Federalism_Elliot_2000_Can1 by SabeerAli1

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                                                     LAW 345
                                                 Federalism -- Elliot
                                                     Fall 2000
                                                        mfs


Chapter 1    Introduction ............................................................................................... 4
  I. Elements of the Canadian Constitution .............................................................. 4
  II. Sources of the Canadian Constitution ................................................................ 4
  III. Perspectives on the Constitution .......................................................................... 5
  IV. Constitutional Change .............................................................................................. 5
  V. The Lawyer’s Role ........................................................................................................ 6
Chapter 2: Constitutional Interpretation ............................................................... 7
  I. Philip Bobbitt, “Methods of Constitutional Argument” (1989) .................... 7
      A. Canadian Context .................................................................................................. 8
  II. Reference Re Meaning of the Words “Persons” in Section 24
      of the B.N.A. Act, 1867 (1928 S.C.C.) ................................................................. 10
      A. “Bobbitizing” the Judgement ............................................................................ 10
      B. Privy Council Judgement in Persons Case ................................................. 11
      C. Appropriate Role of the Courts in Interpreting the
         Constitution ........................................................................................................ 11
Chapter 3: Federalism .................................................................................................. 13
   I. G. Stevenson, Unfulfilled Union, 3d. ed. (1989) ............................................. 13
       Circa 1867: Constitutional Framework Established by B.N.A.
          Act, and the Kind of Federalism that Act Established........................... 14
       B. Can these Characteristics Still be Said to Be Problematic? .............. 15
   II. A. Silver, The French-Canadian Idea of Confederation, 1864-
       1900 (1982) ................................................................................................................. 17
to sum up… ................................................................................................................................ 17
New Way of Thinking About Federalism .......................................................................... 19
Chapter 8:    Interpreting the Division of Powers .................................................. 20
      R. Simeon, “Criteria for Choice in Federal Systems” (1982-3) .................... 21
      Characterisation of Laws ..................................................................................... 22
   SS.91 AND 92 .................................................................................................................... 23
      Different analytical approaches to validity q's ............................................ 24
              Early pc
              Abel
              Lederman
Starr v. Houlden (Validity Test)                                                                                                    26
      Elliot's extractions
.Doctrines in Questions of validity                                      ........................................................... 30
          Overlap: Necessarily Incidental and Double Aspect ............................. 32
      Whyte, Ryder                                                                                                           32
          Interjurisdictional Immunity and Reading Down ...................................... 35
              McKay, Bells 1 and 2, Irwin, 4B
          Notes and Questions 205 ................................................................................ 42
          Summary ................................................................................................................. 43

     IV. Paramouncy (Operability) ....................................................................................... 44
         A. Ross v. Registrar of Motor Vehicles (1975 S.C.C.) ................................ 46
         B. Multiple Access Ltd. v. McCutcheon (1982 S.C.C.) ................................. 47
         C. Bank of Montreal v. Hall (1990 S.C.C.) ...................................................... 48
         D. Notes and Questions 220 ................................................................................ 49
     V. Constitutional Litigation ....................................................................................... 52
         A. How Do Constitutional Issues Get to Court? .......................................... 52
         B. Notice Requirements ......................................................................................... 53

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              C. Parties and Intervenors ................................................................................... 53
Chapter 4: ............. The Late 19th Century: Canadian Courts Under the Influence                                                                54
    I. Citizens Insurance Company v. Parsons (1881 P.C.; 1880 S.C.C.) ............. 54
         A. Privy Council Judgment .................................................................................... 55
         B. Privy Council judgment in respect of this particular
            enactment:............................................................................................................. 55
    II. Russell v. The Queen (1882 P.C.) .......................................................................... 57
    III. Hodge v. The Queen (1883 P.C.)............................................................................. 58
    IV. A.G. Ontario v. A.G. Canada (The Local Prohibition Reference)
         (1896 P.C.; 1895 S.C.C.)........................................................................................... 60
         A. Concluding Notes .............................................................................................. 63
    V. Summary of Main Points of this Chapter ........................................................... 63
Chapter 5: The Early 20th Century: The Beginnings of Economic Regulation ... 65
    I. Lord R.B. Haldane, “Lord Watson” (1899) p.79 .............................................. 65
    II. Reference Re the Board of Commerce Act, 1919 & The
         Combines and Fair Prices Act, 1919 (1922 P.C., aff’g 1920
         S.C.C.) p.83 ................................................................................................................... 65
    III. Fort Frances Pulp and Paper Company v. Manitoba Free Press
         Co. (1923 P.C.) p.88 ................................................................................................... 68
    IV. Toronto Electric Commissioners v. Snider (1925 P.C.) p.92 ...................... 64
         A. Historical Treatment of Haldane’s Interpretations .............................. 65
    V. The King v. Eastern Terminal Elevator Co. (1925 S.C.C.) p.95 ................... 65
         A. Anglin’s Dissent .................................................................................................. 66
         B. Duff’s Majority Judgement.............................................................................. 67
    VI. H.E. Smith, “The Residue of Power in Canada” (1926) p.100 ........................ 68
    VII. J.R. Mallory, Social Credit and the Federal Power in Canada
         (1954) p.101 ................................................................................................................ 68
    VIII.    Cairns, “The Judicial Committee and Its Critics” (1971)
         p.103 ........................................................................................................................... 68-9
    IX. Summary of Chapter ................................................................................................. 69
  Chapter 6: The 1930s: The Depression and the New Deal .................................. 71
    I. Proprietary Articles Trade Association v. A.G. Canada (1931
         P.C.) p.107 .................................................................................................................... 71
    II. Reference Re The Regulation and Control of Aeronautics in
         Canada (1932 P.C.) p.109 ........................................................................................ 72
    III. Reference            Re         Regulation                  and          Control                 of        Radio
         Communication in Canada (1932 P.C., aff’g 1931 S.C.C.) p.111 ................. 73
         A. Reflecting on the First Three Cases ........................................................... 74
    IV. W.P.M. Kennedy, Our Constitution in the Melting Pot (1934)
         p.115 .............................................................................................................................. 75
    V. V. Macdonald, “Judicial Interpretation of the Canadian
         Constitution” (1935) p.116 .................................................................................... 75
    VI. A.G. Canada v. A.G. Ontario (Labour Conventions) (1937 P.C.)
         p.117 .............................................................................................................................. 75
         A. Ramification of Labour Conventions .......................................................... 76
    VII. A.G. Canada v. A.G. Ontario (The Employment and Social
         Insurance Act) (1937 P.C. affi’g 1936 S.C.C.) p.122 ...................................... 77
    VIII.   A.G. B.C. v. A.G. Canada (The Natural Products Marketing
         Act) (1937 P.C. aff’g 1936 S.C.C.) p.124............................................................ 77
    IX. The Other Cases p.126 ............................................................................................ 79
         A. Results ................................................................................................................... 79
         B. Scholarly Stuff ................................................................................................. 79
    X. F.R. Scott, “Some Privy Counsel” (1950) p.131 ............................................... 79
    XI. Summary ........................................................................................................................ 80
  Chapter 7: The Modern Canadian State and Federalism ..................................... 81
    I. K. Norrie, R. Simeon, and M. Krasnick, Federalism and the
       Economic Union (1986) p.134 ................................................................................ 81

