BRIEF HISTORY OF CONSTITUTIONAL DEVELOPMENT IN CAN ADA

BRIEF HISTORY OF CONSTITUTIONAL DEVELOPMENT IN CAN ADA

JOSHUA KRANE - a body of fundamental written & unwritten rules under which government operates, define both individual and collective rights against state, governed by rule of law with fairness & without malice. When common law is insufficient, statutes are passed by legislature while conventions are unwritten rules of behaviour, not intended to be legally enforceable by the courts. Certain documents, such as Aboriginal land claims treaties are not constitutional documents, because they pertain to a special relationship with the Crown (and should not require provincial consent). CONSTITUTION

Constitutional law – derives from the term “standing up,” that is a written constitution is assumed to “set up” the body politic, while the unwritten constitution acts as the body politic1. By committing a constitution to writing, we might simply record the rules that govern our actions rather than the changing nature of our actions/rules. Limitations, expressed in the language of rights give people a defence against the state (creating a tension). Constitutionalism implies that constitutions are used to protect rights and to limit the state; that the constitution becomes part of the political process. But how do we limit government while giving it enough power to function? Modern day constitutionalism is concerned with the limiting the state by a discourse of rights. Re: Secession of Quebec [1998] (SCC) Facts:  Quebec wants the right to separate from Canada. They boycott the proceedings  They refused to give legitimacy to the proceedings Quebec argues that it is too early to bring this proceeding Issue: Can the Quebec government secede unilaterally under Canadian law/can it do so under international law? There is an absence of a framework about how we can/cannot proceed. This kind of case provides a means to legitimate the federal government’s actions ie. The Clarity Act The case raises questions about the distinction between law and politics. Held: No, No. Precedence was not considered since neither question was affirmed. Reasoning: In its preliminary considerations, the court had to consider whether it could even answer reference questions. These powers were found to be consistent with s.101 of the constitution (constitutionality) and s.53 of the Supreme Court Act as the SCC is entitled to original review and is not limited to hearing appeals (issue of legality). The court had to address the issue of justiciability by trying to bring forward the tension between law and politics.

The idea that “text as action” means that the principles go deeper; perhaps constitutions are statements of aspiration and not necessarily of reflection. 1

The court also found that the following questions are ones that can be legally contemplated (issue of legality). 1. The constitution does not give the power to one province to separate as it would affect the interests of the whole country. The nature of confederation would imply that Canada would have a duty to consider negotiation if a clear response was given to a clear question, though these statements are left to be considered2. 2. UN Resolution 56 does not endorse a UDI that would impair the territorial integrity of a state. The court cites evidence that Quebecois are not subject to internal discrimination and that they hold an important place in Canadian society Rationale:  The court explicitly examines constitutional principles to defend its position. The case is a historical judgment that raises basic questions about what is Canada? It diffuses the legitimacy of a UDI. In Secession, the court is attempting to understand the practical importance of the principles it identifies in its ruling. All four principles can be considered “first principles” since no one can trump another; however, they are taken together. These principles are implied, providing an image of the practice of the Canadian constitution (written terms like disallowance/reservation go unused because of the precedence of the democratic and federalism principles). All else is subordinate to these principles. The notion that the Canadian constitution is “similar in principle” to its British counterpart signals that Canada has inherited a tradition of unwritten bases for constitutional conduct. The preamble to the BNAA provides the written link to begin the derivation of these principles. a) Provinces develop in accordance with their own social objectives constrained only by the relevant jurisdictional laws – recognizing that the federal structure will be irrevocably altered and dismembered if one province were to separate. b) Because of the interdependence between Quebec and the rest of Canada, any such secession should be the result of a successful Canada-wide democratic referendum, namely because of all the vested commercial and political interests involved. Also, any such measures would also require that the opinions and will of other concerned minority groups inside of Quebec be addressed, such as those of English speaking Quebecois and aboriginal groups. Note: When we consider democracy as a stand-alone concept, we can understand it as rule by the people from its Greek origins. We identify democracy today as an expression of majority rules since democracy is constrained by procedure. We tend to associate this concept with minority rights; however, it is not fundamental to the concept as it stands alone. Democracy can ally itself with other notions, including minority rights, and in the Canadian tradition, notions of liberalism, which places value on the rights of the individual against the state. c) Constitutionalism/rule of law sets out that the majority of a province has 2

The court distinguishes between government, legislature, and NA to cover all of its bases in consideration of all of the political actors, including the executive, legislature and the lieutenant governor.

committed itself to pursuing their future under the constitutional rules adopted – including the principal of federalism and respect for minority rights. Any changes that are to be made must be done through the amendments procedure outline in the Constitution Act (1982), otherwise without that relationship between law and democracy, the political will under which democratic decisions are made would be inherently undermined. Constitutions are just super-laws. Constitutionalism is just a subset of legality, which sets out the framework of government. d) Protection of minority rights obliges the federal government to ensure that Aboriginals are protected due to the fiduciary nature of their relationship. LEGITIMACY – confer authority (is it of political power? is it of rulership?) onto a body (of what – do we mean an elected body?); this is a social science & not a legal concept. [Weber] believed that those in authority are justifiable and worthy and such reasons and people have the right to command and therefore we obey3. The court ruled that democracy, legitimacy, and moral values (justice) contribute to the legitimacy of a regime. PARLIAMENTARY SUPREMACY/SOVEREIGNTY – we may consider that the notion of responsible government may confer legitimacy on this concept. In the Canadian context, the federalism limits the ability of one government to legislate in the other’s jurisdiction. The Charter also limits the ability of Parliament to enact laws; however, the notwithstanding clause allows the government to override the Charter to enact laws. Constitutional amendment allows governments to remake the constitution, but it requires governments to come together. Obligation and legitimacy are but two sides of the same coin: If you recognize the legitimacy of a government then you are obliged to obey that government. If you have obliged to obey it, then you have conceded to its legitimacy. Dicey –Introduction to the Study of the Law and Constitution [1885] A British style constitution was thought to embed certain forms of inalienable RIGHTS, which are entitlements individuals claim from others [political rights and civil rights]. RULE OF LAW/LEGALITY – “proper use” of the decision making process and its use as an instrument of authority; can be stressed by constitutionalism. In the secession reference, the rule of law is explained to embody three tenants (CCL 22): 1. The law is supreme (over acts of government and private persons) 2. Maintenance of laws requires actual order, positive laws 3. Exercise of public power must find source in legal rules The word arbitrary is opposite to the rule of law. LEGALITY implies that a law must exist in order to punish a crime. This concept, one of due process or of fundamental justice, as stated in s.7 of the Charter means that the rule of law is inherently linked to the concept of rights. There is a difference between rule of law and rule by law. If a rule is a directive to 3

there are sometimes conflicts over legitimacy (eg. Vichy France)

human conduct then Parliament must aspire to rule by clear, explicit, certain, and non-retroactive laws. By “proper use” should we consider what laws are made: had the Nazis followed these tenants, would they have followed the rule of law, or is there something internal to the law that does not make this so. Adherence to the rule of law can be seen as formal, so long as laws are passed by a legitimate body. The executive must be subject to the legislature. Others may argue that substantive material considerations must be made: legislatures should not make laws supporting slavery. The courts could interpret laws that protect individual rights (possibly limiting the reach of Parliament). The relationship between rule of law and parliamentary supremacy: They are compatible, since they answer different questions - rule of law may be a limitation on how laws are made (Parliament = who, Rule of Law = how). Law is the form in which Parliament, as opposed to a monarch, speaks [Dicey]. Therefore, it is acceptable for Parliament to be supreme because it is legitimate (the language of Parliament is general, applicable to everyone, representative, debated). Parliament is comprised of a plurality of representatives; it is supported by liberal ideas of free speech and free expression. Rule of law therefore, could a consequence of parliamentary supremacy. The courts are central to rule of law in Dicey’s conception, because they interpret the law and as such, they decide how the law is applied (courts can determine the reach of the provision). Any statute should be read through the lens of the common law: otherwise statutes should be read down, since the constitution is derived from the common law and not from a document.

Roncarelli v Duplessis [1959] SCC Facts:  Context surrounding the case is linked to the treatment of Jehovah’s Witnesses by the SQ. Roncarelli had posted bail for hundreds of Witnesses who had been taken into custody for advocating their religious beliefs. Premier Duplessis felt that his authority was challenged and ordered the recovation of Roncarelli’s liquor license and the seizure of his supply of alcohol. Roncarelli was not directly tied to the group.  Roncarelli filed suit against Duplessis, winning at trial, but loosing in appeal. Issue: Does the executive (premier of the province) have the right to strip a “privilege” (that is, the liquor license) if that person persists in an ‘objectionable activity’? Can the victim seek redress against the executive? Held: Yes. The damages were increased to 33 000. Reasoning:  The commission should use its discretion to remove licenses only when they are used for means other than envisaged by the statute (ie. serving to minors).  It was malicious to punish Roncarelli for acting within his rights by removing a license. Punishment should be done by the Criminal Code and not through the Liquor Act. In this case, it was clear that the executive interfered arbitrarily. Like the Secession Reference, the court relied on the abstract principle of rule of law to support its judgment: that laws must be non-arbitrary and that the executive is not above the law.  The court was compelled to a privilege, as if it was a right.

Rationale:  The state cannot use its power of administration capriciously or arbitrarily based on the political beliefs/exercise of rights of a citizen.

JUDICIAL POWERS Summary - Judicial Power in the Canadian Constitution (p.129-144, 29-51) The SCC did not exist as per the constitution of 1867 but was created 8 years later; rather final appeals were taken to the JCPC in England until 1949. Judges are appointed by governor in council (Cabinet) – 3 from PQ. The vast majority of appeals are heard at the discretion of the court, based on the question of relative importance to Canadian law. The court also acts as a reference to the provincial/federal governments regarding new bills. Provinces also have Superior Courts (consisting of a trial and an appellate division), but the justices are also appointed by the governor general (Cabinet). The Federal Court was established in 1971 to hear matters of federal regulation. An independent judiciary is necessary for any society governed by the rule of law (s.96-100). This means that they are independent of the other branches of government and that they are not held to legal consequence for the decisions (common law immunity). Under section 99, judges hold office “on good behaviour” but can be removed through a process of peer review and Parliamentary approval. Decisions by public authorities that are inconsistent with the provisions in the constitution, or exceed the powers defined by a legal statute can be quashed or said to be ultra vires. The court assumes as its duty to ensure that legislatures do not transgress the limits of their power. In cases where powers defined by a statute have JUDICIAL REVIEW been exceeded: this included the issue of privative clauses, where provincial tribunal’s decisions could not be reviewed by the SCC; however, Crevier v Quebec affirmed the SCC’s right to. Judicial Review has been formally recognized by s.52(1) of the Charter. Government and claimants can pose arguments explaining the judicial reasoning for their claim to (un)constitutionality. Judicial review is essential to the rule of law. To what extent is the power of the courts legitimate? The courts can challenge the constitutionality of a law in two ways: 1. The government did not accord with the contents of a statute [Roncarelli case]. Does the executive act in accordance with the law? 2. The government acted in accordance with the law, but the law itself is not constitutional. These were the steps taken in consideration of the Secession case.

Summary – References, Structural Argumentation and the Organizing Principles of Canada’s Constitution [Elliot] 1. Historical: argument looks to establish the intent of the drafters, but is viewed as having little persuasive force. 2. Textual: argument looks to emphasis the present sense of the words. This argument is safe for the courts, who can use “evidence” and “precedent” to justify their moral beliefs. 3. Doctrinal: is the predominant form of argumentation, where previous cases are given in support. 4. Prudential/Practice: involves a cost-benefit analysis (what a society can gain or lose from a piece of legislation; this is essentially like the Oakes test) 5. Ethical: this argument involves an appeal to ideals, morals, and what ought to be 6. Structural: uses principles surrounding the organization of an entire constitution rather than examination of one of its clauses in particular Reference Re Meaning of the Word “Persons” in s.24 of the BNAA 1867 [1928] SCC Facts:  The franchise was granted to women in 3 phases: Military Voters Act for wartime nurses, Wartime Elections Act for women of military families, Women’s Franchise Act4 for all women.  The SCC denied that women were considered qualified persons under s.24. Issue: Does the word persons in s.24 include women? How does one interpret a constitution? Held: No. Reasoning:  Justice Anglin draws on historical arguments to emphasize that common law had not recognized women as legally capable of sitting in Parliament in 1867. He also draws on ethical arguments, citing that a woman’s role is not in the Senate.  Lord Brougham’s Act [1850] recognized that the word “persons” in law meant men and women; however, Anglin argues that the BNAA expressly states that the “qualification” for Senate requires the candidate to be male. This is based on the entrenchment of the BNAA and the difficulty in changing the document. The textual argument was a safe way for the judge not to appear illegitimate.  In a concurrent judgement, Justice Duff argued that the provisions of the Senate were intended to create a fixed body (by virtue of appointment) and would not be open to Brougham’s interpretation. Rationale:  The SCC is more tied to “qualified” than to “persons” and it is able to avoid the questions altogether.  Parliament has to make itself clear that it has to derogate from the common law – the constitution is read strictly. Edwards v AG Canada [1930] Facts:  Edwards appeals the Persons case to the JCPC, citing that women have held legislative office and should be entitled to hold office in the Senate. Issue: Does the word persons in s.24 include women? Held: Yes. 4

This measure was tainted by scandal as Borden relied on these votes for his reelection.

