91. It shall be lawful for the Queen, by and with the Advice and Consent of the Senate
and House of Commons, to make Laws for the Peace, Order, and good Government of
Canada, in relation to all Matters not coming within the Classes of Subjects by this Act
assigned exclusively to the Legislatures of the Provinces; and for greater Certainty, but
not so as to restrict the Generality of the foregoing Terms of this Section, it is hereby
declared that (notwithstanding anything in this Act) the exclusive Legislative Authority
of the Parliament of Canada extends to all Matters coming within the Classes of Subjects
next hereinafter enumerated; that is to say, --
1 The Public Debt and Property.
2 The Regulation of Trade and Commerce.
3 The raising of Money by any Mode or System of Taxation.
4 The borrowing of Money on the Public Credit.
5 Postal Service.
6 The Census and Statistics.
7 Militia, Military and Naval Service, and Defence.
8 The fixing of and providing for the Salaries and Allowances of Civil and
other Officers of the Government of Canada.
9 Beacons, Buoys, Lighthouses, and Sable Island.
10 Navigation and Shipping.
11 Quarantine and the Establishment and Maintenance of Marine Hospitals.
12 Sea Coast and Inland Fisheries.
13 Ferries between a Province and any British or Foreign Country or
between Two Provinces.
14 Currency and Coinage.
15 Banking, Incorporation of Banks, and the Issue of Paper Money.
16 Savings Banks.
17 Weights and Measures.
18 Bills of Exchange and Promissory Notes.
20 Legal Tender.
21 Bankruptcy and Insolvency.
22 Patents of Invention and Discovery.
24 Indians, and Lands reserved for the Indians.
25 Naturalization and Aliens.
26 Marriage and Divorce.
27 The Criminal Law, except the Constitution of Courts of Criminal
Jurisdiction, but including the Procedure in Criminal Matters.
28 The Establishment, Maintenance, and Management of Penitentiaries.
29 Such Classes of Subjects as are expressly excepted in the Enumeration of
the Classes of Subjects by this Act assigned exclusively to the Legislatures of the
And any Matter coming within any of the Classes of Subjects enumerated in this Section
shall not be deemed to come within the Class of Matters of a local or private Nature
comprised in the Enumeration of the Classes of Subjects by this Act assigned exclusively
to the Legislatures of the Provinces.
Exclusive Powers of Provincial Legislatures.
92. In each Province the Legislature may exclusively make Laws in relation to Matters
coming within the Classes of Subjects next hereinafter enumerated, that is to say,--
1 The Amendment from Time to Time, notwithstanding anything in this
Act, of the Constitution of the Province, except as regards the Office of Lieutenant
2 Direct Taxation within the Province in order to the raising of a Revenue
for Provincial Purposes.
3 The borrowing of Money on the sole Credit of the Province.
4 The Establishment and Tenure of Provincial Offices and the Appointment
and Payment of Provincial Officers.
5 The Management and Sale of the Public Lands belonging to the Province
and of the Timber and Wood thereon.
6 The Establishment, Maintenance, and Management of Public and
Reformatory Prisons in and for the Province.
7 The Establishment, Maintenance, and Management of Hospitals, Asylums,
Charities, and Eleemosynary Institutions in and for the Province, other than Marine
8 Municipal Institutions in the Province.
9 Shop, Saloon, Tavern, Auctioneer, and other Licences in order to the
raising of a Revenue for Provincial, Local, or Muni-cipal Purposes.
10 Local Works and Undertakings other than such as are of the following
Classes,-- a. Lines of Steam or other Ships, Railways, Canals, Telegraphs, and other
Works and Undertakings connecting the Province with any other or others of the
Provinces, or extending beyond the Limits of the Province:
b. Lines of Steam Ships between the Province and any British or Foreign Country:
c. Such Works as, although wholly situate within the Province, are before or after their
Execution declared by the Parliament of Canada to be for the general Advantage of
Canada or for the Advantage of Two or more of the Provinces.
11 The Incorporation of Companies with Provincial Objects.
12 The Solemnization of Marriage in the Province.
13 Property and Civil Rights in the Province.
14 The Administration of Justice in the Province, including the Constitution,
Maintenance, and Organization of Provincial Courts, both of Civil and of Criminal
Jurisdiction, and including Procedure in Civil Matters in those Courts.
15 The Imposition of Punishment by Fine, Penalty, or Imprisonment for
enforcing any Law of the Province made in relation to any Matter coming within any of
the Classes of Subjects enumerated in this Section.
16 Generally all Matters of a merely local or private Nature in the Province.
Four major features of Canadian Constitution:
1. Parliamentary democracy – parliament enacts our day to day laws
2. federalism – provincial vs national authority/interest
3. Individual and group rights
4. Aboriginal rights
The Charter brought an end to what would have been a 5th element: legislative supremacy
originally, the const did not provide for prime minister’s office or cabinet, which
came about largely due to British tradition, or the Supreme Court, only a general
reference to a general court of appeal in s. 101.
1982 – after some concerns arose re British roots etc, Can govt decided to patriate
the constitution, ie make it a domestic act. Also recognized various rights and SCC.
Meech Lake Accord – tried to amend const to rebalance quebec’s power.
Charlottetown Accord tried to do the same + aboriginal recognition, this failed in a
Reference re Secession of Quebec SCC 1998
Issue: Can Quebec secede unilaterally?
Analysis: Must evaluate lots of stuff given the depth/importance of the question. Four
areas of constitutional arrangement are relative to the instant case: federalism,
democracy, constitutionalism and the rule of law, respect for minorities. Adopting the
federal form (representation of regions at the federal level) was necessary to obtain
consent of maritimes.
When NS didn’t join, NB tried to withdraw from federation by having new
arrangements undone. This effort was not allowed by UK’s colonial office, which ruled
that too much had been done in reliance on those territories that joined.
Early drafters knew full fledged unity was a pipe dream, but felt different cultures
could co-exist and pursue common goals. This led to various provincial powers such as
Certain principles underlie a constitution that aid in applying its doctrines. The
court is obliged to use those principles in interpreting the const. For example, the
principle of federalism guided the formation of the BNA act, it is a principle that must
not be forgotten when applying constitutional law.
Purpose of federal democracy is to give voice to different peoples within a
common sphere of control. Point of govt is to try to address concerns of minorities
within the rules that all have to live with.
Three reasons for constitutional rules:
1. protection of fundamental rights against temporary govts.
2. Protection of vulnerable minority groups
3. Division of political powers
The constitution enhances democracy by requiring special majority to
enter/escape from its principles. Thus, a majority of Quebec is insufficient to overcome
constitutional requirements. By agreeing to the constitution, you bind yourself until the
const is changed by the methods it prescribes for its own amendment.
Ratio: Although minority rights have always been considered, unilateral secession is
unconstitutional. An expression by a clear majority of Quebec of dissatisfaction, would
necessitate all members of confederation’s participation in new talks aimed at const
- From the very beginning, Canadian courts have asserted their power of
- Re Secession of Quebec determined that govt actions must be constitutional
- Judicial review is a power that has been valid from the start and has now been
recognized in the Charter.
- Lots of theories about conflict between democratic ideals and judicial review.
Elliot, “References, Structural Argumentation and the Organizing Principles of Canada’s
This article summarizes structural argumentation.
- Historical: Ie founders’ intentions etc. This is a dominant theme of American
const int but not so much in Canada.
- Textual arguments: examining the words of the const
- Doctrinal argument: ie stare decisis
- Prudential/practical argument: Does society lose or gain from impugned thing
- Ethical consideration: Is it in line with society’s mentality?
Person’s case: Strayed from the old view that the BNA Act was no different from other
legislation in terms of the approach demanded for interpretation.
Prentice, “Canadian Women: A History”
- Women’s Franchise Act 1918 gave all British women the vote subject to same
limitations as men.
- SCC ruled in 1928 that ‘person’ did not include women for the purpose of
o Gotta look at intent of legislature passing the measure.
o If two meanings can be attached to words, court is not in the habit of
imputing a break from traditional law
o CJ cites some old text saying there’s a rule that masculine stuff in
statutes held to apply to feminine, singular to plural etc.
o Ultimately, there is nothing to suggest that women were intended from
the start, thus they are not included now.
Edwards v AG Canada 1930 JCPC
Facts: Appeal from case directly above
Analysis: JCPC sees constitution as a living tree, want to give liberal interpretation. s. 41
uses the word “male” as distinct from person. If person could mean men exclusively,
why the wording in s. 41? Other sections are similar in apparent intent.
Ratio: Persons = men and women
Theme of constitutional law: Is the constitution to be seen as a living tree or a watertight
Bringing Constitutional Issues to Courts
- You can defend against a provision on a constitutional basis if that provision
arises in a proceeding to which you are a party. Otherwise, if a provision
screws you over, you can apply for a declaration that it is not constitutional.
- Special prejudice test: Law must affect you in a way different from the public
at large in order for you to challenge it in court.
- Three cases broadened the rights of individuals to challenge provisions on a
constitutional basis: Thornson v AG Canada (no. 2) 1975 SCC Nova Scotia
Board of Censors v McNeil 1976 SCC Minister of Justice of Canada v
Brorwski 1981 SCC
- Since the Charter, SCC has made rules for standing to challenge laws
somewhat more restrictive. Canadian Council of Churches v Canada 1992
SCC established that there must be no other way for the challenge to come
before the courts in order for a party to establish their standing.
- The executive arm of government can initiate a constitutional question by
means of the Reference Procedure. Provinces can ask opinions of appellate
courts, Feds can ask SCC.
- s. 53.1 of the Supreme court Act: 53. (1) The Governor in Council may refer
to the Court for hearing and consideration important questions of law or fact
(a) the interpretation of the Constitution Acts;
(b) the constitutionality or interpretation of any federal or provincial legislation;
(c) the appellate jurisdiction respecting educational matters, by the Constitution
Act, 1867, or by any other Act or law vested in the Governor in Council; or
(d) the powers of the Parliament of Canada, or of the legislatures of the provinces,
or of the respective governments thereof, whether or not the particular power in
question has been or is proposed to be exercised.
- The act also provides that the court has a duty to answer such questions, such
question shall be deemed important and the court is to give notice to interested
provinces/persons whom the opinion will likely affect
- Detractors say this gives courts too much power.
- Interested parties can apply to intervene in such questions, but only to the
extenet the judge sees fit. judges rarely allow oral arguments in such cases.
- Constitutional history involves a good deal of stuff that happened before 1867
and even before the Treaty of Paris in 1763 (when France ceded any interest
in Canada to Britain).
- Positivism: The view that legal rights only exist as a result of
Desbiens: “The Quebec Secession reference and the Judicial Arbitration of Conflicting
Narratives About Law, Democracy and Identity”
- History: supposedly objective, whereas memory has connotation of
- Since memory can give rise to myth, how should it be used to colour
Royal Commission on Aboriginal Peoples “Final Report vol. 1”
- Many different approaches to society-building by different aboriginal cultures
- Similarities include emphasis on creation and respect for natural elements
- Usually there is an emphasis on equality and conciliation
- Belief in spiritual connection to the land, people as stewards of the natural
Macklem “Indigenous Difference and the Constitution of Canada”
- Indigenous people not culturally respected by Europeans blah blah blah
- Terra Nullius: unclaimed land.
- This attitude at odds with treaties etc made with Native peoples
- Under French governor, three powers existed in New France (the first
European style control of law) The council, the governor, the intendant.
- Intendant had power over military and Indian affairs
- This new government negotiated treaties with aboriginal bands
- The article summarizes 1665 treaty between Francos and Aboriginals, this
treaty recognizes Ab rights to grant rights related to the lands of New France.
- Acadians were people around the maritimes with no particular allegiance to
UK or France in the ongoing power struggles. UK couldn’t accept their
neutrality, tried to promote migration to increase UK’s power in the region
- Acadians deported by British as part of its NA takeover plan
- British act in 1758 affirmed that [despite 151 years of European occupation
and untold Aboriginal occupation before that] Nova Scotia was uninhabited
and discovered by the British in 1755.
- Sept 1759 Plains of Abraham British Beat French 1763 treaty of Paris made
British victory official. In this treaty, French King renounced all claims to
- 1774 UK proclamation imposes British laws on Quebec
- This proclamation also reserved all lands not ceded or purchased from the
Indians to the Indians
- Constitution Act 1791 creates upper and lower Canada, recognizing cultural
- Thereafter, the executive was unaccountable to the legislative branch and
there was no separate judiciary.
- Confederation did three important things each of which was necessary for the
o Unified pre confederation Canada (ie ON and QC)
o Merged them with NB and NS
o Provided for expansion westward
- Separate languages and legal systems were recognized, but unification proved
- British had discouraged efforts at confederation to 1864, but when America’s
northern states looked poised to win the civil war, the British changed their
tune. Previously, northern expansion by America had been held back by the
delicate balance between free and slave states. Now that that balance was
about to be indelicate, and since the British relations with US were bad, UK
suddenly wanted to federalize.
- 1866 America withdraws from trade deals with territories that would soon
become Canada. This made Canada need to look east-west instead of N-S
- London to rule Ottawa, Ottawa the provinces. Ottawa could appoint a
lieutenant governor to each province in order to give assent to legislation
passed. UK appointed a gov gen to Ottawa for the same purpose.
- Parliament given all power not allotted to provinces b/c J Mac wanted it that
way, believing the reverse to be the reason US had a civil war.
- Separate powers for provinces essential to the successful formation of a
- From confederation till about 1900, we began to see how judges and scholars
would interpret the BNAA
- Issues included boundary between ON and MB, Financial structure of
federatio, power of provinces, disallowance power,
- R v Chandler NB 1868 A challenge to the ability of courts to overrule
parliament, but they weren’t overruling, they were interpreting whether they
had the power to make certain laws in the first place.