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Chapter 9: Peace, Order, and Good Government ................................................. 82
  I. K. Swinton, The Supreme Court and Canadian Federalism: The
       Laskin-Dickson Years 1990 233 ........................................................................... 82
  II. Reference Re Anti-Inflation Act (1976 S.C.C.) p.239 ...............................82-on
       B. Note: Emergency Legislation After the Anti-Inflation Act .................. 84
       C. Note: The National Concern Doctrine After Anti-Inflation................ 84
  III. R. v. Crown Zellerbach Canada Ltd. (1988 S.C.C.) p.262 ............................ 85
       A. Notes 274........................................................................................................... 85-6
       B. Note: Jurisdiction Over the Environment 276...................................... 86-7
  IV. Friends of the Oldman River Society v. Canada (Minister of
       Transport) (1992 S.C.C.)......................................................................................... 93
       A. Note: New Developments 281 ......................................................................... 93
  V. Summary With Respect to P.O.G.G. ...................................................................... 94
Chapter 10: Economic Regulation ........................................................................... 94
  I. The Constitution and the Economy ..................................................................... 95
  II. Provincial Powers Over Economic Regulation .............................................. 95
       A. J.R.S. Prichaud with J. Benedickson, “Securing the Canadian
          Economic Union: Federalism and Internal Barriers to
          Trade” (1983)........................................................................................................ 96
       B. Carnation Co. Ltd. v. Quebec Agricultural Marketing
          Board (1968 S.C.C.)............................................................................................ 97
       C. A.G. Manitoba v. Manitoba Egg and Poultry Association
          (1971) ...................................................................................................................... 98
       D. P. Weiler, “The Supreme Court of Canada and Canadian
          Federalism” (1973) ............................................................................................. 99
       E. Re Agricultural Products Marketing Act (1978 S.C.C.) ..................... 100
       F. Summary in Term of Scope of Provincial Power .................................... 101
  III. Federal Powers Over Economic Regulation ................................................. 101
       A. Regulation of Interprovincial and International Trade..................... 102
           Klassen, Caloil
       B. General Regulation of Trade ....................................................................... 104
           Labatt's, GM
  IV. Strengthening the Canadian Economic Union............................................... 108
       A. Constitutional Reform to Reduce Barriers ........................................... 109
       B. Constitutional Change: Strengthening the Federal Role
          Through the Courts ........................................................................................ 109
       C. Constitutional Change Through Inter-Governmental Co-
          operation ............................................................................................................. 109
       D. Constitutional Change Through International Influences .............. 109
Chapter 12:    Morality and the Criminal Law ....................................................... 109
  I. Federal Powers Over Criminal Law .................................................................. 109
      A. Reference re Validity of Section 5(1) of the Dairy Industry
         Act (Margarine Reference) (1949 S.C.C.).................................................. 109
      B. R.J.R. MacDonald Inc. v. Canada (A.G.) (1995 S.C.C.) ............................. 110
  II. Provincial Power to Regulate Morality and Public Order ...................... 111
      A. R. v. Hydro-Québec ............................................................................................ 111
             Firearms Reference
Chapter 15: Aboriginal Peoples ............................................................................. 106
  Jim Aldridge lecture ..................................................................................................... 106
      Nisga'a Treaty ........................................................................................................... 106




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    CURRENT ISSUES IN
    FEDERALISM

1. Quebec Secession:
        This has to do with the Reference Case (see appendix). In the judgement, the SCC created
         a framework for secession, with the concomitant obligations and hints as to the
         mechanism. The Feds have taken this framework from the decision and put it into a
         Federal Statute, which would govern the use of a YES vote if Quebec gets one from a
         referendum.
        Constitutional? Presumably, since the SCC were the ones who created the
         test/mechanism. Who knows. Quebec obviously doesn‘t like anything fettering their
         ability to secede or threaten thereto.

2. First Nations Self- Government:

        This can be achieved in 2 ways:
        FIRSTLY: by litigation, holding that self-government is an inherent right to First
         Nations people, under s.35 of the Charter.
        SECONDLY: by treaty negotiation, as the Nisga‘a have done. (see final lecture notes)
        Either way,

Chapter 1: Introduction

   Start with a tentative definition Constitution and constitutional law on pp. 3-4 - tentative
    definitions on the large and liberal side
   Hogg: Law prescribing the exercise of power by the organs of a state - describes which organs
    can exercise legislative, executive and judicial power, and what the limitations on those
    powers are
   Distinction between Constitution and constitution: ―Constitution‖ is defined in s. 52(2) on
    Constitution Act 1982 as including (a) Canada Act 1982 (patriation package), (b) Acts and
    Orders referred to in the Schedule appended to the 1982 Act, and (c) any amendment to any
    Act or Order referred to in (a) or (b) >>> special term having a special meaning;
    ―constitution‖ includes the Constitution plus a great deal more depending on whose
    definition of constitution you took - Elliot‘s general practice is to specify when he‘s referring to
    Constitution