Reasoning:  It is upheld based on the satisfaction of two conditions: 1. The court finds that there is external evidence from previous legislation to show precedent (textual argument). Custom and tradition tend to remain in place, but the word “persons” remains ambiguous and not gender-specific. The appeal to historical evidence is not conclusive, therefore the court looks at the second component. 2. The court finds that there is internal evidence from the BNAA to support the appeal. The court finds that the BNAA is like “a living tree”: able to develop through its use and through convention. Using a liberal spirit of interpretation, the court considers the importance of its decision. It finds that the BNAA will explicitly use male as a qualifier before persons (ie. s.41 and s.84). Since persons is not confined to men alone, without the qualifier male in s.24, women are eligible to sit in the Senate. Rationale:  Where the meaning of a particular word in a statue is unclear, it is possible to look to other sections of that same statute for guidance as to the word’s proper interpretation. This is a structural interpretation of the BNAA.  Sankey shifts the question away from the equality of women to the sovereignty of Canada. The JCPC wants to let Canada set the course of its politics on its own. Parliament must be clear if it wants to deny women the right to sit in the Senate. The reference procedure: Governments can ask the highest court of appeal in their jurisdiction (CA or SCC for federal government) to review a constitutional question. This discourse is highly political and tends to be based on hypothetical cases. NOTICE REQUIREMENTS are used to notify the attorney general of an impending constitutional case at the SCC. They may act only as interveners in private cases. Parties may intervene in SCC cases if they have an interest in the appeal. These interveners (ie. Bnai Brith in the Amselem case) are generally from interest groups. They submit a WRITTEN FACTUM to the court but can present no oral arguments. Summary – Separation of Powers and the Judiciary, s.96 (CCL p.469-507) The design of s.96 was intended to ensure that law makers abide by the rule of law, by entrusting judges with the authority to monitor the legal and political systems. The provision creates a measure of SEPARATION OF POWERS because the “entrenchment of ORIGINAL JURISDICTION in the constitution” (474) reflects a separation between the role of the executive and legislature which makes laws and the judiciary which adjudicates legal disputes. Although this power seems to look like an appointment power, it does more. s.96100 are designed to ensure that bodies that look and act like courts, judges of those bodies must be appointed by the governor general. This is a functional interpretation of this section. Since Parliament and provincial houses have the power to appoint administrative boards in certain policy

areas that could exercise judicial functions core powers of the court cannot be assigned to boards. These tribunals can gain specialized knowledge in one area and are given discretion to develop innovative policy in a regulatory field [Hogg. 212]. Note: What is original jurisdiction? It may be possible for the residential tenancies test to eventually remove all powers of original jurisdiction from the courts, leaving them with the power of review and appeal only. The rise of the administrative state and the breakdown of the distinction between rights and privileges are symptomatic of our ability to make the distinction between policy and law. Law becomes instrumentalized when we think in political terms. The first set of cases looks to determine whether provincially appointed tribunals can exercise powers that are traditionally exercised by superior courts. Reference Re Residential Tenancies Act [1981] SCC on appeal from Ontario Facts:  The Act set up a new tribunal to enforce obligations between landlords and tenants in Ont – this meant that the Commission could evict tenants. The tribunal resolves disputes upon request between parties.  The Ontario CA concluded that the powers of the tribunal were not constitutional and thus the Attorney General of Ontario appealed to the SCC.  The AGO argued that the court system was too formal, cumbersome and expensive to respond to the social needs on landlords and tenants. Issue: Is the power of the tribunal analogous to that of a superior court? If so, is it considered to act like a court and not within the administrative framework or regulatory structure that it was created to monitor? Held: Appeal dismissed. Reasoning:  Dickson outlines a 3-part Residential Tenancies test to determine whether the tribunal was valid: 1. If the power of the tribunal does not conform with the original jurisdiction of the courts (exclusive at the time of Confederation), then the tribunal is valid. Is it a novel/new jurisdiction? 2. If the power of the tribunal does conform, then: the court considers the context and the setting of the board. How do we describe the power? If the power being exercised is not “juridical” then it is valid. “Juridical” means: dispute between private parties, application of a recognized body of rules, fair and impartial adjudication. 3. If the power being exercised is juridical, then: so long as the tribunal does not operate like a court, it is valid. It can therefore exercise powers once held by courts or never intended to be held by courts [John East case5]. Is the power

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In this case, the JCPC found that the system of collective bargaining was sufficiently distinct from the system used in the 19 th century. Although the Board was acting like a court, it was determined to have settled labour relations.

necessary to achieve the legislative objective? Are the judicial powers secondary/ancillary powers and can we save it from being solely a violation of s.96? When we consider “institutional setting” we must look at the distinction between law and politics. The debate involves: the courts should be the privileged institution in addressing certain kinds of questions, or should the courts only have to the power to review these decisions? Who should get the original jurisdiction? Application of the test: 1. Historically, courts have had exclusive jurisdiction over landlord tenant disputes (failed condition 1, onto 2) 2. The procedures involved (call/examine witnesses, right to counsel) were reflective of courts and were juridical (failed condition 2, onto 3). 3. The commissions “inquisitorial role” did not “offset the impact of these procedures” (failed condition). If parties choose not to settle, then the commission will be forced to adjudicate [depriving one party, potentially, of a right]. The other advisory functions are “ancilliary” to the mediation function, which is the principle role of the commission, violating the provisions in s.96. The chief role of the Commission was not to administer a policy or to carry out an administrative function. The Act specified no particular qualifications or experience as essential to appointment to the Commission. The Commission was in no way a specialized agency, like a labour relations tribunal composed of experts in a particular field. Implicit in the argument for the province was that the court system was too cumbersome to respond to social needs. It was noteworthy that both landlord and tenant organizations disagreed, in that they opposed the legislation. Rationale:  Commissions who principle role is adjudicative in non-novel of jurisdiction violate the BNAA under s.96 Sobeys Stores Ltd v Yeomans and Labour Standards Tribunal (NS) [1989] Facts:  Yeomans was dismissed from his managerial position at a Sobey’s for “unsatisfactory performance”. He complained that his dismissal was without cause and the director of the LST ordered his reinstatement and back pay.  Sobeys appealed the decision claiming that s.2 and s.3 of 67A of the labour code was unconstitutional because it conferred authority ultra vires of s.96. Issue: Can the decision be overturned and the LST found to be unconstitutional? Held: No, it was constitutional and Yeomans appeal was allowed. Reasoning:  Wilson wants to narrow the historical inquiry in part 1, as not to invite more challenges to the jurisdiction of the court. For part 3, the power was upheld because the government sought to protect employees from undue termination, satisfying the third requirement.  Sobey’s modified the test because the judges looked to the UK to break Therefore, there is a tension between adjudication of employees’ rights and setting a policy for labour relations.

the “tie” between the provinces. The breaking of the tie caused the failing of the 1st part of the test. Rationale: Critique: In a concurring opinion, La Forest argued that since the purpose of the tribunal was far different that what had existed at Confederation, it should be allowed to stand based on the satisfaction of part 1 of the test. Like John East and this was a novel jurisdiction. Reference Re Amendments to the Residential Tenancies Act (NS) [1996] SCC Facts:  All disputes between landlords and tenants must be taken to the Director of Residential Tenancies; appeals of his/her decision can be taken to the RT Board and their decision is final unless it is appealed to the NSCA. Issue: Is the creation of the office of Director a violation of s.96 of the BNAA? Held: Yes, it was ultra vires. Reasoning:  McLaughin ruled that the creation of the director contradicts the first part of the test: the process of appeal begins to resemble the work done by the courts. The Director cannot advocate on behalf of the group the board was designed to protect.  The change does not affect the fundamental of the landlord-tenant agreement, which is really a legally enforceable contract.  McLaughlin emphasizes a narrow conception of the “modernization of disputes” line of reasoning in step 1. It prevents the rest of the test to collapse. Rationale: The Farrah case emphasized as well that Tribunals whose sole function is to hear appeals from commissions are ultra vires. Lamer’s dissent emphasized that: The Act has carved out a distinct branch of landlord-tenant law and developed a complete code to govern the residential tenancy relationship. There is an identifiable social policy that is different from analogous legislation. This is legislation of a clearly social nature which reflects a distinct evolution since 1867 and a completely different notion of residential landlord and tenant relations from that which existed at that time. Residential tenancy disputes involve a high volume of repetitive and narrowly defined matters of limited complexity. The residential tenancies test has some problems. For step 1: The court has difficulty looking at what time to look at and where to look at (is it just the 4 original provinces we consider?). We also have problems with the level of generality that we adopt (can a youth court be described as a criminal court or as one for youth; the categories that we use to describe the court influence how “analogous” the court may appear). For step 2: We have problems determining at which step(s) the “institutional context” comes into play. For the original test, it came to play in steps two, while in the amendment, it came into step 3. The test imports serious questions: how independent is the judiciary? If the executive can appoint these tribunals, can they violate the principles of the rule of law? We must consider what is fundamental to the core jurisdiction of s.96 courts and consider what are the ancillary jurisdiction that can be assigned to administrative tribunals. These concepts may not adequately serve modern Canadian society (do we really want the courts to be the first and final say on ‘administrative’ matters).

PRIVATIVE CLAUSE – provision in a law that purports to exclude judicial review of a decision made by a tribunal [Hogg, 221]. It is not the rule of the tribunal, but the will of the legislature. Presumably, there is some “legitimacy” to these clauses. This second strand of jurisprudence looks at cases where the government tried to remove jurisdiction from the court and assign it to another body. Can a legislature protect a tribunal (using a privative clause) from review by a s.96 court? McEvoy v Attorney General of New Brunswick and AG of Canada [1983] SCC Facts:  The federal government wants to transfer criminal jurisdiction from provincial superior courts (where Cabinet appoints judges) to a uniform/consolidated criminal court where judges would be provincially appointed.  This would essentially abolish the superior court criminal division. Issue: Is it within the power of Parliament to give exclusive jurisdiction to a provincial court to try indictable offences? Does that power violate s.96? Can parliament give away powers? Held: No to all three. Reasoning:  The federal government cannot transfer a constitutional power to the provinces, just as provinces can usurp them (not always the case, see employment insurance case). Independence of the courts is considered a constitutional principle; the court feels that what is occurring is that a lower court would in essence become the superior court in criminal matters. Rationale:  In PEI, lower courts apply the Young Offenders Act, because, under s.96, this a “novel” power that did not exist at Confederation. If a jurisdiction is indeed “novel” then it is not transferred but legislated. Crevier v AG Quebec [1981] SCC Facts:  Crevier et al. are optometrists who were found guilty of an offence by a Professional Tribunal. Section 195 of the Professional Code of Quebec stated that decisions were final (thereby prohibiting an appeal to the Superior Court, which would have been permitted by the CCP). The application succeeded in the SC, but was overturned in the QCA. Issue: Does the Professional Tribunal violate the provisions of s.96? Held: Yes. Reasoning:  The court strikes down the privative clause that excluded judicial review of the decisions of the tribunal. Let’s assume the constitutionality of the tribunal, but did the tribunal do what it is supposed to do? The Tribunal should not be the judges of its own jurisdiction and it must speak to its own jurisdiction. Like Roncarelli, we raise questions as to who is speaking the law.  Laskin contended that the Quebec government was trying to create a s.96 court that would take away the right of appeal and review. He says that s.96 is more than mere appointment power: it is functional and not just formal.  Laskin warns that powers may be transferred away if we treat the courts by their formal names. Court powers, both their original and their appellate powers must be protected. Rationale:  Courts should hold the final review of decisions that affect a person’s

rights, because they have the final say in law. Therefore, tribunals cannot make unreviewable determinations of constitutional questions or on their own decisions. Perhaps the rule of law does not require that the courts’ original jurisdiction need not be protected so long as they have the power to review. However, maybe the courts are not “capable” of being the best body for review (they may lack the specialized skills). See p.494.

