincial marine waters, is a single, indivisible matter from wider
control of pollution.=> they answer yes
Dissent: (La Forest J.)
Fed Gov can legislate to prevent this under general power to control pollution
(regulating pollution at its source)
o There are many other ways that Fed Gov could have controlled
40
this, National Concern not necessary; expands Fed Gov’s power too
much, upsets Constitutional division of powers.
There has to be a link between the prohibition and the harm caused for there
to be a recourse to the National Concern Doctrine
o This prohibition is too broad because it is made with no proof
as to this link
Holding:
s.4(1) is intra vires federal power under National Concern branch of POGG. Appeal
allowed.
Requiring a permit for everything will preclude the dumping of harmful materials
occurring in the first place.
**National Concern Test (Crown Zellerbach)
1. National Concern branch is distinct from emergency branch
One key distinction is that National Concern is not time limited
Must fall into one branch or the other
2. Newness
Matters that didn’t exist at the time of Confederation
Could have fallen into provincial jurisdiction at Confederation, but has
expanded and emerged as having extra-provincial / federal concern.
3. Singleness, distinctiveness, and indivisibility (see Beetz’s dissent in AntiInflation)
4. Provincial inability (aspect of singleness/indivisibility)
What would be the extra-provincial consequences if the province fails to deal
with the intra-provincial problem?
Applying the Test in Crown Zellerbach
*Measuring the validity of s.4(1) against the criteria of the test (there can be different
combos, etc. they don’t all have to be fulfilled for a finding of validity)
Singleness, distinctiveness and indivisibility:
-Can distinguish fresh from saltwater – there is some dividing line between
what is federal and what is provincial = distinctiveness
-Cannot easily distinguish between marine water that is intra-provincial and
that which is federal = singleness / indivisibility
Dissent: La Forest this is a very technical point that cannot be seen as
single/indivisible
Provincial inability:
-Failure of province A to regulate will impose costs on province B. Pollution
is a good example – costs will affect multiple provinces.
-Even if provinces agree to cooperate, it province A defects, B will be unable
to recoup or force A to regulate.
Dissent: La Forest There is no proof that it pollutes, therefore no proof that Prov
even had any obligation to act
Leclair, “The Elusive Quest for the Quintessential ‘National Interest’”
o Leclair prefers approach of Beets’s dissent in Anti-inflation Act
41
What constitutes Prov inability? How should it be adopted as a test?
Le Dain’s focus on functionality to the detriment of normative considerations of
Canadian Federalism results in centralizing tendency
o Places Fed interests over Prov interests
Would Double Aspect/Necessary Incidental have been better solutions?
o The Prov inability test results in exclusive Fed jurisdiction
o This can be one of the aspects considered in the decision, but it
cannot be the rationale for the general notion
(Choudhry) **Provincial Inability:
The Court has not provided a checklist/explanation to justify it
Premised on understanding that Fed Gov can only act when Provs are unable
to regulate a particular problem
Areas of Common interest where the Provs are unable to act on their own:
o 1. Negative Extra-prov Externatlities
 situation where there is disjuncture between decision
making entity and the entity which actually bears the costs
(decision of one Prov results in costs on another)
o 2. Collective Action Problems
 a) Interprovincial collective action problems
 an interprovincial solution that doesn’t involve Fed
is unlikely to succeed; each Prov acting in own
interest
 1. (Choudhry) Race to the Bottom
 those that produce least get helped most
 2. Public Goods
 can be consumed for free; why produce it?
 b) Fed-Prov collective action problems
 Provs that want a uniform policy can’t get it because
of limits on their jurisdiction
o 3. True Prov inability
 *Prov inability or Prov unwillingness?
Friends of the Oldman River Society v. Canada (Minister of Transportation),
[1992]
Facts:
Federal Department of Environment Act created guidelines for all federal
departments and agencies with decision making authority for any proposed activity
that may have environmental effect on an area of federal control. Had to screen
proposals and if they could have adverse effect, had to submit them for public
review by assessment panel. Alberta government proposed dam construction on the
Oldman River. The Society argues that the dam affects areas of Federal Jurisdiction
over navigable waters, fisheries, and Indian lands/rights, so it must be submitted to
approval by Federal Minister as well as the Guidelines Order.