- Citizens Insurance company v Parsons SCC 1880 Ontario legislation re
insurance companies introduced mandatory inclusions for all fire insurance
policies that could only be circumvented in an agreement in bold/different
coloured ink. Ins co argued legislation was ultra vires. It was not.
- Russell v the Queen JCPC 1882 Prohibition laws challenged as possibly
under provincial power as sections enumerated by s. 92:
(9) Shop, saloon, tavern, auctioneer and other licenses
(13) Property and civil rights in the province
(16) Generally all matters of a merely local and private nature
These arguments were all rejected. The important dictum from this case is
that the BNAA is to be interpreted in light of its original intent to grant broad
powers to the federal govt.
Hodge v The Queen Ont HC 1883
Facts: Hodge owns a tavern, charged with allowing billiards to be played contrary to
regulations by Toronto commissioners. Challenges on two grounds: 1. Conflicts with
Dominion’s power over trade and commerce 2. Provincial legislature can’t delegate law
making powers to a board. Frawley is another tavern owner, with no license at all, he
raises a third challenge: 3. Province can’t impose a sentence with hard labour as the
punishment because s. 92 (15) of BNAA only empowers provinces to imprison when
making criminal laws. These two cases were consolidated into one.
Held: All three grounds dismissed by appeal court and JCPC.
Analysis: Subjects might be under s. 91 in one case and s 92 in another. Regulations
meant to keep the peace, corral drunkenness, thus, they don’t interfere with general
regulation of trade and commerce (which belongs to fed govt). It was argued that
provinces had control of the issue delegated to them, but they could not delegate what
they were delgated. This is crap, provincial power isn’t delegated, it simply exists and it
trumps fed power where it applies. You can delegate such powers as you wish.
Furthermore, ‘hard labour’ is a common part of a prison term, its non-inclusion in the
BNAA doesn’t mean it wasn’t intended.
Notes: This may seem obvious now, but was a hotly contested idea at the time. This
case settled many disputes and established that both provinces and feds were supreme in
their own spheres.
AG Ontario v AG Canada (The Local Prohibition Reference) JCPC 1896
Facts: Joint reference requested by feds and provs re prohibition and jurisdiction.
Issue: Is the Temperance Act valid, given that it was federally made?
Analysis: Temperance Act’s validity is premised on pertaining to POGG and “the
regulation of trade and commerce” (the second enumerated sphere of control of fed govt).
s. 91 states that ‘any matter coming within any of the subjects enumerated in this section
Won’t be deemed a part of the class of matters of stuff assigned to provs.’ JCPC holds
this to mean that Fed only trumps Prov where something spans both jurisdictions.
Marginal infringment on fed still leaves responsibility in hands of prov. Where
something ceases to be a provincial cconcern and begins to be a federal concern should
be carefully defined. Otherwise, basically everything could be said to come within the
scope of federal concern and therefore federal jurisdiction. Russell establishes the
validity in general of the Temperance Act. Prohibition of a trade is not the same as
regulation/governance of it. Only 92(13) and (16) have anything to do with the right to
regulate liquor (Property and civil law, and matters of a purely local nature).
Ratio: Feds can only repeal prov acts where they are repugnant to things in fed
jurisdiction. In this case it was not, so feds had no right to repeal prov temperance act
with fed temperance act. Since Fed act must be adopted, it only conflicts with prov act
where a community has adopted it, thus not in conflict until then.
- At the time of confederation, lawyers looked at it as ‘a contrivance intended to
reconcile national unity and power with the maintenance of state rights.’
- Primary idea is national concerns are federal govt jurisdiction, prov concerns
are for prov govt.
- Three features:
o Supremacy of constitution
o distribution and coordination of governmental powers
o The authority of courts to interpret constitution
- Compact theory:
o Do not interpret confederation as a renunciation of autonomy. The
provinces only renounced SOME rights, others are theirs inalienably.
Federalism didn’t create any new power, it simply took portions of
power the colonies already had.
o Problems with this theory quickly developed. The BNAA was the
only indication of rights and powers of the provinces. The BNAA
represented a new starting point for the balance of power.
o The power of disallowance, which reserved to the governor general to
act on the advice of the federal cabinet and reserve up to one year and
then veto any provincial enactment. This was clearly at odds with
interpretations of equal powers.
- Disallowance began as a method of dealing with problems which were
safeguarded against in the US constitution. Disallowance is a power no
longer in use, it was offered up in Meech Lake and Charlottetown.
- Manitoba joined in 1870 on terms aimed at allowing catholic education. Later
protestants became the majority and did away with these allowances
- The Catholic minority was now faced with the option of public school or
paying for both public and private education.
- Riel didn’t want Manitoba to join, fought against it. Riel’s demands were
met, Manitoba joined and J Mac sent 1200 troops to Manitoba.
- Both languages to be used/available in court/statute/legislature etc.
- English was made the official language in 1890.
- Barrett v City of Winnipeg JCPC 1892 Dude objected to paying property
taxes that funded the public school system that wasn’t for him (a RCC guy).
SCC said public schools act was ultra vires. JCPC said it wasn’t the law that
was the problem, but the beliefs of Roman Catholicism.
- Laurier ran in 1896 on a platform that legislation would interfere with
constitutional principles, he instead brokered an agreement whereby religious
teaching took place at the end of the school day in schools with a certain
proportion of Catholic students. Also, students whose first language was not
English could be educated in that language if they were numerous enough in a
- Haldane was a big time influential judge in the early 20th C, He loved to
follow the rulings of Lord Watson.
- Haldane article: Two views in early confederation 1) a general principle
should be recognized that feds are paramount, provs subordinate 2) prov
jurisdiction strong where not expressly undermined. SCC sided with fed
- Haldane thinks Watson used this period of constitutional infancy to establish
provincial sovereignty, this will be Watson’s legacy acc to Haldane.
Montreal v Montreal Street Railway JCPC 1912
Facts: A challenge to federal legislation regulating the intersection of provincial and
federal rail lines.
Analysis: If Feds can make laws on subjects concerning local issues for the provinces on
the premise that such issues also pertain to POGG, then there is hardly anything they
couldn’t overrule the provinces on.
AG Canada v AG Alberta 1916
Facts: Challenge to a federal insurance act seeking to regulate all nationwide insurance
Analysis: Haldane says Russell illustrated the point that subjects that are federal in one
case can be provincial in another. Although insurance is important on a national level, so
are many other industries that are still regulated provincially. Accordingly, extreme
caution should be used in extending a provincial/federal dichotomy status to any given
Background for next case, (Board of Commerce Act)
- WWI ended and the economy had to adapt to peacetime, different
demographics and new expectations from people
- New problems also erupted, businesses began to voice a demand for a
government body to address their disputes efficiently and fairly.
- Winnipeg general strike 1919 accentuated the problem and feds decided to
have a committee, committee recommended creating a board of commerce to
regulate profiteering, stabilize cost of living, legitimize business associations,
coordinate practices and provide a forum for dispute settlement.
- The bills named in the case below were the result.
Re The Board of Commerce Act 1919 and the Combines and Fair Prices Act 1919
Analysis: These bills sought to restrict combines, mergers and monopolies. They also
sought to take unfair profits or hoarding ‘necessaries of life’ such as food and clothing in
order to jack up prices for such things. Violations of offences created by the board were
punishable by fine of $1000 per day of the offence, or prison for max 2 yrs. In SCC,
judges rejected this legislation saying that feds can’t make legislation that applies to their
realm and provincial stuff and hope to justify it based on partial jurisdiction. Haldane
thinks feds can interfere in exceptional circumstances, but this legislation was so broad
about what you couldn’t hoard etc that it would be tough to justify.
Ratio: The extreme standard of necessity to justify such ultra vires measures has not
been shown, thus the legislation is invalid.
Fort Frances Pulp and Paper Company v Manitoba Free Press Company JCPC 1923
Facts: Resultant from the War Measures Act which extended to the feds the right to do
anything necessary to provide for the peace, order and welfare of the nation, limited to
the threat of war/insurrection. Among other things, they created a paper controller. FF
ordered by the OCA to repay profits in excess of what the paper controller had allowed
for in a 1919 order.
Analysis: in normal circumstances, feds couldn’t have controlled paper in this way.
They had the right to do so in this case because of the war and perceived threats of paper
shortages. This is the type of exception referred to in the above case. Feds repealed all
measures taken under the WMA, but excepted paper control from this. The question is
when the exceptional circumstances created by war ceased to exist.
Ratio: In this case, the exceptional circumstances relative to the paper industry had not
ceased to exist at the time of the actions in question.
Note: The duties of the paper controller were later transferred to the Board of Commerce,
which got into an argument with Price Bros., a paper firm. The BOC declared newsprint
a necessity and set a newsprint price well below market value, Price Bros. didn’t
cooperate. They had the SCC do a reference where it was determined that Appointment
of the controller after armistice was not authorized. The other issue was whether the
BOC correctly called paper a necessity of life, the SCC said the BOC had no such right.
- Re Board of Commerce marked the beginning of a split in Canadian
jurisdiction, when courts started to look at individual rights more favourably
than state power. This was due to the belief that individuals could regulate
their own relationships effectively. This resulted in the courts affording more
freedom/leniency to individuals and provinces and less to the federal govt.
Toronto Electric commissioners v Snider JCPC 1907
Facts: JCPC considering validity of Industrial Disputes Investigation Act (fed) 1907. It
applied to mining transport and communications undertakings and public service utilities.
It was limited to those w/ more than 10 employees. It allowed disgruntled workers to
apply to ministry of labour to resolve disputes w work. Settlements = court orders. In
1914, ON passed similar legislation.
Analysis: The federal act forbade striking/lockouts during hearings on the topic, other
conditions re work. It was clearly civil rights and thus ultra vires for feds. Just proving
something is for the general advantage of Canada or meets a want doesn’t make it fed
jurisdiction if not enumerated under s. 91.
The King v Eastern Terminal Elevator Co. SCC 1925
Facts: Grain became a major economic factor in 20th C, industry was regulated by the
Canada Grain Act, which created the Board of Grain Commissioners, who had extensive
regulatory powers. It introduced processing standards for the ease of international
transactions. The Board imposed rules about grain with too much ‘dockage’ (extra shit)
in it. Rules about who could keep it, when you could send it back to the shipper, who
paid what and how much profit you could make. The lower court called this a regulation
of profits, thus ultra vires for feds. Board appeals.
Analysis: Regulation of grain is intra vires for feds, no question. The problem is, that it
can’t be taken to mean that a federal statute can regulalte a particular profession in
particular provinces. If it is to regulate a local work such as an elevator, it must do so
(and they didn’t in this case) within parameters of s. 92(10) (c) of the BNAA:
c. Such Works as, although wholly situate within the Province, are
before or after their Execution declared by the Parliament of
Canada to be for the general Advantage of Canada or for the
Advantage of Two or more of the Provinces.
If the court rules that the external component of trade is able to justify federal regulation
of provincial component, this would apply to every industry [ they say this is because it
can’t be based on percentages. No explanation of why. Grain industry in Canada is 70%
international]. They liken it directly to the Insurance Act case.
The other problem with the argument is the notion that the Dominion has the
power to regulate this industry because no province, or coalition of provinces could
create such a scheme.The power arises under the residuary clause. It has been clearly
established that feds and provs might have to do parts of the regulation of some industry
that doesn’t fall entirely within the jurisdiction of one or the other.
Dissent: National issue Intra vires for feds. Regulation of profits was done in a way
that was justifiable under this [similar to minimal impairment fro Oakes].
Dicta: Feds have authority over international trade, but must carefully avoid
intermingling this power with trade that takes place entirely within provincial boundaries.
The Dominion could easily use s 92(10) to bring this regulation within its powers.
Notes: The Dominion soon followed this advice and declared the grain elevators to be
works for the general advantage of Canada pursuant to s. 92(10).
- pre 1925, little criticism of JCPC constitutional decisions. Then H.E. Smith
wrote “the Residue of Power in Canada.” Which marked the beginning of a
change in that trend.
- In this article, he argues that banning evidence about the debates leading to the
drafting of the BNAA has led to a lack of important evidence in constitutional
cases. He goes so far as to say that the balance between provs and feds is
indicated by the words POGG in s. 91 and “generally all matters of a merely
local or private nature in the province.” He says these words indicate that the
Dominion was to have powers to regulate anything they saw as a national
interest and Board of Commerce and cases that followed have betrayed this
J. R. Mallory “Social Credit and the Federal Power in Canada”
- Haldane’s decision in Board of Commerce contained two interesting pieces of
- First, the issue of agency. Extending powers of govt/judiciary to a board
offends some people. Board of Commerce had its decisions reviewed by the
executive, some people asked wtf?
- Second, he argues that eradication of hoarding and undue combination is not a
subject for feds.
- This is in accordance with Haldane’s general reluctance to accept Parliament’s
actions, which was baffling given Haldane’s own political leanings.
- One half of cases found ultra vires actions. Thus, the only possible conclusion
is that the current balance results from a conflict between individualism and
- Frontier life understandably emphasized individualism. With the emergence
of modern economies, modern life emphasizes group rights instead of
individual ones. This has coloured constitutional decisions and subverted the
intentions of the drafters.
- The legislators reflected these changes, but the interests who were subverted
by them fought such change in the courts.
A Cairns “The Judicial Committee and Its Critics”
- Provincial bias of JCPC was consonant with the pluralism of Canada
- As provinces developed separate identities, they tended to want less federal
controls on them. Couple this with the completion of national needs like the
completion of the railway and expansion to the west, and provinces
understandably wanted more personal autonomy.
