INTRODUCTION TO CONSTITUION
WHAT IS A CONSTITUTION?
 Supreme law of Canada; any law inconsistent w/ provisions is of no force or effect
 Includes: Canada Act 1982; Amendments; Schedules
 Constitutions deal with the structures, procedure and powers of governmental institutions and the nature and
scope of individual rights and responsibilities in the face of public power
 Elements of Constitution
o Parliamentary democracy
o Federalism
o Individual group rights
o Aboriginal rights
o Principle of constitutionalism
o Rule of Law
 Sources: Common law, ordinary statutes, conventions, quasi-constitutional statutes (Bill of Rights, Supreme Court
Act)
 The Three Branches of Government
o Legislative: power to make law
o Executive: power to implement law
o Judicial: power to interpret law
UNWRITTEN CONSTITUTIONAL PRINCIPLES
 Function of reference: Court gives advisory opinion on important legal question that may or may not have arisen
from concrete dispute btw interested parties
 Background: After closed referendum result in 1995, Canada initiate reference to SCC to question legal issues
surrounding unilateral secession. Quebec government does not participate
 Reference Re Secession of Quebec p 11
o Answer: Unilateral secession = unconstitutional. Clear expression by Quebec to secede from Canada
imposes obligations on all parties of confederation to negotiate
o Four Underlying Constitutional Principles:
 Not explicit, but impossible to conceive constitutional structure without them
 Purpose of Text: promote legal certainty, predictability, place for constitutional judicial review
 Purpose of Preamble: Reference constitutional principles
 Not merely descriptive: have powerful normative force binding courts and gov
o 1. Federalism: “Unity (At national) with diversity (local)
 Runs through political legal system of Canada, responds to underlying social/ political realities,
recognizes diversity, facilitates democratic participation
 Facilitates pursuit of collective goals by cultural and linguistic minorities
o 2. Democracy: Substantial pop. favours recession = trigger duty to negotiate
 “Respecting the will of people/ their choices”
 Political system of majority rule, w/ efforts to extend participation to minorities (women, aboriginal
etc)
 Connected w/ substantive goals: the right to self-government
 Consent of governed is basic to understanding of free and democratic society, requires continuous
process of discussion
o 3. Constitutionalism and Rule of Law
 Constitutionalism: Requires government action comply with Const.
 Constitution is entrenched beyond majority rule because:
 1. Provides safeguard for fundamental human rights
 2. Ensure vulnerable minority groups have rights to promote identities against assimilation
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 3. Provides division of political power
 Rule of Law: fundamental shield from arbitrary action that requires all gov action to comply w/ law
and const.
4. Respect for Minorities
 Language, religion, education rights
 Reflected in Charter’s provisions for protection of minority rights ie. Explicit protection for
aboriginal rights
CONSTITUIONAL INTERPRETATION
Constitutional Interpretation and Original Intent by Justice Ian Binnie (supplemental)
 Original Intent (Dead Tree Approach)
o Judges interpret as closely as possible to intent of 18th century framers
o Used by the US: Original Intent = have advanced history of intentions; Original understanding; Original
Effects
 Living Tree Approach
o Judges have liberty to extrapolate words/meaning into written text of constitution
o Used by Canada because doctrine of original intent not aligned w/ modern world; based on spotty/ biased
views of historians
 Dickson Approach to Purposive Construction
o The legislatures should not be solely responsible for evolution bc. leaves minorities rights in hands of
majority
o Meaning of rights and freedoms should be understood in light of the interests it was meant to protect:
constitution drafted with eye to future, courts are assigned to adapt principles to new circumstances
 The Charter Override
o Existence of override suggests that framers expected courts to continue to develop it
o Power reserved to parliament/prov. Leg. To override certain provisions
Reference re Meaning of the Word ‘Persons’ in s 24 of the BNA Act 1928 SCC p 45
Facts: The GG summons qualified persons to the senate, subject to the Act. Every person summed shall become and be a
member of the senate and a senator.
S 24: The GG shall from time to time, in the Queen’s name, by instrument under the Great Seal of Canada, summon
qualified persons to the senate, and subject to the Provisions of this Act, every person so summoned shall become and be a
member of the senate and a senator.
Issue: Whether the words “qualified persons” in the BNA Act 1867 includes female persons? Whether women are eligible to
be summoned to and become members of the Senate of Canada
Decision: Women are not eligible for appointment bc they are not “qualified persons” w/in meaning of that section
Reasons: Anglin CJC (Mignault, Lamont, Smith JJ Concurring)
 Method of Interpretation: Construe not merely words but the intent of Legislature (based on cause/necessity for
enactment), legislative scheme (based on comparison of several parts) and extraneous circumstances (Hawkins v
Gathercole 1855)
 Internal Evidence:
o Words: (interpreted in light of everyday meaning: Chorlton v Lings)
 Person, when standing alone prima facie includes all human beings. Paired with “qualified”
excludes criminals, minors, lunatics. Does it exclude women?
o Intent: Parliament has ability to change law, court will not impute intent to change law in absence of express
language
o Scheme: Sections 23,24,25,26,32 expressly excludes women from membership of Senate
 External Evidence:
o Circumstances: The office of senator was new office created by BNA act + women were under legal incapacity to
hold public office. Application to women would = striking departure from common law
o Novel Issue: rights of women much discussed but not specific suggestion for women’s eligibility for appointment
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Words: Lord Broughams Act: in all Acts words importing the masculine gender include female, unless the contrary
is expressly provided. However “persons” is not a word importing masculine gender = no application
Duff J: Concurring for Different Reasons
 Reject idea that common law disabilities of women est. rule of interpretation for BNA act.
 Language of Act as a whole ≠ presumption that leg/exec powers should be interpreted to preclude women, rather
interpreted to provide for adaption over time
 External circumstance: Once women allowed to sit in HoC, principle of responsible government would require that
term persons of s 11 (privy council) be interpreted to include Women. However, this is not applicable to senate and the
rules of appointment are not open to adaption over time = women ineligible
Edwards v. AG Canada, 1930 PC p 49
Issue: Whether the words “qualified person” include women?
Decision: Person includes women and they are eligible. The issue was not resolved by applying the “living tree” approach,
but as a narrow and technical question of statutory interpretation.
Reasons: Lord Sankey LC:
 External Evidence:
o History: Recently held that women not entitled to sit in House of Lords or become lawyers
o Lord Broughm’s Act: in all Acts words importing masculine gender shall be deemed and taken to include female
unless the contrary as to gender is expressly provided. In Chorlton v Lings asked whether “Every man” included
women. Bovill CJ held it did not = expressly male sex.
 Distinguishable: Provision stated “every man” with certain qualifications and “not subject to any legal
incapacity” should be entitled… Legal incapacity = common law disabilities of women. Women were expressly
excluded, in case at hand = “persons”
o Not right to apply customs of 1867 to Canada today. As such appeal to roman law/early decisions is not secure
foundation to exclude women
 Internal Evidence:
o General Analysis of Act:
 BNA is a living tree, capable of growth and expansion w/in natural limits.
 Object of the Act was to grant a Constitution to Canada, subject to development through usage + convention
 Canada is responsible and developing (1)
 Should be interpreted in large, liberal and comprehensive spirit.
 But the question is not what may be supposed to have been intended, but what Has been said
o Scheme:
 Interpretation Act: words importing masculine gender shall include females (s 1(2)) (5)
 S 21-36: no definite conclusion that women are to be excluded from Senate
o Word: Original meaning= include both sexes, but ambiguous (2). (custom prevented it from pertaining to women
in 1867, but customs develop)
 S 41 deals with “persons”. Deals with qualifications + disqualifications of persons elected or to sit/vote as
members of house of assembly, every male British subject 21 + shall have a vote. This section shows
distinction btw “persons” and “males”. If persons excluded females it would only have been necessary to say
every person who is British 21+ can vote. (same logic in s 84)
 S 133: English or French can be by any person used in court = absurd result that females have to use certain
language(3)
 Therefore: if Parliament intended to limit persons in s 24 to males, it would have done so by express
limitation(4), as in ss 41 and 84.
Ratio: Constitutions should be given a large and liberal interpretation in order that they remain flexible and responsive to
social and historical change.
CONSTITUTIONAL ARCHITECTURE
Constitutional Issues Reach Courts for Adjudication by:
1. Ordinary Litigation and Rules of Standing
a. Civil Cases: challenge validity of law that another party is relying on constitutional grounds
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b. Prosecution: Accused raise constitutional challenge
c. Rules of Standing: Whomever has sufficient legal interest can raise it before court. In past, Plaintiff must be
directly affected by it and have genuine interest in it. Now there can be “public interest standing”
i. Test: (Martland J in Borowski) [citizens can ensure that gov acts w/in const. bounds]
1. Person show that he is affected directly or
2. That he has genuine interest as a citizen in the validity of the legislation
3. No other reasonable/effective manner that issue may be brought before court
The Reference Procedure
 Brought to SCC from federal cabinets (prov send references to prov appellate court)
 Require litigants to notice AGs so they can defend their statute
 Those interested must be present; Can have interveners (may be limited by court)
 Produces: advisory opinion, IN PRACTICE considered as authoritative as other court judgements
 Detractors think it politicizes judiciary by requiring consideration of hypothetical issues
National Federation of Independent Business v Sebelius 2012 [Ideas of Federalism]
Facts: Two challenges to provisions of Patient Protection and Affordable Care Act
1. The individual mandate: Individuals must purchase health insurance policy at minimum level of coverage
2. The Medicaid expansion: gives funds on the condition that they provide health care to low-income
Issue: Does the constitution grant congress the power it asserts?
Decision: Court upheld most of congress’ power to enact Act, but the above provisions were not valid
Reasons:
 Sovereignty resides in the people
 The fed has limited powers and states have residual
 If there is no enumerated power authorizes congress to pass law, the law may not be enacted
 Framers ensured that powers affecting daily life are locally governed
o Geographic distance separates fed from interests of local
 Not purpose of court to make political judgments (division of powers)
FEDERALISM
INTRODUCTION (p 86-91; 190-207)
Ideas in Constitution Act
 Constitutional Continuity: maintain same practices inherited from Britain (s 9-16)
 Federalism:
o S 91: Fed gets residual power
o S 132: parliament can represent provinces in foreign relations
o S 22: provinces will be regionally represented by senate
 Democracy: Representation; majority vote etc. (s 37 – 50)
 Rights: S 93: minority groups + religious schools; s 132: language rights
What is Federalism? (Secession Reference)
 Political power shared by two orders of government: the federal gov and the provinces
 Each is assigned respective sphere of jurisdiction by Const Act, up to courts to control the limits of the respective
sovereignties
 Recognizes diversity and autonomy of provincial government
 Facilitates pursuit of goals by cultural/linguistic minorities which form majority in particular province (Quebec)
Federalism Theory:
Pros:
Protects minorities
Incentive for provinces to sign on
Economic continuity
System of checks and balances prevents tyranny
Gives local control over local matters (regional autonomy)
Cons:
Limits both levels of gov
Inefficient
Resentment
Frustrates majority rule
Reduces accountability (passing the puck)
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Evolution of Division of Powers: increased in overlapping jurisdiction
(intent of Framers = s 91 strong central government vs. s 92 caveats)
1. Projection of federal concerns in areas once reserved for provinces (health)
2. Breakdown of clear rationale for determining how responsibilities should be allocated (ie. Garbage collection local,
but pollution = international)
3. Changing role of gov: Increased concurrency results in pressures for growth of government = centralization
4. Community concerns: economic development erodes identities rooted in territory and culture; cooperative
federalism: techniques that introduce new roles in a way consistent w/ federalism and provincial responsibility
Interpreting the Division of Powers
 Validity: Dominant character in relation to matter beyond enacting legislature’s jurisdiction
 Applicability: Within enacting jurisdiction BUT limited in its application so as not to touch core of other gov
jurisdiction
 Operability: Law is valid and applicable, but it will be inoperative if it conflicts with valid fed. Statute
Themes in Modern Federalism
 Concurrency and Overlap
o Growth of Government: nagging problems of jurisdiction continue
o Gaps in Text: Environment, health, post-secondary education, consumer protection, welfare state 
involve fed and prov
 Executive Federalism: implicates power under both lists, fed and prv agree together
 Asymmetrical Federalism: different agreements w/ different provinces
 Judicial Federalism: Judges perceive who is best fitted to regulate s 91 + 92, swayed by policy arguments
 The Role of Policy in Adjudicating Federalism
THE PRIVY COUNCIL
Citizens Insurance v. Parsons 1881 (p 95) [Read ss 91,92 contemporaneously: holds T&C to include Political arrangements in
regard to trade requiring sanction of parliament; Regulation of trade in matters of inter-provincial concern; General
regulation of trade affecting whole dominion, AND If not in S 92, then must be in s 91]
Facts: Ontario legislation requires fire insurance policies to standard conditions called “Statutory Conditions” and if an
insurer varies or omits, he must make conspicuous type/ink. Parsons wants to recover compensation for losses caused by
fire; Insurance says he did not disclose certain information so not covered; parsons says those conditions did not comply w/
legislation. Insurers argue that legislation was ultra vires.
Issue: Whether Ontario Legislation was ultra vires?