Judicial History:
42
Society’s action dismissed at trial, but upheld in CA. SCC dismissed appeal.
Issue:
Does the Federal Guidelines Order ‘cross the line’ into Provincial jurisdiction in so
far as protection of the environment is concerned? Is it an area covered by Federal
POGG powers?
Legal Reasoning: (Justice La Forest)
Alberta argues federal government has no plenary jurisdiction over environment
(shared)  Guidelines crossed line into provincial jurisdiction. Attempt to regulate
environmental effects of matters largely within control of province.
 Constitution Act did not assign “environment” to either federal or
provincial powers. Federal and provincial powers can thus be
exercised in different ways depending on area / issue – can fit under
different heads of s.91 and s.92.
Federal government argues that in pith and substance Guidelines merely facilitates
federal decision making on matters within federal jurisdiction.
 Environment does not have distinctiveness to rely on National
Concern Doctrine (Beetz: Anti-Anflation, Le Dain: Zellerbach) it is too
diffuse a topic
o Although local projects will usually fall within provincial
jurisdiction, federal participation required when project impinges
on area of federal jurisdiction, as it does here.
Projects Prov in nature that affect Fed areas of jurisdiction require joint
participation (cannot be regulated by one head of power only)
*The Act fails on distinctiveness and indivisibility
The Act is intra vires Fed within the residuary aspect of POGG; any intrusion into
Prov matters is incidental to pith and substance of legislation (which is to regulate
aspects that affect Fed. Interests)
Holding:
Despite its local nature, project affects areas that are under federal jurisdiction –
federal Guidelines in the Act intra vires; Environment falls under both Fed/Prov
heads of power. Appeal dismissed.
*Fed gov./Alberta is trying to get out of doing the Fed Guidelines environmental
evaluation, Society is trying to enforce it as affecting Fed heads of power
Society wins, Fed forced to do its environmental assessment
Final Questions on POGG power:
What are the differences between the two branches of the POGG power?
Time (emergency power has time limit)
Scope (emergency power has broader scope)
43
Policy Instruments & Flexible Federalism: The Spending Power,
Intergovernmental Agreements, and Delegation
Banting, “The Past Speaks to the Future: Lessons from the Postwar Social
Union” (463-478)
In post-WWII era Canada had to build its own Welfare state
 Debate  pan-Canadian welfare state v. series of distinctive
provincial welfare states. The result was a compromise.
(1) Direct Federal Programs
 Unemployment insurance
 Old Age Security
 Canada Pension Plan
 Established a direct federal presence in lives of Canadians, made Ottawa
the dominant gov in income security
(2) Shared-Cost Programs
 Health care
 Income Assistance
 Social assistance
 Post-secondary education
 *Fed Gov established terms and conditions that, when met by Provs,
would allow for Fed help/funding
Equalization Grants
 Unconditional Grants given to poorer provinces to enable an average
level of public service without resorting to extreme taxation
Unconditional
The Spending Power and the Constitution
Federal Spending Power (power to spend in areas outside Fed jurisdiction) central
to growth in post-war Canada
But Constitutional Foundations are unclear
Existence of the Spending Power announced by Lord Atkin in
Unemployment Insurance Reference, [1937]
It has not been brought before the courts very often because:
1. Federal Gov doesn’t want limitations placed on the Spending Power
2. Prov Govs want the money to keep coming
Focus has been on conditions placed on Fed grants which amount to Fed Gov
trying to legislate in area of Prov jurisdiction
*Petter, Criticism:
-Federal Spending Power only in existence to permit Fed Gov to use money
to influence decision making at Prov level
-Runs counter to the purposes of the Fed system
-Weakens ability of the electorate to exercise democratic rights;
compromises political accountability
44
*Choudhry, Defense:
-Spending power promotes goal of ‘vertical equity’: redistributive policy
by which Fed Gov redistributes wealth to Provs
o In federations (like Canada) it’s much harder to achieve
-Without the Fed Gov’s ability to level the playing fields with certain poorer
Provs, they would fall into destitution
-The Provs each have same incentive to adopt policies that are less
redistributive in nature, and not cooperate with other Provs
o Race to the Bottom
Can assure a minimum acceptable level of public services in different regions
Note on Proposed Constitutional Amendments
Quebec in particular has demanded controls on Fed Spending Power
To prevent encroachment on Prov areas of jurisdiction
Other see it as important mechanism for maintaining a social union with common
national standards
**Fed Gov has to compensate those provs who didn’t participate in sharedcost programs if those provs established equivalent initiatives
Note on the Enforcement of National Standards
Choudry suggests that national standards are largely unenforced and that
instances of non-compliance have been resolved without need for financial
penalties.