- Much of the decentralization took place because of natural developments, not
judicial misinterpretation of the BNAA.
- Thus, the developments maligned above are given a bad rep.
- You can also see it in the personal battles between J Mac and Mowat and the
desire of NS to secede. Quebec was pissed that the west was so unfrench.
JCPC decisions reflected the changing nature of Canada.
In summary, JCPC changed constitutionalism. Many explanations were offered.
One not included above is their concern for the presevation of the British Empire. Others
argued for pluralism through provincial power, based on the notion that local govt was
more in tune with its constituents. Haldane loved this former view, especially as
promoted by Laski. He felt this view included public will contributing to fed power,
including situations (ie war) where more unity was born from greater necessity.
Proprietary Articles Trade Association v AG Canada JCPC 1931
Facts: A reference was made about the Dominion Combines Investigation Act which
prohibited combines (defined as an agreement or merger that prohibited competition or
raised prices to the detriment of the public) and created a commission to enforce its
provisions. Also challenged s. 498 of CC, which also prohibited combines.
Analysis: Criminal law powers given to feds in widest sense possible. The argument that
it applies only to what was criminal at time of confederation is crap. You can’t contain
the definition of crimes to categories of things that should fall into ‘criminal
jurisprudence.’ Unlike other constitutional categories of jurisdiction, crime defines itself.
Criminal offences comprise whatever has been criminalized at any given time. Only if
‘criminal’ label is used to deliberately sidestep/usurp provincial authority is it invalid.
Re the Regulation and Control of Aeronautics in Canada JCPC 1932
Facts: After WWI there was an international convention on aeronautics, feds ratified it
and made laws for licensing pilots, aircraft and commercial services as well as navigation
and safety. This reference was to determine the legitimacy of that legislation.
Held: Aeronautics is mostly provincial, but feds have some powers.
Analysis: It’s good to interpret the BNAA, but interpretation should never subvert the
original contract struck between the feds and the provs. Appellant tried to bring
aeronautics within trade and commerce, postal services, beacons, navigation and
shipping. Respondents said it came within property and civil rights and generally all
matters of a merely local and private nature. Both arguments have some merit. They
think the real governing clause is s. 132 of BNAA which gives feds the right to do
whatever they need to to deal with foreign nations under treaties.
Ratio: Because of 132, the wording of the international treaty and the powers to feds
from the provisions referred to above, the legislation is good.
Re Regulation and Control of Radio Communication in Canada JCPC 1931
Facts: Canada entered agreements with America about radio broadcasting. Asked SCC if
it had the authority. s. 132 was barely mentioned and a majority of 3-2 gave power to
Canada based on POGG.
Analysis: It is Canada as a whole that is bound by this convention, Thus, feds should
make the rules. It was said that this doesn’t consider inter-provincial broadcasting, but
the same could be said of aeronautics. Once its effectively addressed by the treaty,
there’s nothing left for the provinces. Sending the signal must be fed, it follows that
receiving must also be fed, since the two are impossible to separate from the whole
Ratio: Broadcasting is federal jurisdiction.
Depression era – started with Mac King, quickly changed to R.B. Bennett. Cost of relief
fell most heavily on provinces. Bennett dragged his feet for a bit, then offered his
equivalent of FDR’s New Deal. He failed to live up to his original promises and took a
bunch of measures that only really conformed to international treaty obligations. These
included maximum work hours, a mandatory day of rest and a minimum wage. Other
measures regulated competition.
R. Simeon “State, Society and the Development of Canadian Federalism”
- Bennett govt did little other than give a pittance to provinces during early
- He thought remedy lay in access to foreign markets and tariff reforms.
- Bennett then shifted gears, and suggested some serious reforms that
challenged the existing federal order. King got reelected in 1935 and referred
most of these proposals to the SCC
- King also solicited provinces in search of a defined method of const
- They almost reached agreement on: all legislatures and Parliament for major
overhauls and 2/3 of legislatures plus parliament representing at least 55% of
Canadians for less major stuff ie social policy. NS didn’t agree, scrapped.
Major Canadian constitutional experts began to see a need for more power
extended to feds in order to adequately address the depression. Some of these critiques
W.P.M. Kennedy, “Our Constitution in the Melting Pot”
Depression saw feds step up and pay for a lot of things that were a provincial
concern. The feds saw a problem with such payments w/o control over the money so
they wanted const. reform. Provs didn’t want to abandon their rights, but took all the
help the feds would volunteer. It is time to change.
V. Macdonald “ Judicial Interpretation of the Canadian Constitution”
We are now (1935) very different from the country for which the constitution was
drafted, more autonomy under statute of Westminster (guaranteeing equality of
legislatures of all British colonies), different economy, infrastructure etc. Provisions of
1867 are standing in the way of reforms that are crucial today by either withholding the
power to make such reforms from the necessary parties or creating confusion about the
powers that requires lengthy bureaucratic solutions.
Part of the necessary reforms should be to ask whether the JCPC should continue
to have the final say on constitutional issues.
- The SCC unanimously upheld Farmers Creditors’ Arrangements Act and the
Criminal Code amendments. They also unanimously declared the Dominion
Trade and Industry Commission Act and the natural Products Marketing Act
ultra vires. Employment and Social Insurance Act was declared ultra vires by
4-2. They divided 3-3 on the International Labour Organization Statutes (ie
minimum hours, days of rest, minimum wage).
- JCPC called all acts ultra vires on appeal, except the Farmers’ Creditors, CC
and Canada Standard provisions of Dominion Trade and Industry Commission
AG Canada v AG Ontario JCPC 1937
Facts: Reference re limitation of hours act. Canada had joined international treaties on
labour regulation, this was one of its implementative measures. SCC split.
Analysis: Executive signs treaties, but to make them enforceable laws, they must obtain
legislative consent. s. 132 does not give rise to such power to feds since it specifies that
it applies to them as members of British empire, but Westminster changed that status.
Aeronautics applied b/c it was the empire that agreed to the treaty. s. 91 and 92 assign
powers, when a treaty deals with one of those areas enumerated in these two sections, the
level of govt to which that power is assigned will implement it. If a fed ratification of a
treaty could bind provinces, this would subvert the provincial autonomy on which the
constitution is founded. Nor can it be saved by saying the depression has made this an
issue of national importance grave enough to override provincial authority.
Ratio: Act is ultra vires parliament since regulation of hours falls under provincial
jurisdiction in the BNAA.
AG Canada v AG Ontario (Employment and Social Insurance Act) JCPC 1937
Facts: Employment Insurance made mandatory by fed act, majority of SCC said ultra
vires, since it dealt with property and civil rights. It was not put forward on the premise
that a special emergency existed.
Issue: Is the Act justified under 91(1) public debt and property or (3) the raising of
money by any mode of taxation?
Analysis: No special emergency justifies feds stepping in for provs on the issue. But the
collection of taxes for a purpose that is ultra vires can’t be justified.
Ratio: ultra vires.
AG BC v AG Can. (Natural Products Marketing Act) JCPC 1937
Facts: This act was intended to pool resources that were generally shipped out of
province and to equalize prices.
Analysis: The act affects transactions which are completed within provinces, thus must
fall under a section of 91. There is just no way, however, to justify it, its an example of
the feds trying to encompass ultra vires stuff in an act that also contains intra vires stuff.
AG BC v AG Canada 1937 SCC
Ratio: Basically reiterates Proprietary Articles, saying Parliament has pretty wide
authority to criminalize stuff.
AG On v AG Can (dominion trade and industry commission act) JCPC 1937
Ratio: The part of the act allowing administrative approval for agreements among
businesses to restrict undue competition was disallowed, relying on Natural Products
Marketing. The part creating the “Canada Standard” copyright (to be affixed to things
conforming to Dominion standards) was upheld under 91(2)
By referring the legislation to the courts, King basically gave himself the right to
wash his hands of the depression, blaming the constitution for his inability to help. This
really inflamed the movement for federal reform.
Kennedy and Scott’s reaction:
Bunch of bullshit JCPC. So many of these issues are national and you won’t let
the feds decide them. Their general powers, then, are basically non-existent. They could
use them in alcohol and war, but not social reform. wtf? We should rewrite the
constitution and stop letting the JCPC decide stuff for us.
Non-Canadian judiciary can’t understand Canadian context, thus it is useless to
Marketing Act was followed by all provinces, which set up boards necessary to its
successful implementation. This was not heeded in the case, however, when the act was
ruled ultra vires. But this is cooperation between provinces and feds, which theoretically
is supposed to encapsulate all legislative authority in Canada. How then could their
cooperation be overruled?
O’Connor wrote a 150 page scathing report of JCPC treatment of ss. 91-2, saying
all residual power supposed to go to feds, but that has not been implemented.
Others feel the decisions were good, and reflected the nature of the federation of
provinces. The Constitution was made fluid to adapt to emergency situations and not to
allow Canada to gradually centrali8ze power through case law.
F.R. Scott “Some Privy Council” (Poem)
- basically points to a bunch of emergencies, says the answer always comes
back “property and civil rights”
- After a while, the tune changes from “property and civil rights” to “stare
- General principles in the judicial interpretation of division of powers:
o Validity of statute, based on dominant characteristic and whether the
enacting legislature controls that sphere
o Applicability of statutes even if valid, maybe in a limited way
o Operability of provincial statutes, where they conflict with federal ones
(the federal paramountcy rule)
Values Informing the Interpretation of the Division of Powers R. Simeon
- federalism is associated with other values such as pluralism or liberty. Thus,
proposals for change should be judged by how they reflect these values.
- This paper evaluates federalism’s links to three theories:
o Community: what does federalism imply for the ideal community?
Linguistic dualism makes this an important topic especially since 1960s
o Democratic theory: does federalism promote democracy?
o functional effectiveness: does it help or hinder effective policy and
responsiveness to the needs of the electorate?
- Contemporary considerations shift which of these is being focused on at the time
- conflict arises from conflicts between regional visions of community
- Country-building, province-building and Quebec’s identity all colour current
- Communities also need not be geographical, religions play a part in identity crises
- Does the division of powers btwn provs and feds help or hinder policy?
- Community evaluations are collectivist, functional evaluations are individualistic,
based more on perspectives of employment, religion etc than geography
- Some say govt too centralized, can’t stay on top of so many different regions.
Others say too decentralized ie businesses grappling with interprovincial
consumer protection differences.
- Overlapping interests make single-vision solutions less than optimal
- conflict between majority and minority rights not always addressed in the federal
- Smaller constituencies have leaders more in touch with voters’ needs, thus
decentralization of power leads to greater democracy generally.
- majority rule is a problem in Canada, b/c it pits central vs coasts and Franco vs
The Supreme Court and Canadian Federalism K Swinton
- ss. 91, 92 provide the necessary step of dividing fed and prov powers
- 91 – sea and inland fisheries, criminal law all federal
- 92 – civil and property rights given to provs
- What about powers not conferred by these sections? Some say enumerated
federal powers are merely illustrative, with the real power limited only by the
powers specifically conferred to the provinces by s 92.
- Courts evaluate this balance giving heed to the enumerated powers, and only
paying heed to the words “pogg” in limited instances.
- aeronautics, for example, falls under POGG because it was never contemplated at
the time of Confederation.
- Abel’s approach: find nature of statute, then assign it to a class from 91/92
- Some judges look at the purpose of the statute, others look at the effects
- double aspect doctrine: courts recognize overlap in some areas, such as a
civil/provincial remedy and a criminal/federal remedy for the same subject.
- No one unified view
Classification of Laws and the BNA Act W.R. Lederman
- can’t say all laws in an area are fed or prov. Rather, must take each law
individually and ask whether it conforms to a certain definition
- For example, ‘banking’ in 91(15) is not a definite object, so much as an area for
- s. 91 limits anything provincial to prov and fed to fed. History quickly showed
the impossibility of this ambition.
- Main thesis: a rule of law should be classified, for the purposes of determining
legislative authority, according to its most important feature
- SCC said in Starr v Houlden that we must evaluate the ‘pith and substance’ of a
law and then determine where the power to regulate lies.
R v Morgentaler SCC 1993
Facts: NS tried provincial legislation banning free-standing, non-hospital abortion
clinics. Respondent opened one anyway, performed 14 abortions, charge with 14 counts
of violating Medical Services Act. Trial court and appeal court said it was ultra vires for
the province as a criminal matter. The province is appealing.
Held: appeal dismissed.
Analysis: Hansard evidence properly admitted in order to establish legislators’
understanding of pith and substance of the law. The law pertains to a traditionally
criminal area of law. It basically renews a repealed section of the CC. Hansard evidence
shows primary thrust to be criminal, and health care concerns were secondary in the
creation of the statute.
Necesssarily Incidental Doctrine (aka “ancillary doctrine): corollary to pith and
substance, if the intrusion of a statute into another legislature’s realm is incidental to the
main thrust of the provision, such intrusion is justifiable. This is contingent upon the
intrusive provisions being closely related enough to the main thrust that they are in fact
somewhat necessary. If they can easily be discarded without harming the main thrust of
the legislation, the courts will do so and declare the offensive parts invalid.
General Motors of Canada Ltd v City National Leasing 1989 SCC
Facts: GM extended interest schemes to competitors of CNL that CNL didn’t receive.
They are suing GM for the lost profits. This is based on s. 34(1) of the Combines
Investigation Act. CNL says this section pertains to the right to sue, thus it is ultra vires
for the feds. Trial dismissed, Appeal accepted, GM now appeals.
Ratio: The regulation of competition is clearly of national interest, and it can’t be done
with deference to provincial trade regulation. Thus, the national legislature is justified in
this statute. Its intrusion on provincial areas is justifiable given its pith and substance.
The intrusion is necessary to the main thrust.