Decision: It is not a matter of “trade and commerce”, leg. Is valid; regulations of contract insurance = provincial matter
Reason: (4-2)
SCC Majority: Ritchie CJC: Deals with property and civil rights (the power to grant property and the power to limit and
control the manner in which property may be dealt and the contracts in reference to that property); not a regulation of T&C
SCC Dissent: Gywnne J: T&C; prov does not have power to interfere w/ commercial business because prevents possibility of
local leg. Creating difficulties/ disrupting stability; creates difficulties embarrassing to Dominion
PC Majority: (Living tree approach)
Mutual Modification Principle: s 91 + s 92 must be read contemporaneously and modified in context of the other
 It is evident that s 91 includes general powers and 92 includes narrow powers ie. (91: marriage and divorce; 92:
solemnization of marriage in the province)
 So with regard to certain classes of s 91, power may reside to some matters to provinces
 It is the duty of the courts to ascertain in what degree, and to what extend, authority to deal w/ matters falling w/in
these classes of subjects exists in each legislature and to define the limits of their respective powers
 It could not have been intention that conflict would exist, so to prevent such result = must be read contemporaneously
1. Is it exclusively assigned to s 92?
 Respondent: deals with 92(13): insuring property w/in the province + prescribing certain contracts to do so
 Appellant (insurer): suggest narrow version of civil rights: only rights flowing from law
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
S 91: no class including contracts and rights arising from them, except s 92(18) bills of exchange/promissory notes.
This would have been unnecessary to specify if authority over all contracts and rights belonged to dominion
 Absurd result: if contract legislation falls under s. 91 then Quebec business practices (which has own civil code)
would be subject to fed. Legislature which undermines attempt to preserve their culture
2. Whether Ontario Act, assuming its w/in s 92, has provisions coming under s 91?
 Appellants: fits under s 91(2) T&C
 First of all: the business of indemnity contracts is likely not a “trade”…But we don’t need to rest decision on that
 T&C sufficiently wide, but not unlimited; when read with s 91(2) = regulations relating to general trade and
commerce. If they were to have unlimited scope many other s 91 subjects would be redundant (s 91(15, 17, 18 etc).
 T&C would then include:
o Political arrangements in regard to trade requiring sanction of parliament
o Regulation of trade in matters of inter-provincial concern
o General regulation of trade affecting whole dominion
 Does not comprehend power to regulate the contracts of a particular business, such as insurance, within a single
province.
Russell v. The Queen 1882 p 104 (PC) [When Act deals with object + scope that is general = Dominion regulation (even if (1)
has opting in clause, or (2) incidentally affects prov jurisdiction]
Background: Canada Temperance Act 1878 enacted by dominion enable local option by provinces to opt in by majority of
voters in any city or country to prohibit retail sales of liquor. (except for those necessary by brewers, distillers and
wholesale traders). Anyone who sold liquor in violation was liable on summary conviction. Private citizen began criminal
prosecution under the Act against Russell, tavern owner, for selling liquor in violation of terms.
Facts: Russell prosecuted under Act for selling liquor in violation of terms. Says act falls under prov; not fed = ultra vires.
Canada Temperance Act: enable local option across nation to prohibit retail sales of liquor
Issue: Valid fed power?
Decision: Yes – because doesn’t fall under s 92. If a legislation has national consequence ie. The sale/custody of dangerous
goods = matter of Pogg w/ incidentally affecting 91(13)
Reason:
Does it fall under s 92? No:
 S 92(9): No, (9) is licenses to raise revenue, not licenses to regulate trade
 S 92(13):
o No bc law places limitations on sale of property dangerous to public which is related to crim law power (91)
and pogg;
o Not a civil right bc involved in public safety; designed for promotion of public order. It incidentally deals
with free use of things but not at its core.
o Laws which are designed for promotion of public order, safety or morals and subject those to criminal
procedure/punishment belong to subject of public wrongs rather than to civil rights
 S 92(16): no: on its face was local nature through “opting in”, but purpose: achieve uniform legislation for traffic of
alcohol + promote temperance; condition of opting in does not make it merely local matter. The object and scope of
the act are still general, the provision for special application of it to a particular place does not alter its character
If it does not fall under s 92, then no further questions and = POGG
Analysis:
“Temperance = menace to national life of Canada so serious/pressing, parliament must intervene to avert disaster. An
epidemic of pestilence/plague = analogous” (snider)
Hodge v. The Queen 1883 p 107 PC [Double Aspect Doctrine: Liquor has a local and federal aspect]
Background: Pressure from temperance groups mounting in 1870s, Ontario enact Liquor License Act. Does not allow tavern
keepers to permit billiards to be played in taverns. Challenged it on conflicting with 1) s 91(2) T&C and 2) provincial leg.
Could not delegate law-making powers on Boards of Commissioners. Dismiessed by ONCA and PC
Facts: Hodge permits billiards at tavern, license removed under Liquor License Act
Issue: Act ultra vires of province?
Decision: No
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Reason:
 A argues that regulation of liquor traffic does not come under s 92, then must be in s 91
 Russell is not an authority to A’s argument. Russell and Parsons hold that “subjects which in one aspect and for one
purpose fall w/in s 92 may in another aspect and for another purpose fall w/in s 91”
 Subject matter and legislative character of ss 4 + 5 of Liquor License Act
o Confined to Ontario = local in nature, delegation powers similar to those of municipal institutions
o To make regulations of police/municipal regulatory nature of local character for good government of taverns,
licensed for the sale of liquors by retail and maintain peace and public decency
o Does not conflict w/ provisions of Canada Temperance Act (which is not yet locally adopted)
 Act is entirely local in nature (92(16) and the imposition of fine/penalty/imprisonment (92(15)
 Authorizes appointment of license commissioners in each municipality: Argument that province can’t redelegate = false:
Prov have power to enact delegates w/in limits of s 92
 Purpose: to preserve decency and repress drunkenness/disorderly conduct of taverns
Double Aspect Doctrine: Liquor = local + fed aspect: No conflict w/ Canada Temperence Act or T&C
Note: Russell accounts for the possibility that provinces may not opt in, but will enact their own legislation: “the provinces
might have passed a local law of a like kind in absence of a general law of Parliament of Canada”
THE DEVELOPING CONSTITUTIONAL STATE (p 133-145)
Reference re The Board of Commerce Act 1919 (1922 AC; aff’g 1920) p 133 [Unless state of emergency declared, matters
that deal w/ individual, local regulations are under province; POGG jurisdiction under s 91 restricted to war
time/temporary/famine/req’d by pogg, not normal conditions]
Facts: Board of Commerce Act and Combines and Fair Prices Act enacted July 1919 by the Dominion
 Purpose of Act: to restrict 2 perceived abuses
o 1. Monopolies and mergers
o 2. Unfair profits: Hoarding necessaries of life (food/clothing) for purpose of unfairly increasing prices
o Board power: investigate and order: cease formation/operation and pay back unfair profits
Issue: Whether the board had power to make a specific order setting profit margins for clothing prices in Ottawa?
Generally: Is the regulation of prices/ unfair profits under federal domain?
Decision: Yes, justified by POGG and Crim Law Power
Reason: (3-3)
SCC For: Anglin J
 Primarily rely on upholding statute under 91(2): Regulation of Trade and Commerce
 Control and regulation of prices = Evil (profiteering needs investigation + control)
 POGG: dealt with P&C rights in aspect not local/private (threatens moral/social well-being of dominion)
 Provinces singularly, or with concurrent plans, unable to effectively attack issue
 S 91 (27) crim law power: upheld provisions of hoarding necessities
SCC Opposed: Idington J
 If 92(2) regulates prices in local stores (92.13), then justifies any socialistic conception of organized society falling
under dominion
 Constitution intended to grant provinces some absolute rights
 POGG: not include power to affect 92(13) unless in emergency ie. war or in incidental aspects
 Duff J: hoarding is too broad = applies to businesses and individual collecting things of household articles
o Unfair profits: Parsons said dominion under 91(2) does not authorize dominion to regulate terms of contracts
of a particular business or trade, because such legislation involves interposition in the transactions of
individuals in the provinces, w/in sphere of property and civil rights + local undertakings. How can board
dictate what would be fair btw individual trader and public in each transaction
o Pogg: if its under 92, it cannot be under POGG. Cannot be legitimized by framing it in comprehensive terms
embracing matters over which Dominion has jurisdiction
 Does not matter that legislation is enacted w/ view of providing remedy uniformly applicable to
whole of Canada. Cannot look at ultimate aims of legislator, must look at immediate operation and
effect alone.
PC Majority: (Viscount Haldane)
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1. Could dominion parliament enact such a law?
 Not enacted to meet special conditions of wartime or confined to temporary purpose
 It may be that Dominion has practical interest in the subject of undue combination and hoarding and in war, such
and in war, such an interest might be conceivable paramount + overriding to lie outside s 92.
 Russell: it is constitutionally possible for dominion regulation to affect property and civil rights even in time of peace
(but this is abnormal and applied with reluctance)
 Subject matter falls under s 92
 Dominion insurance act: Dominion held to have authority to legislate for regulation of trade and commerce when
does not interfere w/ particular trades
 Cannot be justified under s 91(27) crim law power. Dominion cannot first attempt to interfere with 92, then
attempt to justify this by enacting ancillary provisions, designed to be new phases of dom. Crim law.
 Jurisdiction of board = ultra vires
o 1. Implies claim of title to make order prohibiting accumulation of certain necessities to amount (amount
arbitrarily decided by board)
o 2. Has jurisdiction to regulate profits and dealings which may give rise to profits
o 3. Inquiry into individual cases of local provincial undertakings
o Powers of Board of Commerce go beyond those conferred s 91, since dominion can review and alter
decisions of the Board
o 4. It is not a necessity in present circumstances for dominion to interfere.
Ratio: Unless state of emergency declared, matters that deal w/ individual, local regulations are under province; POGG
jurisdiction under s 91 restricted to war time/temporary/famine/req’d by pogg, not normal conditions
Fort Frances Pulp and Paper v Manitoba Free Press Company 1923 p 138 [When war is over, based on clear evidence, must
repeal all interfering legislation, or it is ultra vires]
Facts: Regulation of price for newsprint. In War Measures Act, allowed dominion to do whatever it considered “necessary or
advisable for the security, defense, peace, order and welfare of Canada”. The dominion regulated price of newsprint in
series of admin arrangements. 1917: creation of the Paper controller, and Paper Control Tribunal who heard appeals.
Dec 1919 Controller order Fort Frances to repay excess amount above prices received from Manitoba Free Press. Frances
refuse. Affirmed by ONCA and D appealed to PC.
Issue: Is the War Measures Act ultra vires?
Decision: Appeal dismissed, Paper control still in effect, upheld under POGG since might still be war conditions
Reasoning (PC):
 Under normal circumstances dominion ≠legislate control over paper manufacturers which interferes w/ 92(13) (set
out in Board of Commerce)
 During war: the interests of individuals may have to be subordinated to that of the community in a fashion which
requires s 91 providing over s 92 aspects.
 S 92(13) falls under s 91 in special times bc they extend beyond what s 92 can cover and is required to be addressed
by state as whole. Centralized power necessary in emergency situation. 92(13) is not repealed but new aspect of
the business of Government is recognized as emerging
 Is this special necessary when war broke out and for some subsequent period after outbreak
 During war: public need uninterrupted information in newspapers. Need to ensure supply to avoid shortage.
 BUT the war is over, and there is no justification for continued exercise of exceptional interference which becomes
ultra vires . Need clear evidence that crisis had wholly passed
 Late 1919, the war has passed
o Order in Council proclaimed war no longer exists, war conditions have ceased.
o 1918 expeditionary forces withdrawn and demobilized
o Country devoting energy to re-establishment
 Governor in December 1919 repealed war measures act, but expressly kept paper control.
 PC could not say that Gov had NO good reason to keep paper control, so must have thought war conditions might
still be operative…– no clear evidence that Gov thought crisis had passed.
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Ratio: When state over emergency is over, dom must repeal all war acts or = ultra vires; dom cannot ordinarily legislate to
interfere with 92(13) in province. POGG available in cases of “sudden danger to social order arising from outbreak of war;
when national life requires preservation; exceptional necessity”
Toronto Electric Commissioners v. Snider 1925 p 142 (AC decision reversed by PC)
Facts: Industrial Disputes Investigation Act 1907 enacted by the dominion in 1907; applied to mining, transportation and
communications undertakings, as well as public service utilities, and it was limited to those w/ more than 10 employees
 Purpose of Act: enable employee/employer in work conditions dispute to apply to Minister of Labour for
investigation by board. If board appointed = strike/lock out prohibited. Board = function to settle dispute. If not
settlement = minister make dispute public
 Application: mining, transport, communication, public service w/ 10+ employees
 1914: Ont enact similar. Board appointed to inquire Toronto Electric. Commissioners sought an injudction alleging
that the Act was Ultra vires.
o ONTCA dismiss claim saying its not ultra vires: Majority: Ferguson:
o Avoided relying on pogg bc limits not clearly settled. Act was valid under 91(2) and 91(27): Cannot be
disputed that to deprive city of Toronto of power (due to union dispute) would hinder national
trade/commerce. Such dispute is matter of public interest + national importance
o ONTCA dissent: Hodgins: Pogg = emergency or matters of general Canadian Interest/importance. Act not
emergency. Deal with normal working conditions. Invades 92, even though labour relations should be
interest of whole community. Not supported by 91(27) because substantially in relation to 92(13).