Failure to enforce national standards due primarily to:
 Lack of institutional capacity
 Lack of political will
Note of Equalization
Equalization payments are, unlike Direct Fed Programs and Shared-cost programs,
anchored in s.36(2) of the Constitution
Commits Parliament to making Equalization payments
They are unconditional payments
*They are not made equally, they are made based on need
Que, Ont, Manitoba, NB, NS, PEI all receiving equalization (Have nots)
Alberta, Saskatchewan Nfld/Labrador, BC are not receiving it (Haves)
Intergovernmental Agreements
There is uncertainty in the role of the Courts in enforcing intergovernmental
agreements, since they range from detailed contracts to broad statements, etc.
What is the legitimacy of the Courts to regulate these kinds of intergovernmental agreements?
-CAP involves Social Welfare Programs between Fed Gov and certain Provs
who opted in
-1990 Fed Gov cut back on expenditures to BC, Ont, Alb
o 5% cap on plan (Reference re Canada Assistance Plan)
45
Reference re Canada Assistance Plan (BC), [1991]
Facts:
Canada Assistance Plan authorized federal government to enter into agreements
with provinces to pay contributions toward their expenditures on social assistance
and welfare. Plan specified certain conditions for eligibility, but left it to provinces
to decide how to spend it. Agreements could be terminated or amended by consent,
and regulations affecting them would be ineffective unless passed with consent of
any province affected. Plan was silent on authority of Parliament to amend the Plan.
Federal government entered into such agreements with each province in 1967. In
1990, federal government decided to limit its expenditures to reduce deficit, so that
payments to Alberta, BC, and Ontario would grow by no more than 5%. BC initiated
reference to BC Supreme Court, and Fed Gov appealed to SCC.
Issue:
Can the federal government reduce contributions in this manner, or were they
required to obtain consent of provinces affected?
Legal Reasoning: (Justice Sopinka)
Most of the Plan is duplicated in a federal-provincial agreement, but not the
contribution formula (which actually authorizes the payments to provinces).
s.42(1) Interpretation Act reflects principle of parliamentary sovereignty – BC
government cannot bind Parliament from exercising its powers to legislate
amendments to the Plan
 The natural meaning of the words “authorized to pay…under the Act” in
s.3 is that the obligation is to pay what is authorized and nothing
more.
by reason of s.54 amendment would have to be initiated by Fed
Fed wasn’t legislating in Prov jurisdiction, it was only granting/withholding money
The amending formula in s.8 obliges Canada to pay the amounts which Parliament
has authorized them to pay pursuant to s.5  payment obligations under the
Agreement change when s.5 is changed.
Though this appears to deprive agreement of mutuality or binding effect, must
remember that this is not an ordinary contract, but an agreement between
governments.
Holding:
Federal government did not break the terms of the Plan or the Agreement. Appeal
allowed.
*Delegation:
Fed has the power to delegate powers to regulate a matter within its
exclusive jurisdiction to a provincially constituted board
Coughlin v. Ontario Highway Transport Board, [1968]
Facts:
Federal government enacted Motor Vehicle Transport Act, which delegated power to
provincial highway transport boards to regulate interprovincial trucking (a matter
46
within federal jurisdiction under s.92(10)(a)). The Act held that no one shall
operate an extra-provincial undertaking in that province unless he holds a license
issued under authority of Act, and that boards in each province may issue licenses at
their discretion. Coughlin, engaged only in extra-provincial trade, challenged
constitutionality of delegation to Ontario Board power to issue licenses.
Issue:
Can the federal government delegate discretionary power over the granting of
licenses for extra-provincial undertakings to provincial boards?
Legal Reasoning: (Cartwright C.J.)
 Plaintiff argues that In the MVT Act, federal government has essentially
abdicated its power to make laws in relation to interprovincial motor
vehicle carriage and unlawfully delegated it to provinces.