Dicta: The Court has advanced several hallmarks of validity for legislation under the
second branch of the trade and commerce power:
(1) the impugned legislation must be part of a general regulatory scheme;
(2) the scheme must be monitored by the continuing oversight of a regulatory agency;
(3) the legislation must be concerned with trade as a whole rather than with a particular
(4) the legislation should be of a nature that the provinces jointly or severally would be
constitutionally incapable of enacting; and
(5) the failure to include one or more provinces or localities in a legislative scheme would
jeopardize the successful operation of the scheme in other parts of the country. These
indicia do not represent an exhaustive list of traits that will tend to characterize general
trade and commerce legislation and the presence or absence of any of them is not
Lederman “Classification of Laws and the BNAA”
- In order to make laws work, courts have developed the principle of mutual
modification. Fed reg of trade and commerce has wide overlaps with “Property
and civil rights.” The courts have decided then, that “T+C” should be reduced
automatically to “T+C, but not as they apply to P+C rights” and a corollary
modification of “P+C”
- There are many such conflicts in 91-2 and such modification increases certainty
- Still, much overlap persists. In such cases, there are 2 options: 1 overlap should
be disregarded as ‘incidental affectation’ or 2 in cases where the contrast between
two aspects is not sharp enough to call one of them the ‘pith and substance.’ In
such cases we employ the double aspect doctrine.
- The DAD holds that where both prov and fed laws are important, both have the
authority to make laws on that subject. This leads to conflict.
o If the two laws are cumulative, ie you can fulfill all the obligations of both
laws without violating either, then you are bound to do so.
o If the two conflict, however, the courts hold that the federal rule is to
prevail. This is the doctrine of “dominion paramountcy”
Multiple Access Ltd. v McCutcheon SCC 1982
Facts: An action was started under an Ontario Securities Statute against MA ltd. for IT
on the TSE. MA is federally incorporated. The alleged ITs defended saying 1. Ontario
statutes can’t apply to federally incorporated corps. 2. Doctrine of paramountcy applies
in this case to make federal legislation provisions trump provincial ones (under federal
statute, the time period for launching an action had expired).
Analysis: Federal legislation must be upheld, if struck pockets would be created in
Canada where IT was not regulated. John Deere Plow Co. v Wharton JCPC 1915
established that regulation of national corps was a fed matter under POGG. [adopts
Lederman’s double aspect doctrine test referred to in above article]. It is well established
that securities regulation is a provincial domain, thus Ont has a legitimate claim here too.
Ratio: On issue 1, majority found that both acts can apply.
- Double aspect doctrine is said to have its origin in Hodge, where the JCPC said a
provincial thing in one case might be federal in another
- Law Society of BC v Magnat Federal Immigration Act allowed non-lawyers to
represent people before tribunals, BCLS said no. Double aspect applied.
- DAD has played largest role in areas that might be considered criminal.
B. Ryder “The Demise of the Classical Paradigm in Canada”
“modern paradigm” the approach that allows for more interplay between fed
and prov jurisdiction.
“Classic paradigm” Old approach with more watertight compartments.
Classic paradigm is weak in the real world. It also relies on th3e unsure practice
of intergovernmental cooperation. Modern paradigm is weak in that it allows for the
subversion of provincial autonomy (it allows for federal paramountcy, for example).
The point of this article is to rebut the assumption by most scholars that the
dichotomy between these approaches creates an either/or situation. Both can (and in fact
have) be used and balanced.
The Doctrine of Interjurisdictional Immunity
Interjurisdictional Immunity applies to certain areas of federal law where
provincial law is not to apply even in a manner that is trivial. The doctrine first applied
to federal corporations.
Commision du Salaire Minimum v bell Telephone (Bell #1) SCC 1966 pitted the
national corporation against provincially set minimum wage. SCC said wage standards
couldn’t apply because such interprovincial things were subject to exclusive federal
control. These laws are only found inapplicable to the federal undertaking, but not
invalid. Reading down a statute is the usual response.
McKay v The Queen SCC 1965
Facts: Appellants had displayed an election billboard on their house in contravention of a
bylaw prohibiting most signage.
Analysis: prohibition was extremely wide. Thus the rule Verba generalia restringuntur
ad habilitatem applies. It means ambiguous wording leads the courts to consider the
intentions of the law makers at the time they made them. The other pertinent rule of
construction is that if two interpretations are possible, and one will be ultra and one will
be intra vires, the intra vires one is to be applied. Regarding this rule, it shouldn’t apply
to fed elections, since they are clearly Dominion jurisdiction. Valin v Langlois excerpt is
read where SCC talked about just how absolutely federal the power to run fed elections
was. By the general wording “verba” rule outlined above, the court simply says you
can’t accomplish with general words what you can with specific ones.
Ratio: No provincial bylaw can screw with a fed election.
Dissenters: Nothing in the bylaw contradicts Canada Elections Act. Nowhere in that act
is the right to post boards enshrined.
Commision de la Sante... v Bell Canada (Bell #2) Scc 1988
Facts: One of a trilogy of cases dealing with application of provincial health laws to
Analysis: General jurisdiction over health belongs to provinces. This has always been
true, though the current extent of this jurisdiction was likely not foreseen in 1867.
Generally, labour relations fall under ‘property and civil rights’ ie they’re also provincial.
Notwithstanding this last generality, the feds are responsible for national labour stuff ie
Bell, CNR etc. Provincial statutes still apply whenever they bear on subjects other than
the subject that makes federal entities federal. Ie Bell employees subject to federal
standards in general, but a Bell building in Ontario is subject to Ontario zoning bylaws.
WCB v CPR 1920 JCPC established that provincial workmen’s compensation schemes
applied to federal undertakings. Bell 1 Stands for the notion that provincial laws can’t
impinge on the particular things that make a federal thing a federal thing. Criticisms of
the first Bell case abound, but they fail to address the nature of exclusive federal
jurisdiction. Define it. The rates paid etc are part of the operation of an enterprise, as
such inseparable from it. Thus, Canada must regulate health and safety, provinces must
be banned from doing so, since to do otherwise would lead to legal battles over every
Ratio: Feds rule occupational safety in fed undertakings.
Notes: Beetz, J. further noted that the double aspect doctrine didn’t apply since the two
regulations sought to regulate the exact same thing and for the exact same reason.
- Recent case law has found that there is no support for Interjurisdictional immunity
that would protect a provincial statute. See Friends of Oldman River Society v
Canada SCC 1992
- II has not been invoked in all areas of fed control, No cases exist where II has
been invoked in criminal matters for instance.
- R v Canadian Pacific Ltd SCC 1995 A railway was made to comply with an
Ontario bylaw to do with smoke from a controlled burn on its property.
- In Irwin Toy SCC refined the Bell 2 ruling. The court acknowledged that
broadcasting had advertising as a vital part of it. As such, Bell 2 would stand for
the province not being able to regulate advertising. The court refined this by
saying a provincial statute could indirectly affect a federal entity. In this case,
legislating advertisers indirectly affected broadcasters, thus the prov rule stood.
Operability: the paramountcy doctrine:
- s. 95 says agriculture and immigration are areas of joint jurisdiction. Prov laws
have effect to the extent they aren’t repugnant to fed laws
- s. 92A added in 1982 allows provs the right to regulate trade in natural resources
with other provinces subject to federal laws on the subject.
- s. 94A provides for concurrency in the area of pensions and supplementary
benefits. This section provides for provincial paramountcy in case of disputes.
- Apart from these, the constitution says little about resolving conflicting laws, thus
the judiciary created the federal paramountcy rule. This rule only arises after
validity and applicability have been shown.
- Express conflict Impossibility of dual compliance b/c can’t do what both laws
- Covering the field doctrine The idea that when Parliament enacts legislation in
a certain area, it is meant to be comprehensive and require nothing further.
Courts have favoured the express conflict approach in recent years.
Ross v Registrar of Motor Vehicles SCC 1975
Facts: Drunk driver. CC allows judge to order driving prohibitions and notify the
province’s transportation ministry to those conditions. Judge did not suspend, but
limited to driving to and from work. Then MTO took the further step of suspending it
altogether for 3 months under an Ontario statute.
Issue: which, if either, legislation is valid? Are both? If so how to resolve?
Analysis: They quote an old case that stands for provincial authority to ban driving
based on criminal convictions. s. 5 of CC states that once a penalty is imposed under
a CC provision, no other penalty shall be imposed. It is established law that a civil
remedy is not considered a punishment for the purposes of CC s.5. Parliament didn’t
intend the CC provision to be complete in this area of law.
Ratio: Both provisions valid.
Dicta: Implicit rejection of the “covering the field” test
Multiple Access Ltd. v McCutcheon SCC 1982
Facts: See above. Double aspect doctrine invoked.
Issue: Now the DAD is invoked, is the federal paramountcy rule to be used? Usually
this is asked where different laws do different things to the same topic. Here,
however, the two laws did basically the same thing. Does such duplication call for
Analysis: No express conflict between the two, no reason the two can’t coexist.
Getting rid of one or the other would leave a gap in that scheme that would be untidy
and wasteful. You have to come through a court for prov or fed, and no court is
going to allow double recovery, so no worries there.
Ratio: Paramountcy should only apply in cases where adherence to one law is
defiance of another.
Bank of Montreal v Hall SCC 1990
Facts: Hall gets a loan with farm equipment as collateral. This is pursuant to s. 88 of
Bank Act (fed). The bank reclaimed under federal act. The way they did it violated
notice requirements of provincial act, which would have allowed Hall to keep the
machinery if it stood on its own.
Analysis: both acts intra vires, so now what? They are clearly in conflict. Bank Act
would have BMO already able to sell it, Civil rights act would have it returned to
Hall. Clearly one must be disobeyed. It is not open to prov to qualify a right granted
by feds. Feds intended to creat a regime where the banks didn’t have to worry about
the provinces mucking up their ability to enforce property rights. Counsel argued that
the fed act can be adhered to if the prov act is followed. This does not overcome the
problem that the fed act will be disobeyed if prov act is not adhered to, but is
Ratio: The prov provisions are of no effect when applied to the fed provisions.
Note: This is in direct conflict with Ross. The bank could have complied with both
laws in Hall just as Ross could have complied with both. Thus, it seems that
Multiple Access opened the gate to not only impossibility of compliance, but also
incompatibility of intention.
Currently, if you can comply with both laws, that is only part of the issue. You must
not have a situation where compliance with one necessitates non-compliance with the
other. Furthermore, a lack of compatibility of legislative intentions gives rise to
application of federal paramountcy rule (Multiple Access, Bank of Montreal v Hall).
Interjurisdictional Immunity will render such questions unnecessary, since the
provincial measure won’t pass the applicability portion of the test (Husky Oil
Operations Ltd. v MNR).
Ch. 9 Peace Order and Good Government
- Since the 1930s, POGG has included issues of ‘national concern’ which has
included things other than emergencies.
- AG Ontario v Canada Temperance Foundation JCPC 1946 If something must,
by its nature, be of concern to the nation as a whole, then it will be competent for
Parliament to deal with the issue. The validity of such a statute is not tainted by
the fact that it might still be open to a province to create more rules on the same
topic regarding situations unique to themselves.
- Legislation based on emergencies, can equally be justified if it aims to prevent
- Johannesen v Rural Municipality of West St. Paul SCC 1951 a challenge to a
municipal bylaw re location of airports. Remember that Re Aeronautics was
decided based on s. 132, which was no longer available since the statute of
Westminster. The SCC, however, found aeronautics to be a subject concerning
the country as a whole, and thus dominion jurisdiction.
- Munro v National Capital Commission SCC 1966 SCC unanimously upheld the
feds’ right to control the development of the national capital region (Ottawa and
surrounding area). Court found that this too was a matter of national concern.
Jones v AG NB SCC 1975 Court unanimously rejected NB application to
overturn Languages Act, which demanded French and English in all federal
- Re anti-inflation act Viewed as a potential turning point in const law, several
provinces joined in the debate.
K Swinton “ The Supreme Court and Canadian Federalism: The Laskin-Dickson
Laskin reveals his attitutde toward BNAA through his early writings as a n
academic. He favoured strong central govt. He interpreted BNAA to mean feds had
power other than what was enumerated in s. 92. He believed that local problems could
become more complex until they became national in scope. This was probably biased by
growing up in the depression and hearing/believing all the arguments for centralization of
Beetz, on the other hand, was very pro-province. He emphasized a Que point of
view, saying that the BNAA was intended to safeguard Que sovereignty. Beetz agreed
with the early JCPC rulings that treated the federal powers as residuary except for those
explicitly referred to in s. 91. Quebecois prefer the old, strict interpretation that favours
Re Anti-Inflation Act 1976 SCC
Facts: This act established price, income and profit controls. It applied to private firms
with fewer than 500 employees in designated professions. Construction firms with fewer
than 20 employees, other private sector firms. The agreement was applicable to the
public sector of each province if that province and the feds somehow agreed to make it
so. The preamble stated it was intended to curb current inflation, which was definitely a
problem at the time.
Issue: Can extrinsic evidence about considerations that led the government to pass this
act be considered?
Analysis (Laskin): There are several areas of federal supremacy at play in this case.
Banking, issuing money... It was suggested by counsel that the legislation had to do with
regulation of the economy, and thus was fed in nature, or in the alternative that there was
an economic crisis that would justify fed intervention in this particular case. General rule
in constitution cases: the courts shouldn’t go further than necessary to determine the
issue, thus let’s first determine if it is in fact an emergency. National character of
program makes it clear that govt thought of it as an emergency. Soliciting the
acquiescence of the provinces does not amount to an admission of powerlessness to
compel them. The wording of the preamble doesn’t need the word ‘emergency.’ There
are no magic words. double digit inflation in consecutive years was shown to be a big
deal. Let’s not screw around with it. In short, evidence shows a crisis was reasonably
perceived, but feds don’t even need it. They’re just allowed to set national financial
policies especially temporary ones like this one, under POGG.