Issue: Is the Act Ultra Vires?
Decision: It is ultra vires, labour relations is a provincial legislation
Reasons (PC): Lord Haldane
 Cannot be upheld under 91(27) crim.
o The act rendered it unlawful for an employer to lock-out or employees to strike prior or during the
reference. Until reference concluded, neither able to alter those conditions.
o Obviously deals with civil rights. Not w/in dominion bc these are not merely ancillary penalties. In P&S it is
interfering with civil rights.
o The act is not aiming to make “striking” generally a new crime. Under common law employer has right to
lock-out. Act cannot be validly sustained.
 Cannot be upheld under 91(5) T&C
o 91(5) cannot be relied on to enable dominion to regulate civil rights in the province
 POGG?
o Russell: NOT a General principle that mere fact that Dominion legislation is for advantage of Canada, or will
meet a mere want felt throughout Dominion = competent under POGG if cannot be brought under s 91.
o If subject matter belongs w/in any of enumerated heads of s 92, it belongs exclusively to Provincial
competency
 Except in extraordinary peril = highly exceptional
 Can only justify Russell by saying at that date – temperance was an emergency…
Ratio: Labour relations are civil + local matter; POGG available when extraordinary peril to national life of Canada as a
whole, highly exceptional
THE GREAT DEPRESSION AND THE ‘NEW DEAL CASES’ (167-187)
 During Depression: “dire economic crisis, resulting in social disorder and political upheaval”, CDN gov came up with
reforms.
 Reference re Aeronautics: airplanes are fed jurisdiction under POGG and s 132
 Reference re Radio: not mentioned in s 91/92 = POGG
R. Simeon and I. Robinson: State, Society and the Development of Canadian Federalism (1990)
 King sensitive to provincial objections and refuse to enact reforms w/o unanimous consent
 National employment commission created to coordinate admin of relief expenditures + create employment
opportunities
 Scholars want strong dominion gov that can respond adequately to depression
9
King “Our Constitution in the Melting Pot” 1934: Fed inaction minimizes fed/prov conflicts
Scott: Scott stressed culpability of PC, must allow fed gov to concern itself w/ wages. Fed unable to control economic
development
O’Connor Report:
 Effect of “notwithstanding” clause extends exclusivity given by opening words - enumerations of s 91 = simply
examples
 “Deeming clause” = exclude s 92. 16 (any local element of enumerated subject)
 Error
o Parsons: too close reading of words of s 91
o Russel okay
o Tennant v Union Bank: s 91 declares that notwithstanding anything in this act, leg authority of parliament
shall extent to all matters coming w/in enumerated classes; parliament is authority
o Prohibition reference: s 91 sole grant of power limited to emergency circumstances = paralyzes essential
law making ability, breaks down the confederation
William Lederman: favours balanced federalism: unity and diversity btw strong dominion and autonomous provinces
Kennedy: Our Constitution in the Melting Pot (1934)
 Unemployment, unemployment insurance, competition, hours of labour/rates of wage = provincial matter; but of
vital national importance
 Dominion ultra vires on employment but provinces faced w/ bankruptcy
 Sacrifice benefits as national united dominion to ensure provincial autonomy
 Fed ability to respond to circumstances like great depression = undermined
 Persistent forces of national tragedy – poverty, hunger unemployment – rob constitution of usefuleness.
 Choice btw losing “sovereign” provinces or boldly face problem that national wealth of possibilities could creatively
achieve
 PC makes us survive legally, but breaks us culturally and economically!
Macdonald: Judicial Interpretation of Canadian Constitution (1935)
 Const. ill-adapted to present social/economic needs + new status as independent
 Necessity of greater degree of national control and government intervention in matters of social welfare and
business activity
 We have new legislative capacity under Statute of Westminster 1931, the Act was not projected against this context
 Effective solutions of contemporary problems is impossible with:
o 1) Terms of act of 1867
o 2) Previous decisions
o Which together without jurisdiction where it is necessary, divide jurisdiction where unity is needed and
paralyze action because of doubt where jurisdiction lies
PC declare all Bennet’s New Deal Statutes Ultra Vires Except
1. Framers Creditors Arrangements Act
2. Amendments to the Criminal Code
3. Canada Standard Provisions of the Dominion Trade and Industry Commissions Act
AG Canada v AG Ontario (Labour Conventions) 1937 PC p 169[Interpretation of s 132 Treaty power must bow to watertight compartments set out is ss 91,92]
Facts: 1919 Canada sign Treaty of Peace to secure humane conditions for workers. 1930 International Labour Organization
of League of Nations adopts conventions of hours of work/minimum wages/days of rest. 1935 Dominion ratify conventions
and enact statutes. Provinces fear autonomy and oppose.
Issue: Is the Act under s 132? Is it under ss 91/92? Is it valid based on national dimensions?
Decision: Ultra Vires to all 3 questions
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Reason:
SCC Split: For: Canadian status = dominion power to enter treaty obligations under s 132 (even if terms come into s 92 as
per radio + aeronautics). POGG gave dominion power to implement them
SCC Opposed: Conventions adopted by Canada on own behalf, not under s. 132. POGG does not give dominion power to
implement; prov consent is necessary for validity of treaty under s 92
PC:
 In British Empire: making of treaty = exec act; but implementation of treaty even if ratified ≠ force of law. Province
must agree
 Valid under 91/92? SCC say exemplify Aeronautics + radio. PC says
o Aeronautics: imposed treaty btw BE and foreign countries = not applicable
o Radio: matters did not fall under s 91/92 = not applicable
 The distribution of power is based on classes of subjects, if treaty deals w/ that class = fall under that legislation.
Treaty must bow to water tight compartments of 91/92.
 Dominion cannot merely make promise w/ foreign country + have authority inconsistent w/ const.
 Atkins: Parliament has right to engage in treaty, NOT right to legislate it into s 92
AG Canada v AG Ontario (The Employment and Social Insurance Act) 1937
Facts: Act: Compulsory insurance – employees + employers deposit into fund drawn on by unemployed;
Issue: Does the Act fall under s 91?
Decision: Act is Ultra Vires
Reason: SCC 4-2: Act invalid
SCC For:
 Act deals with 92(13), insurance + regulation of contract/employment is a provincial matter; Not justified by POGG
bc no emergency
SCC Against:
 Act deals with 91.3 bc involves tax. No constitutional restriction against Dominion spending public money for
benefit of individuals
PC:
 91(3) deals with public debt + public property – the raising of money by system of taxation
 Obligation imposed upon employers/person employed is mode of taxation, money = public property. If collects by
means of taxation, legislation which disposes of fund must be under s 91. Invades civil rights (even though dealing
w/ dominion property).
 PC says this economic crisis doesn’t rise to level of national emergency addressed in Francis + Snyder, not =
war/famine. CDN const. law must respect division of powers ie. Water tight compartments. Must preserve 92(13)
AG BC v AG Canada (The Natural Products Marketing Act) 1937 PC
Facts: Act: establish regulation of natural products for benefit of producers esp. to establish effective marketing
arrangements and impose pooling to equalize prices in particular products (limited to products principally outside
provinces/exported)
Issue: Does it fall under T&C or 92(13)?
Decision: Falls under 92(13)
Reasons: SCC: unanimously declare invalid
 T&C does not comprise regulation of particular trade/occupations or particular commodities in local sense;
regulation at local levels w.in province; the transfer of property w/in province. Can regulate external trade,
interprovincial trade.
PC:
 Parliament cannot regulate intra-provincial trade. Even though there is interprovincial aspect, it reaches into
regulation of intra-provincial trade (trade w/in provinces; completion of transaction w/in province)
VALID PROVISIONS:
AG BC v AG Canada 1937
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Criminal code prohibit 1. Selling goods at prices that discriminate amoung competitors and 2. Selling goods at prices
designed to eliminate competition.
Result: SCC majority = valid; PC affirm
AG Ontario v AG Canada 1937
Dominion Trade and Industry Commissions Act:
1. To authorize admin approval for agreements amoung businesses to restrict undue competition
2. To establish national trademark of Canada standard
SCC invalid both: #1: civil rights issue (Natural Products Market); #2: standard = civil right of novel character, parliament
does not possess competence to create new civil right
PC: #1 invalid; #2 Valid: under power to create uniform law of trademarks, Dom ok extend novel fields
AG BC v AG Canada 1937
Farmers Creditors Arrangement Act: est. admin boards to impose compromises/ extensions of farmers obligation to their
debtors
SCC + PC: upheld under s 91(21) dominion power to legislate on bankruptcy and insolvency
PITH AND SUBSTANCE

Analysis of what is in the statute itself and what is relevant outside; looking at intrinsic evidence, wording of the
statute itself, statement of objectives and purposes, as well as extrinsic evidence ie. Legislative debates
K. Swinton The Supreme Court and Canadian Federalism: The Laskin-Dickson Years
 Section 91 + 92
o POGG (opening words): used in limited circumstances by court
o Classes are independent source of fed power, opening words give residuary power to deal with matters no
in 91 or 92
 Competing classifications (Three Steps)
o 1. Identify Matter of Statute
 Statutory context
 Purpose of legislation, as illustrated by legal history, gov reports identify problem that trigger leg
 Focus on purpose
o 2. Delineation of scope of competing classes
 Opportunity for overlap
 Double Aspect Doctrine: some laws have prov and fed purpose
 Precedent and history
 Federalism concerns, beliefs, optimal balance
o 3. Determination of class into which challenged statute falls
WR Lederman: Classification of Laws and the BNA 1981
 Must consider policy, in addition to law and logic because some levels of gov are naturally better placed to regulate
an issue
 Enumerated subject of matters = classes of law, not classes of facts ie. “sea coast and inland fisheries = regulations
of seacoast and inland fisheries”
 Must take specific law (actual or purposed) and classify it
 Must look at effects of observance
 Colourable: seems in one class, but effects actually fall in another
 A rule of law for purposes of distribution of leg powers is to be classified by the feature of its meaning which is the
most important
 Ask: who is better suited to prescribe in this way for the malady
 Principles of stare decisis important but cannot be overestimatedely predictable
Supreme Court Approach to Validity
1. Identify matter of law: dominant feature, legislative scheme, precedent, federalism
2. Assign it to specific head of power under s 91 + 92
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R v Morgentaler 1993 p 207-224
Facts: Federal criminal code (s 251) against abortion was struck down on charter grounds = violate women’s charter
guarantee of security of person (Morgentaler 1988). Abortionw as no longer regulated by cim law. No longer an offence to
obtain/perform an abortion in a clinic such as those run by Morgentaler. Nova Scotia legislation passed: Medical Services
Act. Purpose: to prohibit privatization of provision of certain medical services (including abortion). Background: NS didn’t
like that Morgentaler was opening a private clinic. Said they wanted to maintain quality (but effect: makes it illegal to
perform abortion outside of a hospital). Morgentaler open clinic, charged with act. He argued that Act was unlawful
encroachment on Dominion’s crim law power.
Issue: Whether the Nova Scotia Medical Services Act is Ultra Vires on that ground that they are in P&S crim law?