Parliament is entitled to confer upon provincially constituted board the power
to regulate a matter within exclusive federal jurisdiction
 The board doesn’t get any power from the Ontario Gov; gets its powers
directly from Fed (so still under Fed control)
 Fed can at any time terminate or alter the powers of the board in regard
to interprovincial carriage
 There is no delegation of law-making power
Dissent (Ritchie J.):
No province has the jurisdiction to legislate in relation to extra-provincial transport.
 In providing for granting of extra-provincial licenses in like manner as if
they were local undertakings, Parliament has totally abdicated control
over this field.
Not enough control retained by federal government in a matter under exclusive
federal jurisdiction, Act is invalid.
Holding:
Federal government validly used its power to adopt the legislation of Ontario boards
by vesting them with the discretionary power to issue licenses. Act intra vires.
Appeal dismissed.
Amending the Constitution
Casebook: “The Canadian Process for Amending the Constitution” (485-501)
1. Design Issues:
Problem of Sovereignty – which institutions should be vested with power
of Constitutional Amendment?
Balance between Stability and Flexibility
o Too rigid: risks being unresponsive to changing political
community
o Too flexible: difficult to find consistency for political decision
making
2. The Canadian Amendment Process:
47
SCC in Patriation Reference, [1981] acknowledged the legality of a
unilateral federal move, but effectively declared that it would be
illegitimate without a substantial degree of provincial consent
o Also no Quebec veto
A) General Amending Formula
o Found in s.38(1)
o Requires consent of Parliament and legislatures of 2/3 of
Provs having at least 50% of the population of Canada (the 750 rule: 7 of provs representing 50% population)
o Dies if it doesn’t receive necessary support within 3yrs
o Any Prov that opts out can receive compensation as long as it
enacts an equivalent of its own (ex. Que Charter)
B) Unanimity Procedure
o Found in s.41
o Requires unanimous support of all Provs in relation to
amendments to the office of the 1. Queen/GG/LG, the 2. minimum
number of members entitled to each Prov, the 3. bilingualism of
Parliament, 4. the composition of the SCC, and 5. any amendment
to the amendment formula
C) Bilateral Procedure
o Found in s.43
o Deals with provisions of Constitution affecting only some Provs
o Only Prov Gov affected and Parliament need to consent
D) Federal Unilateral Procedure
o Found in s.44
o Allows Parliament alone to make amendments to Fed executive or
HoC or Senate
E) Provincial Unilateral Procedure
o Found in s.45
o Permits Provs to amend their own Constitutions provided it
doesn’t affect matters governed by other amending formulae (ex.
LG)
3. Evaluating the Amending Formula
Amendment after 1982:
o Has been amended several times, mostly using s.43 (bilateral
procedure) involving the federal government and one other
province.
o Two significant failures – both to win Quebec’s acceptance of 1982
amendments:
 Meech Lake Accord
 Charlottetown Accord
4. Is amendment procedure Undemocratic?
Cairns: Part 5 inconsistent with popular sovereignty?
o There should be some guarantee of popular input in the
amendment process
o What about the input of ‘sub-nations’ (Aboriginal population?)
48
Monahan: Charlottetown Accord went to a referendum and was voted down
o Shows how popular input was called upon
Reference re Succession of Quebec, [1998]
Quebec has always lobbied for a Veto on Constitutional amendments
SCC says that unilateral succession by Quebec after a YES vote in referendum is
impossible; however it obliges Canada to negotiate with Quebec to settle the matter
o For succession to occur, needs to be negotiated with Fed and other
Provs
o **Referendum wouldn’t have enough legal effect; it would confer
legitimacy on the pursuit of succession through negotiation, but is
not enough to effectuate it unilaterally
Must be a clear majority of Quebekers supporting the succession
o This number clarified with Clarity Act, [2000]
 This act was est. directly in relation to the possible
secession of Quebec but applies to any province that
would wish to succeed through referendum.
Establishes the minimum necessary to enter into
negotiations.