Dissent (Beetz): Regulation of local trade and commodity pricing should be left to
provinces except in the case of an emergency. If Parliament has established an
inflationary emergency, they can seize control of everything: production, wages, property
etc. The emergency itself doesn’t give rise to the national concern. This is established by
Aeronautics and Munro, where the subject matters (preserving the capital region in
Munro) were added after Confederation. To declare something an emergency and seize
provincial powers is a perversion of the constitution if not done properly. If they want to
use the power, they should unambiguously declare such intent. National emergencies
don’t lend themselves to opting-in or opting-out formulae.
Ratio: 7-2 judgment that the act was good under POGG. 5-4 held that an emergency
situation was necessary to the validity of the act. Laskin and Beetz fell on opposite teams
on both issues.
- Hogg, among others, seemed to think that the biggest aspect of this case was the
admission of extrinsic evidence.
- This was elaborated on by Dickson in Re Residential Tenancies Act SCC 1981:
Flexibility is key, extrinsic evidence is not to be taken in all cases now, but it
doesn’t make sense to always ban it, when it can be highly probative. Dickson
said speeches from parliament were usually not admissible. This changed in...
- Morgentaler The main criticism of legislative records is that they can’t embody
the ‘intent’ of the legislature, this is true of all historical evidence though.
Emergency legislation following Anti-inflation reference:
Emergencies Act RSC 1985 c 22 (4th Supp.) defines an emergency as
An urgent and critical situation of a temporary nature that
a) seriously endangers the lives, health or safety of Canadians and is of such
proportions or nature as to exceed the capacity or authority of a province to deal
b) seriously threatens the ability of the Government of Canada to preserve the
sovereignty, security and territorial integrity of Canada.
This includes public welfare emergencies, public order, international and wartime.
The cabinet can declare an emergency, Parliament must confirm it but not without
consulting the affected provinces about whether they can deal with it. This seems to
reflect Beetz’s concerns about declaring an emergency in Anti Inflation.
R v Hauser and Schneider v The Queen Revisited the national concern doctrine.
In Hauser, the SCC found that the validity of the Narcotics Act (Federal) rested on
POGG. They said heroin etc were new problems not in existence in 1867, thus unless
they were a purely local matter (and they were not), they were federal.
In Schneider, SCC said Heroin Treatment Act of BC was intra vires. There is
nothing to indicate, writes Dickson, that heroin dependency is a national concern that
provinces are ill-equipped to handle.
R v Crown Zellerbach Canada Ltd. SCC 1988
Facts: Ocean Dumping Control Act (federal) prohibits the dumping of any substance at
sea except for in accordance with the terms and conditions of a permit. “The sea” being
defined as waters of Canada, including internal ones, that aren’t fresh waters. It appears
that this law was passed to fulfill Canada’s signing of the Convention on Marine
Pollution by Dumping of Wastes and Matter. This act is concerned with Marine life, the
environment and shipping lanes etc. The respondent company dredged some woodwaste
from a bay near where they log to clear room for stuff to be floated into the bay. They
dumped the waste deeper in the ocean. There is no evidence of harm to shipping or
Issue: Does Parliament have the right to regulate waters in provincial boundaries?
Analysis: Parliament can certainly regulate pollution that harms fisheries and regulation
of waters beyond provincial boundaries. Also, Parliament has the authority to regulate
dumping in provincial waters of stuff that will pollute out to the sea. If the act applies to
dumping that has not been shown to harm extra-provincial waters, it is submitted that it is
ultra vires, Otherwise it is not applicable to the case at bar. AG Canada submits this is a
POGG issue. Prevention of marine pollution. Needing a permit is easier than defining
stuff and quantities that may be dumped. Test from Fowler and Northwest Falling is not
met here. Nothing in the enumerated powers allows fed regulation of prov waters. What
has been established about the national concern doctrine?
1. National concern is not the same as national emergency doctrine of POGG which
only provides for legislation of a temporary nature.
2. National concern applies to things not contemplated at Confederation and things
that have since Confederation, but not because of emergencies, become issues of
3. National concern = singleness, distinctiveness and indivisibility distinct from
4. In considering the criteria from #3, it is necessary to consider what extra-
provincial effects would ensue from provincial failure to meet the emergency.
So, is the dumping of substances in marine waters (provincial and federal) indivisible and
single? The appellant submits quite convincingly that the boundary is often hard to
ascertain. This causes the indivisibility of the issue. The different nature of marine water
creates the necessary distinctiveness.
Ratio: The law is constitutional.
Brun, “Droit Constitutionnel”
- Zellerbach gave federal crown new powers over what was previously strictly
provincial. This is a break from all constitutional history, which had previously
respected the opening words of s. 91 saying there was no federal power over
strictly provincial domains.
- The court also fails to establish criteria for establishing national interest (or the
disappearance of a provincial interest), or for proving a province unable to deal
- Just about everything in a province can “affect” stuff outside of the province.
That is not enough to justify fed intervention.
- Difficulties in ascertaining boundaries is also a pretty goddamn weak excuse.
- Zellerbach decision can only help to centralize power in the future.
Note: the application of international standards to make this case apply to fed govt is not
consonant with the Labour Conventions ruling.
How far does ‘provincial inability’ extend? What if the province can’t protect a
Some suggest that ‘national concern’ is a lot like ‘subsidiarity’ in the EU, a
principle that asks a decision be made by the lowest level of govt possible.
Friends of the Oldman Rive r Society v Canada (Minister of Transport) SCC 1992
Facts: Federal Department of the Environment Act required that all agencies evaluate
actions to determine if they might have harmful effects on the environment. If so, they
would need to be reviewed by a panel. A plan in Alberta to dam the Oldman River was
approved w/o an assessment.
Analysis: Ministers argue this is just a rule to facilitate execution of federal jurisdiction.
Constitution has not granted environment to either feds or provs. Environmental control,
in uncontested obiter from Zellerbach, and affirmed here by the majority, simply doesn’t
posess the distinctiveness to meet the national concern criterion. In Fowler, a provision
of the Fisheries Act was found ultra vires b/c it didn’t pertain to actual or potential harm
to fisheries. But in Northwest, feds were allowed to prohibit actions that might ruin
Ratio: In short, both levels of government get some control of the environment.
- More recent litigation has focused on the CEPA and their control of toxic
substances. They classify and monitor such substances
- In R v Hydro Quebec SCC 1997 the SCC upheld the act creating CEPA as valid
under federal jurisdiction in criminal law, thus leaving the question of national
- In Ontario Hydro v Ontario (Labour Relations Board) SCC 1993 the issue was
which govt could offer a certificate for collective bargaining for nuclear power
employees. 4-3 SCC majority ruled feds could regulate nuke employees under
POGG. The necessity is obviously rooted in the seriousness of regulation. This
seriousness extends to training and employment. Dissenters said there was no
need to control the employees.
Ch 10 Economic Regulation
This chapter focuses on economic regulation, largely through 91(2) (trade and
commerce) and 92(13) (property and civil rights). Taxation and free trade among
provinces also play a role.
There is a large demand for a greater economic union in Canada. Increase free
trade between provinces and harmonize quality (ie occupational qualifications) and safety
The following case notes that economic integration was a goal in 1867.
6. (1) Every citizen of Canada has the right to enter, remain in and leave Canada.
Rights to move and gain livelihood
(2) Every citizen of Canada and every person who has the status of a permanent resident
of Canada has the right
a) to move to and take up residence in any province; and
b) to pursue the gaining of a livelihood in any province.
(3) The rights specified in subsection (2) are subject to
a) any laws or practices of general application in force in a province other than those that
discriminate among persons primarily on the basis of province of present or previous
b) any laws providing for reasonable residency requirements as a qualification for the
receipt of publicly provided social services.
Black and Co. v Law Society of Alberta SCC 1989
Facts: Two law firms, one in ON one in AB, want to merge. LSA prohibits partnerships
with people in other provinces.
Analysis: Much of the constitution aimed at creating a stronger economic union. This
was basic to the entire Confederation process. The word ‘free’ in s. 121 meant without
impediment related to interprovincial travel. Case law supports this view: AG Man v
Manitoba Egg & Poultry Association, Murphy v CPR Co. In Union Colliery Co of BC
v Bryden 1899, the JCPC ruled that a province was not allowed to ban a resident of
Canada from employment. The Charter process also centered on merging the Canadian
economy. Thee Charter now guarantees the right to live/work anywhere in Canada to
citizens and naturalized residents.
Ratio: This rule violates 6 (2) (b) of Charter, can’t be saved under s 1.
The Canadian Manufacturers Association put together a study re the impediments
to a freer Canadian market and their impact. They listed over 500 ways that governments
acted independently or collectively to screw over the free market dream. They say
implementing their suggested changes could save $6b/yr.
Canadian egg Marketing Association v Richardson SCC 1998
Facts: Egg producers got together in 1972 and came up with a quota scheme for
marketing eggs in Canada. Since ’72 the NWT developed an egg industry, but since it
was not included in the ’72 pact, it can’t legally sell eggs to the rest of the country.
Issue: Charter s. 6.
Analysis: s. 6 is after personal equality, it doesn’t strive toward it by regulating any
particular economic activity, but rather on the right to pursue livelihood anywhere. s 91,
92 undoubtedly authorize federal and provincial buildup of economic regulation, they
thus conflict with s.6 of Charter. This is accentuated by s.121 of BNAA, which states that
products manufactured in one province will be freely allowed into the others. Leading up
to the 1982 ammendments, feds proposed wording that would change 121 to disallow
provs from erecting various barriers to trade. 9/10 provs rejected this idea.
More importantly, the pith and substance of the ’72 pact was not to discriminate
against residents of certain provinces, s. 6 bans discrimination on the basis of province of
Ratio: No intentional discrimination by the legislation, therefore it stands.
II Provincial Powers over Economic Regulation
Carnation Co Ltd. v Quebec Agricultural Marketing Board SCC 1968
Facts: Marketing Board was created to approve of joint marketing plans between
producers of the same goods. An agreement was struck for marketing Carnation milk.
Marketing board arbitrated the setting of price between buyers and sellers. Appellant
(Carnation) incorporated federally.
Issue: Did the marketing board infringe on the exclusive legislative powers of feds in
91(2)? After production, most of the product will be exported out of Q.
Analysis: Re Farm Products Marketing Act SCC 1957 stands for the idea that a
transaction taking place wholly within a province might not be legally intraprovincial.
Setting prices undoubtedly affects cost of doing business on an international scale, but so
do labour costs, and nobody would seriously contend that labour was ultra vires for a
province. Thus, whether the regulations will affect the business is not an issue. The
issue is whether the province has attempted to regulate trade and commerce that actually
falls under fed jurisdiction.
Dicta: Once a statute aims at regulation of matters of interprovincial trade, it is ultra
vires. Regulating a company involved in interprovincial trade may or may not amount to
regulation of interprovincial trade. Each case must be examined on its own
Ratio: This regulation was not aimed at interprovincial trade. It didn’t purport to
directly control or restrict such trade. There was no evidence that they did control or
Chicken and Egg War: AG Manitoba v Manitoba Egg and Poultry Asscn. SCC 1971
In early 70s, Ontario produced an excess of eggs, Quebec an excess of chickens.
Consequently, Ontario Egg farmers wanted to sell in Que, Ontario chicken farmers
wanted to regulate Que chicken imports and vice versa. The result was government
intervention, but the Q govt went too far and made laws that favoured Q producers too
much. This hurt other provinces, such as Manitoba.
Manitoba couldn’t wait for all the political crap surrounding it. So they draft a
mirror image of the Q legislation, then refer it to the MCA. When it is ruled
unconstitutional, they appeal to SCC to try to get a binding decision against it.
SCC considers whether it trespasses on fed right to regulate trade and commerce.
They go through a lot of case history authorizing the provincial regulation of a single
industry entirely within its own borders.
In the instant case, there is clearly regulation of interprovincial trade. An owner
of goods can’t be restricted from shipping them out of province or in.
In general, the province is not allowed to regulate imports/exports, subject to valid
concerns about health, etc.
Some have criticized this decision b/c Manitoba conspicuously omitted some
supporting arguments. The court should have refused to answer according to some
critics, since it was so obviously a political play.
Now in MB all eggs are regulated by MB and in Q, all milk by Q. What’s the
difference that made one law valid and the other not?
I say: Q was not trying to screw over other provinces, just trying to get a little
help by unifying its producers. MB was trying to restrict goods from other provinces
from coming in.
Burns Food Ltd. V AG Manitoba SCC 1975 Arguments were made about the
ability of Manitoba to require that all pigs slaughtered in MB be bought through the MB
Hog Producers’ Marketing Board. Since this meant that people couldn’t buy pigs in ON,
SCC ruled it UV.
Re Agricultural Products Act SCC 1978
Facts: This was a reference to several Ontario measures made in concert with feds in
response to the problems raised by Manitoba Egg. These acts resulted from the
cooperation of the feds and the 10 provinces in trying to hammer out a system of quotas
etc for marketing eggs in Canada.
Analysis: Control of production is prima facie a prov concern. Because of Carnation,
even if all goods produced were shipped out of province, it would still be up to the
provinces to regulate. Any scheme has to apply to all eggs, irrespective of destination.
Although provs can’t control interprovincial trade, they are not prohibited from all ten of
them and the feds agreeing to a scheme. This is aligned with s 121.
Ratio: Egg control is a provincial thing.