Decision: They are criminal in P&S and consequence ultra vires to province of NS
Reason: Majority (Sopinka J)
A relies on ss92(7)(13)(16) which give province authority over hospital/related local matters
Classification of Laws: First identify matter, then assign it to a “class of subjects”
1) What is “Matter”
 “Leading feature or true character” often described as pith and substance
 The legislations dominant purpose/aim is the key to constitutional validity
2) Purpose and Effect
A) “Legal Effect” or Strict Legal Operation
 How the legislation as a whole affects the rights and liabilities of those subject to its terms = indicates purpose
B) The use of extrinsic materials (The actual/predicted practical effect)
 Look beyond legal effect to inquire into social or economic purposes which statute was enacted to achieve
 Related legislation
 Evidence of the “mischief” legislation is directed to remedy
 Legislative history (Events that occurred during drafting)
 Legislative debates and speeches = indicate background and purpose
The central feature of the proposed law was the prohibition of Dr. Morgentaler’s proposed clinic on basis of a
common and almost unanimous opposition to abortion clinics
3) The scope of Applicable Heads of Power
A) The Criminal Law: Any law that has its dominant characteristic the prohibition of an activity, subject to penal
sanctions, for a public purpose such as peace, order, security, health or morality
B) Provincial Health Jurisdiction: does confer on NS power over health care in province generally ie. cost/efficiency,
nature of health care delivery, and privatization of medical services
C) The Regulation of Abortion: subject for criminal law (since mid 19th century) bc interference w/ pregnancy is criminal
Application of Principles to Case at Bar
 The central purpose and dominant characteristic is the restriction of abortion as socially undesirable practice which
should be suppressed or punished
 Legal Effect: The legislation expressly prohibits performance of abortion in certain circumstances w/ penal
consequences, which is traditionally crim law. The present legislation prohibiting traditionally criminal conduct is a
question of validity on its face
 Extrinsic Evidence
o Duplication of Criminal Code Provisions: Provincial legislation has been held invalid when it contains
language that is “virtually indistinguishable” from that found in Code. But this does not necessarily
determine validity, raises an inference, the more duplication = the stronger inference that dominant
purpose is criminal = strong inference
o Background: events leading up support assertion that legislation does not relation to provincial jurisdiction
over health. Strengthen inference that impugned act designed to serve crim law purpose
o Court of Events: Catalyst for gov action was rumoured proposal of Morgentaler’s clinic and this was the
mischief it wanted to correct
o Hansard: Demonstrates that prohibition of clinic = central concern of members who spoke, common
opposition of free-standing clinic, clinic viewed as public evil. NS submits it was concerned about
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privatization, costs and quality of health, and policy against tier system of health access, but this was absent
through hansard
o SO: purpose/true nature relate to matter of crim law
 Searching for Provincial Objectives:
o Privatization concerns were incidental to paramount purpose
o Concern for health and safety of women = no record to indicate that abortions pose danger
o Privatization concerns were not brought up until second reading of act
o No evidence regarding cost-effectiveness or quality of medical services delivered at private clinic
o NS propose against surgeries outside hospital, but why didn’t act prohibit surgeries generally then?
o If provinces policy were to prohibit performance of any surgical procedures outside hospitals, it would have
said so (based on reasoning in Westendorp)
o The fines were not measure for enforcement, but penalties to punish abortion clinics as inherently wrong
Pith and Substance Test:
o 1. Intrinsically (Sound) + Extrinsically
 Extrinsic Evidence: Hansard (debates); timing of when act was brought up; looks like attempt to replace s
251 of CC; focus not preservation of single-tier system
o 2. Effects:
 Legal effects: Opposes heavy fines on people who open up abortion clinics
 Practical: reduces access to abortion procedures in the province
o Conclusion: in P&S: law dominant purpose is criminal, to prohibit certain activity on grounds of public morality
DOUBLE ASPECT / ANCILLARY DOCTRINE
WR Lederman “Classification of Laws and the BNA Act”
 Overlapping of fed and prov is inevitable. Court limits generality through mutual modification. But if overlap still exists:
 Double-Aspect Theory: When federal and provincial features of challenged rule are of equivalent importance,
challenged rule can be enacted by both the Fed and the Prov under separate aspects
o Requires different conduct. If they are merely cumulative and non-conflicting, then both rules may operate.
If they conflict, fed prevails (Doctrine of Paramountcy)
Multiple Access Ltd. v. McCutcheon 1982 p 237 (Double aspect over regulation of insider trading in securities of fed.
Incorporated companies)
Facts:
 Prov: Ontarios Security Act: prohibit insider trading in shares on TSX
 Fed: Canada Corporations Act: identical provisions, applicable to corporations incorprorated under fed law
 Shareholder initiates action under prov. Act. R argues that prov. Act is not valid to regulate trading of federally
incorporated companies. Even if prov act does apply, Doctrine of paramountcy renders prov act inoperative on the
provisions which deal with this issue. The alleged insider traders wanted it to be under fed. Act because the
limitation period for initiating action under fed. Statute had already passed.
Issue: Whether fed act and prov act are both applicable? Does one need to be struck down?
Decision: Both statutes are valid and applicable
Reasons: Majority: Dickson J
Analysis
1. Are the provisions of the Canadian Corporates Act ultra vires the Parliament of Canada in whole or in part?
 Resist regarding them as redundant to Ont. Legislation. Must be analyzed on its own. Also, many provinces do not
yet have insider trading legislation, so striking down fed = potential gap in present regulatory schemes
 Does the matter in P&S fall w/in classes allocated to parliament?
o Yes deals with company law of federal companies, subject matter that is not w/in exclusive jurisdiction of
provinces
o Legislating federal companies = dominion. (John Deere Plow co v Wharton 1915) under POGG
o Extends to maintenance of the company, which is directly affected by insider trading
o A statute may fall under several heads.
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o
Securities legislation clearly has double character. The insider trading provisions have both securities law
and companies law aspect and would adopt double aspect doctrine to validate both sets of leg. Provisions
o Doctrine applicable when the contract btw the relative importance of the two features is not so sharp –
when the fed and prov characteristics of legislation are roughly equal in importance, little reason to kill
one/let only one live
2. Whether Ontario provisions are inapplicable to insider trading of securities of federally incorporated companies as per
interjurisdictional immunity and/or are inoperative by overlapping provisions as per federal paramountcy? Neither doctrine
applies.
Double Aspect Doctrine: Both apply to their own spheres.
 Prov: 92.13: buying and selling shares on stock exchange in Toronto is subject to prov. Legislation. Protects people
who buy/sell shares in open market
 Fed: T&C: regulate corporation w/ national business objective. Protects shareholders of federally incorporated
companies
 Prov and Fed “insider trading” legislation is equal, no need to kill one
Dissent: Estey: Fed provisions were invalid because legislation over regulation of securities transactions falls w/in provincial
jurisdiction over property and civil rights
NECESSARILY INCIDENTAL
General Motors v. City National Leasing [Sets out necessarily incidental doctrine]
Facts: CNL brings action against GM alleging loss as result of discriminatory pricing policy that constituted anti-competitive
behavior under Combines Investigation Act. GM argue act is ultra vires parliament cannot create a civil cause of action
because that falls within provincial jurisdiction in relation to 92(13) “property and civil rights”.
Issue: Is the Combines Investigation Act provision valid in provincial jurisdiction?
Decision: Act is valid exercise of fed: General T&C and is functionally related, even necessarily incidental
Reasons:
Necessarily Incidental Doctrine
1. Whether impugned provision is intruding into provincial powers?
What is the degree of the intrusion?
What is the seriousness of the encroachment on provincial powers?
o It does encroach.
o Less intrusive bc. it is remedial provision, not substantive in act
o It is well est. that fed can create rights of civil action
2. Is the Act Valid? Yes under general T&C
3. Is provision constitutionally justified by reason of its connection w/ valid leg? (“fit test)
 How well is it integrated into the scheme?
 How important is it for the efficacy of the legislation?
Note: It’s a balance: if impugned provision only encroaches marginally on prov powers, then a “functional”
relationship may be sufficient to justify provision. If highly intrusive, then stricter fit test needed.
o Necessary link btw. Provision and act = functionally related
o Remedy is bounded by parameters of the act
o Integrated into the purpose and underlying philosophy of the act
o Does not create open-ended private right of action
Note: In a federal state, overlap is to be accommodated and expected. Allow for judicial restraint in proposing strict tests
which result in striking down leg. Both provincial and federal governments have equal ability to legislate in ways that may
incidentally affect other government’s sphere of power.
Quebec v. Lacombe 2010 SCC (Supplementary) (Not ancillary = invalid)
Facts: Citizens upset by float plane activity in Gobeil Lake. Lacombe possesses federal licence for airplane activity.
Municipality obtains injunction requiring Lacombe to cease operations on ground that activity violates zoning for lake.
Lacombe argues that zoning bylaw (No 260) is ultra vires or inapplicable under Paramountcy.
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Issue: Whether the provision under bylaw, which in P&S lie outside prov. Power, is valid bc. they are ancillary to valid prov.
Provisions?
Decision: Ultra Vires + not sufficiently integrated w/ valid scheme to be saved under ancillary doctrine
Reason:
1. P&S: Provision prohibits construction of aerodomes in lake zone, while permitting their construction in other zones.
P&S is regulation of aeronautics.
2. Assign Matter to Head of Power: aeronautics fall to Fed.
3. Is it ancillary?
a. Saved if important part of broader legislative scheme.
i. General Purpose of zoning is to rationalize land use for benefit of citizens.
ii. Purpose of provision is to protect use of globeil lake for vacationers – but does not affect whole
municipality – only certain laws
iii. So ban is not functionally connected to by law.
b. Conclusion: Amendments on face + Impact are directed at removing aviation activities form part of
municipality
INTERJURISDICTIONAL IMMUNITY
 Emphasizes exclusivity of jurisdiction. Provincial laws – to the extent that they affect the core of the federal
undertaking – do not apply
 Protects certain matters that fall w/in core areas of fed jurisdiction from impact or interference of otherwise valid
provincial laws – and there is no double aspect to the matter regulated
 IM eliminates overlap. The prov law has no force or effect applicable to federal undertakings
 The court reads down provincial/federal statutes to protect the core of the other power form encroachment
 Reading down = words of statute interpreted to apply only to matters w/in enacting body’s jursdiction
Canadian Western Bank v The Queen in Right of Alberta 2007, SCC p 264 [IM = must impair core]
Facts: Provincial law attempts to regulate whether or not someone could sell insurance.
Issue: Is selling insurance a core/essential element of banking? If so, then IM applies and the undertaking is
unconstitutional
Decision: Does not pass IM test, goes on to apply paramountcy test.
Reasoning:
What is IM? AND why we don’t like it:
 This power is exclusive because the constitution expressly specifies this, and this exclusivity pre-empts that of the
legislatures and their general and specific application in so far as such laws affect a vital part of their undertaking.
 If the authority is truly exclusive, it cannot be invaded by provincial legislation even if the fed power remains
unexercised. This gives rise to the water-tight compartments metaphor. Seeks to avoid concurrency powers.
 In practice, seems to be invoked in favour of federal immunity at expense of provincial legislation
 The sweeping immunity argued for by the banks is not acceptable. It exposes dangers of allowing IM to exceed proper
limit and frusture application of P&S analysis and double aspect doctrine
o Broad application creates practical problem and is inconsistent with what P&S, double aspect are designed
to promote
o Requires arbitrarily defining “core” and its scope. Not compatible with incremental approach of Canadian
constitutional interpretation
 Effect: law cannot have incidental effects, despite absences at other levels
 Legal Vaccuum: IM does not allow jurisdiction to step in in situations where fed hasn’t occupied the field IM doesn’t
allow prov to apply (then there’d be no law!)
 Creates centralizing tendency
 The court does not favour intensive reliance on this doctrine, nor is it acceptable as first recourse in division of powers
dispute
 CDN prefer to rely on P&S, double aspect and paramountcy
Restricted Application of IM
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



In Bell: In order for legislation to be inapplicable, it is sufficient that the statute which purports to apply to the federal
undertaking AFFECTs a vital or essential part of that undertaking, without necessarily going as far as IMPAIRING of
paralyzing it.
o We say affect is not strong enough because does not imply adverse impact.
o When the legislation of one government impairs (Adversely impacts) the core competence (vital or
essential) of the other level of government, that core is placed in jeopardy
o In the absence of impairment, IM does not apply
o Qualifiers: applied with restraint, after P&S and double aspect have been applied. Core is based on
existing case law that shows past application has been considered absolutely indispensible or necessary
to enable that jurisdiction to achieve the purpose for which exclusive legislative jurisdiction was
conferred
What is the core?
o The basic, minimum and unassailable content” (minimum = necessary to make the power effective for
the purpose for which it was conferred)
Claimants must locate the promotion of “peace of mind” insurance at the core of banking.
o The promotion of peace of mind insurance can hardly be said to be vital or essential to “banking”
Claimant must demonstrate that legislation IMPAIRS core competence of undertaking – based on existing case law in
past application has been considered absolutely indispensible or necessary to enable that jurisdiction to achieve the
purpose for which exclusive legislative jurisdiction was conferred (can’t add new competence)
Quebec v Canadian Owners and Pilots Association, 2010 SCC (Supplementary pp 8-16)
Facts: Laferrier and Gervais build landing strip on lot
 under federal Aeronautics Act = no approval req’d)
 Under provincial Preservation of Agricultural and Agricultural Activities Act = violates use of agricultural land for
non-agricultural function.
Issue: Does s 26 of Agi Act unacceptably interfere with federal competency?
Decision:
Reason:
 Agrees with QBCA that provincial legislation limiting non-agricultural land uses in designated agi regions is valid.
However, this law impairs core of fed jurisdiction over aeronautics = inapplicable to the extent that it prohibits
aerodromes in agricultural zones.
 IM is applicable: s 26 impairs fed power to decide where aerodomes are built. The location of aerodomes lies at
core of fed competency and would impair fed power over aviation.
Ratio:
Analysis:
1. What is the P&S of Agi Act? To violate use of agi land for non-agi function under s 92.13. Effect of legislation is
aligned with declared purpose = valid provincial provision
2. Could not be Double Aspect or Ancillary Powers bc frustrates the CORE of fed jurisdiction
a. Ie. the location of where you construct airports. Fed undertaking to decided this.
3. If courts want to limit scope of IM, why did SCC invoke it to strike down Act?
a. So much precedent that aeronautics is fed power, it clearly falls under fed. jurisdiction
THE PARAMOUNTCY DOCTRINE (272-73, 277-286, 289-292)
Definition:
 Mechanism for dealing with overlap of and conflict between national and regional laws
 Paramountcy fills gap – judicially created. In cases of conflict between fed and prov laws, the fed law is paramount
and the prov law is inoperative to the extent of conflict
o Note: whole prov law is not inoperative, simply suspended in conflict
 Is there conflict?
o Express conflict test: focus on individuals/corps or judges who must tailor behavior as the legislative
dictates (narrow reading) (mostly used now)
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o
Covering the field test: Valid prov. Law is inoperative whenever it has an impact on a matter already
regulated by fed law (broader reading) (mostly used in past)
 No paramountcy rule incorporated in Const on 91 and 92; except for
1. S 95: recognizes agriculture/immigration as areas of concurrent jurisdiction. Provides that provincial laws have
effect only to the extent they are not repugnant to parliament.