DIVISIONS OF POWERS FEDERALISM – legislative powers are divided between two branches of government (but is there overlap? Which branch will prevail?). Like the s.96 we have to determine the levels of generality and core powers. Since Canada is connected to the UK, where does sovereignty/supremacy reside [everywhere and nowhere]? Maybe federalism is a mechanism to deny sovereignty. Similar to the question of novel jurisdiction in s.96, where do new powers fall? Citizens Insurance Company v Parsons [1881] Facts:  In 1876, Ontario enacted legislation regulating conditions for fire insurance. The insurance company in question claimed that the Ontario legislation was ultra vires as the provincial government overstepped its bounds in regulating this area.  Parsons said that the legislation trumped the contract, which departed from the law.  The trial court and CA, found that the Ontario government could exercise legislative control over the right to contract. Gwynne found that it was a trade while Richie found that it was an issue of property (“no better example”) – representation of the conflict in the positions of federalism. The decision was appealed to the JCPC. Issue: Could the Ontario government legislate in this area? The court applies a two-part test to determine whether the law is constitutionally valid. Held: Yes. The Act is valid, therefore trumping the contract. Reasoning: 1. Does the statute fall within any of the classes of subjects enumerated in s. 92? 2. Does the statute fall within any of the classes of subjects enumerated in s.91? Which one was more important? The issue centres around the conflict around the tension between the reading of trade and commerce against property and civil rights. The JCPC uses a historical and a textual argument to validate its decision. 1. Yes. The JCPC interprets 92(13) very broadly relatively to protect the rights of provinces to legislate in the area of civil rights and property rights. S.94 provides that the federal law cannot make private law in Quebec and therefore, property and civil rights must have some significance and that it should not assume unlimited control over contracts/private law of intra-provincial trade. 2. Smith reads the enumerated heads in s.91 together. He demonstrates that there are limits to the trade and commerce power by the explicit listing of bankruptcy and banking in conjunction with the trade and commerce power. He attempts to reason that there are two branches of trade and commerce: 91 was intended for the regulation of inter-provincial trade (applies the Scotland-England model).  The court also reference to the Quebec Act (the 1st time property and civil rights was mentioned as a “provincial” power), and the court is trying to show a development of property and civil rights in terms of the constitution as a whole

and not just limited to 91. Rationale:  A provincial statute is valid if it falls within the enumerated classes of subjects in the relevant section (s. 91 or s. 92) and if it does not fall “specifically” within an enumerated class of subjects belonging to the other level of government.  Trade and commerce has to do with inter-provincial and international trade; not specific trades by trade generally.  The logic of the Parson’s test establishes a procedure: if it is in s.92, the court must then check if it is in s.91, to establish if there is a conflict. Russell v The Queen [1882] Facts:  A private citizen and tavern owner began a criminal prosecution against Russell – another tavern owner – for violation of the Canada Temperance Act. Russell then argued that the Canada Temperance Act was constitutionally invalid because it dealt with property and civil rights, a matter reserved to the provinces. Issue: Does the law fall within s.92? Does the subject of the Act also fall within s.91? Held: Russell’s appeal was dismissed with cost – the law was held to be valid. Reasoning:  Smith applies the same Parsons test by verifying that the act falls in section 92. He found that the “true nature and character” of the legislation was POGG and that effects on property and civil rights were incidental.  What is this law trying to do? Though the law deals with liquor, it was intended to preserve public health and safety. The court ruled that the law was not intended to raise revenue, per 92(9), nor did it relate to 92(13), for the sanctions are criminal and not civil. Since the law was intended to provide a standard of conduct throughout the whole ‘dominion’ it was not of merely local nature 92(16).  Because the true object of this particular legislation was the preservation of public health and safety, the law was valid notwithstanding the fact that it might incidentally touch on (provincial) matters of property or civil rights. The 2 nd question was not addressed. Rationale: Secondary to the Parsons test, in interpreting the constitutional validity of a particular piece of legislation, it is valid to focus on the purposes and effect of the legislation. All we need to know that it is not validly provincial, therefore it is federal. In fact, a close reading of the judgement indicates that there is no reason why the fact that the Canada Temperance Act was valid should exclude the possibility of provincial laws on the same subject should the law fall within one the provincial classes of subjects (as in Prohibition). THE PITH AND SUBSTANCE DOCTRINE (Russell)– in the beginning of the JCPC rulings on divisions of powers, the Board took a broad reading to the scope of the POGG powers. 1. The courts examine both intent of the legislation looking at the stated and actual purpose of the law. What is this law trying to do?

2. The courts then determine whether it fits within one of the state powers of the enacting legislature. The pith and substance doctrine would be intimately tied to what the law is trying to do. This goes beyond simply classifying a policy area in one jurisdiction or another. Dividing human conduct is inherently problematic. How we describe what we are doing is what matters. The same law can be described in a variety of ways. This is akin to the problems facing the judgments in the s.96 cases. Hodge v The Queen [1883] Facts:  Hodge was charged with permitting billiards in his tavern under the Liquor Licence Act/Crooks Act 1877. The challenged the provincial law claiming it violated federal powers over trade and commerce & and that the provincial government could not delegate law-making powers to the Board of Commissioners, based on the principle that a “delegate (n) may not delegate (v).  Frawley, another owner, was imprisoned and forced to do hard labour for operating without a license. He challenged the province’s right to punish with hard labour. The cases were consolidated Issue: Did the Liquor Act impose on federal classes? Was the provincial government entitled to delegate powers to the Board and could it impose those penalties? Held: Yes. Appeal was dismissed and the Act was upheld. Reasoning:  Russell did not close the door on the provincial government legislating in the area of liquor. Fitzgerald rules that the sections must be read together. Fitzgerald iterates that subjects may fall within both jurisdictions (102). It allows him to reopen the Parsons test. Since provisions in this act are local in character 92(16) and are intended to repress drunkenness and maintain order on the local level, therefore a reading of 91 is not needed.  According to the judgment, the provincial parliament is sovereign in its own territory and has the exclusive right to make laws that are local in nature. One of the attributes of supreme power is to be able to delegate power therefore province can actually make laws for its own subordinates. Rationale:  Thus while Parliament could enact temperance legislation to deal with federal aspects of the problem (as per Parsons), the provinces could enact legislation dealing with its local aspects.  This case began to unfold the DOUBLE ASPECT DOCTRINE in which each jurisdiction is supreme and powers can be distinguished one from the other. This reading could allow provinces and the federal government to enact laws in the same policy areas. The key outcome from Hodge: How can both the provincial and the federal parliaments be sovereign? The court ignores this question by maintaining the sovereignty of the British parliament; however, it sets a precedent establishing the very foundation of federalism in the Canadian context. Each parliament is supreme in its own jurisdiction.

THE ASPECT DOCTRINE (Hodge)– recognized that subjects of legislation may fall in both s.91 and s.92. It would be an essential tool for upholding laws that were passed by both levels of government. The provinces were recognized as having authority to enact laws on virtually any subject (the only limit being territorial: only within the province in question); which was unintended by the framers of the constitution. However, many of the legislative powers of Parliament set out in section 91 would inevitably affect rights forcing the court to find limits the categories in section 91 in order to avoid the overlap. Both of these doctrines tend to favour concurrent jurisdictions –which seemingly is the case in Canada today. Monahan suggests (254) that problems require consideration from various jurisdictions (ie. environment). He recommends that instead of divvying powers in “watertight compartments” the federal government and provincial governments develop “institutions that can manage concurrency” to make government more effective in solving social problems and administering social services. AG Ontario v AG Canada (The Local Prohibition Reference) [1896] Facts:  The CTA would enact prohibition globally, while the Ontario would impose locally. The SCC ruled that the provincial law violated the powers in s.91(2) of the BNAA for the federal government to control trade and it voids the provincial law. It returns the idea that powers of prohibition belong to the federal government. An appeal was taken to the JCPC. Issue: Does the federal government have the power to enact the Act? After the Canada Temperance Act became the law of each province, does there remain the power within the legislature of Ontario to enact the provisions of s. 18? Held: Yes and yes. The appeal was allowed. Reasoning: 1. Russell established that the Dominion was valid in enacting the Canada Temperance Act because it would abolish liquor sales for POGG. Watson “expansively” interpreted Parsons to establish that the provinces can enact legislation in a subject so long as it is local in nature (but this was not the reading in Russell). Now it seems to matter how we classify a federal law, because if the powers fall within the s.91 list it can touch on s.92 powers; however, POGG powers are not supposed to have incidental effects on s.92 powers. Watson accepts that prohibition does not equal regulation (because abolition is not regulation since there will be no commerce at all) and therefore it must be a POGG power and it cannot have incidental effects. 2. Watson interpreted s. 92(16) to mean that all matters discussed under the heads of s. 92 are of a local nature. Hence, the Dominion has no power to encroach on any of the powers listed in s. 92. Like the decision in Parsons, trade and commerce must be weighed against provincially enumerated powers. However, this seems to overturn the Russell decision, because in that case, a uniform law was used as the rationale.  S. 92(13) & (16), which assign to the provinces “property and civil rights in the

province” and “generally all matters of a merely local or private nature in the province” seem to play a role parallel to POGG. Watson (111) articulated that it appeared that both laws could be held as valid, but since there was considerable difference between them, Ontario would have the authority to enact its legislation, but only if s. 18 of that law does not conflict with the prohibitive provisions of the Canada Temperance Act. The two laws can be held together so long as they do not conflict. Rationale:  In the prohibition reference, the JCPC effectively limited the federal government’s POGG power by arguing that they could not encroach on the classes listed in s.92.  Prohibitive regulations do not fall within trade and commerce.  Watson’s judgment also directly contradicts Russell, because temperance legislation in that case would not have fallen under a provincial class of subjects. Watson’s use of s.92(16) “local or private nature” therefore seems to elevate that class to almost the same status as POGG. Prior to its abolition as the final court of appeal, Justice Simon of the JCPC argued that it had erred it its limitations on the POGG power, calling for a revival of the aspect doctrine in relation to matters of national concern. This ruling came within the context of the Depression, where the provinces were forced to transfer UI to the federal government because they could not finance it. An imbalance was created: the provincial governments were afforded more powers without the tax base to provide the services in their jurisdiction. The following cases all deal with federal statutes surrounding the “trade and commerce” and economic regulation. They also deal with the transformation of the modern Canadian state, since they are all measures that are being set up in light of executive administrative action. Reference re The Board of Commerce Act, 1919 & the Combines & Fair Prices Act, 1919 [1922] Facts:  The Board was established to restrict monopolies, mergers and unfair profits. It attempted to punish hoarding of necessities including food and clothing for the purpose of unfairly increasing prices. The Board had powers to cease formation of mergers and to order repayment of unfair profits. The Board began to investigate about prices and was met with great resistance.  The SCC was divided equally on the issue: Anglin found that POGG was used in aspect only6, but Idington claimed that this argument was a slippery slope and that it violated provincial trade and commerce. The aim and operation did not coincide: the means must correspond with federal powers. What is the law trying to do? Issue: Did parliament have the authority via POGG and trade/commerce to enact the law? Does the Board have the authority to make decisions regarding prices? Held: No, but the provinces could have. Reasoning: 6

The legislation can also be saved under the criminal power.

 Haldane picks up on Idington’s ruling by stating that the federal government is not authorized to regulate the terms of contracts between traders and therefore falls under s.92 [re Parsons]. Unlike Parsons, Haldane considers other classes by implication only (ie. in his examination of criminal law).  It would understandable for the federal parliament to justify the use of the POGG powers during wartime to enact a law, but the JCPC had a difficult time justifying the law in times that are not an emergency under s.91.  Haldane comments that federal government cannot use its powers of criminal sanction to validate a law that would impinge on a provincial class of subject (colourability). How do we know whether the sanction is ancillary? The court recognizes that there are some subjects that are naturally criminal; however, the court is reluctant to recognize trade/commerce as a part of criminal law [counter to Anglin’s argument]. Rationale:  This case once again limits the POGG power, and restricts its interpretation to extreme circumstances. It also bounds the trade and commerce power again (as per Parsons) by forcing the court to look at it context with another power and not just against the other federally enumerated powers in s.91. Fort Francis Pulp and Paper Company v Manitoba Free Press Company [1923] Facts:  Under the War Measures Act (1914), the government regulated the prices of newsprint. The regulations were enforced by the Paper Controller and the Paper Control Tribunal. FFC was ordered to pay the MFPC whatever it had received in excess of the prices set. Issue: Is the federal statute valid? When is it valid? When are we in an emergency? Held: Yes. FFP’s appeal was dismissed. Reasoning:  Parliament cannot interfere with property [re Board of Commerce]. This situation would fall under one of the “exceptional” cases mentioned in Board of Commerce. Haldane recognized that this act “provided for a centralized power in an emergency situation” which was the underlying reason for the formation of the federal government in the first place. This law applied to newspapers, which are of sufficient national importance.  Haldane argues that the provinces are incapable under s.92 to make the appropriate and necessary provisions that would help ease the crisis.  However, when the crisis ends, the government should repeal the law. Haldane raises questions as to who decides when the emergency is actually over, however, the court seems to be flexible here in allowing the government to exercise its POGG power. The court needs clear evidence to show that the emergency is over [deference to government]. Rationale:  Measures such as those in Pulp must be temporary. At this point, we do not have a definition of an emergency. This will change in the future, with the Depression reference cases, when the court is almost unwilling to see that situation as an emergency.