Simeon, “ The Development of Canadian Federalism”
Early 70s oil boom created crazy bickering over control of resources. Alberta
wanted to take advantage of soaring prices, ON wanted to ‘protect industry’ by capping
prices in Canada. AB argued that we needed to adapt to be more efficient, like the rest of
the world would have to. Canada bowed somewhat to the demands to keep the price
below world average. West resented it.
Canadian Industrial Gas and Oil Ltd v Government of Saskatchewan SCC 1978
Facts: SK introduced taxes on oil profits in response to 70s boom.
Issue: IV/UV? The province is only entitled to ‘direct’ taxation, appellant argues this
scheme represents ‘indirect taxation.’ It is also submitted that this is regulation of
Analysis: The purpose of the legislation is to ensure that nobody outside the province
gets the incremental value of the oil except the SK govt. The tax demands every profit in
excess of an established price. Almost all of this oil is destined for out of province
markets. Different from Carnation, b/c in that case the production costs were raised by
govt action, but not distribution costs. Here, the legislation is directed at the sale of oil
from SK to outside of SK.
Ratio: Indirect tax [reasons omitted in this textbook]. Tax is UV SK govt.
Central Canada Potash Co. Ltd v Government of Saskatchewan SCC 1979
Facts: SK and New Mexico put together a potash marketing scheme. It screwed over the
complainant who brought an action to claim it was UV. The scheme was intended to
prorate prices of potash and stabilize market price by controlling production.
Analysis: The whole scheme was aimed at extraprovincial sales. Making price fixing the
central feature of the scheme might bring it into an unprecedented area of constitutional
law. Using Canadian Industrial Gas as a precedent, the court notes that it is UV for a
province to aim controls at extraprovincial trade.
Ratio: It is an attempt to control extraprovincial trade, it should be set aside.
Note: The provinces own the minerals, should they not then be able to do whatever they
want with them? Or is legislation still UV?
This section was added to the constitution in 1982 as a result of provincial
dissatisfaction with the rulings on provincial control of resources. 92A extends the power
to legislate over the export of resources to other provinces, subject to Parliament’s
paramountcy on this issue. Also to permit indirect taxation on resources but not to the
point of discrimination against other provinces. The majority in Ontario Hydro v Ontario
(Labour Relations Board) held that 92A allotted control of hydro to the provinces for the
perceived fear that its national character might make it a target of federal takeover under
Re Offshore Mineral Rights of BC SCC 1967 Ruled that since offshore property
had not been part of the colony of BC, they went to feds when BC joined confederation.
The Straights of Georgia, however, were BC territory since they had been part of colony.
III FEDERAL POWERS OVER ECONOMIC REGULATION
Another complaint about BNAA is the constraints it places on the feds ability to
regulate areas of national interest. The following cases reveal how two doctrines
developed after the 60s led to the possibility of more federal discretion. The ‘necessarily
incidental’ doctrine was applied to trade and commerce authority. And the SCC’s use of
the general regulation of trade power to uphold federal competition law.
The Queen v Klassen Man CA 1960
Facts: Canada Wheat Board Act established some regulations governing the delivery of
wheat to elevators. You must deliver your own wheat and each delivery gets counted
against your allowable quota for the year. The act called the elevators “works for the
general advantage of Canada” pursuant to 92(10). Klassen was an elevator operator who
had never been involved in interprovincial trade of wheat. He was charged with failing to
record a delivery of 296 bushels.
Issue: Is the declaration of all wheat elevators being works for the general advantage of
Canada UV re his elevator?
Analysis: He could ship out of province. The purpose of the act is to provide a market
for shipping surplus grain out of province. It is a valid purpose. But is it invalidated
when someone is dealing exclusively within one province? We must also consider that
by not recording the delivery of these bushels, the deliverer can now deliver more grain
to other elevators than he would have been allotted. So even if you trade
intraprovincially, you are a part of the entire system, which is validly regulated under the
head of trade and commerce. As a result, you must comply with the act, which is intra
Ratio: Act stands, as does the charge against Klassen.
Laskin, “Note on Queen v Klassen”
Trade and Commerce power is the JCPC’s saddest legacy. JCPC never looked at
economic or social problems as a whole, instead it treated trade regulation as something
that always had national and provincial components which had to be separated, often at
the expense of destroying legislation. But, in the areas of trade and marketing, fed power
only began at the point where it became extraprovincial. Arguments of functional
connection between production and marketing were always rejected, until Klassen. This
case brings new hope that instead of applying rigid constructions, courts will now view
each situation for what it really is, analyzing context as well as stare decisis.
Caloil Inc v AG Canada SCC 1971
Facts: Feds forbade oil exporters from crossing a line running N-S in ON and Q. Feds
wanted to sell western oil in the west and eastern in the east. Caloil lost a license for
violating this prohibition, it fought calling the law unconst. They said it fell under
property and civil rights. Rather than appeal, the feds passed a new law and again denied
the company its license. The new regulations basically said that the board could issue
licenses based on delivering oil to certain parts of Canada and for use in those parts.
Analysis: The old regulation pertained to ‘any gasoline’ whereas the new one applies
only to imported oil, thus it validly regulates international trade.
Ratio: Intra vires.
Swinton, Laskin-Dickson Years
Caloil provided no support for federal regulation of intraprovincial stuff, which
was what a lot of people wanted. Weiler suggested that there were no reasoned limits to
this boundary, but the courts proved him wrong in Dominion Stores Ltd. v the Queen
SCC 1980 when the courts said the feds could set grading standards for produce sold
interprovincially, but not intraprovincially.
The interesting thing about Dominion, is that the particular regulations of that
case only came into play when voluntarily agreed to. Dominion had done so by using the
term “extra fancy” for its apples, which did not meet that standard as defined in the
federal act. 5-4 held the federal legislation UV.
Interesting questions might arise from NAFTA and its liquor pricing provisions.
This is provincial domain, but the feds have ratified it. Labour Conventions established
that the feds can only legislate in fields where they have jurisdiction. Interesting...
Swinton Laskin Dickson Years
Interprovincial stuff is required for fed justified actions on trade. Thus another
way was necessary to develop another approach to interpretation of power to permit
federal regulation of economy. The answer seemed to come from a 1976 SCC reference
to the feds’ authority over ‘general regulation of trade’ see Citizens’ Insurance. In
MacDonald v Vapor Canada SCC revived the general regulation of economy doctrine,
which had recently fallen into disuse. It was later used to uphold federal competition
legislation in 1989.
The reason for its years of disuse are explained by its conflict with the
interprovincial/international requirement. General regulation of trade requires no such
qualification. The general regulation test requires difficult and important decisions from
the judge. The interprovincial test seemed less arbitrary.
Labbatt Breweries v AG Canada 1980 SCC
Facts: Federal Food and Drugs Act provided that no product failing to live up to certain
standards can affix indication of meeting such standards to its label. At issue here were
standards re min/max alcohol content of beer marketed as ‘light.’ Labatt challenged
validity, feds relied on Crim and POGG authority.
Analysis: Interprovincial trade provisions not applicable since this regulated production.
Labbatt produced the beer in almost every province, hence it was local production.
Neither national ownership nor national advertising will alone prove national interest in
the product. Not justified under criminal authority, b/c not aimed at criminal actions, nor
under POGG, since not a matter of national concern.
Ratio: 6-3 found the act UV.
Note: A constitutional challenge to part of the same act demanding that no person shall
mislead people as to contents of products was rejected. SCC said feds had this right.
In Canadian National Transportation Dickson noted that general regulation of trade was
a subject that would necessarily have effects on local matters. The point isn’t that it
should have no such effect, rather the point is that the legislation should be aimed at a
subject in the interest of the general regulation of trade.
MacDonald v Vapor SCC 1977
Dicta: 3 criteria for evaluating validity of legislation under trade and commerce power:
1. Legislation must be part of a regulatory scheme
2. The scheme must be monitored regularly by an oversight agency
3. Legislation must be concerned with trade as a whole, not just a particular industry
General Motors of Canada Ltd v City National Leasing SCC 1989
Facts: Federal Combines Investigation Act creates a civil remedy for a violation of a
clause. CNL leases vehicles from GM, GM gives better rates to competitors, s 31.1 of
FCIA forbids that. CNL is suing for the lost savings.
Issue: Civil remedies are a provincial domain. Two sub issues: 1. Is the Act itself valid
under regulation of trade power of feds? 2. Is the impugned clause integrated into the act
to such a degree that it becomes IV by virtue of connectedness?
Analysis: Wharton and John Deere are both bad interpretations of 91(2). On the other
hand, Board of Commerce fails to recognize the federal power and the fact that
provincial powers are subtracted from fed power. Adding to the checklist from Vapor,
we should also look for: a) legislation of a nature that provs couldn’t produce jointly or
severally b) Failure to include one or more provinces in the scheme would jeopardize its
successful operation. The presence or absence of any of these 5 criteria is not
determinative. Constitutionality test:
1. Courts determine whether fed legislation intrudes on provincial jurisdiction. If so,
to what extent?
2. The court must establish whether the act is valid. Only if it is valid go to #3.
3. Is the impugned provision integrated enough to be justified?
Basically the act meets everything. Competition is certainly of national concern.
Provinces couldn’t effectively control competition. Nor can it be effectively handled
with reference only to interprovincial trade. Given s.121, Canada is one huge
marketplace. As such provincial regulation won’t help in the field of competition.
Ratio: Act is valid under federal regulation of trade power. Clause is valid by being
functionally related to the act.
Professor Whyte Cited in Notes:
- Prime obstacle to national regulatory authority is recognition of the fact that no
distinct lines divide regulation of general trade and regulation of all economic
- In Vapor, the feds were allowed to require anyone engaged in any business to act
according to honest industrial and commercial usage in Canada. It follows that
they can also require businesses to do or desist from doing anything regardless of
size of enterprise and locality/impact of it. This would kill provincial powers over
property and civil rights.
- We need to define better what each head of govt can do.
- Increasing demand for definition of power in the late 20th C led to definitions, but
not the right definitions
- POGG and Trade and Commerce could both be interpreted in sweeping ways, but
neither has out of a necessity to read something into provincial concessions.
- National dimension of POGG is the best frame for interpreting the federal
jurisdiction over trade and commerce.
- When fed action can be supported as responding to a general need and
mechanisms employed are general mechanisms that necessitate national
implementation, then the general idea of trade and commerce will be properly
available as constitutional support.
- More precise conditions are also necessary, they should include:
o requiring federal regulation to be general in conception (which is not to
say that they can’t be adapted to certain regional concerns)
This could include industry specific stuff too as long as it was
reasonably connected to national goals
o Recognition of some form of provincial paramountcy. This is based on
provinces’ own understanding of their own unique conditions. Once
market trends are established in a province, feds should only be allowed to
intervene in extraordinary circumstances.
o Provincial paramountcy must be set aside where Parliament has
compelling reasons to do so.
IV Strengthening The Canadian Economic Union
We should not forget that economic reform is possible through govt actions as well as
judicial and const reform.
The feds proposed allowing goods to freely cross prov borders in ’82
ammendments, but this was rejected.
In Charlottetown, feds pushed for a stronger s. 121.
Report of the Special Joint Committee of the Senate and the House of Commons
Recommends reform of s. 121. See p 383.
- Canada is an economic union where goods, services, people and capital move
- The Parliament and provinces shall not violate this maxim
- Exceptions include:
o laws to reduce economic disparity between regions
o public health and safety, govt corporations in public interest,
o stuff done subject to international interests
- feds and provs will work together on this
- Nothing in this section changes mobility rights in Charter s. 6.
1994 Agreement on Internal Trade (AIT) between provs, feds and territories intended to
remove trade barriers in such areas as the environment and occupational qualifications.
In general, the parties:
o Can’t prohibit the movement of goods
o Can’t discriminate
o Ensure their practices do not prohibit obstacles to trade.
The agreement recognizes that legitimate objectives exist that might trump these things,
but the pursuit of such objectives should only impair the AIT objectives as little as
possible. Disputes are settled by an arbitration panel by a prescribed process.
MMT case AIT Panel 1998:
Facts: Feds wanted to ban MMT, a fuel additive. The American producer of it wanted to
fight the govt on NAFTA grounds, but Alberta and two other provinces beat them to the
punch, by making them back down based on AIT.
Analysis: Science inconclusive on the effects of MMT on the environment.
Ratio: Feds breaking AIT rules by trying to ban it.
La Forest has indicated in Hunt and Morguard that he would likely rule in favour
of more centralized economic control. Academic debates rage about whether this
In Hunt, the SCC ruled that a Quebec law forbidding the removal of business
documents from the province for a trial in BC unconstitutional. They said that it went
against the spirit of the Canadian marketplace. To uphold this law would increase market
inefficiency and unfairness to citizens.
Also worth noting is that trade barriers might be coming down by virtue of not
being allowed under new international agreements to which Canada is party such as
NAFTA and the WTO backed GATT. For example, Ontario had proposed a driving
insurance plan and the feds had proposed to package all cigarettes in plain brown paper.
These were defeated under anti-expropriation and trademark provisions of NAFTA
mounted by American companies. So even from without, there are forces shaping the
Canadian marketplace. MMT was also argued on an expropriation basis by the
manufacturer before provinces beat it on other grounds.
In many ways, says Bryan Schwartz, a trade agreement is like a constitution. It
shapes how governments act and is very hard to change.
Ch. 11, CRIMINAL LAW
s. 91(27) gives feds the responsibility of Criminal law. This chapter explores the
scope of this power and the extent to which it has constrained provincial attempts to
control local stuff.
Many have noted that Criminal law can be very broad in its definition and as
such, this is a very broad power to grant the feds.