2. S 92A: gives prov concurrent power enact laws in relation to export of natural resources to other provinces,
subject to paramountcy of fed. Leg if conflict exists.
3. S 94A: concurrency in old-age pensions and supplementary benefits. On this matter = Provincial paramountcy:
no fed law shall effect present prov. Law in present or future
Paramountcy Test:
1) Both laws valid?
a. In pith and substance is it valid?
b. Does the double aspect doctrine apply?
2) Is there conflict?
a. Is it impossible to comply with both?
b. Does Provincial frustrate federal purpose?
Ratios:
 McCutcheon: if there are two laws that conflict, then the federal paramountcy principle applies
 Hall: If the purpose of the law frustrates intent, then to the extent of the frustration occurs then it is of no force or
effect
 Rothmans: If the purpose of the law furthers the intent (although it is more onerous) and it is possible to comply w/
both, then both can exist
Multiple Access Ltd v McCutcheon 1982 p 277 (rejection of covering the field test)
Facts: A bring action against R under Ontario act prohibit insider trading. R says because federally incorporated company,
must use Canada Corporations Act (advantageous to R because limitation period for action had lapsed). R say doctrine of
paramountcy, rendering Ont act inoperative in alleged insider trading conflict. Conclusion that ss 100.4 and 100.5 of Canada
co. act is intra vires to Canada and ss.113 and 114 of ont. Act. are intra vires to ontraio leads to question..
Issue: Are the sections of Ont act suspended and rendered inoperative in respect of corporations incorporated under laws
of Canada?
Decision: Paramountcy does not apply because double aspect applies, Ontario act not suspended
Reasons:
Trial judge: Henry J (modern, narrow): they can operate concurrently
 Only punishment differs
 Compliance w/ one law does not involve breach of the other
Appellate Court: Morden J (older, prevalent):
 Provincial duplicative legislation is suspended and inoperative
Supreme court: Dickson J (disagrees with Morden J) (applauds Henry J in express conflict test)
 Prov leg merely duplicates fed; not contradicts it = harmonious duplication
 Mere duplication w.o conflict is not sufficient to invoke paramountcy
Ratio: Duplication without conflict does not invoke paramountcy; where it is impossible to comply with both, then doctrine
of paramountcy applies
Bank of Montreal v Hall 1990 p 282 SCC (Approve of Covering the field)
Facts:
 Hall, a farmer in Saskatchewan, borrowed money from the Bank of Montreal to buy machinery, with the machinery
as collateral/security
 He failed to pay the loan, so the bank seized the machinery according to the federal Bank Act that does not require
giving advance notice
 The Provincial Limitation of Civil Rights Act s 27 required the Bank to give notice before seizing collateral property.
Otherwise, the bank forfeits its right to make the claim.
18
 Bank challenges constitutionality under paramountcy claim
Issue: Is the Provincial Limitations acts of no force or effect to the extent of the conflict with Fed Bank Act?
Decision:
Reason: La Forest J:
McCutcheon test for conflict: It there an actual conflict in operation?
1. Examine Provincial Legislation: a judge must determine when, and if a security/article is to be seized
2. Examine Fed Legislation: Assigned the bank an immediate right to seize and sell those goods, subject only to the
conditions required by the Bank act.
There is actual conflict before them. Compliance with fed entails defiance of provincial counterpart. Cannot require bank to
defer to provincial legislation = displace intent of parliament.
Dual compliance is impossible when application of provincial statute frustrates parliaments leg. Purpose. (which is to have a
uniform banking system across Canada)
The two statues differ to such a degree in the approach taken to the problem of realization that the provincial cannot
substitute for the federal.
Parliament has made a complete code and there is no room left for provincial. That legislation should be construed as
inapplicable to the extent that it trenches on valid federal banking legislation.
Ratio: If compliance with provincial statute frustrates Parliament’s legislative purpose, then dual compliance is impossible.
Rothmans, Benson & Hedges Inc v Saskatchewan 2005 p 289 (Approve of Covering the field)
Facts: Fed tobacco act prohibit promotion of tobacco products. Sask adopt Tobacco Act which bans all advertising
Issue: Is the Sask act void under paramountcy?
Decision: Furthers
Reason:
1. Is it constitutionally valid? Yes
2. Do they conflict?
a. Dual compliance is possible.
b. Provincial legislation does not frustrate parliaments legislative purpose (to regulate tobacco sales to minors)
it furthers the purpose
c. They were enacted with same health-related purpose and there is no inconsistency btw the two
d. [class notes: there is a conflict of logic, because in Hall legislative purpose was generally uniformity, here
the legislative purpose is defined narrowly]
Rothmans: If the purpose of the law furthers the intent (although it is more onerous) and it is possible to comply w/ both,
then both can exist
PEACE, ORDER AND GOOD GOVERNMENT (p 323-335)
 The National Concern Doctrine (NCD): if it goes beyond local or provincial concern/interests and must from its
inherent nature be the concern of the Dominion as a whole, then it will fall within the competence of the Dominion
under POGG
o Russell: Used to uphold fed. Gov’s 1927 re-enactment of the Canada Temperance Act.
o Viscount Simon reaffirmed validity of Russell
o Rejected suggestion that russell based on finding that intemperance constituted a national emergency in
1878. “it is the nature of legislation, not the existence of emergency, that must determine validity”
o Uncertainty about scope of POGG and reach of NCD. In Reference re Anti-Inflation Act SCC asked to
determine constitutionality of federal wage and price controls that applied traditionally w/in province
jurisdiction. Act drafted in manner that allowed fed gov to argue validity under either national dimensions
doctrine or emergency doctrine. If it succeeded under former = increase to fed’s power to deal with
economic regulation
 Three Branches of POGG Power
o Gap Branch: If it is not covered under prov. Powers, then fed can step in
 Radio Reference: Radio not mentioned explicitly in either s. 91 or s. 92, so falls in general opening
words of s. 91
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
Jones: regulation of official language is beyond provincial reach of s. 92, therefore falls w/in residual
character of s. 91
o Emergency Branch: If you can characterize phenomenon as constituting national emergency then feds can
step in
o National Concern: If it is an issue w/ national dimensions, then fed can step in
 AG Ontario v Canada Temperence: affirming Russell. National dimension to problem of drinking
 Johannesson v Rurual municipality of West St. Paul: aeronautics as a concern of the dominion as a
whole
 Munro v. national capital commission: national capital region as a single matter of national concern
Key Points of POGG
Emergency Branch
 Temporary in scope
 Flexible in nature: authority extends as far as is necessary given the emergency
 Applicable in war times
 Potentially available in social or economic emergencies – Re Anti-Inflation Reference
Gap Branch (new matters) and National Concern (matter that have since become national concern)
 Usually a permanent addition to s. 91
 Subject must possess
o Nationwide importance
o Singleness, distinctiveness and indivisibility – as determined by the provincial inability test
Reference re Anti-Inflation Act 1976 p 303
Purpose of Act: establish system of price, profit and income controls. Applied to private sector firms >500 employees,
members of designated professionals, construction firms with >20 employees. Act was binding on fed public sector, but
applicable to public sector of each province only if agreement made btw fed gov and prov.
Issue: Is the act ultra vires? Can it be saved under emergency doctrine? Is the emergency essential to Act’s validity?
Decision: Under liberal interpretation of emergency branch: It is valid legislation under pogg and does not, invade prov. Leg.
jurisdiction
1. 7 judges = supportable under pogg as emergency legislation vs. 2 oppose.
2. 5 judges yes (rejecting national dimensions argument) vs. 4 judges left open whether it was supportable under national
dimensions test
Reasons (Laskin CJC):
1. No issue with meaning of terms of legislation or object of legislation
Issue: whether social and economic circumstances provide support for act in power of dominion to legislate for
pogg
Related fed powers: regulation of trade and commerce, currency and coinage, banking, issue of paper money,
taxation
AG urge: economic crisis = emergency sufficient to warrant fed. Intervention
1. Did act contradict content because it excluded provincial public sector from scope, notwithstanding that it is
framed as temporary measure?
Purpose: bringing businesses w/in the act which are of strategic importance to the containment and reduction
of inflation in Canada
Reasonable policy to allow provinces to contract into programme under own admin if that was their preference.
Co-operative federalism allowed ie. Board of Commerce
2. Is federal contention assisted by preamble?
Preamble: inflation = serious, necessary to restrain profit margins etc.
Preamble is sufficiently indicative that Parliament was introducing a far-reaching programme prompted by view
of serious national condition
Preamble is a base, but not enough to decide validity on
3. Does extrinsic evidence back it up?
The social and economic policy and hence governmental and legislative judgment.
20
Not court to decide if there was national emergency, but to decide if there was rational basis that supports
parliaments assertion that there was a national emergency
Court did have rational basis for regarding anti-inflation act as measure to temporarily necessary to meet
situation of economic crisis imperiling wellbeing of Canada and requiring parliament’s intervention
4. Is it a tenable argument that exceptional character could be lent to the legislation beyond that of local or
provincial concerns bc Parliament could reasonably take view that it was necessary measure to fortify action in
other areas of federal authority, such as monetary policy?
The fact that inflation has been rising, inflation is a monetary phenomenon and that monetary policy is w.in fed
jurisdiction, allows parliament of Canada, in these circumstance’s, to act over monetary policy
Dissenting (Beetz J): (in favour of provincial gov)
- If we interpret pogg broadly, and characterize certain social phenomenon as unprecedented, it will upset provincial
jurisdiction and constitutional order.
The Anti-Inflation Act is ultra vires the Parliament of Canada. It directly interferes with matters within the exclusive
jurisdiction of the Provinces (property and civil rights). This interference is not incidental or ancillary; it is interference on a
large scale.
Is inflation an issue of national concern?
- If parliament had power to control inflation, it is difficult to see what would be beyond the reach of Parliament. Inflation is
an aggregate of many subject matters, some falling within provincial jurisdiction. It is so pervasive that its primary effects of
the Act are related to property and civil rights.
- If we consider that Inflation should be parliament power, then everything else should be as well because inflation touches
many fields (salaries, budgets, wages, rent controls, etc). Inflation is too general a concept and it would obliterate provincial
powers, property and civil rights.
Is the current legislation an emergency measure?
- The Act does not clearly use the language of express emergency. Provinces should not have choice to opt in or out. He
warns that emergency should be kept separate so that courts cannot re-appropriate the decision to validate federal laws of
“national concern” in the future.
R v Crown Zellerbach Canada Ltd. 1988 p 323
Facts: Ocean Dumping Control Act c 55: prohibits dumping of any substance at sea except in accordance w/ terms of a
permit. Sea = internal waters of Canada – other than fresh waters
R carries out logging operations on Vancouver Island and maintains log dump on water lot leased from crown for purpose of
log booming and storage. On Aug 16 1980, R dump wood waste into deeper waters to allow for new log dumping structure.
No effect shown on marine life. R’s company charged in violation of s. 4(1). Trial judge found s 4 ultra vires.
Issues: Is the act ultra vires in regulating of dumping of waste in waters within a province?
Decision: Not ultra vires. problem involves fed competence and is saved by national dimensions doctrine.
Reason: Majority: (Le Dain):
 Purpose: regulate dumping of substances at sea in order to prevent various kinds of harm to marine environment. (Act
appear to fulfill international treaty obligations)
 R says there is no fed. Jurisdiction to control dumping in provincial waters of substances not shown to have pollutant
effect
 AG say act is single matter of national concern, or pogg dimension: prevention of ocean and marine pollution. R says to
prohibit dumping of ANY substance = no in accordance with purpose
 J: purpose: directed to control regulation of marine pollution. Necessary to prevent ANY dumping substance w.o
permit so that authority can determine before dumping occurs, whether it has an adverse effect on the marine
environment.
 J: s. 91: seacoast and inland fisheries is not sufficient by itself to support constitutional validity of Act. No justification
found in S. 91.
 National concern doctrine:
o Separate and distinct form national emergency doctrine – which is temporary
o Applies to both new matters, and matters which existed at confederation of a local or private nature, but in
absence of national emergency, become matters of national concern
21
o
Must have singleness, distinctiveness and indivisibility that clearly distinguishes it from matters of provincial
concern and a scale of impact on provincial jurisdiction that is reconcilable w/ the fundamental distribution
of leg power
o Relevant to consider what would be the effect on extra-provincial interests of a provincial failure to deal
effectively w/ control or regulation of the intra-provincial aspects of the matter (provincial inability test).
Necessary to fill the gap of provincial powers
 National concern doctrine applies because:
1) Interprovincial regulation: fed. Jurisdiction to leg. For pollution of provincial waters applies because it
reduces the risk that citizens of one province would be harmed by non-cooperation of another province.
2) Scientifically difficult to draw clear line btw prov. And fed. Waters
3) Indivisible: This problem involves federal competence. The matter is indivisible due to movement of
pollution through water.
Dissenting: (La Forest): Only a local matter, not an emergency requiring grave proportions that displace ordinary divisions of
power. Prohibition not linked to purpose: because prohibits ANY dumping.
