Canadian Constitutional Law
Feb 9 Supplemental
Ian Greene
Monahan Ch 7
• -Patrick Monahan’s background
• -reason why JCPC had difficulty with interpreting division of powers
was that the notion of government activities in 1867 was very limited.
• -some of the tests developed by JCPC for interpreting division of
powers were “bright line” tests meant to make it easier to deal with
complex subjects. It was easier to deal with very specific provincial
categories than broad federal categories.
• -in past 60 years government has begun to legislate in areas never
contemplated in 1867 – environment eg. – so the result is that both
fed and prov governments have jurisdiction over a great many matters.
The key problem now is creating interjurisdictional schemes that work
effectively. It’s not an excuse any more to say “we don’t have
jurisdiction.” Similarly, tinkering with the division of powers through
constitutional amendment is unnecessary.
• -rules of interpretation developed by JCPC: watertight compartments,
pith and substance, broad interpretation of property and civil rights,
aspect or double aspect doctrine, exhaustiveness, exclusiveness,
restricting residual power of POGG.
Citizens Insurance Co. v. Parsons, 1881
• First major 92(13) case.
• Impugned: Ontario Fire
Insurance Policy Act.
• Fire in Parsons’ warehouse.
Parsons wanted insurance
payment
– Ins Co: you didn’t observe
the fine print.
– Parsons: the fine print didn’t
conform to the Ontario Act.
– Ins Co: The act is ultra vires
Ontario.
• Sir Montague Smith discusses
how s. 91 & 92 overlap. JCPC will
interpret the BNA Act as an
ordinary statute, applying similar
rules of interpretation.
-Smith Invokes presumption that
specific takes precedence over
general. “Property & Civil Rights”
more specific than “Trade &
Commerce”.
– “cubby hole” doctrine. S.
92(13)? Yes. Also S. 91(2)-T&C?
No. Feds can incorporate Co’s
with national objective, but this
doesn’t prevent provinces from
regulating intraprovincial
transactions
– Three aspects of T&C:
international, interprovincial and
general.
– He doesn’t define these
categories. Left for later cases.
– What is holding;? What is obiter?
Russell v. The Queen, 1882
• Impugned legislation: Canada
Temperance Act, 1878
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– Certiorari; rule nisi
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– ¼ of electors in a “county or
city” may petition for a
plebiscite on prohibition.
Fredericton went dry
Charles Russell: Fredericton pub
owner, sold anyway; convicted
Previous SCC decision: City of Fr.
v. Queen: Can Temp Act intra
vires under T&C (91-2)
JCPC decision: Sir Montague
Smith.
Russell’s lawyer: delegation
argument – Parliament can’t
delegate its powers. Legislation
says GG “may,” not “shall.”
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“cubby hole” doctrine
– Is subject-matter of impugned
legislation in s.92 (prov)? If so, is
it also in 91 (fed)?
– If not in s. 92, it must be in s. 91
Russell’s lawyer: argued legis. falls in
s. 92: 9, 13 or 16
“pith and substance”
– Smith: Nearly anything could fall
under 92(13); what is p&s?
Central subject matter is public order
& safety, not T&C
Not local because of local option.
(eg. contageous disease orders with
greater impact in some areas)
Therefore, not under s.92.
No comment on SCC’s decision in
Fredericton re s. 91(2), but seems to
emphasize POGG
Eg of Gap (residual) branch of POGG
Case 4: Local Prohibition Case, 1896
• Impugned: Ont’s Local
Prohibition Act (1890)
– Townships, towns, villages (&
cities)
– Appeal from SCC reference re
validity of Ont Local Proh. Act
• Lord Watson
• Feds (under POGG) can trench on
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s.92 only if incidental to a legitimate
fed purpose; otherwise, all of s.92
would fall under s. 91.
– s.94 issue (power to unify
common law in anglophone
provs): meaningless if POGG
interpreted broadly.
Ontario argued that legis. falls under
92(8): (municipalities). Watson: not a
convincing argument
• Pith & substance: vice of
intemperance at local level
• 92(16): (local) yes.
• 92(13): no; the law prohibits
rather than regulates
• if conflict: fed. law is paramount
• conflict of laws: no conflict if
strictest obeyed
• “aspect” (or double aspect)
doctrine: a legislative subjectmatter can fall under s. 91 for one
purpose, and s. 92 for another.
• National dimension or national
concern doctrine of POGG hinted
at: a subject matter can become
a matter of national concern and
then feds can regulate under
POGG.
TEC v Snider (1925) Ian Greene
• Impugned legislation: federal
Industrial Disputes
Investigation Act
• Viscount Haldane wrote for
JCPC
• Haldane says labour legislation
clearly falls under s. 92(13)
• In this case, the procedure is
applied to a municipal
transportation agency (TEC,
forerunner of TTC, 1923)
• Does subject-matter also fall
under POGG, fed criminal
power, or 91(2) (T&C)?
Haldane – no.
• POGG can be used as residual, or
emergency power. Here, can’t be
residual because 92(13) applies.
As well, there’s no emergency.
• Rule of interpretation: specific
(and narrow) takes priority over
general. See Haldane’s discussion
of specific words, p. 60.