History has given it a speckled treatement. In Board of Commerce, Haldane said
it was to enable the feds to control anything that was historically criminal in nature. He
said combines did not fit this category. In Proprietary Articles, Atkin rejected this
interpretation saying instead that it included all acts that at the time are prohibited with
penal sanctions. The following case is the starting point for any modern reference to the
exact nature of criminal power of feds.
Margarine Reference SCC 1949
Facts: A request to examine the validity of a section of the federal Dairy Industry Act
that banned the manufacture or import of margarine.
Analysis: Dairy industry is very important in Canada. So is the right to protect an
industry by banning imports that hurt it. Under a single legislative power, all sanctions
should be seen as criminal law. The split powers of Canada, however, make it less
simple than that. Usually criminal law is to uphold morality, peace, order, security etc.
This measure seems only to be aimed at business regulation, ie civil rights, ie provincial.
If we allow this law to stand, it means the feds would have the right to sanction one area
of Canada to benefit another area. This is clearly against the nature of the BNAA.
Ratio: Prohibition on import is fine, part of feds’ right to regulate international trade.
Prohibition on manufacture, however, is UV.
Notes: very few fed laws meeting the standard of prohibition of and penalty for a certain
action have been successfully challenged as not falling under the fed crim power. In
Boggs v The Queen SCC 1981 Such a law was successfully struck because it imposed
crim sanctions on driving while license was suspended, but provincial offences can lead
to a suspension of license, the SCC saw no value in criminalizing this. Dominion was
found to be marketing legislation with no criminal purpose. In Labbatt The SCC found
no criminal purpose in the legislation, since it only sought to regulate content, not
adulteration or tampering.
The following 3 cases involve tests of purpose and form. They all confirm the
considerable breadth of the fed crim regulatory power.
RJR MacDonald Inc. v Canada (AG) SCC 1995
Facts: The Tobacco Control Act states that it was created in order to respond to an
important national health concern. Particularly to protect health, young Canadians,
public awareness. The act prohibited all tobacco advertising in Canada except for ads in
imported publications. Also required were warnings and no information but the
prescribed warnings. fines from $2000-300k, 6mos -2years.
Issue: Tobacco companies challenged it as UV saying 92(13)(16) gave provs advertising
rights. Also raised a Charter s. 2 (b) argument.
Analysis: Dairy indicated that crim power didn’t encompass all things which were
penalized. Instead, it indicated that the court needed to find a real injurious effect to
which the legislation was directed. In this case we have both penal sanctions and
specifically referenced injurious effects. Does it also have a criminal, public purpose as
described by Rand, J in Dairy? In a word, yes. In Dairy, Rand even named health as one
of the concerns that can justify criminalization of stuff. Thus, it differs from Dairy,
where there was no public evil being curtailed. Parliament could, if it chose, ban tobacco
on the same grounds as other substances. Policy prevents this, but the option is theirs.
Appellants arguments: 1 Tobacco is not a traditional crim area, but criminal
definitions ‘are not frozen in time.’ 2. They say Parliament can’t criminalize something
ancillary to the evil, only the evil itself. Not true, they can do what they want to protect
people. 3. They also say it isn’t crim b/c foreign publications are allowed in with ads.
Crap! Criminal laws can have exceptions. They exempted for simplicity, page by page
censorship unjustified, esp since 99% of cigarettes are domestic.
Ratio: The act is a valid exercise of criminal law power.
Usually, criminal law has been defined by prohibition and penalty enforced by the
courts. Administrative bodies, regulations, civil remedies and other stuff can indicate it is
not in the crim realm.
Where a clear criminal law purpose has been found, courts allow some deviation
from traditional penal routes. RJR MacDonald Confirmed that several exemptions to the
rule did not preclude finding it to be a criminal law provision. R v Zelensky Criminal
provisions can also allow for civil remedies to be imposed. Provisions that stray from
usual penal methods were again upheld in R v Swain where the SCC ruled that feds
sending people acquitted by reason of insanity to mental hospitals. (The provisions were
struck down on a Charter argument, but still, the feds can otherwise justify it under crim).
R v Hydro Quebec SCC 1997
Facts: Fed Minister of the Environment made an order against emissions of PCBs. They
made a charge against HQ based on this order. The order was made under the fed Env
Protection Act, HQ challenged this as UV.
Issue: POGG and crim powers enough to justify this regulation?
Analysis: s. 34 of the act specifies that national concern, difficulty of containing
pollutants to one region, international commitments and national leadership underpin it.
Domestic Substances List is a list of all substances used in Canada. Non-DSL lists all
other substances. There is a blanket ban on all NDSL substances until approved by feds.
There is also a List of Toxic Substances (LTS). Committees talk about adding to the LTS
new substances as they are evaluated. Once on the list, all sorts of restrictions can be
imposed on sale, use, storage, advertising etc. s. 35 allows for interim orders to be made
re these substances pending the approval of long-term orders made pursuant to s. 34.
Environmental stewardship is undeniably important, thus undeniably it justifies fed
intervention. The act itself goes to great measures to try to target only those substances
that pose immediate, serious threats to health and life.
Ratio: Slim majority holds this to be IV under crim power. Penal sanction undergirded
by a valid criminal objective.
Dicta: The power to legislate in criminal law cannot be used colourably (Scowby). ie it
can’t be used in such a way that it just intrudes on provincial heads of power.
Dissent: The act amounts to regulation, not prohibition of conduct, as such it is not a
criminal law. No offence exists until agency intervenes, thus, no prohibited conduct per
se. Giving feds such broad regulatory power encroaches on prov power. Nor does the
legislation meet the single, distinctive requirement for POGG.
Many critics of this decision. Some say it removed the constraint of prohibition
and penalty from the criminal law power. The law could easily have been upheld under
Re Firearms Act
Facts: New act created a new gun registry. AB challenged the feds on the grounds that
this was regulatory, not criminal.
Analysis: Feds have controlled guns since 1867, not a new field, nor does the act upset
the federal balance.
Ratio: The act seeks to protect Canadians. Regulation is secondary to crimilization. Not
so intrusive that it ruins federal balance. CC provisions against guns not licensed under
the scheme mean the licensing is within crim ambit. No need to evaluate necessarily
incidental doctrine. The prohibition is backed by penalties.
II Provincial Power to Regulate Morality and Public Order
Although feds have the crim power, there are mechanisms for addressing some of
the local concerns of the provinces on criminal issues. Provinces have been delegated the
authority to prosecute criminal cases.
The feds have also drafted several laws in a way that allows for flexibility in the
way provinces approach them. Ie the CC prohibition of lotteries is followed by an
exemption for provincial lotteries.
The third way local concerns have been addressed is through concurrent
provincial legislation on the same matter. The following cases examine how much
double aspect the courts are willing to tolerate.
Re Nova Scotia Board of Censors v McNeil SCC 1978
Facts: An NS statute regulated the showing of films. The censor board could ban films
or demand changes. A private citizen challenges the act as UV.
Analysis: Morality and criminality are not coextensive. As such, regulation of the
morality of films can fall in the ambit of prov authority. This law is a property/civil
Dissent: Censorship has a long line of case history saying its fed domain. Switzman v
Elbling SCC invalidated a provincial ban on printing communist papers. In this case, a
board is determining what is permissible action. This is a direct intrusion on the criminal
law power. An offence was ccreated, with a penalty (suspension of license).
Ritchie, J invalidated one component of the legislation which prohibited indecent
performances on the premise that this was indistinguishable from a CC provision.
AG Canada v Dupond SCC 1978 Upheld a Montreal bylaw allowing the city to
ban demonstrations. The court said this was primarily a local matteer.
Westendorp v The Queen SCC 1983
Facts: Westendorp charged with being on the streets for prostitution under a city bylaw.
The bylaw set fines and a jail term.
Issue: Constitutionality in light of criminal law.
Analysis: This can only truly be interpreted as an attempt to punish prostitution. No
civil/property considerations come into it. Alowing this would allow punishment of
assaults and drug trafficking taking place on city streets. This is not ‘street control’ it is
Ratio: Super UV. Not even close.
A very similar law was found UV in Montreal in Goldwax v City of Montreal
Cities were dissatisfied with old CC treatment of hookers, after these cases the feds
reacted to this by amending CC to prohibit communications or attempts to communicate
in a public place for the purposes of prostitution.
General trend has been for the SCC to uphold bylaws. In Rio Hotel Ltd. v New
Brunswick (liquor licensing board) SCC 1987 the court upheld the city board’s right to
prohibit nude dancing as a condition of a liquor license. Rio challenged on the premise
that the CC already largely regulated nude performances. SCC found bylaw IV, because
it was aimed at marketing of liquor, thus within provincial heads of power. No conflict
with the CC. No penal consequences.
For the purposes of studying: compare Morgentaler, Rio and Westendorp.
Ch 12 Instruments of Flexibility in the Federal System
So far, we’ve looked at authority alone. In addition to this, however, there are
tons of instruments that allow for a redistribution of the enumerated powers. This creates
a system in which the implementation of power is quite different from the allotment of
power. Power can be shifted by agreement, delegation etc. Courts rarely place limits on
the ability to do this.
At times the instruments have led to cetralization, but more recently the trend has
been toward greater provincial autonomy, esp due to Que constantly whining. Because
these instruments only modify constitutional stuff, they are always subject to repeal.
Banting, “The Past Speaks to the Future”
Canada had to shape its own social identity through intergovernmental
cooperation on social programs. The country ended up with a system that was more
decentralized than most democracies, but still with significant federal features.
Three policy instruments feds use to develop social programs: 1. The provision of
benefits directly to citizens. 2. Federal shared-cost progaams in areas of prov jurisdiction
3. equalization grants to poorer provinces.
Federal constitutional aspects of social responsibility are considerable. They have
complete authority over UI, substantial authority in pensions. They introduced UI and
CPP as well as family allowances and Old Age Security. Lots of provincial nuances, but
these are essentially fully fed funded.
In Education, HC etc constitutional power and practicality pointed to provincial
implementation. Thus feds introduced standards which, if lived up to, would result in
funding for the province and program in question.
Finally, equalization plans aimed to allow the poor provs with adequate programs
without requiring above average taxes from them.
Federal spending power:
Many transfers are conditional, but some are not, ie equalization payments. 1984
Canada Health Act requires provincial health programs have accessibility,
comprehensiveness, universality, portability and non-profit public administration. There
are monetary penalties outlined in the act. The transfers are the only way for the feds to
pressure the provinces.
Re Unemployment Insurance SCC 1937 Established that the feds have the right
to spend money once collected on pretty much anything including individuals,
corporations and public authorities. This doesn’t mean that any act they enact will be
valid just b/c they’re spending validly. Acts can still be UV. The justification lies in the
fact that the intended recipient is free to decline the grant, thus isn’t coerced.
This gives rise to debates about the source of the spending power. 91A? 106?
91(3)? Or perhaps the legal rule that the Crown possesses the powers of a legal person?
The court didn’t comment on social policy in the 60 years since Unemployment.
The feds probably didn’t want to challenge it, b/c the court might have found a
particularly restrictive condition to be a UV attempt to regulate an area of provincial
control. The provinces probably worried about the same thing, and the possibility of
losing the funding outweighed their desire to remove all conditions from that funding.
Finally in 1990 and 1991 two decisions made a little bit of headway. One was an
Alberta Court of Appeal case, which allowed for conditions so long as they didn’t
amount to an attempt to control a UV field. The second, Re Canada Assistance Plan
SCC 1991 Found that federal pressure to comply did not amount to intrusion on
provincial jurisdiction. This judgment appears to imply that the magnitude of the impact
of fed statutes is constitutionally irrelevant.
Andrew Petter feels that the federal spending power is an important question that
goes right to the root of federal legitimacy and political accountability. The point of the
federal balance of power is that some decisions are better left to provs, others to feds.
The spending power allows feds to intrude and influence prov decisions.
The electorate’s ignorance of the federal structure makes it hard for them to
adequately address their personal political objectives, not understanding exactly what to
expect from a particular govt. This leads to a lack of clarity of power and a consequent
lack of accountability when something fails.
Sujit Choudhry criticizes some Oates guy who argues for a system where
provinces tax citizens according to ability to pay. Choudry says that every tax increase
will lead more rich to leave, but more poor to come b/c tax increases bring social
benefits. This starts a downward-spiralling system. Provinces in the ‘have’ category
would have no incentive to correct the situation, since the migration of wealthy would be
to them, so it is unlikely that provinces could agree upon and stick to a workable solution.
Thus, feds should control redistribution.
Although HC has been a flashpoint of federalist debate, Choudry feels that the
national standards are largely unenforced. Provinces flagrantly violate the extr-billing
prohibitions of the statute. The discretionary power of the feds to enforce/punish based
on adherence to the 5 principles has never been used.
This is probably largely a result of the difficulty of monitoring provincial
compliance with the act.
Social Union Framework Agreement:
Entered in 1999 by feds, provs, ters but not Q. It established some rules as well as
some dispute avoidance/ resolution techniques.
36(2) of Charter commits feds to equalization payments. These are aimed at
allowing the provinces to provide reasonably comparable levels of services. Currently,
the formula is to measure actual revenue earnings with potential as measured by an
average of 5 provinces. The difference is paid.
Fed power of taxation is virtually unrestricted. Provs can only resort to direct
taxation in the prov and indirect only related to natural resources. Neither govt level can
tax the other.
Re Canada Assistance Plan (BC) SCC 1991
Facts: The Canada Asssistance Plan allowed the feds to negotiate payment agreements
with the provs. It provides that either side can terminate the agreement with one year’s
notice. In 1990, feds decided to limit the amount their contributions to ‘have’ provinces
could grow by (in order to reduce fed budget). BC initiates this reference to see if feds
can unilaterally make this decision.