Toronto Electric Commissioners v. Snider [1925] Facts:  The Industrial Disputes Investigation Act was enacted by Parliament in 1907. It enabled an employer and his employees in dispute to apply for the appointment of a Board of Conciliation and Investigation (arbitration panel that could effect a settlement that was akin to a court order). A Board was appointed to inquire into a dispute between TEC and some of its employees; TEC maintained that the Act was ultra vires.  The trial judge rules ultra vires because it was a local affair and it dealt with property and civil rights; however the CA overturns that decision citing 91(2). Issue: Was the statute valid? How do we characterize industrial disputes? Held: No. An injunction was ordered and the appeal was allowed. Reasoning:  Striking is not a crime since penalties are ancillary. Profiteering is not sufficient to invoke trade and commerce [re Board of Commerce where it can only be used with another head of power]. Haldane reinterprets Russell, just because legislation is for the general good of Canada cannot justify it: the implicit ground of Russell was that the court was recognizing the evil of intemperance at the time. The court reads the language back.  Haldane ruled that although trade disputes and strikes are of concern, they are not emergency situations. The government could extend its power to trample to rights of employers and employees to settle their labour disputes.  The Board had severe powers: it could call witnesses, interrogate workmen, or render work stoppages illegal. The breach in rights is the pith and substance of the law, and regulations of trade and commerce alone cannot be found to support the law [re Board of Commerce]. Rationale:  Civil rights of labourers and employers seem to be paramount to the resolution of trade disputes. The federal government is limited in its capacity to resolve problems under the trade and commerce class, since this would not qualify as a national emergency. The King v Eastern Terminal Elevator Co. [1925] SCC Facts:  The Canada Grain Act 1912 created a Board to regulate the grain industry (Canada’s most important). It was designed to facilitate commerce by making sure the grain was clean and graded. The grain elevators could retain the surplus of grain if it was under 3% of the load. In 1919, the elevators were limited to 0.25% to regulate profits (favourable to farmers). The company refused to give up its surplus and claimed the law invalid. Issue: Did the government have the power to regulate the entire grain industry by provisions of the Act? Held: No. Reasoning:  Duff identifies that just because exports comprises a certain %age, the government cannot regulate the local trade as a consequence of regulating the export. The government should limit its trade to inter-provincial only. In pith and substance, you are also interfering with local matters. It should not require the regulation of an occupation within the provinces by imposing a licensing system.  Duff may be recognizing that the federal government is trying colour its law as to interfere with provincial rights.

 Parliament is trying to use POGG to effect its goal. Duff ruled that the government could use its powers over transport, weights and measure, and trade to accomplish its objectives.  Provinces can effectively put a scheme together to ensure that operators do not abuse the system. Even if they cannot, the federal government cannot use its POGG power to interfere with provincial trade. Rationale:  Following the logic of Board of Commerce, the federal government should only interfere with local trade in matters of national emergency. Critique:  Justice Anglin ruled that the intention of the act was to ensure the expediency of the trade, which was central to Canada’s economy – it was a matter of “national concern” and would be required in anticipation of something going wrong. Provinces would have been unable to ensure standards on their own.  He ruled that this law would fall outside the powers of s.92 and therefore the federal government could assume its provisions, based on POGG re: Parsons. this was also the first attempt to apply the necessarily incidental doctrine in which the measures were necessary to achieving the objectives of the legislation. There seem to be two competing streams of thought: that the court is manipulating and misapplying the concepts stated in the previous cases or that the court’s revisionist read of the cases may be more representative of what the judges actually mean – that they add new language to the cases that may not have existed in the 1880s and 1890s. Both the majority and minority judges use early rulings to validate their arguments.

THE CONSTITUTION ACT, 1867: FEDERALISM AND JUDICIAL POWER FEDERALISM – division of powers between 2+ levels of government, each with its own separate and independent jurisdiction which in principle means that neither level can change legislation of the other; citizens are subject to laws of both levels At confederation, Canada was a QUASI-FEDERALISM [1867-1896] since the federal government was concerned with Canada’s economic development especially surrounding the railroad and Western expansion. The provinces were pressured to follow the federal lead, as the government employed the frequent use of its powers of disallowance. The founding fathers believed that conferring residual powers to the federal government would strengthen Canada nationally (s.91 assigns 30 distinct powers to the federal government). However, the courts (including the JCPC) have interpreted the provincial governments’ powers of civil and property rights very broadly. In 1982, s.92A gave provinces some powers over resource extraction7, while s.93 affirmed the provinces rights to control their systems of education. The POGG clause in s.91 has been interpreted as the residual power for the federal government, where it can pass laws in areas that clearly do not fall within the scope of s.92. Even in the midst of a clear emergency, the POGG power could not be employed. The federal government might have relied on POGG to deal with the devastating effects of the Depression, but it didn’t. When King was re-elected in 1935, one of the first things he did was to refer Bennett’s “new deal” economic legislation to the SCC. Another factor in this was the way the legislation was drafted—it could have been framed to re-enforce its legitimacy under POGG, but it was not. The government shifted between the Liberals and Conservatives; neither Bennett nor King was committed to Keynesian economic policies. Academics such as Kennedy (165) felt that the federal government’s hands were tied during a time of national tragedy. Kennedy lamented the loss of the federal “general power,” and thought that appeals to the JCPC should be abolished, that its past decisions should be overturned, and that the BNA Act should be repealed and the constitution rewritten (180). Proprietary Articles Trade Association v AG Canada [1931] Facts:  The Federal government passed legislation that would essentially prohibit monopolies. The SCC upheld the laws as valid arguing that the board could impose criminal sanctions, and since this form of behaviour was serious, the federal government had the purview to act in this area. Issue: Could the federal government impose criminal sanctions in this area? Held: Yes. Reasoning:  Atkin upheld the decision of the SCC citing that the pith and substance of the 7

Traditionally a power of the federal government

legislation deals effectively with criminal matters. Criminal law in s. 91(27) was interpreted to mean "criminal law in its widest sense" (per AG Ontario v. Hamilton Street). The concept of criminal law is not confined to what was considered criminal by the law of England or of any Province in 1867; the power in s. 91(27) extends to defining new crimes that the state found to contradict principles of decent conduct. Re: Board of Commerce the court cannot use its criminal law power to colour legislation that will interfere with provincial jurisdiction.  Like the “emergency” definition: the court defers to the legislature to define crimes (which may not need to be morally grounded).  In obiter, the JCPC also distanced itself from Lord Haldane’s discussion of the “trade and commerce” power in Board of Commerce, but a discussion of 91(2) (trade/commerce) was effectively unnecessary. It introduces an alternative to the possible judgment; however, the court avoids a lengthy discussion and rests its ruling on the criminal power.  The court also avoids a discussion of the POGG power, relying on the criminal argument. Rationale:  In cases of criminal conduct, the federal government has the authority to pass legislation to censure that behaviour. Who incurs these obligations? If it is incurred by the British Empire, then the federal government is obliged to sign. However, as Canada’s legal personality evolves, then s.132 will not be able to justify legislation, requiring that it be drafted under a head of power. To what extent does an international treaty allow the federal government to create obligations? In both Aeronautics and the Radio cases, the aspect doctrine is rejected: both are seen as federal powers, because both were new and of national importance. Reference re the Regulation and Control of Aeronautics in Canada [1932] Facts:  The federal government signs an international convention on aeronautics. It proposes legislation that outlines the comprehensive terms of the treaty to require licensing of aircraft, etc. The provincial government argued that the subject did touch upon the classes in s.92. Issue: Does the federal government have the power to enact such legislation under s.132 (treaty clause) and s.91 of the BNAA alone? Held: Yes. Reasoning:  Sankey wants to make aeronautics federal only. 1. He restates that the objective of the BNAA was to establish a central government to enact uniform legislation that would apply to all provinces. Usually, we apply the Parsons test; neither section 91 or 92 however deals explicitly with aeronautics. 2. The federal government is entitled to speak on behalf of the country by the powers of s.132; the treaty was comprehensive, and it could cover most of the bases for the legislation. The rest would fall under 91(2), (5) and (7). 3. POGG power was not tied to the issue of emergency, but rather of national

importance (but again, it is not clear how important a discussion of POGG really is) could justify legislation on aeronautics. Rationale:  s. 132 gives Parliament the power to enact legislation in order to fulfill treaty obligations that arise between the British Empire and foreign countries, because Canada was obliged to follow the treaty obligations of England. Reference re Regulation and Control of Radio Communication in Canada [1932] Facts:  We seem to have a similar structure to the Aeronautics Reference. The government entered into treaties on radio communication. In this case, s.132 does not seem to apply as easily, since it is entering into this treaty independently of the Empire. It asked the SCC whether in had the power to regulate radio under the POGG provision. How do we read s.132 to keep in context with Canada as a federal state? A literal reading of s.132 will protect the federal government from signing treaties to encroach on provincial powers as it might have done using POGG or trade/commerce on civil rights. Issue: Does the federal government have the authority to regulate radio? Held: Yes. Reasoning: 1. Canada, post-Westminster, can now make treaties on its own and therefore, s.132 will not help to justify a federal passage of the law. 2. Radio was not mentioned explicitly under in 91 or 92. Treaty implementation was also not included in either of the federal or provincial powers. 3. Similar to the interpretation of POGG in Aeronautics, radio laws would fall within the POGG power (the same can be said about radio). The federal government has a treaty-implementation power. Dunedin contends that it would be difficult to distinguish policy regarding transmitters and receivers, because both are integral to the radio system. By default, the powers are left to the federal government. POGG is the linchpin to make sure that radio stays federal (there is no room for the provinces). Rationale:  The federal government can enact legislation to implement a treaty obligation if the pith and substance of the legislation does not all under any class of power. It can rely on POGG. Mackenzie King defeats Bennett in the 1935 general election and refers the legislative package to the SCC for judgment on constitutionality. The court returns mixed decisions; however, the JCPC ruled that all of the laws were ultra vires.

AG Canada v AG Ontario (Labour Conventions) [1937] Facts:  Limitations of Hours Work Act, the Weekly Rest in Industrial Undertakings Act, and the Minimum Wages Act were referred after Canada signed the Treaty of Peace as a member of the British Empire to secure human conditions for workers. Issue: Can the federal government pass these laws within its jurisdiction? Held: No. Provinces retain the right to ratify the treaty and pass labour laws; the federal government cannot retain the right to ratify all treaties. Reasoning:  With respect to Aeronautics, the decision was grounded on s.132. There was no treaty-implementation power in Radio (170) as it was reinterpreted such that POGG was the residual power for which the treaty could be upheld.  However, if foreign treaty obligations were to be upheld then all the federal government would have to do would be to enter into an agreement with a foreign power and it could circumvent all constitutional obligations to respect provincial rights and liberties, which is unacceptable under the BNA (anticipated in Radio).  Normally the legislation in question would come within s. 92(13). The distribution of powers is based on classes of subjects; as a treaty deals with a particular class of subjects so will the legislative power of performing it be ascertained. The Parliament cannot, merely by making promises to foreign countries, clothe itself with legislative authority that is inconsistent with the Constitution.  The POGG can only override the normal distribution of power only in the most extreme cases. This case does not meet the "standard of necessity" (Board of Commerce), and its permanent nature is also at odds with the idea of POGG as an emergency power. Rationale:  An independent (not part of British Empire) treaty cannot be upheld under s. 132 when it encroaches on the classes of enumerated subject in s. 92. Therefore, there is no treaty implementation power. AG Canada v AG Ontario (Employment and Social Insurance Act) Facts:  The federal Employment and Social Insurance Act provided for compulsory insurance against unemployment for workers; The SCC held the act invalid because in pith and substance it was under s. 92(13).  The SCC is divided: the law could be taxation or could be dealing with insurance. Issue: Can the Act be upheld as a result of a special emergency (POGG)? Can it be upheld by sections 91(1) or 91(3)? Held: No. Reasoning:  Even assuming that the Dominion has collected by means of taxation a fund, the federal government cannot use POGG to “colour” legislation that invades property rights. The legislation enacted to dispose of the fund would affect the classes of subjects is s. 92, and would therefore be ultra vires. In pith and substance this legislation affects civil and property rights in the Provinces and as such is indeed ultra vires, since taxation is not tied to raising revenue.  Lord Atkin said that the federal government could not use its spending power to trench on areas of provincial jurisdiction.

Rationale:  The core of the New Deal legislation is struck down, since legislation by POGG can only be temporary. This broadened the reading of 92(13) and although the federal government has powers to tax, its ability to legislate is limited. AG British Columbia v AG Canada (Natural Products Marketing Act) Facts:  The Act was designed to regulate prices of natural products that were meant principally for export outside of provinces. We know that some of the products will not leave the province. We have seen this scheme before. Issue: Could the act be upheld via 91(2)? Held: No. Reasoning:  In reference to Eastern Terminal the federal government cannot regulate individual industries within the provinces. The court emphasizes that the federal government and the provinces must work together to regulate, as each has its own sphere of jurisdiction.  Atkin says that satisfactory cooperation can be achieved, but it must be done carefully. Rationale:  This reinforces the federal government’s incapacity to legislate in areas of trade; the court sets out a very high threshold of care. FR Scott’s piece recognizes that even with cooperation between federal government and provinces, legislation can still be struck down. Atkin seems to conceive the relationship as “watertight compartments” which seems contradictory to the venture (and contradictory to the double aspect doctrine). The language of watertight compartments can be used to protect provincial jurisdiction; however, it can be seen as detrimental to a centralizing force of the federal government. Summary Simeon and Robinson clearly expressed the outcome of these cases, such that the federal government was completely limited legislatively by the BNAA and could only use its fiscal power to effect some control. By providing provinces with the capacity to legislate, it reinforces territorial control and inhibits the federal government’s ability to address broader social and economic cleavages related to class or race. The federal government had been stripped of the powers it was intended to have at Confederation: the power to shape and direct the economy from a centralized government. The vision of Canada was totally changed during the period from 1880-1940. Beginning with Parsons and continuing until the Depression, provinces gained significant legislative capacity, without the ability to finance it. Federalism would become reshaped by fiscal arrangements that would lead to conflict. By revisiting some of the themes in the course, we find that powers of reservation/disallowance (written) are eclipsed by the notion of federal (unwritten).