Succession can only be negotiated according to Constitutional Principles outlined by
SCC under Reference Re Succession of Quebec
Hogg:
Forces of Constitutional Change:
o Quebec Nationalism
o Western Regionalism:
 distinctive economic base of the four Western Provs
o Entrenchment of Aboriginal peoples’ rights:
 entrenchment of explicit right to self government and right
to participate in the process of constitutional amendment
o Canadian Nationalism:
 colonial relationship between Can/UK
o Impulse for an entrenched Charter:
 Quebec hasn’t agreed to Charter
o Gaps in existing Constitutional provisions
Federalism with Respect to Aboriginal Peoples: Constitutional
Entrenchment of Aboriginal Rights
s.91(24) of BNA 1867
-confers on Fed Gov power to regulate Aboriginal land and people
-allows for national uniform policies for regulation of matters pertaining to
Aboriginals
49
s.35(1) of Constitution Act 1982
-the existing aboriginal and treaty rights of the Aboriginal peoples of Canada
-are hereby recognized and affirmed
but this is still unclear; left largely up to Courts to define this
The Indian Act, 1985
-regulates identity/resources/land
-Establishes registry of status Indians, thereby regulating the benefits, etc.
deriving from status
-Failure of political negotiation => Courts ended up with it
R. v. Sparrow, [1990]
Facts:
Sparrow, an Aboriginal man from the Musqueam Indian Band caught and charged
for using a net that was larger than the legal limit as described in the Fisheries Act.
He argues that the restriction in the Band’s fishing license is inconsistent with
s.35(1) of the Constitution Act 1982 and therefore invalid.
s.35(1): “The existing aboriginal and treaty rights of the aboriginal peoples of
Canada are hereby recognized and affirmed.”
Issue:
Does the restriction on Native fishing rights constitute an infringement of Aboriginal
rights as seen in s.35(1) of the Constitution Act 1982?
JH:
BC Court of Appeal struck down his conviction, ordered new trial. Crown appealed.
Reasoning: (Dickson and La Forest JJ)
The rights to which s.35(1) apply are those that existed at the time of repatriation in
1982
 Those existing aboriginal rights must be interpreted flexibly
Crown argues that the Musqueam Indian Band’s fishing rights had been
extinguished by regulations under the Fisheries Act
 Regulation does not infer extinguishment
 *If extinguishment is intended, it must be clearly/plainly stated
The Government has the responsibility to act in a fiduciary capacity with
respect to aboriginal peoples; this relationship is Trust-like rather than
adversarial
-“Fishing has always constituted an integral part of [the Musqueam’s] distinctive
culture.” (562) (It is a legitimate Aboriginal right)
The Gov still has power to regulate, but must be reconciled with fiduciary duty
towards Aboriginal rights (should be generous/liberal interpretation)
The onus of proving a prima facie infringement of Aboriginal right lies on the group
challenging the legislation by answering:
Does the legislation in question infringe upon an existing Aboriginal Right?
Infringement Test:
 1. Is the limitation unreasonable?
 2. Does the regulation impose undue hardship?
50

3. Does the regulation deny to the holders of the right their preferred
means of exercising that right?
If the prima facie infringement is proven, then the onus of proof shifts to the Crown
to prove that the infringement is justified base on:
Justification Test:
 1. Is there a valid Federal objective?
 2. Is there a maintenance of the honour due to Aboriginal peoples by the
Government with regard to their special trust relationship?
In an analysis of the trust-relationship, the Aboriginal peoples must be the
next highest priority after conservation (i. Conservation, ii. Indian fishing, iii.
Non-Indian commercial fishing, iv. Non-Indian sport fishing)
 Crown would have to show that there is not an underlying
unconstitutional objective such as shifting more of the resource to a user
group ranking below the Musqueam.
Holding:
Appeal and cross-appeal by the Crown dismissed. Conviction set aside and re-trial
ordered. Insufficient evidence to reach a decision with regard to analyzing s.35(1).
Articulates test for Aboriginal right under s.35(1) further than Sparrow
Van der Peet Test is based on aboriginal practice pre-contact
R. v. Van der Peet, [1996]
Facts:
Appellant (Van der Peet) charged under s.61(1) of Fisheries Act with offence of
selling fish caught under authority of an Indian food fish license, contrary to s.27(5)
of British Columbia Fishery Regulations
 27.(5): No person shall sell, barter or offer to sell or barter any fish caught
under the authority of an Indian food fish license.