Analysis: BC acknowledges that it can’t compel Parliament to not exercise its power to
change/repeal the act. There is no contractual authority re mutuality or binding effect
since this is an intergovernmental agreement, not an ordinary K. Also, either side was
able to terminate with notice. s. 5 defined payments to be made, and was subject to
Ratio: Legitimate exercise of power.
Notes: Three interpretations of this ruling are forwarded:
1. The agreement didn’t specify the levels of payment, leaving it up to the feds.
Thus, it was not breached.
2. Agreement was binding but could be discharged by conflicting legislation
3. The agreement only created political, not legal obligations.
In response to this reference, Charlottetown meetings saw a proposal to make
intergovernmental agreements binding.
AG NS v AG CAN SCC 1951 established that govts were not allowed to delegate
their legislative authority to each other. They can, however, go in circuitous routes to the
same end ie create a board/tribunal, Incorporation by reference of the laws of the other
govt, conditional legislation, which only takes effect with the approval of the other level
Coughlin v Ontario Highway Transportation Board SCC 1968
Facts: Feds implement Motor Vehicle Transport Act, which allows provincial highway
transport boards to regulate interprovincial trucking. It allowed the provinces to issue
licenses for the purposes of interprovincial transportation.
Issue: Is this unlawful delegation of power?
Ratio: Its fine. The feds have decided to adopt rules of another jurisdiction. They can, at
any time, repeal the act that adopts these rules. They have not given Ontario the power to
legislate this matter.
II Amending the Constitution
A major issue in amending the Constitution in Canada is the locus of sovereignty,
ie who has the power in the first place. Another issue is how difficult the amendment
process should be. If too hard, we miss important issues? If too easy maybe its not really
a constitution at all.
Patriation Reference SCC 1981 provinces argued that they needed to approve of
constitutional change. 7-2 court decided provincial consent was not necessary. But a 6-3
majority held that prov consent was substantially necessary to amendments directly
affecting a particular province. Feds and provs – Q agreed on something. Q whined, but
SCC ruled in a later case that Q had no effective veto.
5 rules from Part V of Charter:
The 7/50 formula from s. 38:
- Consent of feds/ 2/3 of provs having at least 50% of population
- Amendments can’t be proclaimed until 1 year after the initiation of the
process toward amendment unless every province has indicated assent
or dissent. An amendment dies within 3 yrs unless the appropriate
- A province can opt out of an amendment taking its rights away. That
province is then entitled to reasonable compensation.
The s. 41 ‘unanimity procedure’ where consent is given by Parliament and all
legislatures. This applies to bilingualism, SCC appointment process, proportional
representation in Parliament, Gov General and Lieutenant Governor provisions.
The Bilateral procedure s. 43 deals with amendments affecting only some
provinces. Only the provinces concerned and Parliament need to consent.
The Federal unilateral procedure s. 44 Feds allowed to unilaterally amend the
house of commons or senate if this doesn’t affect the powers or methods of selction
protected elsewhere in the Constitution.
Provincial Unilateral Procedure s. 45 allows the province to amend its own
const in ways that don’t effect the real const.
s. 35.1 mandates a conference of first nations reps before an amendment affecting
1st nations peoples. It doesn’t mandate their consent.
Several of these have been used since 1982, s. 43 7 times.
Meech Lake and Charlottetown are two spectacular failures of attempts at
amendment. they tried to add requirements of unanimity, provincial nominations for
SCC judges etc, but fell through. Peter Russell submits that this has created a new era of
mega-constitutional reform, ie no piecemeal reform.
Alan Cairns: The amending formula contradicts the idea that different groups also
matter in Canada. The Charter defines us as more than just a nation and provinces, we
are also aboriginals, women, handicapped etc. Why then should only the provs and the
feds be represented in amendment procedures? Some disagree with this view. Some say
there is a convention of resort to national opinion before major const change.
Q govts have been pressing for a Q veto to amendments, but to no avail (except
s.41, the unanimity matter).
Defeat in 1995 of the referendum prompted feds to pass the Constitutional
Amendments Act, which called for a majority of five regions of Canada to concede,
regions were ON, Q, BC, Maritimes, Prairies.
This led to the three questions posed to SCC in 1996: 1. can Q unilaterally
separate? 2. Does international law recognize a right to self-determination that would
allow Q to do so? 3. Would domestic or international law take precedence, if the two do
not yield the same answer?
Most legal commentators though the proposed secession would affect more than
just Q, thus provincial unilateral amendment was out, and every other method of
amendment required fed approval.
Re Secession of Q SCC 1998
Facts: Secession of a province would definitely alter our constitution in ways significant
enough to require constitutional authorization.
Analysis: Referenda have no direct legal effect. They are not a part of our constitution.
That said, a clear majority gives validity to the amendment process. Federalist order
demands that the clear rejection of the current constitutional order by a province leads to
an onus to renegotiate the constitutional order. All a referendum can do is inspire the
elected representatives to begin negotiating. Other provs/feds would not be obliged to
just figure out details and acquiesce. Such a ruling would render negotiating a hollow
practice. Nor can it have no effect. The rights of others cannot deny the rights of
Quebec. Such negotiations should definitely represent the will of the potential successee
and the potential successor. Basically, you must balance federalism, democracy,
constitutionalism and protection of minorities.
Ratio: Q can’t unilaterally secede, but it can compel negotiations if its will is clear. The
definition of ‘clear majority’ is up to the politicians. They must ask a ‘clear question.’
My question: What if the can’t agree? Some jerk on p 465-6 thinks it might illegitimize
Canada in the eyes of the international community.
Notes: This inspired the Clarity Act (fed) which says if the HOC determines a question
was clear, then they will determine if a clear majority answered it. This will take into
account: Size of majority of ballots cast, Percentage of eligible voters voting, Any other
matters HOC considers relevant. Without a ‘clear majority’ and ‘clear question’ HOC
will not commence negotiations.
Ch. 13 The Judicial Function
- 92(14) makes provs responsible for civil and criminal courts. This includes
superior courts, with judges appointed by Gov Gen under s. 96 and inferior courts,
where judges are appointed by the province under 92(4)
- s. 96-8 define qualifications for judges for superior, district and county courts
(collectively “s. 96 courts”)
- Their compensation is determined by Parliament. This maintains impartiality.
- s. 101 authorizes Parliament to create a general court of appeal for all of Canada
and federal courts (which address matters arising out of federal law).
- Federal courts get mandates from Federal Court Act.
- Superior courts have inherent jurisdiction over many matters, they may be given
more jurisdiction by federal and provincial statutes.
- There must be actual federal laws in order for the federal court to have jurisdiction,
Quebec North Shore Paper Co v Canadian Pacific Ltd. SCC 1977 ruled that
Parliamentary competence to rule on a certain topic did not create federal court
jurisdiction. The law must be in existence.
- Federal common law is an evolving concept, it definitely now includes aboriginal
(Roberts). It can also decide const questions if they arise in an otherwise federal
case ( Northern Telecom). Basically, it’s a grey area.
- PCs can hear constitutional questions relating to federal law. (AG Can v LSBC
- Basically PCs have jurisdiction over everything, Parliament can only stray from
this principle if doin so aids in the administration of Canadian law generally.
- Parliament can’t create a statute that removes the right to challenge Parliamentary
laws from the PCs (Queen v Thomas Fuller SCC 1980)
- Safeguarded through appointment, tenure and guaranteed compensation. s. 96 is
the very root of judicial independence\
- Beauregard SCC ruled that feds have all powers over judges remuneration, but this
is not a colourable power.
- Re Remuneration of Judges Establishes that judicial independence is only partially
recognized by the constitution, it is also developed through case law and norms.
Some critics say across the board reductions of salaries shouldn’t matter.
R v Van der Peet 1996 SCC
Facts: Caught selling fish. This violated the Fisheries Act, which allowed Indian licenses
to catch fish, but not to sell them.
Issue: Aboriginal rights in s. 35, how to treat them? Court said it extends to pre-contact
activities, appellant submits it should extend to pre-contact rights.
Analysis: Appellant’s submission goes too far, these are to be rights extending only to
aboriginal people. Sparrow stands for a generous interpretation of 35 in favour of abos.
Abo rights based on their pre-existing European settlement. Test for identifying abo
rights should be aimed at identifying crucial features of their societies pre-contact.
Factors to consider:
- Aboriginal people’s perspective.
- Identify the nature of the right being claimed, identify the nature of the action
leading to the case.
- Was it of central significance to pre-conntact abos? ie not something true of all
cultures, ie eating to survive, nor incidental practices. One way to assess: ask
whether, absent this thing, the culture would have been quite different.
- Courts should look at the time directly before contact, cause that’s the moment at
which the rights were altered by Euros.
- The natural evolution those rights would have taken over time.
- Courts should be sensitive to the difficulty of producing evidence in these cases.
- Claims are not determined on a general basis. Each case is considered alone.
- Distinctive practices (important), not distinct (unusual)
Ratio: Pre contact fish selling was only incidental to the culture.
R v Gladstone SCC 1996
Analysis: Under Sparrow, govt must make policy that reflects an abo right first, where
such a right exists. Govt objectives must also be pressing and substantial in order to
interfere with an abo right. Conservation of fish stocks is pressing and substantial.
Ratio: A new trial is necessary to see whether the govt’s allocation of herring was
Note: Abo rights are not inexorably linked to abo title. In Adams, the court established
that even where a people can’t reasonably claim a right to title to land, they might still
establish an abo right.
Delgamuukw v British Columbia SCC 1997
Facts: Chiefs of different abo groups claiming ownership of 58000km2 in BC. This
based on Historical use and ownership of the territories. Oral history of attachment to the
land was entered into evidence.
Issue: Content of aboriginal title:
Ratio: Sui generis, inalienable can’t be transferred, communally held. Must have been
occupied at time of sovereignty. At that time, the occupation must have been exclusive.
Land held pursuant to abo title can’t be used in a way that violates the attachment to land
claim on which such title is founded.
Guerin: Sui generis
R v Marshall SCC 1999
Facts: Abo dude sells eels contrary to fed statute. He sees it as a treaty right based on a
treaty allowing him access to trading posts, but on condition of not bartering with people
the Crown doesn’t want him to trade with.
Issue: Does this negative imply that the converse positive is true?
Analysis: Very difficult to know what was agreed to. Abos produced no written record
on their part, thus does the written thing really reflect the agreement that was hammered
out? As a result of this ambiguity, generous allowance for extrinsic evidence as to nature
of agreement is allowed. Until 1982 amendments, treaty rights could be extinguished by
parliament as easily as any statute.
Stuff from emails:
Attorney General of
Canada v. Winner,  541.
Again, you are not required - or expected - to read these decisions. I
brought them into the discussion of interpretive principles because the
JCPC decision attempts to give a reason why a court should adopt the
idea of interjurisdictional immunity with respect to some federal (or
federally regulated) enterprises when they are faced with general
provincial regulation which is, in the general case, perfectly valid.
Like Beetz J. in the Bell #2 case, Lord Porter in the JCPC advances the
idea that sometimes federal enterprises (and federally regulated
enterprises) ought to be immune from provincial regulation that will impair
the realization of the constitutional purpose behind the grant
In other words, the choice between recognizing a double aspect of a
regulatory project and, on the other hand, recognizing a zone of immunity
from provincial regulation is not arbitrary or non-purposive. The
choice should reflect a sense of the goals that lie behind the
On Constitutional evaluation:
This is what Laskin wrote:
What the process of constitutional adjudication involves is a
distillation of the "constitutional value' represented by challenged legislation
(the "matter" in relation to which it is enacted) and its attribution
to a heasd of power. This is not to say that the process is mechanical
or that there are logically discoverable essences which go to make up a
class of subjects. The distribution of legislative power must surely
be envisaged as an instrumental or operating scheme ... . The claases of
subject must be conceived as vehicles through which social or economic
or political policy is expressed, and these considerations (however
they may be inarticulate ... ) cannot be ignored when the courts give
content to the classes of subject and measure the validity of legislation
On Central v provincial power:
I mentioned that in the formation of the
actual constitutional text the centralizers (those who wanted a national
government that would be politically dominant over the provinces)
Here is a list of constitutional provisions that express the idea of a
strong national government and subordinate provincial governments:
1. s.94 - federal jurisdiction to make uniform laws over property and
civil rights in the common law provinces, if provinces agree.
2. s. 97 – the federal judicial appointment power changes once laws
over property and civil rights are uniform in the common law provinces.
3. s.92(10)(a) - federal jurisdiction over interconnecting
4. s.92(10)(c) - federal jurisdiction over local works that Parliament
declares are for the general advantage of Canada.
5. s.93(3) - federal jurisdiction to supervise the provincial
administration of sectarian education rights.
6. s.90 - federal Cabinet’s power to disallow provincial legislation.
7. s,91(27) - federal jurisdiction over crime and public order, not in
itself an inappropriate form of federalism but is evidence of the
textual success of those who sought to create a strong national government.
8. s.91(3); s.92(2) - an unlimited federal taxation power and a
constrained provincial taxation power.
9. s.91(1A) - federal spending power which allows regulatory impact on
federal jurisdiction (NOTE: This provision was not in the original 1967
10. s.121 - a prohibition on provincial legislation that restricts
11. s.58 - federal power over the appointment of provincial lieutenant
12. s.96 federal power over the appointment of judges to provincial
superior courts and courts of appeal.
13. s.91 - federal legislative jurisdiction expressed as residual –
as all matters not expressly assigned to the provincial legislative
Some of these constitutional arrangements are in force today and
shaping our political action, but some are not.
On Intro to Federalism:
Federalism is one of the instruments in Canadian
constitutional design. Like other constitutional instruments, it is meant
to produce an effective, fair and stable political society, or state.
Two questions remain: how does Canadian federalism work, and is it