FEDERALISM AND THE MODERN CANADIAN STATE Summary - Criteria for Choice in Federal Systems [Simeon] Simeon says that federalism is not an end in itself, and that people usually assess federalism in terms of one of three distinct bodies of theory: 1. Community (or diversity): Federalism can accommodate a balance between different notions of community. In the contemporary world, most people belong to multiple communities, ranging from the family to humanity in general. However, we have a lot of discourse of identity, and larger communities (geography and network) that may not share very much, but may be linked by networks or identity. We could speak of larger communities as societies (with less emphasis on holding in common). Civil society is supposed to connect society and the state. The language of community is the lens that Simeon uses to engage the topic of federalism. Is this the correct application of the term? Conflicts arise (e.g., Quebec nationalism) when different parts of the country hold different ideas of the balance between local and national community identity. However, provincial divisions are artificial and do not really represent communities. 2. Functional effectiveness: In this view, institutions and levels of government are assessed according to their ability to respond to citizens’ needs. However, functionalists are concerned with the burden of duplicating institutions, and the possibility of governments “passing the buck.” 3. Democracy: One aspect of this theory is separation of powers, checks and balances, and limiting the role of the state. (However, modern critics associate federalism with excessive government.) Different levels of government reduces transparency, especially due to the problems and conflicts of executive federalism. The same question keeps arising: who gets to regulate human conduct in a certain area? When we are inquiring into the VALIDITY of the law, we consider whether the legislature has the authority to pass the law under section 91, 92: is it intra vires or not?. Abel contends that we should grapple with the (1) determining the meaning of the law, (2) delineating the classes of subjects in 91 and 92, and then (3) placing the statute in a delineated class. The court has been “doing” this since Parsons. (1) The word “meaning” is a charged term: do we consider the “objective” matter/sense of the law, or do we try to identify with the actor who “subjectively” intended to act in a certain manner. By meaning, we can consider the effects and history of the statute outside of the text on the page. What are the outputs, the outcomes, and the legislative history of a statute. Sometimes the law will purport to be something that it is not (and it is coloured by a preamble or lofty

provisions: colourability). When a law has incidental effects, does it change its pith and substance? (2) Do we assume that the classes are mutually exclusive or do they overlap? How can we acknowledge the overlap and still decide which jurisdiction has the authority to legislate on a certain domain of human conduct. Pith and Substance – while the fathers of Confederation had intended to contain powers in “watertight” compartments, the process of judicial review and the development of Canadian society has meant that class of subjects are not as exclusive as intended. More state involvement has meant more conflict in jurisdiction. Provinces and the federal government, according to Lederman have different visions of the Canadian state and thus compete for classes of subjects. R v Morgentaler [1993] SCC Facts:  Morgentaler is planning to open an abortion clinic in NS; the NS government passed the Medical Services Act effectively prohibiting abortions from being performed outside of hospitals. In 1988 the SCC held that abortion prohibitions violated s.7 of the Charter. The NS government claimed that it was enacting a quality control and safety law; however, the law was found to be a response to the clinic. Issue: What is the pith /substance of the law? Does it have a criminal purpose? Held: Yes. The NS legislature was found to enact criminal sanctions (violating its jurisdiction). Reasoning:  Sopinka had ruled that there was no single test to determine pith and substance, and that multiple approaches must be used. The court must consider the purposes of statute and the effects the statute will consequently have. The court can employ expert testimony, Hansard records, and related legislation. There were features of the MSA that was analogous to the criminal code with a very stiff penalty for violation; abortion has been a criminal law matter historically and not a matter of provinces.  Once the court examined the objectives of the province, it found that Morgentaler’s clinics would not pose any more danger to women, that it did not express concerns about privatization, not did it discuss the issue of cost effectiveness (all matters that would supposedly deal with provincial health). The main reasoning of the NS government did not correspond to the legislation. The court had a plethora of legislative evidence to quash this law (as in Roncarielli), to facilitate the judgment.  Sopinka presented that the law could fall within one of two alternatives: either of criminal matters (ultra) or of provincial health (intra). Although the act prevents the privatization of abortions, it imposes penal consequences (questionable validity). However, the absence of criminal legislation does not mean that the provinces can. Their laws must fall within an according s.92 (Parsons). Rationale:  The provincial government cannot fill the gap in criminal legislation by designing legislation that would perform a similar function. Criminal law and abortion, in particular, remain the exclusive domain of the federal government.

Like Board of Commerce, and AG Ontario v AG Canada, Sopinka could have ruled that this law could not “colour” sanctions against abortion under criminal law. It looks like criminal law “on its face” and Sopinka can discount the stated purpose of the law by looking at other evidence. To what extent can the court rely on external evidence to determine what the legislature is trying to do with its law. Maybe the NS was not careful enough to hide its intention. – substantial divergence from the effects of the law from its stated aim. We can look at legal effects and construction to determine what the law is really about. This doctrine may be unnecessary if the court takes an expansive approach to pith and substance, see Morgentaler.

COLOURABILITY

We should go through the grounds of s.91 and 92 first to ensure that the law could be passed using the appropriate enumerated heads of power. Then the court can perform a Charter analysis to ensure that the law does not violate individual rights. Necessarily Incidental – a law may have effects on another jurisdiction so long as those effects remain secondary to the principal objective of the law. The Eastern Terminal case was an early example of the attempted application by dissenting judge. We can also look back to the s.96 cases in which Boards can have judicial functions that are ancillary to its broader goal. General Motors of Canada Ltd. v City National Leasing [1989] SCC Facts:  CNL brought an action against GMC citing that it suffered loses as a result of the anti-competitive behaviour of GMC and giving preferential interest rates to CNL’s competitors. They argued that the Combines Investigation Act was ultra vires. The section allows one company to sue another for its uncompetitive behaviour, but GMC argues that this is an issue of property and civil rights. Issue: Does the Act represent a valid exercise of regulation of trade with incidental effects relating to property and civil rights? Held: Yes. Reasoning: Dickson argues that the court has to consider two questions: 1. Does the provision intrude on provincial powers? If so, to what extent does it intrude? 2. Is the Act or section of the Act valid? 3. What degree of fit is required to save the intrusion? Dickson contends that a “functional” relationship may be sufficient to justify. The court had to consider whether the provisions in the act are sufficiently integrated into the act to establish the functional connection. 1. The provisions do encroach on provincial powers. 2. Dickson found that the threat of anticompetitive practices was an issue that transcended provincial boundaries and that the pith and substance of the Act was to ensure a healthy base of competition across the country and not in one specific business or industry. It is not unprecedented that the federal government has created regulations like this one before. Since the intrusion is minimal, a functional relation may be sufficient. 3. The provision was found to be functionally related to ensure that companies do

not inhibit competition. The section is part of an underlying purpose of the act, which serves pan-Canadian interests and is necessary to fulfill Parliament’s objectives. The provisions are remedial because the application of the provision is limited and the federal government can create protections of rights when they have proved that they are warranted to do so. Rationale:  The provision of a law can encroach on the jurisdiction of the other level’s jurisdiction; however it must serve a function role and be ancillary/secondary component to the legislation [Residential Tenancies is very similar]. There is a tension between the language of exclusivity and the language of overlap (pith and substance, double aspect). Double Aspect Doctrine Multiple Access Ltd. v McCutcheon [1982] SCC Facts:  A shareholder sued Multiple Access Ltd. under the Ontario Securites Act alleging that insiders had traded on inside information. The alleged insider traders argued that the Ontario statute could not apply because Multiple Access was a federally regulated company, registered under the Canada Business Act, which also contained provisions dealing with insider trading.  According to the paramountcy doctrine, they claimed, the federal legislation on insider trading should have applied instead, and the provincial legislation should have been rendered inoperative. Issue: Which of the two insider trading laws should apply, provincial or federal? Held: Both can apply and both are intra vires. Reasoning:  Dickson found that the Ontario legislation was valid under “property and civil rights,” and that the federal legislation was valid as a “regulation of a company”. The same rule can have a double aspect and be valid under both. Insider trading provisions were equally important to both regulatory schemes, so it was not easy to make one trump the other (see Lederman 231) and the court should not “kill one and let the other live”.  A declaration of invalidity of the federal act would create a potential gap in the present regulatory schemes that might be exploited. The provision can be additionally justified under POGG. However, trade and commerce was not invoked in the judgment.  As for paramountcy, Dickson found that it was possible to comply with both laws, so there was no conflict. He quoted Lederman to say that duplication is “the ultimate in harmony.” Rationale:  Where dual aspects of a piece of legislation are found to exist, concurrent application of overlapping federal and provincial laws are permitted. Mere duplication is not sufficient to invoke the doctrine of paramountcy, its invocation requires an express conflict between the two pieces of legislation, which does not occur. Pith and substance and double aspect produces overlapping jurisdiction. The legal products are not concurrent jurisdictions, because the constitution makes explicit mention of concurrent jurisdiction in s.95. The validity of the laws are derived from s.91 and s.92, and therefore the constitutional class used to support overlapping laws are difference and not concurrent.

When we are inquiring into the APPLICABLITY of the law, we are not considering whether a law is invalid or ultra vires. We consider whether the law can apply to a federal undertaking or other federal matter. The words of the statute will be "read down" – interpreted so as to apply only to matters within the enacting body's jurisdiction. Inter-jurisdictional Immunity Doctrine This tends to depart from the notion of pith and substance because the court will protect certain “core” domains from being incidentally affected by legislation from another jurisdiction, falling in line with a more compartmentalized vision of federal division of powers. There does not have to be a conflict in two laws.  Hogg has criticized this approach, citing that it runs counter to the pith and substance and double aspect approaches, and since federal laws reign supreme, its paramountcy can protect its laws from provincial laws that may run counter to it. What is exclusivity? The debate in these cases, we have to determine at what stage these powers are exclusive from each other. The double aspect doctrine postpones the exclusivity question. However, the inter-jurisdictional immunity doctrine protects federal legislation, generally, from the affects of provincial laws. But why federal laws generally – provincial governments also have a core of jurisdiction that should be protected). The test has been loosened because no longer must a provincial law sterilize that status of the federal company (reach right to the core of the federal undertaking, Bell #1) but now, the court reads the IJI test as if the provincial law affects the vital parts of the management of the operation (see Bell #2). IJI comes head on with double aspect and pith and substance; whereas paramountcy deals with operation and not just application. Commission de la Santé et de la Sécurité du Travail v. Bell (Bell #2) [1988] SCC Facts:  A pregnant employee of Bell Canada sought to be reassigned to a safer task, following Quebec labour laws. Issue: Could the Quebec health code protect the worker? Held: No. Reasoning:  The court did not question the validity of the law. The court questioned whether it could be applied to this situation.  In Bell #1, the court found that Quebec’s minimum wage law could not apply, since it affected vital parts of the company’s operation, and as such, only the federal government can legislate in the area of federally incorporated businesses.  Beetz’s propositions found that health and labour relations were domains of the provinces, though the federal government maintains control over federally incorporated companies. Beetz’s ruling follows the same logic as Bell #1: the double aspect doctrine is not invoked, since this issue falls within a class of

powers of section 91. If the provinces were given control, it would weaken the federal government’s powers in this area. The law cannot impair a vital part of the federal undertaking. Rationale:  Beetz’s judgment relies on his determination to ensure that the provinces do not interfere in the federal government’s legislative capacity in the area of federally incorporated companies.  This seems to be a more direct and head-on approach to protect federal jurisdiction in this area. Beetz concluded that the provincial law had to be read down so as not to apply to federally regulated undertakings such as Bell Canada. McKay v. The Queen, [1965] SCC Facts:  The McKays put a sign on their lawn during a federal election, and were convicted under a municipal by-law which prohibited lawn signs in general. Issue: Could a municipal (i.e., provincial) law be applied to the sphere of a federal election? Held: No. Reasoning:  The court did not question the validity of the law. The court questioned whether it could be applied to this situation.  Cartwright, for the majority, wrote that federal elections are an exclusive federal sphere, so inter-jurisdictional immunity applied. The court can read this rule down to protect the federal undertaking from the municipal bylaw. The right to put out signs is one of a “citizen of Canada” [which can only be taken away by Parliament]. The law would take away a citizen’s right to political expression and the provinces cannot take that right away.  The provinces could not have intended to produce that law.  Levels of generality of language: Cartwright stated that the language of the provincial law was too general, and had the language been more precise it would not have applied to the federal branch. Therefore reading down adjusts the scope of the language. Rationale:  Provincial legislation and/or municipal regulation are inapplicable to clearly federal activities (i.e. federal election). Critique: Martland for the dissent, found that nothing in the federal power over elections gave anyone a specific right to erect a sign, and that the legislation was in pith and substance property and civil rights. The law can have incidental effects on election signs. Today, the Charter would be used to protect citizens from such laws. Had pith and substance been able to rule in this case, the incidental effects would have been allowed to stand. However, the majority did not permit the law to impinge on a core federal activity. We know that IJI reaches deeper that federally incorporated companies, and into Aboriginal rights, federal elections, etc. Paramountcy When there are two pieces of legislation, federal and provincial, the courts will assess the validity of each. If both are valid, paramountcy might be applied. Valid federal legislation is generally paramount over valid provincial legislation, except in certain specific cases (e.g., old age pensions—s.94A). Paramountcy