         I. Elements of the Canadian Constitution

   Text identifies four features, not exactly the same as S.C.C. identified in the Reference:
    i) parliamentary democracy - ‗democracy‘ was identified by S.C.C.
    ii) federalism
    iii) individual and group rights capturing fourth of S.C.C. principles ‗group rights‘, adding
         individual rights courtesy of the Charter
    iv) aboriginal rights - S.C.C. subsumed this under minority rights
   Text goes on to advert to the rule of law, which S.C.C. made special recognition of, and
    comment on the term ‗legislative supremacy‘ - what the Brits tend to refer to as
    Parliamentary supremacy or sovereignty - their view is that with the advent of the Charter in
    1982 legislative supremacy lost its status as an important feature of Canada‘s constitution -
    Elliot‘s view has always been that parliamentary sovereignty was always given greater status
    than it deserved right from the start - we have always been governed by constitutional

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      supremacy from the beginning
     Other possible candidates for important elements, which may be considered to be subsumed
      within the above:
      i) equality
      ii) due process
      iii) liberty
      iv) community

          II.     Sources of the Canadian Constitution

      In terms of sources, they do a more than adequate job of giving sense of broad range of
       sources from which Canada‘s constitution is drawn - common law, statutes of Parliament of
       Canada and provincial legislatures, conventions (not part of Constitution, just the
       constitution), Acts of the British Crown as well as Statutes enacted by Parliament of Britain
       (Constitution Acts 1982)
      Go on to talk about development of Canadian independence from 1867 to 1982, noting some
       of highlights including 1931 Statute of Westminster and abolition of appeals to Privy Council
       in 1949
      Overview of some of attempts that have been made in recent decades to reform Canada‘s
       constitution from and including successful attempt in early 80s to patriate constitution
       through unsuccessful Meech Lake and Charlottetown Accords to respond to province of
       Quebec in both and other quarters such as aboriginal people in the latter - recent attempts at
       Constitution reform.


           II. Perspectives on the Constitution

      simple but important point about constitutions: constitutions speak to different people in
       different ways: different people read constitutions in different ways, e.g., in 1867 French
       Canadians in Quebec read British North America Act as in a sense a guarantee of their rights
       as a minority linguistic and cultural group, whereas English speaking people in Ontario read it
       as instrument designed to build a strong nation-state capable of expanding successfully from
       central Canada all the way across to the Pacific and to the North
      Elliot: one of reasons that Meech and Charlottetown both failed was that Charter had given
       in a sense a place in the constitution of Canada to groups that prior to Charter had felt
       excluded, and because the members of those groups were concerned about the implications
       of some of the changes proposed for their place in the constitution, they were reluctant to
       support them - Allen Cairns has written on this, focusing on women‟s groups and other
       groups protected by s. 15 of the Charter and how those groups were very quick to raise
       questions about the implication for equality rights of the amendments being proposed and
       were reluctant to endorse the changes without assurances that equality rights would be as
       strong after the amendment as before, which they never got.


           III.     Constitutional Change

      First they describe the situation in Canada with respect to changing the constitution: note that
       in terms of formal changes (of any significance) change is difficult as a result of amending
       rules introduced in 1982
      Second they raise an important question about constitutional change: how does a society
       through its constitution strike an appropriate balance between stability and change?
      1 As they note, formal Constitutional change in the sense of formal Constitutional amendment

       is not the only way in which society‘s constitution can change: change can occur in range of

1   Sept. 17

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    other ways, e.g. changing interpretations given by courts to constitutional provisions; new and
    creative uses of existing powers (federal spending power). Elliot‘s examples: non-use of
    existing powers e.g. area of reservation and disallowance (cf. Ch. 3) - federal government
    through these powers is from a textual standpoint authorised by 1867 Act to have quite a
    dramatic influence on lawmaking at provincial level - was used with frequency in early years
    of Confederation but no longer is; self-imposed constraints on exercise of existing powers
    short of non-use - making the exercise of existing powers somewhat more difficult e.g.
    legislation enacted by some provinces like B.C. enacted in recent years the purpose and effect
    of which is to require the holding of referenda with respect to Constitutional amendments that
    the provincial government is considering endorsing - for formal amendments to the
    Constitution - advice currently is that the Nisga‘a treaty is not a formal amendment.


        IV.      The Lawyer‘s Role

   Lawyers tend in any area including constitutional law to focus on the role played by the courts
    in development and evolution of the law
   That tendency natural though it may be results in the roles played by other institutions,
    particularly other governmental institutions, either being completely ignored or not given the
    importance that they should be given
   Because there is this focus on the courts, there may well be tendency to simply take for
    granted and accept as legitimate the power that the courts have to affect the law in this area -
    that is problematic because the role played by courts staffed by appointed unaccountable
    officials cannot in a society that is committed as Canada is to democratic principles of self-
    government simply be accepted as a given: Important as the courts are in this area, one must
    always be mindful of the limits in democratic society on the power that those courts should be
    subjected to: Always be mindful of the question of the legitimacy of judicial review.
   Elliot: Note that the issue of the legitimacy of judicial review has been around for a long
    time - came to something of a head in the year of the Charter with opponents of the Charter
    like Blakeney premier of Sask. and the Premier of Manitoba, raised precisely this concern,
    and over the year of the Charter from time to time this concern has come to the fore. e.g.,
    Vriend case wherein Alberta‟s HR legislation was found defective for failing to prohibit
    discrimination on the basis of sexual orientation, and the court finding that the appropriate
    remedy was to read in those words into the legislation, adding a judicial fiat to the
    legislation. Both in respect of original finding and in respect of the appropriate remedy the
    court was pilloried by some for overreaching the bounds of what the court was entitled to
    do.




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    CHAPTER        2:                                          CONSTITUTIONAL
    INTERPRETATION
   The purpose of this chapter is to give some sense of process by which courts give meaning to
    the often vague and general language that Constitutions including our own Constitution
    contain.


         I. Philip Bobbitt, ―Methods of Constitutional Argument‖
         (1989)

   US scholar
   Arguments made by him in his book Constitutional Fate attempting to set out what he sees in
    the American context as the limited number of kinds or modalities of legal argumentation that
    lawyers and judges in the U.S. use in discussions, arguments, debates, etc. about the
    appropriate meaning to give to constitutional language.

   First: accepted forms or modalities of argumentation in a given nation-state are ―arbitrary
    and contingent‖ by which he means they are very much a function of that nation-state‘s
    particular history and traditions - the fact that the U.S. may have particular forms of legal
    argumentation does not mean that those forms will be accepted anywhere else - because
    Canada‘s history and traditions particularly in the area of the law are similar, a large degree of
    overlap between accepted forms of legal argumentation is to be expected between Canada and
    the U.S.