Appellant sold 10 salmon in 1987 for 50$. Appellant claims she was exercising an
existing aboriginal right to sell fish; s.27(5) infringes on her existing right to sell fish
and is therefore invalid on basis that it violates s.35(1) of Constitution Act 1982.
Issue:
Does the Fisheries Act denying the aboriginal right to sell fish unjustifiably infringe
on an existing aboriginal right recognized under s.35(1) of the Constitution Act
1982?
Reasoning: (Lamer C.J.)
The appellant takes s.35(1) too far from what the provision is supposed to protect
S.35(1) of the constitution should be given a generous and liberal interpretation in
favour of aboriginal peoples
The Crown has fiduciary obligation to aboriginal peoples, in which the honour of the
Crown is at stake; where there is doubt or ambiguity with regards to what falls
within the scope of s.35(1) it must be resolved in favour of aboriginal peoples.
Integral to a Distinctive Culture Test:
 1. Courts must take into account the perspective of Aboriginal peoples
51
themselves
o From Dickson J. in Sparrow
o Must be reconciliation of Common Law and Aboriginal
perspectives
 2. Courts must identify precisely the nature of the claim being made in
determining whether aboriginal claimant has demonstrated the existence
of an aboriginal right
o i. the actions which led to the charge
o ii. Fishery regulation
o iii. Customs, etc. she invokes in support of her claim
 *3. In order to be integral to the practice, custom/tradition must be of
central significance to the aboriginal society in question
 4. The practices, etc. which constitute aboriginal rights are those which
have continuity with the practices, etc. that existed pre-contact
 5. Evidentiary burden should be less strict
 6. Aboriginal rights claims must be adjudicated on a specific rather than
general basis
o specific to the particular Aboriginal community claiming that right
 7. The practice, etc. must be of independent significance to the aboriginal
culture in which it exists
 cannot be incidental to another practice
 8. The practice must be distinctive, not distinct
o distinct means different from other cultures/unique
o distinctive means characteristic of Aboriginal society considered
singly, not in relation to other societies
 9. Influence of European culture is only relevant if it is shown that
practice, etc. is only integral because of that influence
 10. Courts must consider the relationship of Aboriginal peoples to the
land and the distinctive societies/cultures of Aboriginal peoples
In order to be an aboriginal right an activity must have been an element of a
practice, custom or tradition integral to the distinctive culture of the aboriginal
group claiming the right pre-contact
 1. Prior to contact exchanges of fish were only incidental to fishing
for food purposes
 2. There was no regularized trading system among the Sto:lo prior to
contact
 3. The trade between the Sto:lo and the HBC was different than that
engaged in before contact
 4. The Sto:lo exploitation of the fishery was not specialized; this
suggests that the exchange of fish was not a central part of Sto:lo
culture
Dissent: (L’Heureux-Dubé J.)
The method of the majority overly restrictive, and misinterpreting Sparrow’s use of
the words “distinctive culture”
 “all practices… which are connected enough to the self-identity and self52
preservation of organized aboriginal societies should be viewed as
deserving the protection of s.35(1).”
 Wants a “dynamic right approach” rather that a “frozen right approach”
Dissent: (McLachlin J.)
Found applied a limited view of justification:
 Crown may only prohibit exploitation of a resource for reasons of
conservation or prevention of harm to others
 Found that the Crown had failed to justify the regulations at issue
Holding:
Appellant failed to demonstrate that the exchange of fish for money was an integral
part of the distinctive Sto:lo culture that existed prior to contact = appeal dismissed.
Henderson, “The Supreme Court’s Van der Peet Trilogy”
What the Supreme Court Said:
-Aboriginal refers to what existed on the content before the Crown arrived.
Therefore it’s integral for court to ascertain which elements were integral to the
identity of each First Nation
-To qualify for protection, the practice must have been “a central and
significant part of the society’s distinctive culture” before contact and
must not have existed in the past “simply as an incident” to other
cultural elements or merely as response to European influences.
-Aboriginal rights must be rendered “cognizable to the non-Aboriginal legal system”
(accommodation between Aboriginal/Non-Aboriginal systems)
-Two stage decision making process:
o Examining historical roots of challenged practice to determine its
centrality to precolonial indigenous culture.
o Adjusting the practice to make it cognizable to the imported
legal system.