does not mean that legislation is not struck down; however, the legislation is rendered “inoperable” as long as the other law is in effect. The narrow version of the paramountcy doctrine as stated in McCutcheon indicated that there is only conflict when it is impossible to comply with both laws. (“express conflict” or “impossibility of dual compliance”). The broad version of the paramountcy doctrine as stated in Hall indicated that if the federal government has legislated within a certain area, provincial law is redundant, and therefore inoperable (“covering the field” or “negative implication”). Ross v. Registrar of Motor Vehicles, [1975] SCC Facts:  Ross was convicted for impaired driving, and was sentenced under federal criminal law but the court ordered that he could drive to and from work. The provincial law that regulates drivers’ licenses also totally fully suspended Ross’s license for three months. This appears to have created a conflict between the two orders. Issue: If there was a conflict between the federal and provincial legislation, would the rule of paramountcy mean that the provincial legislation would not apply? Held: No Reasoning:  Was the trial judge entitled to order that the license not be suspended (was this action legal)? Pigeon says that the trial judge did not have the power to make the specific order to the provincial government and exceeded his authority to do so. The section of the Code is still valid, then both laws can operate and regulate human conduct at the same time.  The driver could comply with both laws: by not driving at all he complies with both laws. Does this result in an amendment to the Code? By negative implication, Parliament wanted people to drive, but in this case, by not reading the provincial law down, Parliament does not get to effect its purpose. Rationale:  The doctrine of paramountcy is applicable when there is a direct conflict between federal and provincial legislation; provincial and federal enactments concerning the same issues are not subject to the doctrine if both can be complied with simultaneously (double aspect). This is the “classical” reading of paramountcy. Critique:  Judson holds that the federal law is in conflict to the provincial law (finding that the trial judge had the power to issue the order) and thus the federal law should stand and the provincial law is ruled ultra vires. Bank of Montreal v. Hall [1990] SCC Facts:  Hall, a farmer, borrowed money from the Bank of Montreal to buy some machinery, with the machinery as security. He failed to pay the loan, so the bank seized the machinery according to the federal Bank Act without giving notice, but in contravention of certain procedures required by the Saskatchewan Limitation of Civil Rights Act that stated that if no notice is given, the bank forfeits its right to make the claim. Issue: Is there a direct conflict in the operation of the law? Held: Yes. The Bank cannot avail itself of all of your rights under the

federal law and yet follow the provincial law. Reasoning:  Is there a conflict? How do we know when a conflict has occurred? Previously, a conflict would exist when a citizen cannot possibly comply with both at once. In this case, it would be possible for the Bank to comply with both laws at once. The shift away from dual compliance to conflict8 in purpose, as under the federal law, the Bank does not have to give notice.  Although the federal law does impinge on property and civil rights, the enforcement provision was considered "necessarily incidental" because to deny it would be "tantamount to defeating the specific purpose of Parliament in creating the Bank Act security interest. The Civil Right Act frustrates the purpose of the Bank Act: compliance and purpose are mixed-up.  The federal law provides a right (therefore the language of compliance does not seem to make sense); it is an enabling or facilitative law. If the Bank can comply with both, can the judge comply with both – who is the relevant actor? La Forest reuses same words of Multiple Access but does not use them in the same way. Rationale:  The doctrine of paramountcy is applicable when provincial legislation frustrates the essential purpose of federal legislation; dual compliance is impossible when application of a provincial statute frustrates Parliament's legislative purpose.  Parliament has enacted a complete code that at once defines and provides for the realization of a security interest. The provincial legislation disables the federal law. Had the court used the IJI, it might have opened a slippery slope to reduce the powers of property and civil rights. La Forest’s might be embracing the test to allow the federal government to achieve its purpose. In Law Society of British Columbia v. Mangat, 2001 a federal law allowing non lawyers to act as counsel in immigration hearings appeared to conflict with a provincial law prohibiting non-lawyers from acting as counsel for money. Technically, it may have been possible for anyone to comply with both laws by becoming a lawyer, but the court found that the provincial law ran contrary to Parliament’s intentions9. Additional Notes A POLICY is a series of decisions involving many decision-makers, a policy is not administration, it is behaviour & intention & motive which may not remain static in time, can be an action or inaction, while some outcomes may be unforeseen, purposes can be rational or rationalized, also, a public policy must involve government, and involves a subjective element of definition. Policy seems to be goal-oriented. Judges struggle to reconcile this concept in Secession Reference, Residential Tenancies, and forthcoming in the POGG cases. When interpreting POGG in a broad sense, the language of POGG can be 8

The farmer could use the Bank Act do acquire the loan then he could protect himself under the cloak of the Civil Rights Act. 9 This case employs more careful use of the language of “compliance”.

used to support sweeping policies. The court seems reluctant to challenge the efficacy of a policy, as the court will defer to the legislature (a policy-making body).

PEACE, ORDER AND GOOD GOVERNMENT So far, we have traced the POGG power from Parsons to Eastern Terminal and the relegation of POGG to a mere emergency power. After Westminster POGG did not remain as a treaty-making power either. However, in the cases below, POGG becomes reinterpreted once again as a power of national concern. Reference re Anti-Inflation Act [1976] Facts:  The Anti-Inflation Act established a system of price, profit, and income controls; the Act applied to certain private companies and professions, the federal public sector, and applicable to the provincial public sector with the agreement of the province; the trade unions were particularly upset because of the implications on wages for employees of large companies; a reference was directed to the SCC to determine the validity of the Act. Issue: Is the Anti-Inflation Act ultra vires considering that it affect areas within provincial jurisdiction? Held: The Act is valid under the emergency branch of POGG. Reasoning: Was it necessary for an emergency to exist to validate the act? What basically happens in an emergency, the federal government can severely impinge on provincial powers and the 91 and 92 distinctions break down. Laskin sought to determine if the Act was valid under the emergency prong of POGG. The judgment considers four questions. 1. Did the Act belie the federal contention, because it did not automatically apply to all institutions and people in Canada? The coverage is described as comprehensive except the provincial public sector option. This exception is not regarded as an indication of a lack or urgency; it is also noted that agreement of 8 provinces had been secured, and that "opting in" was envisaged/expected. 2. Is the federal contention assisted by the preamble? The preamble was considered sufficiently indicative, clear enough, that Parliament was introducing a far-reaching program prompted by what in its view was a serious national condition. 3. Does the extrinsic evidence demonstrate that there was a rational basis for the Act as a crisis measure? High unemployment, and inflation was a new phenomenon. Laskin does not ask if there was an emergency – he asks only if Parliament had a rational basis for deciding that there was an emergency and for deciding how to approach it (288). This represents the perspective of judicial deference: what is the evidence that Parliament used? The judges cannot substitute his own judgment for that of Parliament10 (but how much expert evidence is needed?). 4. Were there other areas of federal authority that legitimized the Act? Yes. Inflation is a monetary phenomenon and monetary policy is within exclusive 10

Economists said that it would only decrease inflation by 2%. But Parliament is acting on its best judgement; the success of the act is not subject to judicial review.

federal jurisdiction. As well, the trade and commerce power gives Parliament a foothold to regulate trade in a general manner.11 Rationale:  The federal government can justify legislation as a national emergency so long as it meets the above conditions. National emergencies are no longer restricted to war and pestilence as iterated in Board of Commerce and Francis. Critique:  Beetz argues that "the containment and reduction of inflation" does not qualify as a new subject matter. It is an aggregate of several subjects some of which form a substantial part of provincial jurisdiction. It is so pervasive that its primary effects of the Act are related to property and civil rights.  If we uphold that Inflation should be parliament power, then everything else12 should be as well because inflation touches upon salaries, budgets, wages, rent controls, etc. Inflation is too general and over-arching of a concept and it would obliterate provincial powers, property and civil rights. Again, the limited coverage of the act detracts from its “pure emergency nature”. To what extent can we depart from 91 and 92: maybe we should look to federal powers.  Beetz did not find that this Act did not clearly employ the language of express emergency. Beetz argues that 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. With respect to the Laskin judgment, why does the court invoke the other heads of power if the judgment relies on the emergency branch of POGG. It seems unnecessary, considering that it met the other three conditions. The Richie group was clearer finding that the grounds for the decision lay in emergency and not in s.91 powers. R v Crown Zellerbach Ltd. [1988] Facts:  CZ was dumping wood-waste into the Cove (provincial waters). The Ocean Dumping Control Act prohibits the dumping of any substance at sea except in accordance with the terms and conditions of a permit. The sea in this case was all internal salt water of Canada other than fresh water.  The province contended that the federal government did not have the right to legislate over dumping in their waters, which extended to all dumping regardless of how innocuous it was (very frustrating for the province, as substances were not shown to be polluting). Issue: Could the government legislate OCDA? Is marine pollution similar to inflation. Held: Yes. Le Dain ruled that the Act is intra vires; marine pollution is distinct, indivisible and a matter of extra-provincial concern and can, thus, be legislated

12

Like treaty-implementation, inflation could potentially throw the s.91 and s.92 powers into imbalance, since the emergency branch can temporarily suspend s.92 powers.

under with POGG powers. Reasoning: 1. National concern  national emergency and therefore legislation need not be temporary – it could be permanent. 2. It applies to new matters, which may have been local or private, but now are of national concern. 3. Singleness + Distinctiveness + Indivisibility that clearly distinguishes it from a matter of provincial concern. The federal government contended that it is hard to distinguish between provincial waters and Canadian waters and therefore, the court found it better to over-protect than leave some water subject to no jurisdiction. Since pollution spreads irrespective of jurisdiction, the matter can be said to be indivisible.  Le Dain is using the treaty to sustain his argument that there is a distinction between fresh and salt water pollution. This domain must be clearly distinguished from provincial powers – revisiting the language of “watertight compartments”. 4. What is the effect, and can provinces deal with the problem on their own? Effectively, this was only to be used to fill gaps in provincial powers and must be outside the ability of the provinces to control on their own. The law has limits, and it only applies to salt water and not to fresh water. Therefore, the effects are limited, as per the ruling in Anti Inflation.  We have seen this wording before, in Eastern Terminal – this case represents a complete reversal of that decision. What if the provinces and federal government label the problem differently? However, the provinces could take a different approach. Is the court being forced to choose, which legislative scheme would work. We seem to have a problem with labelling: it is as if we are adding more enumerated heads to s.91, like Aeronautics, Radio, and Nuclear Materials. Rationale:  Maritime pollution is a matter of distinct national concern, and thus falls within the powers of the federal government. Critique: La Forest’s dissent is similar to Beetz’ critique from Anti-Inflation. La Forest questions the wisdom of the policy. The goal is valid, but the dissent questions the wisdom of the policy. The prohibition should be tailored to the ends (311): the federal government should be tackling pollutants. The dumping in a local cove should not be a matter of national concern, allocating maritime pollution to the federal government only goes against the principles of federalism and shared responsibility, and maritime pollution fails the singleness test since there are other aspects of the maritime pollution cycle that are not covered by the law. He counters the argument by stating that provinces should be given some room to legislate. La Forest, like Beetz, is imagining what is to come: the provinces may be prevented from legislating on this domain in their own territory without federal approval, the substance in question may be inert and not pollute at all, and the law is difficult to read down and may be extended to internal waters of the province as well.

The test, according to Simeon, prides itself on provincial inability. However, will the judges consider evidence of failed provincial regulation, or failed provincial cooperation? Can the federal government simply step in and legislate in an area? Brun and Tremblay (p.315) critique this judgment and basically show how all of Le Dain’s criteria are vague and fluid. They accuse the Supreme Court of politically favouring the federal government. It seems as if Le Dain is taking judicial notice, he is prepared to assume rationality of parliament’s decision without the need for actual evidence. The court seems to be employing the language of “new”-ness and a matter of national concern. Newness (as in Anti-Inflation) should not be regarded in a temporal way but a conceptual way: something that was coming before the courts for the first time. This case raises questions about the language and generality of the language employed by the court; the federal government has tended to be successful so far, in the cases presented, that subjects with little provincial regulation will fall to the federal government. What kind of social science evidence is presented to demonstrate that the problem is new? Has the problem changed, evolved, become apparent and does the problem cross provincial boundaries? Striking down Board of Commerce - the subject matter had significant impact on provincial jurisdiction and was not distinct enough to justify making it a federal power. Essentially, it is the difference between pollution (not distinct) and marine pollution (distinct).