 Must respect the scheme of federalism
 Result: environmental issues will have fed. aspect
 Ocean pollution is insufficiently distinct. Argument that water moves = wrong because water seeps everywhere!
Can apply to federal waters, but to apply to provincial waters = ultra vires.
 Provision prevents province from dealing with property w/o fed. Consent. (due to dumping of ANY substance)
PROVINCIAL POWERS OVER ECONOMIC REGULATION p 356
A. General Principles
 What is the extent to which provinces allowed to impose barriers to the free flow of goods, capital, services and
labour to impair functioning of Canadian economic union?
 In each case below: province had est. scheme to regulate marketing of product that then moved into
interprovincial/international trade.
 Concern for preservation of Canadian economic union and elimination of unacceptable barriers to trade seems to
underlie court’s reasoning
 S. 91 (2) “trade and commerce” power refers to: (as defined by Parsons)
o 1. Regulation of inter-provincial trade;
o 2. International trade; and
o 3. “General regulation of trade affecting the whole dominion”
Carnation co Ltd v Quebec Agricultural Marketing Board 1968 p 356
Facts:
 Board created by Agricultural Marketing Act, empowered to approve joint marketing plans. Act provided that ten or
more producers of agri products in any territory in Quebec could apply to Board for 75% approval of joint plan for
marketing of 1+ products in territory.
o Board made of Quebec dairy farmers
o Responsible for negotiating contracts w/ corporate client’s like Carnation Milk
o Now Carnation must buy it from a board (reduces their bargaining power)
o Purpose: to guarantee producers a good price
 Price imposed in quebec has effect on distribution of product in other markets. Product is shipped out of province =
Fed power: Inter-provincial trade
Issue: Whether in making orders, Board infringed on exclusive leg. Powers of parliament under s. 91 (2) of the BNA act to
regulate trade and commerce?
Decision: No. Upholds validity of decisions of Quebec board = appeal dismissed
Reason:
 In pith and substance, this legislation’s purpose is not the regulation of inter-provincial trade. It might affect it, but
the dominant purpose is a 92.16 local transaction of 92.13 property and civil rights) w/in the province of quebec.
 Orders not directed at interprovincial trade, to control/restrict such trade.
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
A trade completed in a province does not necessarily subject it to provincial control. BUT: When such a transaction
incidentally has effect upon company engaged interprovincial trade it is not prevented from being subject to
provincial control. The fact that they had “some effect” does not make them invalid.
 Case Law: Shannon v Lower Mainland Dairy products: Natural Products Marketing Act okay bc regulating
transactions that take place wholly w/in province, within s.92 13
Ratio: Upheld scheme because while it would have some effect on price ultimately charged, the pith and substance targets
transaction w/in the province
AG Manitoba v Manitoba Egg and Poultry Association
Facts:
 Ontario has a surplus of cheap eggs and Quebec has a surplus of cheap chicken. They make a board (made up of
Ontario producers) that sets a price floor for sale of chickens in Ontario (so that Ontario producers of chickens do
not suffer great losses by competing w/ quebec).
 Mirror image in quebec. Ontario farmer must sell eggs through quebec board, restricted by floor price.
 Result: Manitoba is losing access to two markets in eastern Canada. Manitoba starts its own scheme – wanted to
get a precedent from Canada saying that its scheme was unconstitutional. Then Canada must strike down 2 other
schemes.
Issue: Can you draw a distinction btw Carnation case and this egg marketing scheme? In pith and substance is the egg
marketing scheme is different than the milk marketing scheme in Carnation?
Decision: Manitoba’s scheme is unconstitutional (so succeed in getting decision from SCC)
Reason: Is this scheme meant to regulate production w/in Manitoba or to regulate trade?
Flow of trade:
 It is aimed to restrict or limit the free flow of trade btw provinces. The scheme goes beyond provincial authority
because it concerns goods coming from outside province.
 Unlike Carnation case, which regulates production
Production: The purpose is not the regulation of production
Ratio: Unlike carnation the dominant purpose of the scheme is to regulate or control the flow of agricultural goods from
outside coming into the province. Trend: Production of good = local matter, but Marketing/Sale of good = raise concerns of
interprovincial trade
Re Agricultural Products Marketing
The marketing of agricultural products have both local and interprovincial aspects. Must negotiate framework together with
prov and fed to make constitutional scheme
 production and marketing quotas
o Production regulation = provincial
o Marketing = federal matter if market beyond province
 Affect v control
o Qualitative distinction between legislation that “affects” inter-provincial trade vs. legislation to “control”
inter-provincial trade
 As a result: Encourage co-operative federalism
o These court decisions push fed and prov To work together
Ratio: Both levels fed/provinces developed integrated scheme that deals with production quotas and marketing of agi
goods w/in Canada. Courts want to foster this type of cooperative arrangement. Best balance of power? One that is
negotiated by both parties
B. NATURAL RESOURCES
Who has jurisdiction over natural resources?
s. 92 (5): the provincial jurisdiction deals with timber
s. 109: All Lands, Mines, Minerals, and Royalties belonging to the several Provinces of Canada, Nova Scotia, and New
Brunswick at the Union, and all Sums then due or payable for such Lands, Mines, Minerals, or Royalties, shall belong to the
several Provinces of Ontario, Quebec, Nova Scotia, and New Brunswick in which the same are situate or arise, subject to any
Trusts existing in respect thereof, and to any Interest other than that of the Province in the same.
23

Lists provinces because before amendment, at signing certain provinces agreed to fed controlling natural resources.
After amendment = even playing field.
R. Simeon and I Robinson State, Society and the Development of Canadian Federalism
Ottowa’s preference for below-world prices interpreted as victory for non-producing regions, not only in consequence but
also intent.
Canadian Industrial Gas and Oil Ltd v Government of Saskatchewan 1978 p 370
Facts: Saskatchewan has control over natural resources and, so granted profits of “National Resources Transfer
Agreements” (which made huge increase in price of oil) to the province. This meant that oil producers did not reap these
profits, the rest of profits go to sask. Gov.
A say: 1. Acts = constitute indirect taxation = beyond power of province and 2. Legislation relates to interprovincial trade
and commerce, which is fed parliament power .
Issue: Whether certain statutes under Saskatchewan are constitutionally valid?
Decision: Invalid
Reason:
 Effect of legislation is to set floor price for Sask oil purchased for export by appropriation of its potential
incremental value in interprovincial/international markets, or to ensure that incremental value is not appropriated
by persons outside province.
 Actual Purpose: drain off substantial benefits that would have accrued to the producers due to sudden and
unprecedented price of crude oil.
 Distinguished from Carnation. Here leg directly aimed at production of oil destined for export = ultra vires: 98% of
all oil is destined out of province. Whereas in Carnation milk was sold in province.
 In pith and substance, it is aimed to control product (oil) out of the province.
Dissent: It is not colorable. (Not different than carnation)
1. Language of impugned statutes does not disclose intention to regulate, control or impede marketing/export of oil
2. No impediments to the free movement of goods as found in Manitoba Eggs
3. No extraneous evidence that supports effect regulated interprovincial/international trade
Ratio: S fixes price to be charged for oil at well head (located in province). Regulating price to be charged at a point – and
that point is w/in province. Carnation involved point of sale btw. Cow/tanker trucks. Purpose: to maximize the return for
Saskatchewan citizens. This is a public resource, and the profits should be enjoyed by public not oil companies. Effect has
substantial effect on export markets. Sask. Trying to fix the price for a commodity of which 98% is being sold outside
province.
Central Canada Potash Co. Ltd v Gov of Sask 1979 p 375
Facts: Sask make Potash pro-rationing scheme in 1969. Most potash exported, 68% sold to US. Scheme controlled
production through licenses, = attempt to regulate production to increase amount to be charged on international markets.
(which prevented Central Canada Potash from fulfilling one of its contracts). Trial judge: ultravires + CA: valid.
Issues: Is the potash prorationing scheme valid?
Decision: Invalid
Reason:
“Production” vs “price fixing”
Production:
Only market for which scheme had any significance was export market.
Provincial leg does not extend to control/regulation of marketing of provincial products in interprovincial or export trade
Price fixing:
First directive of fixing minimum floor price: said purpose was for determining demand.
Extrinsic evidence: programmes assisted industry, but had effect on some fed. Jurisdiction. In pith and substance
programmes directed to matter w.in provincial jurisdiction and were valid notwithstanding the effects
The true nature of the scheme: cannot ignore circumstances they came into being or market they applied to.
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Ratio: Scheme in which Sask. Wants to regulate production of potash (Set price charged in foreign markets). Has
substantially control over potash, and how it pulls those levers effect price charged abroad. Struck down: price fixing. Pith
and substance effects extra-provincial markets/interprovincial trade = dominion power (s 91.2)
S. 91.2 Trade and Commerce: Interprovincial trade and Trade with foreign countries (Parsons)
S. 91.2 Trade and Commerce: General regulation of Trade (Parsons)
TRADE AND COMMERCE
Parsons introduces 2 branches of s 91 .2 Trade and Commerce
1. Interprovincial Trade and Trade w/ foreign countries
a. TEST:
i. Pith and substance will determine true nature of legislation
1. Prov: Distinguish btw local production/conservation (Carnation)
2. Fed: Inter-provincial marketing, trade or export (Egg Reference, CIGOL, Potash)
3. Court disfavours provincial protectionist schemes (Egg Reference)
ii. Court favours large-scale cooperative federalism: federal provincial agreements (Re Agricultural
Products Marketing Act)
2. General Regulation of Trade
a. The federal government cannot enact laws targeting “single industry” under s. 91.2 (Labatt Breweries)
Must be more general in its scope
K. Swinton, The Supreme Court and Canadian Federalism: The Laskin-Dickson Years
 Parsons: privy council make reference to “general regulation of trade” in 1976
 Not often used. Reluctance due to tension between general regulation of trade doctrine and dominant mode of
analysis in trade and commerce cases, which emphasizes the need for an interprovincial/international flow of
products in order to justify fed. Regulation of local transactions
 Under traditional federal scheme, judge examine contract terms or production standards
o If general regulation of trade doctrine applied, court must look beyond stage at which regulation is imposed
and look to: whether the federal measure regulates a national economic problem of interest to the whole
country, even if it does so at the stage of production of retailing w/in a province
o Old method: identifying Intra/interprovincial distinction: clearly recognized zone for provincial autonomy
Labatt Breweries of Canada LTD v AG Canada p 392 (Crim law power is broad but subject to constitutional limits)
Food and Drugs Act: regulated content of a variety of food and drug products. S 6: where a standard has been prescribed
for food, no person shall label, package, sell or advertise any article in a such a manner that it is likely to be mistaken for
such food, unless the article complies with the prescribed standard. Standards on alcohol content on light beer. Labatt
marketed “special lite beer”, exceeded max alcohol content. Labatt challenge trade and commerce.
Issue: Is s. 6 of the food and drugs act ultra vires?
Decision: yes. Court rejects fed argument bc. These regulations specifically target single industry – cannot be general.
Reason: (Estey J)
o Parsons decision giving fed gov power over interprovincial and foreign trade is not applicable as regulation
concerned with production and local sale. Regulation not concerned with “flow of article of commerce” but with
production/local sale of specified products. No interprovincial aspect of this industry b.c. brewery in ever province.
o Parsons decision under general trade power not applicable because regulates single trade/industry, and fed. Gov
cannot impose.
o Impugned provisions concerned with production process of single industry that was substantially local in character
o Food and drug act regulate one industry at a time, by varying array of regulations or trade codes applicable to each
individual sector, and was not a regulation of trade and commerce in sweeping general sense of Citizens Insurance
o Not criminal because not directed at protection of health or prevention of deception; not pogg because no matter
of national concern
Dissent: (Pigeon J) same as trademark regulation in Canada standards, these specifications on food labels do not go beyond
proper concept of trade mark legislation
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Dissent 2: (Laskin CJ) General trade power: parliament should be able to fix standards that are common to all manufacturers
of foods, including beers, drugs, cosmetics etc, to equalize competitive advantage
Ratio: Targeted a single industry with local character and therefore didn’t fall under “general” trade and commerce. In order
to be valid under “General” head, it has be more general in its scope
General Motors of Canada Ltd v City National Leasing 1989 p 396
Facts: General Motors offering lower interest rate to competitors. City is getting charged higher rate. As a bottom line, city’s
costs are higher. City wants to sue GM for damages (cost of paying difference of higher interest rate). S 31.1 of Combines
Investigation Act 1970 creates a civil cause of action for certain infractions. Looks like your creating a new form of tort.
Purpose: to regulate unfair business practices and anti-competitive practices.
Issue: Is this legislative scheme that creates civil liability constitutional?
Decision: 1) Yes, because it is connected to the ‘second branch’ of ‘general’ trade and commerce.
2) Yes, because it is functionally connected to the Combines Investigation Act.
Reasons:
Fed says: ancillary powers doctrine: in pith and substance this scheme concerns fed head of power (trade and commerce)
and the fact that one provision strays into provincial. Save it by saying that 1. Invasion is not severe and 2. if it is severe, it is
functionally integral.