   Second: In the U.S., there are six, only six, accepted or viable forms of accepted legal
    argumentation in the Constitutional context - only six viable ways in which lawyers and judges
    can argue and reason about meaning to be given to constitutional provisions:

    1.   Historical - the intent of the drafters, those responsible for putting the language in
         question into the Constitution. In the U.S., it became customary long before the practice
         was even permitted in Canada to look at the writings and speeches of those who were
         responsible for putting the words in question in to the U.S. Constitution. The Anglo-
         Canadian tradition has been different - only recently have Canadian courts accepted that
         it is appropriate or even permissible to engage in that sort of exercise.

    2.   Textual - what do the words mean in terms of their plain and ordinary meaning -
         determining meaning by the use of dictionaries that were around at that point in time.
         Note: The plain and ordinary meaning that Bobbitt has in mind is the plain and ordinary
         meaning that would have been given at the time that the Constitutional provision in
         question was incorporated in the Constitution - backward-looking.


    3.   Structural - the deeper underlying principles upon which the governmental structure
         that the Constitution creates is based. Bobbitt suggests the structural argument is
         ―dependent on rather simple inferences from the structure of the Constitution and the
         relationship they mandate.‖

    4.   Prudential - which interpretation makes the most practical sense - weighing costs
         and benefits of each particular interpretation - which is the more prudent outcome -
         pragmatic approach to the interpretation exercise




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    5.   Doctrinal - argument from decided cases, of your own or other courts, that appear to
         be relevant to the issue before the court

    6.   Ethical - more controversial - ethical argument is based on ―not necessarily what we
         are, but perhaps what we think we are, and thus how we think about ourselves and our
         society‖ - based on ethical and moral commitments that judges consider to be important
         to the American people - how they think of themselves and how they think of their society
         - not necessarily what they are but what they think they should be.


   Third: These forms of argumentation do not themselves decide cases, or determine the
    meaning to be given to the language at issue. Human beings decide cases. His point is not
    that identifying different kinds of argumentation will enable you to know what the proper
    interpretation is - those arguments are simply tools used by judges in course of fulfilling their
    interpretational role.


                 A. In the Canadian Context
   We probably have a longer list than Bobbitt‘s list.

Historical argument –

        This is viable but not particularly authoritative in Canada in its American form, based on
         the writings, speeches, etc. of the meaningful participants in the drafting process that
         traditionally has not been accepted –
        In recent years it has come to be accepted, although when Canadian courts, especially the
         S.C.C., looks at such material, they generally do not attach much weight to it.
        In other forms, it is more viable and arguably somewhat more important: there are
         other sources of guidance about the intent of the drafters, when other sources that shed
         light on the intent of the drafters are relied upon.
        Before they accepted the writings and speeches of the significant players, Canadian courts
         had accepted studies done about the area in question prior to the provisions in question
         being added, on the basis that they shed light on the mischief at which the provisions in
         question were aimed - what the problem/issue was that was meant to be addressed by
         the legislation. (for example, the Firearms Reference.)
        Typically this happens in the context of interpreting a statute rather than Constitution,
         because many new statutes and provisions are preceded by studies done by a
         governmental body of some form or another: Royal Commission, etc.

Textual argumentation:
        viable in Canada in its American form although, again, remember that in Bobbitt‘s view
         textual argument is about the meaning that would have been found in dictionaries of the
         day rather than modern ones –
        in the Canadian context it would not be quite so restricted - would probably allow reliance
         on dictionaries etc. that post-date the addition to the Constitution of the language in
         question. e.g., Quebec Secession Reference argument that the reference power itself was
         unconstitutional because S.C.C. could not have original jurisdiction because then it would
         not be a court of ―appeal‖, and that it could not be given an advisory role because then it
         would not be a ―court‖ - the court saw these as viable arguments, just not winning ones.

Structural argumentation:
        Viable in Canadian context. S.C.C.‘s judgment in the Quebec Secession Reference -
         basically the entire judgment was structural - the governing principles upon which the
         S.C.C. could rely in dealing with this issue of constitutional interpretation.


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          Until recently, structural argumentation was not frequently used in the Canadian
           constitutional context - some examples like the notion of the implied Bill of Rights arising
           out of 1930s Press Bill case, where constitution created democratic system of government,
           which could not function properly without some freedoms like freedoms of press.
          Hence, one could imply, out of the Constitution, some rights that were necessary to and
           implicit in the democratic form of government.
          Also, where s. 96 judges are reserved to the federal government, structural arguments
           have been used to say that provincial governments could not appoint people that
           performed and looked like s. 96 judges.
          Courts are now developing a better sense of what the Constitution is about
           because of the Charter and more confidence in getting to the bottom of it all
           in identifying the underlying principles.
          NOTE: LAMER’S FOUR ORGANIZING PRINCIPLES:
            FEDERALISM
            DEMOCRACY
            RULE OF LAW/ PRINCIPLE OF CONSTITUTIONALISM
            RESPECT FOR MINORITIES

Prudential argumentation:
          Viable - especially because of s. 1 of the Charter - not easy to define a lot of explicit
           prudential argument prior to the Charter although many judgments were in fact
           prudentially based even though not expressed in those terms in their reasons.
          Prudential thinking has been important all along, but in terms of overt prudential
           argumentation has only been prevalent in recent times in particular because of the
           Charter.
          S.1 analysis of constitutionality is cost/benefit analysis writ bold.

     Doctrinal: as in the U.S., so here, very much the stuff of argumentation in constitutional
      context as well as all others.


     Ethical argumentation:
          Gives meaning to terms because that particular meaning gives expression to what
           Canadians think we are or should be: Privy Council judgment in Persons case; some
           public policy arguments because of the nature of the argument may fall here.
          Vriend case - analogises to Brown v. Board of Education.
          Feature of Charter jurisprudence that seems to reflect this kind of thinking is the notion
           that when you get to s.1, if the legislation that has been challenged is designed to assist a
           vulnerable group in society, then it‟s appropriate for the courts to show much more
           deference to legislative body that enacted that legislation than would otherwise be
           appropriate
          There is an implicit sense in Charter jurisprudence that we as a society are loath and
           should be loath to stop governments from assisting the socially, economically and
           politically disadvantaged, even when in so assisting the vulnerable the government
           violates a Charter right or freedom.