Friends of the Oldman River Society v Canada (Minister of Transport) [1992] Facts:  Guidelines required all federal departments and agencies that have a decisionmaking authority for any proposal that may have an environmental effect on an area of federal responsibility to screen such proposal and determine whether it may give rise to any potentially adverse environmental effects.  Alberta had obtained approval from the Minister of Transport for the construction of a dam. The Minister considered only the dam's effect on navigation and did not make an assessment under the Guidelines. Construction of the dam commenced. The Court of Appeal quashed the Minister's approval and ordered the Minister of Transport and of Fisheries and Oceans to comply with the Guidelines order by setting up an environmental assessment panel to study the environmental impact of the dam. Issue: Is the act intra vires? Held: Act is intra vires because both levels of government have the ability to legislate over the environment so long as it is tied to another power over which they have jurisdiction. Reasoning:  La Forest explains that matters of the environment do not fall explicitly with 91 or 92; however, outside of national concern/emergency, the government must legislate on such a topic in reference to one of its enumerated heads.  The dam project fell within the ambit of the Guidelines Order under which the

Minister of Transport was required to consider the environmental impact of the dam on such areas as navigable waters, fisheries, Indians and Indian Lands. Rationale:  The environment does not fall within either 91 or 92, meaning that both levels can legislates on aspects of this domain. The notion that POGG is a general power fell out of favour by Local Prohibition. POGG became a more residual power and by the post-war period, POGG could be used in one of three mechanisms. We could locate the national concern branch in the Local Prohibition. The language of national concern gives way to the language of emergency, which was practically the only way the government could justify the use of POGG. By Radio, the court found the treaty power in POGG – creating POGG as a gap-filling power. However, not until cases like AntiInflation, did the branches begin to distinguish themselves. The national capital region, aeronautics, and radio were found to be issues of national concern. We should consider how those matters can be found to be “distinct”, “new”, and “incapable of provincial regulation”. The gap branch – the constitution recognizes provincial incorporated companies but leaves no mention of federally incorporated companies (like Bell #1, 2).

ECONOMIC REGULATION Black and Co. v Law Society of Alberta [1989] Facts:  A provincial law prohibited partnerships between in-province and out-of-province lawyers. Issue: Was the law within the province’s jurisdiction? Held: No. Reasoning:  La Forest ruled that Canada was created to form a political and economic union. The interpretation of s.121 of the BNAA (free trade clause) was meant to encourage and permit the free flow of goods and services across the country.  The court used the language of individual rights as opposed to federalism: law would have violated a worker’s right to seek employment in any province (which would have been prohibited) – quashing on the basis of s.6(2) of the Charter. Rationale:  Canadians have a right to work and live in any provinces of the country. Internal trade barriers should be limited by that principle. Canadian Egg Marketing Agency v Richardson [1998] Facts:  The federal and provincial governments came up with a unified marketing scheme which allocated quotas of the egg market to each province. At the time, there were no eggs produced in the NWT, so the NWT received no quota. Richardson started an egg farm in the NWT. Issue: Did the Canada Egg Marketing Agency deny Richardson his right to take up residence in another province and gain a livelihood, as guaranteed by s.6 of the Charter? Held: No. Reasoning:  The egg marketing scheme was enacted for economic reasons, while s.6 of the Charter was enacted for “a human rights purpose.” Section 121 did not confer rights to individuals so claims Iacobucci and Bastarache, but this regulatory regime was integral to the growth of the economy.  The pith and substance of the law was not to discriminate against certain producers since it did not deny someone the right to egg farm. Rationale:  When the provinces and the federal government work together on an economic scheme, the court is more willing to allow that scheme to hold, even if laws on from the countervailing jurisdictions have more than incidental effects on the economic class of power(s) of the other – see Agricultural Products Marketing Act. Critique: McLaughlin argues that the scheme is not a reasonable impairment on Charter right (in application of the Oakes Test) and that the regime should not limit a citizen’s right to work. Provincial Economic Regulation – what are the limits of provincial regulation in the economy and what are the limits under the regulation of trade and commerce. Carnation Co. Ltd. v Quebec Agricultural Marketing Board [1968] Facts:

 Carnation operated an evaporated milk factory in Sherbrooke. It bought its raw milk from Quebec dairy farmers, but shipped most of the evaporated milk to other provinces. A price dispute arose between Carnation and its suppliers and Carnation is unhappy since the Board (of producers) affects the cost of doing business. The Quebec Agricultural Marketing Board was empowered by legislation to set prices. Issue: Did the Board’s decision encroach on the federal field of inter-provincial trade and commerce? Held: No. The scheme was found to be intra vires. Reasoning:  Board is empowered to negotiate and regulate on behalf of producers in Quebec: the board creates a collective bargaining agency (labour), which is valid under 92 (13).  However, is the Board allowed to set the prices for milk for export? The court found two conflicting cases Lawson and Shannon.  Martland found that the purpose/pith and substance of the legislation was intraprovincial, and that its effects on inter-provincial trade were incidental. The court used the analogy of labour law: it certainly affects the cost of doing business in the province, and it may therefore affect the province’s external trade, but its main goal is internal. Rationale:  If the orders of the Board would “affect” inter-provincial trade then the orders can stand; however if the orders were “aimed at” regulation, then the orders would be ultra vires. Manitoba Egg Reference [1971] Facts:  Manitoba erected a provincial statute exactly like the Quebec statute on the regulatory scheme: by not allowing outside producers to undercut their market.  Quebec claimed that it was trying to regulate the eggs within the province (akin to Carnation).  The statute would allow the Manitoba Producers Marketing Board (elected only by in-province producers) to regulate the sale of eggs wherever they were produced. The Manitoba government wanted its own scheme to fail so that the Quebec one would fail too and it would allow Manitoban producers to enter the Quebec market. Issue: Can a province create a regulatory/protectionist scheme to limit trade? Held: No. The Act is ultra vires. Reasoning:  In reference to Shannon, 1938, the British Columbia government can regulate all natural products. Yet, Manitoba distinguishes from Shannon since this Act was directed at products coming from outside province in its pith and substance.  We know the law aims at affecting trade/commerce; the scheme allows more room for discrimination against outside producers, since the Board is composed on Manitoba producers. The scheme seeks to protect a local industry by allowing them to sell their product at a higher price. The quota/discrimination issue seems to underpin problem. Rationale:  A Board cannot control the prices and marketing of a product directed at goods coming from out-of-province; mechanisms that “aim to” hinder the free-flow of goods between provincial boundaries, set up unilaterally by one or two provinces should not be permitted.

If the price is the issue, then the Act is protecting their own industry, but it is unclear that the province is shutting others out. How do we distinguish between affecting trade and aiming at altering trade? The APMA was deigned to rectify the problem set out in this case: see below. Re Agricultural Products Marketing Act [1978] Facts:  The federal government and provincial government sets a regulatory scheme. The Ontario producers challenged the provincial legislative jurisdiction over eggs, which are meant for export. The federal government’s legislation will not work unless production can be controlled within each province.  The egg producers would argue that provincial regulation of production is essential for this scheme to work. The provinces should not be able to regulate production when products are being sold for export. Issue: Is the Act ultra vires? Held: No. Reasoning:  Pigeon recognized that the provinces and federal government had worked together to create this scheme and unlike what happened in the 1937 Natural Products Marketing Reference the court was more willing to accept the regime, even though federal law regulated aspects of property.  Through cooperation, the provincial and federal governments should be able to work together to legislate in almost any area (except for s.121/free-trade clause and Charter). This scheme would carve up the market on provincial lines: boundaries seem to be central to the regulation of the scheme; Could Laskin had presented a different decision? Rationale:  When the provinces and the federal government work together on an economic scheme, the court is more willing to allow that scheme to hold, even if laws on from the countervailing jurisdictions have more than incidental effects on the economic class of power(s) of the other. Canadian Industrial Gas and Oil Ltd. v Government of Saskatchewan [1978] Facts:  Saskatchewan had enacted a “mineral income tax,” which was equivalent to 100% of the difference between the current price of oil (in Canada) and the international price of oil prior to the energy crisis. The province required producers to sell at the new world oil price and not less since difference in taxes would have to be paid. Almost all of Saskatchewan’s oil was shipped outside of the province. Issue: Was the tax in relation to international trade and commerce, and therefore encroaching on the federal trade & commerce power? Is the law setting prices for export? Held: Yes. The law was found to be ultra vires. Reasoning:  This Act does not directly fix the price, like Carnation, if they do not, CIGOL would have to adjust or face a disadvantage.  Martland found that the legislation was “directly aimed at the production of oil destined for export and has the effect of regulating the export price.” He distinguishes this case from Carnation since the regulation in that case was aimed at pricing for use inside the province, whereas in this case, the province is clearly trying to impact inter-provincial and international sale since the oil is not

being consumed. Rationale:  Since there were no internal provincial motivations for the legislation except a desire to capture revenue, the government cannot use its powers of taxation to influence the export market. Critique:  Dickson would have upheld the tax as a form of direct taxation for the purpose of raising revenue, and that this law was not a “colourable device”. He explains that the tax applies to oil produced in the province and does not directly place a limit on oil exports – Saskatchewan cannot really do much, but benefit from the rise in price.  However, the price of oil is inelastic, and even if CIGOL were to have a lower price, if would not really affect world markets. Therefore, if CIGOL could show that it would have sold at world market price, then the judgment falls apart. Saskatchewan was really trying to capture its share of the revenue. Monahan recognizes that this case is very similar to Carnation. Both cases deal with setting prices, and yet the result is difference. Central Canada Potash Co Ltd. v Government of Saskatchewan [1979] Facts:  Saskatchewan and NM determine quotas for production of potash. Most of Saskatchewan’s product is meant for export. NM wanted Saskatchewan to set production limits to raise prices in the NA market. Most producers seem happy, but CCP was dissatisfied. Issue: Does the quota system interfere with the regulation of trade and commerce? Held: The system was found to be ultra vires. Reasoning:  The only market for which the scheme had any significance was the export market. There could be no suggestion that the schemes had any relation to the marketing of potash within Saskatchewan. Rationale:  Provincial legislative authority does not extend to fixing the price to be charged or received in respect of goods in the export market. Critique:  Saskatchewan claimed that they are entitled to pass production quotas, to conserve the resource - trying to preserve the whole industry. The province could claim that they control production, the impact on inter provincial trade is incidental. Saskatchewan is the only producer of potash, it should be able to control its supply – why should all provinces have to agree when the province is the only producer. In Carnation, the milk is bought, produced, process within the province. In Potash, the product leaves the product immediately and therefore, the court can find that the government was acting to regulate before the export of the product. Questions for Consideration To what extent is price fixing important? Provinces have control over their own resources, but how much can they set the price for sale. To what extent does the transaction occur inside the province or outside of the province? Is production is a matter of provincial control? Is there an opportunity for discrimination? Has the province attempted to colour its scheme in the language of property/civil rights?

The distinction between “aiming at” and “affecting” is a reinterpretation of the pith and substance doctrine. Federal Economic Regulation – Inter-provincial Trade The Queen v Klassen [1960] Manitoba Court of Appeal Facts:  Klassen operated a feed mill in Manitoba. He bought wheat from a nearby farm, converted it into feed, and sold it to farmers in the immediate area (not crossing any provincial borders). Klassen failed to record the purchase of the grain in his “delivery permit book,” as required by the Canadian Wheat Board Act. This Act declared that all grain elevators were “works to the general advantage of Canada” and it enforced a quota system, assigning grain to elevators.  Klassen is prosecuted and convicted. Issue: Was the Canadian Wheat Board Act ultra vires in that dealt with a matter of property and civil rights? Held: No. Reasoning:  Had Klassen not complied, the quota system would fall apart.  Although the court conceded that the Act impinged on property and civil rights, they found that this was necessarily incidental, because the legislation as a whole was aimed at inter-provincial/international trade. Even though the transactions in question were purely intra-provincial, they could nevertheless “clog the channels of the marketing system” that the Act was meant to regulate. Rationale:  This was a revolutionary decision as it allowed the trade and commerce power to apply to wholly intra-provincial transactions. This case seems to overturn Eastern Terminal that stood for the federal government cannot regulate local trade even if it was incidental on interprovincial trade. The court asked the federal government to be more careful in the construction of its scheme. Although Klassen would argue that his contribution is negligible, by allowing Klassen to impede the scheme, the court could invoke the slippery slope argument. However, Klassen could ask for an exemption as a “non-exporter”. Nevertheless, the court cannot distinguish between wheat for internal/external sale. The court evokes a ruling of “equality” for all producers. Why court did the court change its reasoning in this case? The court defers to federal government to design its scheme. Caloil Inc v AG Canada [1971] Facts:  Caloil imported oil that was licensed to sell in Atlantic Canada, Quebec, and part of eastern Ontario. Federal energy regulations reserved the rest of the Ontario market for Canadian-produced oil. Caloil violated these regulations by selling oil in Ontario west of the Borden line, and its license was revoked. Issue: Could the federal government restrict the distribution of imported oil to a defined area? Held: Yes. Reasoning:  The first version of the regulations was ultra vires because they restricted the