A Doctrine Plucked from Thin Air:
-Van der Peet makes analysis/recognition of Aboriginal practices much
harder
-It places limits on recognitions of Aboriginal rights, instead of limiting the
Fed Gov’s ability to rule over it
Centrality and Paternal Illusion:
-Centrality cannot be objectified; it is too subjective to be used as a rule by the
SCC
-Centrality and incidental assumes that cultural elements exist independently,
which is not the case; in Aboriginal societies everything supposed to be interdependent
-Centrality is not static, it continues to change depending on priorities.
o Culture in this sense has been taken to mean a fixed inventory of
traits or characteristics
Was Centrality a Stillbirth?
53
Gladstone: SCC affirms Heiltsuks’ right to fish commercially as priority in year-toyear allocations of fish stocks (which means the gov. can manage/divide resource as
long as it is properly respectful of Heiltuks’ Aboriginal right
-In R. v. Adams and R. v. Côté ruled in favour of Aboriginal rights, and Lamer
C.J. seems to have backpedaled on ‘Centrality’ and achieved unity in the Court
(Van der Peet/Gladstone divided the Court, whereas Adams/Côté were
unanimous)
-Resistance of notion that a traditional practice could be a source of contemporary
wealth
-SCC in Van der Peet has assumed authority to determine from extrinsic evidence
what made each Aboriginal society what it was.
R. v. Gladstone, [1996]
Facts:
Gladstone was a member of the Heiltsuk Band charged with attempting to sell
herring spawn on kelp without a licence. Defence was that he was exercising a preexisting right to fish for commercial purposes.
JH:
Conviction upheld at BC Supreme Court and Appeal Court. Now at SCC.
Issue:
Is the commercial sale of herring spawn an existing Aboriginal right for the Heiltsuk
Band, and, if so, is its limitation justifiable for the government of BC?
Reasoning: (Lamer J.)
McLachlin CJ holds that the commercial sale of herring spawn on kelp is an
Aboriginal right as it was a significant and defining feature of the Heiltsuk culture
prior to contact; so affirmed that there is a right, and that there has been an
infringement thereon
Sparrow test adapted in this case to check for justifiable infringement of Aboriginal
Right
Differences:
 1.Sparrow test applies to food fishing, this applies to commercial fishing
o Giving Aboriginal precedence on commercial sale here, as was
done with food fishing in Sparrow, would deny to all others
the right to do the same => (no internal limitation) not fair
o There must still be a priority given to Aboriginal right holders, but
not precedence (ex. Consultation and compensation)
o Does the government’s regulatory scheme reflect:
 1. the need to take into account the priority of aboriginal
rights holders
 2. how the government has accommodated different
aboriginal rights in a particular food (food vs. commercial
rights for ex.)
 3. how important the fishery is to the economic and
material wellbeing of the band in question
 4. the criteria taken into account by the government in
54
allocating commercial licenses amongst different users
 This is not an exhaustive list, they give some indication of
what an inquiry should look like.
 2. The nature of the objectives that the government can pursue under the
first branch of the Sparrow justification test
o Conservation is recognized as being a justifiable reason to infringe
on the Aboriginal right in the commercial fishing sense (as long as
the rest of the Sparrow test is met)
o *In this case, as well, pursuit of economic and regional
fairness, and the historical reliance upon, and participation
in, the fishery by non-aboriginal groups can be considered as
satisfying the standard for justification as well (in the right
circumstances)
*The testimony/evidence provided for the case are not sufficient to allow the Court
to assess whether the government acted in accordance with its fiduciary obligation
towards Aboriginal peoples
 Not enough evidence to prove/disprove justification
Holding:
Appeal allowed. New Trial ordered on issue of guilt/innocence of Gladstone as well
as whether allocation of herring by the government was justified.
*Sparrow sets down test for finding an infringement as well as test for justification
of the infringement, Van der Peet reassess the test to find an Aboriginal right in the
first place, Gladstone reassess the test for justification of the infringement in
commercial context
Make sure to look at history of the case
Analyze the legislature/decisions leading up to it, and following it
*Legal doctrine, Constitutional Principles, Jurisprudence
55