     2Is Bobbitt right when he says these are the only accepted forms of
      argumentation in the U.S.? or in the Canadian context?

     At the end of his piece, Bobbitt makes it very clear that these forms of argumentation do not in
      and of themselves decide cases, which are decided by judges choosing among the various
      forms of argumentation presented by counsel before them to explain or justify their decisions
      - no less true in Canadian context than in the American.

2   Sept. 22

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   While it may be the case that some forms of argumentation will spring to mind more quickly
    than others in particular cases, the same form of argumentation can be used by either side to
    an issue. E.g., the doctrinal form: there may be two different lines of authority - two different
    bodies of doctrinal or judge-made law: both sides may therefore employ the same form of
    argumentation - doctrinal - in trying to persuade court of the merits of their client‘s position.

   Utility of exploring Bobbitt typology:
    1. By familiarising yourself with these different types of argumentation, ability to read and
        understand cases will be much enhanced
    2. By familiarising self with these forms of argumentation, understanding of constitutional
        litigation and decision-making will be significantly enriched and deepened

   If as counsel one must argue an issue of constitutional interpretation, being familiar with
    Bobbitt‘s typology may be of great assistance - may use it as a checklist


               II. Reference Re Meaning of the Words ―Persons‖ in
                   Section 24 of the B.N.A. Act, 1867 (1928 S.C.C.)
   Not a federalism case - just an introduction to constitutional litigation generally.
   ―Living tree‖ metaphor in Privy Council judgement


                 A. “Bobbitizing” the Judgement

   Supreme Court of Canada relies on following forms of argument in deciding women are not
    ‗persons‘ eligible for appointment to the Senate:
    a) textual: early indication of this given at bottom of p. 20 - at that time ‗person‘ would not
        have been understood to mean women
    b) historical: by exploring the historical record, not in terms of what drafters actually wrote
        or said about their intention but rather to try and give some sense to what one might
        expect their intention to have been, there‘s evidence here of historical argument
    c) doctrinal: Charlton v. Lings - at end of judgement, p. 24, decision is seen as conclusive
        and the governing or at least an appropriate authority for the case to be decided
    d) prudential: p. 21 in a sense prudential is arguably acknowledged as at least interesting,
        but rejected as in any sense helpful or governing
   Forms of argumentation that do not appear on Bobbitt’s list:
     experiential: based on the experience to this point with these particular words: p. 21:
        focusing on the manner in which the terms in dispute have been understood by other
        relevant actors: Anglin‘s saying to this point at least, only very recently has anyone
        thought to suggest that qualified persons did include women - until now, everyone has
        basically accepted that qualified persons did not include women - argument from what
        the relevant actors in this area can be said to have understood these words to mean - a
        rare form of argument
     Use of the presumption: invocation at bottom of p. 20 of ‗two well-known rules‖ -
        including the presumption in favour of the retention of the common law unless the
        drafters made it clear that they intended to change the common law, the words will be
        interpreted in such a way as to retain the common law position - a presumption which in
        this particular instance Anglin concludes was not overcome
     Note that judges combine these forms of argumentation in order to build the most
        convincing argument that they can
     Reliance on Interpretation legislation: at federal and provincial levels: statutes
        designed to assist courts, lawyers, members of the public in the task of interpreting or
        construing legislation enacted within the jurisdiction in question: here the statute would
        have been British p. 22 that particular provision indirectly through Charlton v. Lings and
        directly played a role


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   In terms particularly of the use of the presumption that was used here in construing the
    statute, and in the use of the Interpretation Act, one gets a sense that from the standpoint of
    the S.C.C. at that point in time, interpreting the British North America Act was not noticeably
    different from interpreting any other statute - p. 20 - reference to two well-known rules in the
    construction of statutes - there was not a whole lot special about interpreting the Constitution
    of Canada - it was by and large to be interpreted as other ordinary statutes were to be
    interpreted - hence on the basis of amongst other things the ordinary presumptions the court
    relied on in interpreting statutes, as well as interpreting legislation

                 B. Privy Council Judgement in Persons Case

   Forms of argumentation the Privy Council rejects as not helpful in this particular case:
    historical and textual and doctrinal: the majority of the arguments upon which Anglin and
    S.C.C. relied, the Privy Council decides are not helpful - they don‘t reject them as improper
    kinds of arguments, but they simply don't find them helpful in this particular instance
   How would you characterise the arguments they do rely on?
     Contextual: textual in the context of the legislation as a whole: While they did clearly
         refer to the text here, it was not so much the text of s. 24 (the text in issue), it was the text
         in other provisions of the statute: not so much textual in the narrow sense in which
         Bobbitt refers to it as getting the words of the provision itself in dispute and taking its
         ordinary meaning, but the Privy Council looked at other provisions in the B.N.A. Act that
         used terms similar to those in s. 24 and drew inferences from those other provisions about
         the proper meaning to give the term ‗qualified persons‘ in s. 24
     “Ethical?” - leads to a somewhat fuzzier basis on which to proceed - modernity etc. -
         pretty clearly a rejection of the notion that the B.N.A. Act is to be interpreted as any other
         ordinary statute is to be interpreted - they don‘t want to overreach - main thrust is to
         break away from what they see as an inappropriate mode of thinking about and deciding
         cases in relation to the interpretation of the Constitution, a document or instrument that
         they clearly saw as being qualitatively different from ordinary statutes
     Orientation the Privy Council took in terms of forms of argumentation it chose to use
         were very different from those adopted by the S.C.C. - whose forms, while not ignored by
         the Privy Council, in fact used when P.C. found them useful, nevertheless they tried to
         chart a new course and introduce some less legalistic and less technical forms of
         argumentation that Bobbitt talked about
     Might arguably be seen to be structural in some sense - Constitution is about creating a
         framework within Canadian society and its institutions can evolve over time - ability of
         society and its institutions to evolve over time in relation to its structures - a purposive
         argument getting past the words to see what purpose those words are designed to serve -
         the deeper underlying goals or principles being advanced by those particular words, and
         to provide an interpretation that will advance those purposes and be consistent with the
         principles that appear to underlie the provisions in question
   Persons case provides evidence of just about all of Bobbitt‘s different forms of argumentation,
    if not all, as well as suggesting some additional forms of argumentation. However, given the
    approach taken by the Privy Council in support of the result that it reached, it is fair to say
    that at least a couple of those additional forms of argumentation have to be viewed now with
    some care because they are clearly associated with the notion that in interpreting the
    Constitution, you are doing nothing more than interpreting an ordinary statute. E.g., using the
    common law presumptions that are used in interpreting statutes would not longer be expected
    to be found any more, and in fact they are not found in our Constitutional argument.