Court:
 There are two branches of the s.91(2) federal power: BRANCH 1: international and interprovincial trade and
commerce; BRANCH 2: general trade and commerce affecting Canada as a whole. This case deals with the second
branch. A balance must be struck between s.91(2) and s.92(13) without giving too much power to either.
TEST: Valid under general trade and commerce
 Three Hallmarks of Validity under second branch from Laskin + last 2 added by Dickson:
1. Impugned legislation must be part of regulatory scheme: Y
2. Scheme must be monitored by continuing oversight of regulatory agency: Y
3. Legislation must be concerned with trade as whole, rather than particular industry: Y
4. The legislation should be of nature that the provinces jointly or severally would be constitutionally incapable of
enacting Y
5. The failure to include one or more provinces in scheme would jeopardize successful operation of scheme in other
parts of country
APPLICATION:
1) Scheme must be monitored by continuing oversight of regulatory agency [overseen by director and commission]
2) Legislation must be concerned with trade as whole, rather than particular industry
3) The legislation should be of nature that the provinces jointly or severally would be constitutionally incapable of
enacting [matter of national economy]
4) The failure to include one or more provinces in scheme would jeopardize successful operation of scheme in other
parts of country. In order to have well functioning national market where business abide by fair competition, there
must be national scheme.
If it is valid, then is the provision sufficiently integrated w/ scheme that it can be upheld by virtue of that relationship? (look
at seriousness of encroachment on prov. Powers)
Yes, s.31 is a remedial provision. It does not create a general cause of action but rather one limited by the Act. Parliament is
constitutionally allowed to create rights of civil action when they are warranted. s.31 is sufficiently related to the valid
federal scheme of the Act.
Ratio: Use of 5 factors to determine if it falls under “general” trade and commerce. Must justify them on case by case basis
(use the facts).
CRIMINAL LAW POWER
I. FEDERAL POWERS OVER CRIMINAL LAW
 S. 91.27 assigns criminal law to fed (unlike US). What does this mean for:
 1. Scope of Federal Power?
o S 91. 27 = dramatic shifts in interpretation
26
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Reference Re the Board of Commerce Act 1922: enabling dominion to exercise exclusive legislative
power where the subject matter is one by is very nature belongs to criminal jurisprudence. Ie.
Incest and found that Combines and Fair Prices Act = not exercise of criminal law power
 Proprietary Articles Trade Association v. AG Canada 1931: rejection of narrow definition. Wide
definition: included all acts at any particular period of time are prohibited with penal sanctions.
Concluded that Combines Investigation Act 1927 was valid exercise of crim law power
 Requires: a prohibition and a penalty
 Margarine Reference: Rand J concerned w/ purely formal definition and need for criminal public
purpose in addition to formal requirements of prohibition and penalty (See Margarine Reference)
(3P’s: Prohibition, Penalty and Public Purpose)
 Macdonald: SCC applies 3Ps. The motivation for regulating advertisement of tobacco is protecting
public health, and this satisfies Rand’s 3rd P. Dissent: Major J: Remains legal to sell tobacco but
criminalizes ads – that does not seem like traditional public law purpose, can’t see how advertising
tobacco products threatens public order.
2. Extent to which the existence of this fed power has constrained prov. Attempts to control local conditions of
public order and morality?
Tension btw broad criminal law power (living tree approach) = fed can regulate many different subjects and
traditional, narrow crim law power – says this looks like you are supporting federal incursion into provincial
jurisdiction
S 91 (28): The establishment, maintenance and management of penitentiaries
Provincial:
o 92(6): The establishment, maintenance, and management of public and reformatory prisons in and for the
province
o 92(14): The Administration of Justice in the Province, including the Constitution, Maintenance and
Organization of Provincial Courts, both of Civil and of Criminal Jurisdiction and including Procedure in civil
matters in those courts
o 92(15): The imposition of Punishment by Fine, Penalty, or Imprisonment for enforcing any law of the
province made in relation to any matter coming within any of the classes of subjects enumerated in 92
KEY POINT: Criminal fed power is broad scope and can expand in the future
Reference re Validity of Section 5(a) of the Dairy Industry Act (Margarine Reference) 1949 p 422 (Broad crim law power)
Facts: s 5a: no person shall manufacture, import into Canada, or offer, sell or have possession for sale any
margarine/substitute for butter, manufactured from any fat other than milk or cream. + established system of penalties.
Issues: Is section 5a ultra vires of Parliament? (Can crim law power lawfully prohibit manufacture + importation of
margarine)
Decision: Prohibition of Manufacture = ultra vires, prohibition of importation = upheld under gov’s “power to regulate
foreign trade”
Reason:
 Lord Atkin rejects that crim law must carry moral taint
 Rand J: A crime is an act which law, with appropriate penal sanctions, forbids; but as prohibitions are not enacted
in a vacuum, we can look for some evil/injurious/undesirable effect upon public which law is directed
o Is the prohibition enacted with view to public purpose?
 Public peace, order, security, health, morality: are served by law but they are not the object of
parliamentary action
 Pith and Substance: The object is economic and legislative, to give trade protection to dairy industry
in production and sale of butter – to benefit one group of persons against competitors in business.
 In absence of legislation, competitors would be free to engage in business w/ provinces
 Deals with civil rights of individuals in relation to particular trade
 Whatever the scope of interprovincial trade, it is hard to conceive a more insidious form of
encroachment on complementary jurisdiction
 Ratio: Crim law power must in P&S contain public purpose, not a purpose that falls in provinces. Although parliament’s
power to legislate in the field of criminal law is broad it is subject to constitutional limits.
27
RJR MacDonald Inc v Canada AG 1995 p 425(broad crim law power)
Facts: Tobacco act prohibited all ad/promo of tobacco products + require display of health warnings and precluded
manufacturers from putting other info on package. Penalty = 2000 fine or up to 300,000 fine or 2 years imprisonment. SCC
say its intra vires/ leg. Exercise of criminal law power but unjustifiably infringes on freedom of expression.
Issue: Does this validly fall under criminal law power?
Decision: yes – valid crim law power
Reason: La Forest J
Crim law power = broad
Taking into account broad definition, this act is in pith and substance, criminal law form plain reading
 Purpose ?= prohibit 3 categories of acts: advertisement of tobacco products, promotion + sale w/o health warnings
 Penal sanctions? Prohibitions accompanied by penal sanctions which Atkin says creates at least a prima facie indication
that act is criminal law
 Does the act also have underlying criminal public purpose? Public health legislation: Evil = detrimental health effects
caused by tobacco consumption (cancer), concern for public health, concern for protecting Canadian from hazards of
tobacco, preventing minors from smoking
 BUT can parliament enact criminal law to prohibit this? Yes. Health is not enumerated head under Const. act. but given
its amorphous nature, it is a constitutional matter. Both parliament and prov. Can validly legislate in this area
 Why parliament chose to prohibit advertising and not consumption itself? Because prohibition on consumption is not
practical policy option given addictive nature (AND if fed. CAN ban sale of tobacco – surely it should be able to ban
merely advertising)
 Criminal law power is not frozen in time, so b.c haven’t targeted tobacco b4, doesn’t mean they cant
 If fed can legislate with respect to dangerous goods, it can legislate with respect to health warnings
 Dissent (Major J): Warnings – not advertising – fall under fed. Jurisdiction
o Undisputed that parliament may legislate with respect to hazardous, unsanitary, adulterated and otherwise
dangerous foods and drugs pursuant to its power to legislate under crim law. Parliament requiring to place
warnings on tobacco products = valid bc manufacturers of tobacco are under duty to disclose and warn of
dangers of tobacco products.
o The heart of criminal law is the prohibition of conduct which interferes with proper functioning of society or
undermines safety/security of society as a whole. – this does occur
o How can you criminalize advertisement for something that is legal
o Violates freedom of speech
o Although parliaments power to legislate in the field of criminal law is broad it is subject to constitutional limits.
(Margarine reference, Labatt Breweries)
o There are exemptions ie. Foreign products aren’t subject. Loopholes undermine “prohibition”
R v Hydro Quebec p 433(broad crim law power) [Can fed use crim law power to protect environment?]
Facts: Hydro Quebec charged with violation of interim order of Environmental Protection Act, which established process for
regulating use of toxic substances. SCC say it is allowed under crim law power – didn’t need to look at pogg. Dissent argue it
is ultra vires under both.
Issue: Is the scheme ultra vires under crim law power?
Decision: Dissent says it is (Lamer CJC and Iacobucci J); Marjority says it isn’t (La Forest J)
Reason:
Majority: (La Forest) [broad approach]
 Crim Law Power: (ultimate argument) [can be saved here so need not talk about Pogg]
o Environment is a matter of double aspect, both prov and fed can take part (wants to support cooperative
federalism)
o Constraints on crim law power:
 1. The criminal law power cannot be employed colourably
o P1. Prohibition: Toxic: Provides administrative framework to find which substances will be considered toxic
“substances may have immediate/long-term harmful effect on environment” [court split here]
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 Gives minister of health to declare substance as toxic
o P3: Protection of clean environment is a public purpose sufficient to support criminal prohibition; pollution
is an evil; Purpose of criminal law is to underline and protect fundamental values – environment is
fundamental to society. Crim law must be able to keep pace w/ and protect emerging values
o Not a matter of 92(13) because has to do w/ protecting fundamental value
 Pogg: (side argument)
o The matter of toxic substances is a national concern. Toxic substances once introduced in the environment
cannot always be kept w/in boundaries (provincial inability to deal)
o Environment is an international problem
o Does not preclude provinces from exercising powers under s 92 to regulate and control pollution
independently/ supplement fed. Action
Dissent (Major and Lamer) [narrow approach to crim power]
 Main issue: “Toxic” is not defined.
 “Toxic” = any substance that poses harm to human life/health/environment. Then Acts says it may be made subject
of comprehensive fed regulation..
 In pith and substance: aimed at protecting environment/human health. Can this be justified under crim law power?
o Must contain prohibitions backed by penalties: more an attempt to regulate environmental pollution than
to prohibit or proscribe it = not justified
o Must be directed at legitimate public purpose: cannot be supported at human health because toxic defined
broadly. But protection of environment = legitimate criminal public purpose – but they are not intended to
prohibit environmental pollution simply regulate it
o How to tell if its prohibitive or regulatory?
 1. It is allowed to contain exemptions which effectively make regulatory schemes
 Consider nature and extent of regulation it creates + context w/in it purports to apply
 The more elaborate the scheme – more likely it is regulatory
 Must have general prohibition (not something that is not an offence until admin agency intervenes
ie. Adding to list of substances) (in contrast to Macdonald, which has a general prohibition)
o This framework is regulatory – Not criminal. This is the type of framework that a province could use, but not
the fed. Power. Fed must be more specific
Reference re Firearms Act Can. P 445 (broad crim law power)
Facts: 1995 fed pass Firearms Act which ban/restrict use of certain types of firearms, establish comprehensive licensing
system for possession and national registration system for all firearms. Failure to comply = offence under criminal code.
Applicants w/ mental illness/drug offences could be denied a license. Alberta challenge saying that scheme was regulatory
rather than criminal legislation because it was complex and discretion was given to chief firearms officer.
Issue: Is it valid?
Decision: Yes
Reasons:
 Pith and substance: directed at enhancing public safety by controlling access to firearms through prohibitions and
penalties. Regulatory aspects are secondary to primary criminal law purpose. Intrusion of law into provincial
jurisdiction of property and civil rights = not excessive to upset balance of federalism
 Criminal law purpose: gun control = valid criminal law bc guns dangers + risk to public safety. Regulation of guns as
dangerous products = valid
 Purpose must be connected to a prohibition backed by penalty = code prohibits possession of firearm w/o license
backed by penalty
 Complexity: the fact that it is complex does not necessarily detract from criminal nature, and does not give chief
firearms officer UNDUE discretion. Offences are not defined by admin body – as in hydro-quebec – they are
clearly/generally stated in criminal code
 Gun control distinguished from prov. Regulatory schemes of motor vehicles and land titles due to inherently
dangerous nature of firearms
 Would holding upset fed-prov. Balance of power? Balance of power must be maintained (as outlined in quebec
reference.) balance is not upset because it effect on property rights were incidental: act did not hinder ability of
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provinces to regulate the property and civil rights aspects of guns, nor did law precipitate fed. Govs. Entry into new
field given gun control had been subject of fed. Leg. Since confederation
How would I make a dissent for this?
 1P: Its not really a prohibition of gun ownership/safety – its more of a regulating who can buy guns, who can have a
license. The purpose of the license is 92(13) owning of property, provinces normally administer vehicle registry, land
title registry
 3P: guns aren’t inherently dangerous to public safety/public health. If you interpret prohibition so broadly, it
eliminates provincial autonomy of 92(13).
Reference Re Assisted Human Reproduction Act 2010 (Case Book)
Facts: QBCA say that impugned provisions were not criminal provisions, but we instead directed at the regulation of the
practice of medicine. Fed gov. appeal decision to SCC.
Two types of provisions:
1) Absolute prohibitions ie. Human cloning = Fine (ss 5-9)
2) (Under Fire) The administrative provisions = issue. Ss 10 – 13: prohibits activities unless w/ a license in licensed premises
+ create administrative framework to supervise and implement
Gov argues: provisions valid under fed crim law power + or saved under ancillary
Quebec: P&S #2 infringe on provincial jurisdiction over health = fed too broad (standard of med research)
Issue:
Decision: Allow appeal. Act is valid.