• How can this decision be squared
with Russell v. Queen? Haldane:
there must have been an
emergency in 1878:
– “…evil of intemperance [was]
one so great” that parliament
intervened to “protect the
nation from disaster”
Case 9, AG Canada v. AG Ontario, Labour Conventions
Case (restriction of federal power over international affairs,1937)
– Lord Atkin - wrote decision
– Distinguished Aeronautics and
Radio cases. He said that the
Radio case decided that power to
regulate radio transmissions is
new, and therefore falls under
POGG. (Is that what you think
was decided?) The treaty-signing
power falls to the feds under
POGG, but the treatyimplementation power depends
on the subject-matter of the
treaty. Matters that fall under S.
92 can only be implemented by
the provinces.
• Extraterritoriality
– Federal
– Provincial
• Treaty-making powers
– Head of states
– Intergovernmental
– Exchange of notes
Chicken & Egg Reference - 1971
(Ian Greene)
• In 1970, Que gov’t
authorized Que egg
marketing agency to restrict
import of eggs from out of
province
• Ont and Man were suppliers
of eggs to Que
• Que supplied chickens to
other provinces; the other
provinces restricted Quebec
chickens
• Man passed egg marketing
legis identical to Quebec’s
and referred it to Man CA
• Man legis. struck down;
appealed to SCC (What
would next steps be for
Man gov’t if leg had
been upheld?)
– 9 judges on panel: 6 + 2
+ 1 (all agreed ultra
vires)
– Martland: Pith and
substance:
interprovincial T&C.
Chicken & Egg (2)
• Laskin’s first major decision. Laskin was a Trudeau
appointee; law prof at U of T; wrote main constitutional
law text. A champion of human rights & breaking down
interprovincial trade barriers. Became Chief Justice.
– Annoyed that case is fabricated. Why?
– Obiter: Parsons led to attenuation of literal interp of T&C, but
interpretation has broadened since.
– Prov. marketing legislation OK if producers in other provinces
treated the same a local producers
– Purpose of this legislation: to control the import of eggs.
Therefore it is ultra vires; trenches in fed control over
interprovincial T&C
• Scholarly analysis both of case law and realities of trade
in eggs & other goods
• Not necessary to invoke s. 121 (free trade amongst the
provinces) – but sets the stage for future cases
mentioning s. 121.
Ref re Anti-Inflation Act (1976)
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Trudeau campaigned against wage & price
controls during 1974 election. After his
election victory, he reversed his position.
1975: federal Anti-Inflation Act enacted.
All prov's cooperated. Ont public
employee unions challenged in court, so
the feds sent a ref question to the SCC to
settle the issue.
AG of Canada defended Act under
national concern branch of POGG, and
also argued that an economic crisis equals
an emergency.
There were two decisions for the majority,
by Laskin and Ritchie. However, the
dissenters agreed with Ritchie’s
interpretation of POGG, leaving the
Court’s interpretation of POGG unclear.
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Laskin (+3 judges): Laskin had been a law
prof, and wrote the leading text (before
Hogg) on Can. const. law.
Reviewed history of POGG
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Const must adapt to change.
If judges can defend as crisis, not nec to
look at national concern argument.
Evidence shows there is a rational basis
for believing a crisis exists (Stats Can)
Lipsey & 39 economists in an affidavit
argued that 1975 inflation is not a crisis.
Laskin: there is disagreement amongst
economists, and it’s not up to SCC to
decide. (First use of social science
evidence in court.)
Fed power supported by s. 91 (14-21
except 17), & T&C, so it’s intra vires.
Ont. order-in-council is ultra vires; needs
primary legislation.
Monahan Chapter 8 (Ian Greene)
• -Branches of POGG:
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Emergency: Developed by Viscount Haldane on JCPC; Haldane
claimed it was the only interpretation of POGG; later overruled by
JCPC. In Anti-inflation, the court expanded on the emergency
doctrine – included “crisis.” The federal Emergencies Act would be
valid federal legislation under the emergency branch. A true
emergency gives the federal government the right to trench on
provincial jurisdiction for a temporary period – until the emergency
is over.
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Residual power: weakened in late 1800s and early 1900s by
JCPC because of its expansive interpretation of 92(13). However,
the provinces are limited to controlling matters “within the
province,” so matters falling outside of provincial boundaries are
likely to fall under the residual power (eg. Canadian land or water
that is not within a province), like the continental shelf, the federal
Official Languages Act. The residual branch is very narrow.
Monahan Chapter 9: (Ian Greene)
Trade and Commerce (91-2)
• Parsons created 2 categories of Trade & Commerce and interpreted them
narrowly. Since 1949 SCC has begun to expand these categories.
• International and Interprovincial T&C
– Feds can regulate any matter that is clearly international or interprovincial, but
cannot interfere with local trade and provincial regulations over local business.
Feds can establish a standard for “Canada Fancy No. 1 apples” and “light beer,
if sold inter-provincially or internationally, but the legislation does not apply to
products manufactured and sold within one province.
– JCPC almost never let fed regulations incidentally affect local production &
sale. However, in 1993 federal legislation creating safety standards for
vehicles sold inter-provincially, and which applied optionally to vehicles sold
within a province, could be validly enforced even for vehicles sold only within
a province, if the vendor opted in to the scheme.
– Interprovincial drivers’ licenses: a federal responsibility delegated to the
provinces through joint federal-provincial licensing boards.
• General Trade and Commerce: After Parsons, little valid use of power until
1980s (1937: feds allowed to approve trade marks). Then SCC approved
federal use of General T&C power if the legislation truly regulated trade in
general, and the regulatory scheme was effective and comprehensive.