                 C. Appropriate Role of the Courts in Interpreting the Constitution

   Whether or not what the Privy Council did here, that is, to break with what the drafters who
    put the words there would have meant, was proper to do
   Was the Privy Council right to throw that interpretation to one side, and read the provision in
    the manner that they did, giving those words a meaning that they were not intended to have -

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    what should the role of the courts be in interpreting the Constitution?
   In the U.S., especially with respect to cases like Roe v. Wade, Some take the position that the
    role of the courts is to give to the Constitution the meaning that those words would have been
    given by those who put the words there - that the appropriate forms of argumentation were
    historical and textual, and that if change were to be introduced into the American system, that
    change had to be done by the legitimate democratic system
   On the other side, reliance exclusively on historical and textual argumentation would by their
    very nature be backward looking, regressive, and inappropriate to an evolving Western
    democratic liberal state - arguments based on the deeper underlying principles of the
    American Constitution, as well as the emerging public commitment to certain moral and
    ethical principles, were the more appropriate tools to be used by judges in interpreting the
    Constitution - these people defended decisions like Brown v. Board of Education and Roe v.
    Wade as appropriate exercises of judicial review
   Who of the S.C.C. and the Privy Council got it right? What about the argument that the
    elected representatives had shown themselves, albeit reluctantly, capable of changing? Would
    it not be better to let them do it and therefore for the change to have greater legitimacy?
   The question is not whether the Constitution evolves over time, the question is who
    determines at a given point in time whether the Constitution will evolve - judges or elected
    representatives?
   R. v. Morgentaler - two sets of majority reasons are very cautious (with focus on what they
    perceived as the structural defects in the law and possibly conceiving that a new law would be
    passed without these structural defects which did not emerge as the Senate rejected it), with
    only Wilson J.‘s reasons going to the heart of the matter - all of them saw the possibility of
    renewed legislation in this area - trying to perform their function of protecting individual
    rights under the Charter without usurping the function of the elected representatives,
    achieving this by leaving them scope to come back with new legislation; the dissenting
    judgement of Major? J.‘s said Canada has always criminalised abortion and how can you now
    ask us to interpret this in a way that says that what we have always done was unconstitutional
    and not in keeping with basic norms? - taking the judicial restraint view of the role of the
    court
   Problem with the inherent difficulty of achieving Constitutional change: if Constitutional
    change is difficult, there may be no change without judges stepping in - by contrast, the other
    side would cite the availability of informal constitutional change - so that if the courts don‘t do
    it and Constitutional change is not achievable, the change could still happen




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CHAPTER                                           3:
FEDERALISM
         I. G. Stevenson, Unfulfilled Union, 3d. ed. (1989)

    Touches primarily on two aspects of Confederation: the internal and external circumstances
     that led to it, and secondly the terms of Confederation or terms of union - the major
     characteristics of the constitutional framework provided by the B.N.A. Act enacted by
     Imperial Parliament in 1867.

    OUTLINE OF THIS SECTION:
     A. Definition of federalism
     B. Terms of B.N.A. Act from the perspective of that definition, to see whether or not the
        B.N.A. Act established a federal state in keeping with that Act.
     C. Situation as it is today, moving away from terms of the Act into the realm of the real
        world.
     D. Elliot will suggest a somewhat broader less black and white definition of federalism that
        will allow us to explore aspects of Canadian federalism that the first definition tends to
        obscure.

A.       Definition of Federalism: There are three ―criteria.‖
         1. A division of legislative authority between two independent and co-ordinate orders of
            government.
         2. That division of legislative authority cannot be subject to unilateral change by either
            order of government.
         3. That division of legislative authority must be protected by an independent and
            impartial arbiter of some sort.

B.       CIRCA 1867
    What type of Federalism did the B.N.A. Act establish for
Canada?

1. First element of def(federalism): independent and coordinate
   status.

    Legislative authority was divided between two orders of government, federal and provincial,
     most significantly by: s. 91 (federal heads of power/classes of subjects) and s. 92 (provincial
     heads of power), s. 93 (education), s. 94 (uniformity of rights dealing with private property),
     s. 95 (agriculture).

    Questions were raised as to whether or not the requirements of independent and co-ordinate
     status were met:

    FIRSTLY, THE RELATIONSHIP BETWEEN FEDERAL GOVERNOR
     GENERAL AND PROVINCIAL LT. GOVS. SS. 58-59
    The federal Gov. Gen. appoints the Lt. Govs., and Lt. Govs. hold office at the pleasure of
     the Governor General. At the time that was seen to be a significant dimension of Canadian
     federalism, particularly when coupled with the second criticism.

    SECONDLY,  FEDERAL      POWERS    OF   RESERVATION                                             AND
     DISALLOWANCE VIS-A-VIS PROVINCIAL LEGISLATION:
    Ss. 55-57 spell out the rules relating to the giving of Royal Assent to federal legislation.

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   The matter ends up on the desk of the Gov. Gen., who has three options:
     (1) giving Royal Assent, thereby converting a bill into law,
     (2) to reserve the Bill for the pleasure of the Queen or King, by which is meant that the
        Bill is actually sent on to London where it sits on the desk of the Queen for up to two
        years, during which period she decides whether or not assent will be given s. 57,
     (3) to refuse or withhold Royal Assent. It was generally understood that options (2) and
        (3) that they would be pursued on instruction of the Queen.