Reason:
Dissent says that in pith and substance the act constitutes an attempt to regulate hospitals and medical research and is
ultra vires the Fed Parliament.
Majority (McLauchlin, Binnie, Fish, Charron): Although prohibitions impact on the regulation of medical research and
practice, all matters w/in provincial jurisdiction ends. The administrative, organizational and enforcement provisions of ss
14-68 are integrated into this prohibition and are valid under the ancillary powers doctrine.
 Reasoning process (P&S of whole act -> valid? -> impugned provisions validity)
o Characterize the legislative scheme:
 Determine if the whole package is valid in pith and substance.
 The purpose is to prohibit improper practices associated w/ assisted reproduction – the
practices that may undermine fundamental moral precepts, lead to public health evils and
threaten security of individuals.
o “playing god” creating clone; “Saviour children” “baby farms”
o Placing pressure on public to donate
o Ensure that reproductive material handled safely
o Text: prohibit inappropriate practices rather than promote beneficial ones
o Establishes scheme on national level – which touches on provincial one
o Effects: impact on 92 regulation of med. Research and practice; hospital
administration
 Does it fall under a head of power assigned to the enacting body?
 Come under s 91(27)? Does it first satisfy 3 requirements of valid criminal law?
o 1. A prohibition Y (s 5 – 10)
o 2. Backed by penalty Y (liable to fined/charged w/ offence)
o 3. W/ criminal law purpose
 Morality (y)
 Health (y)
 Security (y)
 Is the legislative scheme grounded in a valid crim law purpose?
 (y)
o Even if a law in pith and substance as a whole may be valid, it can contain provisions which are invalid.
o Do the Prohibitions in s 8 to 13 constitute valid criminal law?
 The fact that they are exceptions is okay because criminal prohibitions may contain exceptions
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 You can have regulatory framework and that’s not a problem (RJR Macdonald)
o ANCILLARY POWERS saves the provisions: whether the controlled activities provisions are a valid exercise of
parliaments leg. Authority.
 They must further valid criminal law goals
 Degree of intrusion into 92 is low
 Section 8 prohibits use of reproductive material for artificial creation of embryos unless the donor
has consented. Grounded in criminal law purpose: donors have unique moral interest in use of
genetic material.
 Section 9 prohibits person from obtaining sperm/ova form donors under 18, except for purpose or
preserving sperm/ovum or for creating human being that person believes will be raised by donor.
Purpose: protect VULNERABLE youth from exploitation and undue pressure to donate for benefit of
third parties = longstanding criminal interest ie. Malmo-Levine + Morgentaler
Majority (LeBel and Deschamps):
 Worried that broad interpretation of prohibition and public purpose threatens constitutional division of powers
 Must identify pith and substance of provisions rather than beginning by reviewing legislative framework (as set out
in Combines Investigation Act) because the Purposes and effects of a provisions can be different, so must consider
impugned provision separately before considering connection w/ other provisions of statute
 If impugned provision raises validity questions – then look at connection btw provisions being challenged. P&S:
regulation of a specific type of health services provided in health institutions
 To connect a law or provision with criminal law power must
o 1. Suppress and evil (arguing that it needs more than “moral problem”)
 the conduct does not represent a serious risk to morality, safety or public helath
 purpose not to protect those who might resort to reproduction on basis that it was inherently
harmful Purpose = Baird Report recommendation on controlled activities, est. national standards
for process
o 2. Establish a prohibition
 If dealing w/ reproductive material is so problematic – it would have been prohibited outright –now
they are licensing it. Once you get into licensing and supervision – that is no longer a criminal law
o 3. Accompany prohibition w/ penalty
 Impugned provisions fall w/in provincial heads of powers, affect ESSENTIAL aspects
 Ancillary Doctrine does not apply: Were impugned provisions enacted pursuant to a power that is ancillary to
Parliament’s criminal law power?
o The more serious the overflow – the closer relationship must be to be saved
o Provisions viewed in isolation = serious overflow. But is it necessity to statute? No: the scheme est. by
prohibitory provisions does not depend on existence of regulatory scheme. To be effective, absolute
prohibitions do not need either the provisions regulating certain activities or mechanisms for implement
reg. scheme. Also – those schemes were not included in first bill, which raises doubt as to necessity
 Dissent (Cromwell J):
o P&S is valid: matter is regulation of virtually every aspect of research and clinical practice in relation to
assisted human reproduction NOT just the prohibition of negative practices
o The matter is then classified under provincial leg. Competence: hospitals, 92.13, local nature
o Agrees that impugned provisions are connected to crim law power to protect persons control over the
products of his or her own body through consent
o Upholds constitutionality of provisions which set up the mechanism to implement it
Class commentary: ADD NOTES FROM CLASS THAT SAM SENT
II. PROVINCIAL POWER TO REGULATE MORALITY AND PUBLIC ORDER
 Parliaments power over criminal law in tension w/ need to respond to local conditions of public order and morality
 How Canada gives recognitions to local interest in criminal law matters
o S 92 (14) gives provincial legislatures jurisdiction over the administration of justice in the province (including
provincial policing) + Federal delegation to the provinces to prosecute Criminal Code offences
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o
The Fed gov. through conditional legislation has drafted criminal laws in ways that allow them to be shaped
by provinces to respond to local conditions
o Judicial recognition of concurrent provincial jurisdiction in matters that may also be subject of criminal law
 S 92 (15) allows province to enact penal sanctions (ancillary power) to enforce provincial regulatory
scheme validly anchored in s 92
 Discussion: What constitutes a valid provincial anchor? The extent to which the court will recognize double aspect
with respect to matters covered by the Criminal Code
o Re Nova Scotia Board of Censors v McNeil 1978
o Westendrop v The Queen 1983 : province exceed jurisdiction and intruded into fed crim law power. Courts
struck down municipal bylaw regulating public order and morality.
o Subsequent cases at SCC uphold prov. Laws dealing w/ public order and morality through generous use of
double aspect. But if no valid provincial purpose is found, law is an invalid attempt to
duplicate/stiffen/undermine operation of crim law
o Rio Hotel Ltd. V New Brunswick (Liquor Licensing Board) 1987: SCC upheld provision which gave Liquor
Licensing Board power to attach conditions to liquor licences regulating and restricting nature and conduct
of live entertainment in licensed premises.
 License preclude nude performances, even though public nudity in Crim Code. But SCC upheld
because condition directed towards types of entertainment available as marketing device for sale of
liquor w/in province. (does not prohibit nude performances, just says you can’t sell alcohol too)
 One can comply w/ both prov and fed.
 No penal consequences ensue for license holder – only suspension or cancellation of licence.
 Distinguishable from Westendorp bc: = colourable attempt to punish prostitution, not truly part of
regulatory scheme. Licence condition is part of comprehensive scheme regulating liquor, no
colourable intrusion on fed.
o R v Morgentaler 1993: SCC struck down provincial law prohibiting performance of medical services
(abortion) outside hospital.
 Penal sanctions imposed
 Pith and substance: related to criminal law
 Colourable: preventing est. of free standing abortion clinics
o Chatterjee v Ontario AG 2009: SCC find Ontario’s Civil Remedies Act Constitutional
 Purpose: allows provincial government to seize property if they think it is proceeds of a crime.
(authorize the forfeiture of proceeds of unlawful activity)
 Facts: pulled over by cops due to broken tail light + discover he’s breached his probation conditions
– arrested for breach of probation. Police found money $29,000 in his car and the odour of weed.
AG seize money as proceeds of unlawful activity. He was never charged w/ trafficking or possession.
All they had was a lot of money in the backseat + smell of pot.
 SCC Reasoning: Upheld: under 92.13
 CRA enacted to deter crime (falls under fed crim law power and provincial property and civil
rights)
 CRA Enacted to compensate victims (crime imposes costs on provincial treasuries, impact
provincial interests including health, policing, community stability)
 Not reality to conclude that province must shoulder costs to community of criminal
behavior but cannot use deterrence to suppress it
 Differs from crim law which couples prohibition w/ penalty
 General purpose: to make crime unprofitable, to capture resources tainted by crime, and to
compensate individuals and public institutions for cost of crime. = Valid criminal object. Not
colourable.
Is the CRA constitutional?
 No, it is ulta vires: Provincial attempt to criminal activity. It is a fed crim law power because it meets the 3ps
(Margarine Reference).
 Yes, it is provincial: Purpose: Regulating property and civil rights, Effect: compensate individuals and public
institutions.
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
(It is constitutional – the provisions of the act do not achieve the effect. If the purpose is to compensate individuals
in Ontario for the cost of crime, taking property for a crime that occurred in another province does not achieve this
effect.
o due to balance of probabilities reasoning applied - it is not required by the Act to prove that the crime had
detriment to Ontario)
o
Re Nova Scotia Board of Censors v McNeil 1978 p 452
Facts: Theatres and Amusements Act require provincial censor board prior to film exhibition. Breach = monetary penalty
and revocation of owners license.
Issue: Is the Act Ultra Vires? Whether or not setting up the board of censors/their determination
Decision:
Reason:
Ritchie: This is constitutional. Has to do with matters of local matter. Regulating the film industry is a matter of provincial
jurisdition
Read as whole: Directed to regulation, supervision and control of film business. Deals w/ use of property
Pith and Substance: Property and civil rights: Nothing more than exercise of provincial authority over transactions taking
place wholly w/in the province
Not concerned w/ creating a criminal offence, rather regulating films that do not comply w/ standards of propriety est. by
board
Legislation that authorizes establishment + enforcement of local standard of morality in films = not necessarily invasion of
federal criminal field (as said by Lord Atkin in Proprietary Articles Trade Ass that morality and criminality are far from coextensive)
Dissent: Laskin J: Power beyond moral, enter political, social and religious
The determination of what is decent or indecent or obscene in conduct/publication, what is morally fit for public viewing, is
within power of Parliament under crim law (Ie. Switzman v Elbing: SCC invalidate provincial statute that made it illegal for
owner of house to use it to propagate communism)
Provincially authorized tribunal determines legality = direct intrusion on crim law
Provincially authority can extend to moral considerations but those objects must be ANCHORED in provincial power and
cannot be in conflict w/ fed.
Decided that this looked like censorship and this rubbed him the wrong way
Dupond v City of Montreal: p 455
By law prohibiting parades or gatherings
SCC upholds by-law (SCC split similar to Mcneil)
By-law is intravires because it regulates a local matter – peace and tranquility on the streets of montreal is a matter of local
concern
Dissent: Laksin (concerned about free speech).
Westendorp v The Queen 1983 p 456
Facts: Original by law: Must have city permission to open businesses on the street. Amended: Any time someone is on a
public street for the purposes of prostitution or they are going to solicit prostitution = municipal offence. Westendorp
charged with being on street for purpose of prostitution in contravention of by law. Monetary penalty + Jail time.
Issue: Valid?
Decision: No
Reason: Ultra vires because deals with criminal law
Scheme does not support section 6.1, which is activated only by what is said by a person, referable to the offer of sexual
services. Only triggered by offer of sexual services
Colourable attempt to control/punish prostitution. It is not an attempt to deal with public nuisance. Goes beyond double
aspect doctrine. Cannot seek to punish assaults that take place on city streets as an aspect of street control.
Ratio:
What is the difference between Westendorp and Dupond?
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SCC: this is not a matter of protecting property or local or nature (as in Dupond), this is prohibiting in general
communications for the purposes of prostitution. This looks like classic use of criminal law. Prohibiting a type of behavior
that members of society find offensive. It is not creating a disturbance, or undermining public order. It is contrary to public
morality.
Exam Notes:
Should be able to look at how division of powers issues are contested, decided and adjudicated
FEDERALISM REVIEW
Reference re Securities Act, 2011 SCC 66
What is the government’s main strategy for establishing
 General trade and commerce power argument: 91(2).
Is this legislation intra vires / constitutional?
P&S: at paragraph at 61-65 and also at 91-107
Double aspect: securities industry has evolved to the point where it touches on national concerns. Will that argument
succeed here? We should promote concurrency and overlap and cooperative federalism.. But by paragraph 62, the court
says, notwithstanding the courts promotion of the above, the constitutional boundaries do not allow for the tide to sweep
this.
1. P&S: What are the dominant purposes of this legislation? Start with intrinsic evidence – what is the act set out to do.
Look at the extrinsic evidence regarding the purpose.
Then look at effects: intended and practical effects.
Apply it to the legislative scheme.
What is the legislative scheme doing? To create a general comprehensive securities regulate, such as investment
protections. Effect of the legislation: duplicate what the provinces has already done (para 101, their regulatory regimes.
(paragraph 100). There are certain national aspects to the regime ie. Systemic risk (markets are increasingly globalized). Ie.
“For example, it contains provisions for the control of systemic risk and for data collection on a nationwide basis,
something Canada argues cannot be accomplished at the provincial level.” (102)
BUT are the provinces inable to deal withthis? The fact that the fed. Is duplicating prov regime shows that the
provinces are able to
Advice : go back and refocus to national concern or go the cooperative federalism route and strike a deal w/ the
provinces.
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