movement of “any gasoline”; the amended regulations were upheld because they only applied to imported oil.  Once the product crosses the provincial boundaries, then the federal government can regulate it. The law was only valid because of “imported” oil, and not “any gasoline”. They were “an integral part of the control of imports in the furtherance of an extra-provincial trade policy.” Rationale:  As long as the legislation as a whole is valid, Parliament may impose controls on the manner in which imported goods are to be used once they have entered the country even if such controls "affect" property and civil rights. The case also suggests that Parliament cannot extend controls to domestically produced goods, even when such controls are necessarily incidental to the effective application of international or inter-provincial trade. Dominion Stores Ltd v The Queen [1980] Facts:  Dominion supermarkets sold bruised Spartan apples under the label “Canada Extra Fancy.” The apples were produced and sold within Ontario. This trademark was governed by the Canada Agricultural Products Standards Act, whose standards were mandatory for inter-provincially and internationally traded products, but voluntary within provinces—they applied only if the seller voluntary decided to use the trademark.  There was also an Ontario statute setting mandatory grading standards. Issue: Were the standards provisions ultra vires the federal government as they applied to intra-provincial trade? Held: Yes. Reasoning:  When the transaction occurs entirely within the province, the federal government should not be allowed to interfere. This case returned to the concept of Eastern Terminal finding that the federal government does not have the power to regulate local trade. The court does not address Klassen directly, as the court did not grant leave to appeal in that case.  If the federal law is found to be valid, Estey finds that this provision is wasteful because of the same provincial law (he did not foresee any conflict and therefore issues of paramountcy would not apply). Therefore, Estey solves the problem in favour of the provinces. Rationale:  Parliament is not empowered to regulate local trade, simply as a part of a scheme designed to regulate inter-provincial and international trade – re: Eastern Terminal.  This case goes too far to incur into provincial powers – as per the language of the Secession Reference. This seems to be Estey’s conception of federalism: 2 levels of overlap seems wasteful (as per Simeon’s competing visions of functional federalism).  Parliament is trying to regulate local trade indirectly (parasitically) for what it cannot do directly. Critique:  From Laskin’s point of view, Estey seems to see the labels as a marketing issue (as a matter of property rights) and shift it as a copyright issue. The federal government can challenge the basis for the authority, citing that Eastern Terminal was overturned in Klassen and it should not be used as an authority in

this case.  The federal government could have argued for uniform federal labelling legislation, instead of separate provincial laws, which may not employ the same standards. Estey invokes the language of “applicability” - meaning that he would have preferred to read down the federal statute as not to affect the local trade, in this matter. Yet, the ultimate decision of the court is to throw the whole scheme out. Monahan questions Estey’s judgment stating that the validity of federal legislation should not depend on the enactment or repeal of a related provincial law. It Monahan criticizes Estey’s decision, which held that the validity of a law should not depend on the applicability of the law. If Parliament can validly regulate the voluntary use of names or marks in local trade, such regulation should not be rendered ultra vires by a province's enactment of legislation compelling the use of the same name or marks. Monahan recognizes that Estey does not capture the state of the law in 1980. Hogg questions that if the “names” will mean anything, then they should be standard across Canada. The presence of the provincial Act did not of itself invalidate the federal action, but it forms part of the surroundings to be scrutinized in discerning the substantive core of the federal legislation. Provincial power to regulate local trade may be frustrated by piggy-back legislation. Federal Economic Regulation – General Trade This branch resurfaced in Anti-Inflation, in which Laskin made reference to 91(2) to support the Inflation legislation. In MacDonald v Vapour, Laskin sets out a test to validate the general trade powers. Labatt Breweries of Canada Ltd. v. Canada (A.G.) [1980] Facts:  The federal government set out regulatory standards under which products must comply with under the federal Food and Drugs Act s. 6. The alcoholic content of Labatt lite beer exceeded the threshold specified under products labeled as “lite beer”. Almost all production and trade of such beer was intra-provincial. Issue: Was this provision ultra vires? Held: Yes. Reasoning: 1st Estey rules that there was almost no extra-provincial trade of light beer, so the first branch cannot be justified, because the product is not flowing across provincial borders. 2nd Labatt contended that the regulation under this branch must be “sweeping” contemplated in the “general sense contemplated in Parsons”, where the federal government cannot under this power regulate “one industry or trade at a time, by a varying array of regulations or trade codes applicable to each individual sector.”  Owning and advertising nationally on Labatt’s part does not factor in the decision.

 Estey has a conception of labelling about revealing contents; however, the conception of labelling in Dominion will bound the production or distribution of goods. Critique:  Laskin ruled that federal standards are justified because of the concern in the Constitution over the augmentation and preservation of the economic union (section 121). This standard would serve to equalize competitive advantages and also to fix standards to decrease economic frictions between trade regions.

General Motors v City National Leasing (revisited) Issue: Is the Combines Investigation Act valid under the general trade and commerce power considering the civil consequences of the act? Held: Yes, the Act is validated as a whole, and therefore the incidental provision can be upheld. Reasoning: Dickson’s 5 pt test to determine validity under general trade and commerce power This are just suggestions, these are not determinative, these are just considerations and factors. 1. The impunged legislation must be part of a regulatory scheme. Regulatory scheme: must have prohibition of certain conduct, must have investigatory procedures, established remedial mechanism 2. The scheme must be administered by the continuing oversight of a regulatory agency. – are these questions of how and not a question of what? 3. The legislation must be concerned with trade as a whole rather that with a particular industry. 4. The legislation should be of a nature that the provinces jointly or severally would be constitutionally incapable of enacting (provincial inability). 5. The failure to include one or more provinces would jeopardize the successful operation of the scheme in other parts of the country. This who discussion is prefaced by a general discussion of the general trade and commerce power. Monahan says that step 1 requires bigger government; her questions whether this step really concerns the nature of the discussion. Is this a series of challenges or tasks or a “roadblock”; however, the underlying reasons for the test are not clear, unless the court wants to make it difficult to protect provincial government. We can counter this to the 3rd stage of the National Concern Doctrine – “singleness and indivisibility’ seems to be based on “principle”. Is this an example of the court setting policy? To what extent is the idea of balancing compatible with principle – the idea of balancing began in Parsons? We should go back to the cases to see how judges use the word principle. This seems to be a way for the judge to exercise a measure of legitimacy.

CRIMINAL LAW POWER RJR MacDonald Inc v Canada (Attorney General) [1995] Facts:  Tobacco Products Control Act prohibited all advertising and promotion of tobacco products offered for sale in Canada, with an exemption for imported publications. It required the display of health warnings on all tobacco products. Violation of the provisions constituted an offence punishable by fines and/or imprisonment. Two tobacco companies challenged the legislation as an intrusion in provincial jurisdiction over advertising s 92(13), 92(16). Issue: Is the TPCA valid with regards to the federal government’s s.91 criminal power? Held: Yes. Reasoning:  La Forest explains that health is not an enumerated head under the constitution; however the court did have to consider whether the act coloured an infringement on property.  Prohibition would not have been a viable alternative considering a third of Canadians smoke; however, the ban on advertising should, by its pith and substance, have a similar effect.  Criminal law is not restricted to the 1867 timeframe (Proprietary Articles), and although the law contains exemptions they recognize the practical limits to Parliament's exercise of the criminal law power on foreign jurisdictions (and media).  The court distinguishes this case from the Margarine Reference, citing that its prohibition was aimed at regulating the dairy industry, while the TPCA seeks to address a “public wrong”. Rationale:  Parliament can pursue a purpose through a circuitous, rather than a direct path if to do otherwise is impractical. Parliament therefore can adopt flexible means to implement its criminal law policy. Dissent:  Major rules that product advertising should not constitute criminal conduct. Since tobacco use is not criminal, it seems unreasonable that advertising should constitute a criminal activity. Lesser threats should be dealt with by provincial regulation and not criminal law.  Had tobacco use been seen as a public evil, then the government should have taken measures to address consumption and use. By means of exemption, most magazine advertising in Canada will still allow such adds (weakening the government’s claim). R v Hydro Quebec [1997] Facts:  The Canadian Environmental Protection Act established a process for regulating the use of toxic substances. Hydro-Quebec was charged with a violation of the Act. Issue: Are the criminal sanctions in the CEPA ultra vires? Held: No. Reasoning:  Like “health”, the “environment” does not fall within either 91 or 92; both levels

must rely on their enumerated heads to legislate in this domain; we know that it is not a single or distinct branch of national concern either. The law does not prevent provinces from legislating complementary regulatory schemes dealing with pollution (nor does the court wish to prevent them from doing so).  The law does not limit the manufacture or use of toxic products (which the court seems to suggest would fall under 92.13, so to distinguish this case from Margarine.  Protecting the environment is a challenge and the use of criminal power to circumvent pollution seems to fall in line with “ fundamental values and public policy”. No discussion of POGG national concern was therefore necessary. Rationale:  So long as the legislation deals with a “public evil” that runs counter to “fundamental values” then the federal government can enact legislation under the criminal law head of power. Critique:  While the protection of the environment is a legitimate public purpose which could support the enactment of criminal legislation, the impunged provisions are more an attempt to “regulate” environmental pollution than to prohibit or proscribe it. The exemption of provinces from the application of the impunged provisions if there are already regulations in force suggests the fundamentally regulatory nature of the provisions. However, provinces do not have the jurisdiction to enact criminal legislation, nor can the federal government delegate such jurisdiction.  Wholesale regulatory authority of the type envisaged, is inconsistent with this shared jurisdiction. In the context of the national concern branch of POGG, the Act fails to meet the requirement of distinctiveness. Both the majority and the dissent agree on the characterization of the act as preventing environment pollution. This counts as valid purpose for criminal law power, but are divided on whether the Act, in its form was prohibitory as opposed to regulatory This decision, along with Crown Zellerbach provides a sweeping authorization of law making power (combined with the doctrine of paramountcy) to the federal government to dictate the environmental policies of provinces. Reference Re Firearms Act [2000] Facts:  The Firearms Act established a comprehensive licensing system for the possession and use of firearms and a national registration system for all firearms; although licensing requirements for certain firearms had traditionally been valid under 91(27), the new scheme extended to all firearms and provided for much more detailed regulation of license conditions. Alberta challenged the legislation, maintaining that in pith and substance it was regulatory. Issue: Was the Act in pith and substance regulatory and therefore ultra vires? Held: The act was intra vires. Reasoning:  In pith and substance the law is directed to enhancing public safety by controlling access to firearms through prohibitions and penalties. The regulatory aspects were found to be secondary to its primary criminal law purpose. Gun control has traditionally been considered valid criminal law because guns are dangerous and pose a risk to public safety (as exemplified by the provisions of the Criminal Code).

Re Nova Scotia Board of Censors v McNeil [1978] Facts:  Under the Amusements Act, The censor board can permit or prohibit the showing of films; sanction for violation of orders of board (monetary penalty and revocation of license). Issue: Is the legislation establishing the Board ultra vires? Held: No. The law is intra vires. Reasoning: 1. Richie found that the legislation is in pith and substance 92(13) – property of civil rights: intraprovincial transactions are subject to provincial legislation. The Act is not concerned with creating a criminal offence or providing for its punishment, but rather in so regulating a business within the province to prevent the exhibition of films that do not conform to the standards of morality established by the Board. 2. Morality/Public Order and criminality are not co-extensive – legislation that authorizes the establishment and enforcement of a local standard of morality in the exhibition of films is not necessarily and invasion of 91(27). 3. The legislation could also be supported under 92(16) – matters of local and private nature in the Province. The legislation is also preventive – to suppress conditions favouring the development of crime - rather than penal distinguishing it from legislation under 91(27). Rationale:  Local standards can inform provincial criminal sanctions. Critique:  Laskin ruled that a provincially authorized tribunal itself defines and determines legality. Provincial legislative authority may extend to objects where moral considerations are involved, but those objects themselves must be anchored in 92. The legislation is trying to supplement criminal law (under indecency/obscenity).  The privileges of licenses are becoming more like rights, re Ronciarelli – this appears to be back door punishment, and not just a regulation of a license. Legislatures ought not to do indirectly, what it cannot do directly (Dominion Stores, Ronciarelli, CIGOL, Manitoba Egg).  Is this an area for double aspect? The majority seems to leave room for criminal code intervention, by striking down part of the provision (that uses the word indecent). Laskin would argue that just because the law no longer uses the word “indecency”, in pith and substance, the law serves the same function. Westendorp v The Queen [1983] Facts:  A municipal by-law concerning prostitution was challenged: no person shall be or remain on a street for the purpose of prostitution – no person shall approach another person on a street for the purposes of prostitution. The penalties for contravention included fines and/or imprisonment; the stated purpose of the legislation was to prevent interference with property rights and control streets (COLOURABILITY). The legislation challenged as invasion of 91(27). Issue: Is the municipal by-law really a criminal law? Held: Yes. The municipal by-law is ultra vires.

Reasoning:  It is fallacious to regard the impunged provision as relating to control of streets and interference with property rights. If that were its actual purpose, it would apply to all congregations on streets and not just those involving prostitution (seems to be a moral issue). If a province or municipality may translate a direct attack on prostitution into street control through reliance on public nuisance, it may do the same with respect to trafficking in drugs. This is aimed at controlling prostitution, not at controlling streets in general, or nuisance. Rationale:  Provincial laws/municipal by-laws cannot colour criminal law provisions in property and civil rights. They cannot fill the gap of criminal law (re Morgentaler). Critique:  We could deploy Richie’s morality as a local nature – people’s willingness to see prostitution as a deplorable and meriting punishment.  How do we read this case? Do we read this case under morality or public order? Rio Hotel v New Brunswick [1987] Issue: Was the legislation in conflict with federal criminal legislation? Was the provision ultra vires as a result of form (prohibition and sanction)? Held: No, the provision was intra vires. Reasoning:  Dickson distinguishes this case from Westendorp, because that case was a colourable intrusion into criminal law. The law clearly states the conditions to maintain the license, where non-compliance, the consequence is revocation of license. There seems to be less room for discretion by the Board.  The impunged license condition is part of a legislative scheme that has "a purpose entirely different from that of the criminal law," namely to regulate the forms of entertainment that may be used to boost alcohol sales. Rationale:  Provincial regulation of public morality is intra vires if it is drafted in the form of a license condition, is part of a broader regulatory scheme, and does not conflict with Criminal Code provisions.