   S. 90 of B.N.A. Act made those sections also applicable to the making of new laws
    at the provincial level, including the possibility in ss. 55-57 that even where
    assent is given, that assent can be annulled through a process of disallowance
    by the Queen.
   While those rules are made applicable to the provincial level, the players changed so that the
    Bill initially goes to the Lt. Governor, and instead of the Queen having the final say it is now
    the Governor General who has the final say.
   The effect of those rules as applied to provincial law-making was that the federal order of
    government had a major role to play in the provincial law-making process. The
    Governor General could, for whatever reason, decide that a provincial enactment should not
    become law, and it was within his power to make sure that it didn‘t, even if the provincial Lt.
    Gov. gave Royal Assent originally, either through disallowance or through instructing the
    Lt. Gov. to withhold assent.

   In the minds of some it was therefore impossible to say either that the two orders of
    government were independent or that they were truly of co-ordinate status - it was argued
    that the provincial order of government was in a significant sense dependent on the federal
    government and thus of subordinate rather than co-ordinate status.

THIRDLY, EXAMPLES OF LACK OF COORDINATE STATUS IN B.N.A. ACT:
All of these go to this requirement that these two orders of government be independent
and of co-ordinate status.

S. 92(10)(c) power.
   S. 92(10) gives provincial governments the power to legislate wrt local works and
    undertakings - originally understood to relate to transportation and communications.
   But in (a) and (c) the drafters incorporated provisions that amounted to exceptions to or
    diminutions of that authority.
   (c) is problematic because it authorises the Parliament of Canada apparently, without any
    constraints or limits being imposed on it, to move from provincial jurisdiction into
    federal jurisdiction any works that the Parliament of Canada decides to be ―for
    the general advantage of Canada or for the general advantage of two or more
    provinces‖ - again problematic with respect to both independence and co-ordinate status -
    Parliament was clearly to be the superior order of legislative authority.

S.93-- EDUCATION
   Another like provision in its significance is found in s. 93, which, in theory, authorises the
    provincial governments to legislate exclusively in the area of education.
   The subsections all were intended to deal with and provide Constitutional protection for the
    rights of denominational schools, in particular the Catholic schools in Ontario and the
    Protestant schools in Quebec.
   See especially subs. (3) and (4), which authorise the federal order of government to play
    a supervisory role in respect of these denominational school rights to the point even under
    subs. (4) of enacting what would amount to remedial legislation in a province in which the
    federal government believed those rights were not being adequately respected, clearly
    signifying that federal order of government was to be the superior order of government in
    relation to the provincial.


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S. 92(2) AND S.91(3) TAXATION
   S. 92, contrasting language used in s. 92(2) dealing with the provinces’ power to tax
    when placed alongside the language in s. 91(3) which provides the basis for the federal
    authority to tax. The federal government was authorised to raise money by any mode or
    system of taxation.
   By contrast, the provincial legislatures were restricted to ―direct taxation within the province
    in order to the raising of a revenue for provincial purposes‖.
   Limitations are ‗direct‘, ‗within the province‘, and ‗for a particular purpose‘, signify a
    significantly narrower power than the federal. While not necessarily prima facie interfering
    with provincial independence, it was taken as an indication that the provinces were of lesser
    importance than the federal order. And was of significance in 1867 and soon thereafter, where
    80% of taxation was indirect.

    2. Second element of def(federalism): UNILATERAL CHANGE

   The concern here is obviously with amendments to the division of legislative authority
    between provincial and federal orders of government.

   Although the B.N.A. Act granted the provinces a limited power to amend their own
    Constitutions, it was silent on the issue of Constitutional amendment and the process to be
    followed if amendments were to be made to its provisions, including the division of legislative
    jurisdiction between the parliament and legislative assemblies.

   It was understood that any changes would be done via the Imperial Parliament,
    and therefore any change by either federal or provincial order was not possible - change would
    have to come via legislation emanating from Westminster.

   The question that then arises is: according to what procedure would that body act?
    Would it act on the basis of requests coming from the federal government alone, or would it
    require some degree at least of provincial involvement? Unanswered.
   On the face of the B.N.A. Act, unilateral change was not possible.

    3. Third element of def(federalism): INDEPENDENT AND
       IMPARTIAL ARBITER

   Problems were noted - it was understood in 1867 that the final say wit respect to this division
    of legislative authority would be in the hands of the Privy Council - there was no S.C.C., only
    the power to create one. On that basis the requirement for independent and impartial arbiter
    could be said to be met.
   But note that the power to appoint all Superior Court judges rested with the Feds, and the
    Feds also had the power to create an ultimate Court of Appeal, a power which it exercised
    by creating the S.C.C. in 1875.

   On that basis, questions were raised about the independence and impartiality of at least the
    Canadian judges who would serve at the lower rungs of the ladder, as arbiters of this division
    of legislative authority.

   In reading some of the earlier judgements in Ch. 4 and some of the commentary in Ch. 4, from
    1867 to 1900, note how centralist a number of those judges were and how sympathetic they
    were to the Macdonald vision of Canada and Canadian federalism, thereby adding fuel to this
    particular concern.

   The suggestion was that there should be some role for the provincial governments to play in
    the appointment process.


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C. CAN THESE CHARACTERISTICS STILL BE SAID TO BE
   PROBLEMATIC?

First element problem:
   Lt. Govs. are appointed by and serve at pleasure of Feds, who still jealously guard their
    authority to make these appointments, e.g. in Quebec Roux was appointed, who was a former
    actor who in the 30s and 40s had participated in organisations that appeared to have anti-
    Semitic affiliations, upon which revelation the Feds were pressured to remove him amidst
    controversy over how much involvement the Quebec government would have.

   However, nowadays in no sense can the Lt. Govs. be thought of as the agents of the Gov. Gen.
    - it would no longer be thought at all appropriate for the Gov. Gen. to instruct a Lt. Gov. to
    reserve assent on a Bill, nor would it be at all appropriate for the Gov. Gen. to disallow
    provincial legislation.
   Moreover, in the Maritime Bank case in the 1890s Privy Council held that the Lt. Gov. in
    terms of his powers etc. under the Constitution was of co-ordinate status with the Gov.
    Gen. - primarily for symbolic and patronage purposes rather than any meaningful purpose -
    therefore little of concern now.

   The same is true insofar as the reservation and disallowance powers are
    concerned. Those powers were used extensively in the early years of Confederation to
    disallow 112 provincial enactments, and to use the reservation power in 70
    instances.
   Therefore, the federal government in fact had a significant role in the provincial lawmaking.
    However, the last instance of the use of the disallowance was in 1942, and
     reservation was last used in 1961, and it is now accepted by everyone that neither of
     those powers is any longer appropriate.
    The power is there, and when a provincial government embarks on legislation that some find
     offensive, commentators may suggest it is the duty of the federal government to exercise one
     of these powers, but those cries fall on deaf ears.
   [In 1930s in Alberta the Social Credit regime was elected with a platform that led that
    provincial government to do things that provincial governments had never done in Canada
    before - the last time disallowance power was used was in Alberta in 1942.
   Even in the 1930s there was a sense that there was something profoundly wrong with this
    power of the federal government being in the Constitution, that it was wrong for the Feds to
    interfere in provincial lawmaking.
   This belief was strengthened by the fact that prior to the SoCreds, the power was seldom used.
    The Alberta government sent a reference to the Alberta C.A. asking if given that the power has
    not been used for a long time, is it not fair to now say that that power has lapsed?
    The C.A. said no, the power is there, and based on the text of the Constitution
     the power still exists. What matters for political purposes is whether or not
     this power is being used.]

   S. 92(10)(c) declaratory power allowing Parliament to move jurisdiction over works
    from provincial to federal sphere was used extensively in early years, especially for railways
    and also grain elevators, etc.. However, this power has fallen into disuse, and while again
    calls are made from time to time for it to be used, those calls generally are not responded to.
   There is a convention now that Feds will not use the declaratory power - if it were to be
    used, it would likely be used only with the consent of the provinces in which the works were
    located - in Charlottetown there was an amendment along those line that (10)(c) could only be
    used with the consent of the province or provinces in which the works in question were
    located.

   S. 93 education, denominational school rights

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  This power was threatened to be used in the mid-1890s to deal with a problem in Manitoba,
   but was not used in that instance, and has never been used or threatened since.
 It is there but for practical purposes, and the basis on which it could be exercised is rapidly
   disappearing - Quebec has decided to abolish religiously-based school boards in favour of
   language-based, and in Newfoundland denominational schools have been eliminated. There
   is now no concern about the exercise of this power.
Concern about limited taxing power with respect to the provinces s .92(2)
and s.91(3):
 At the time that the B.N.A. Act was enacted, the most significant limitation on provincial
  taxing power was seen to be the limitation to direct rather than indirect taxation, because at
  that time 75-80% of taxes were indirect.
 For practical purposes direct taxation was a very significant limitation. That is no longer the
  case because the main source of taxation revenue now is income tax, which is a direct tax.
 Where the problem now exists is not with respect to the taxation power, but rather with the
  spending power, and in particular in the fact that particularly since the Second World War the
  federal government has drawn on its much greater financial resources attributable to its
  greater taxation power.
 The Federal Government has been spending money, (especially in the early years) in areas
  understood to be in provincial spheres such as health, secondary education, social assistance,
  etc.
 While the provinces appreciated the additional financial resources, they also face the
  imposition on the part of the Feds of conditions that must be met before those additional
  financial resources are made available.
   E.g., Alberta recently with respect to Alberta‟s observing of the five basic principles set
       down in the Canada Health Act, with money being withheld from the province of
       Alberta on the basis of its imposition of health care user fees, after which the Alberta
       government caved and stopped charging user fees.
 Most recently, the Feds have tended with new programs to not impose conditions, but the
  Feds have used this power of spending without imposing conditions, such as the Millennium
  Fund in the provincial area of education for scholarships.

The second element, unilateral change:
    We now have comprehensive amendment rules that protect amongst other things the division
     of legislative authority between Parliament and provincial legislatures, so that problem has
     clearly been resolved.

   The third element, independent and impartial arbiter:
    Appointment power still resides with federal Parliament, which still rankles provincial
     governments.
    There was a time in the 60s and 70s when provincial governments alleged that the S.C.C. was
     biased in favour of the federal order in division of powers cases, with some merit to that view,
     because from 1949 on the S.C.C. struck down a fair number of provincial enactments but no
     federal ones until 1965. Since then, in both division of power cases and Charter cases, the
     S.C.C. has had a fairly balanced record.


        II. A. Silver, The French-Canadian Idea of Confederation, 1864-
        1900 (1982)

   Focuses on French Canadian perspective on Confederation, and in particular to the
    importance attached by them to the creation of a second in their view independent legislative
    assembly for French Canadians within the province of Quebec.

TO SUM UP…….
   Canada of 1867 created by B.N.A. Act of that year, and the Canada of today against the three-

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    part definition of a federal state (1) independent and co-ordinate governments, (2) no
    possibility of unilateral change of the division of legislative authority, (3) independent and
    neutral arbiter of that division of powers
   While there are certainly reasons to doubt that Canada was a true federal state in 1867, those
    reasons by and large have disappeared today.
   In fact, we are now one of the most Federal states around.




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New Way of Thinking About Federalism
   An alternative definition or understanding of federalism asks about the extent to which
    regional diversities are articulated and protected within our system of government - a less
    formal and black and white definition.
   The greater the extent to which such diversities are articulated and protected,
    the more federal we can claim to be, and the less so, the less federal we can
    claim to be.
   The standard definition of federalism automatically meets this expanded definition through
    the mechanisms required for that definition of federalism to be applicable.

   ROLE OF THE SENATE: In the minds of virtually everyone who participated in the
    debates at the outset, the Senate was going to play a very important role within the central
    order of government in terms of articulating and providing some protection for regional
    diversities. The theory of the Canadian Senate, as was the American Senate, that it would
    guarantee within the central order of government a voice for the regions.

   Current breakdown of the Senate: Nfld. 6; N.S. 10, N.B. 10, P.E.I.
    4, Quebec 24, Ontario 24, Man. 6, Sask. 6, Alta. 6, B.C. 6, Yukon 1,
    N.W.T. 1 - 104 in total.
   This particular theory of the Canadian Senate as the Senate functions now, no longer holds
    true. The Senate cannot now in any meaningful way be said to provide a voice for the regions
    in the central order of government, mostly because in appointments it is party affiliation
    rather than regional affiliation that matters.
   In the USA, the Senate does speak for the States effectively. Many have said that the Courts
    have been affected by that, and have stepped back from being umpires in Federal/State power
    disputes.
   Also note that regional representation extends into the lower house (PARLIAMENT) with the
    Provinces entitled to no fewer MPs than they have Senators.

   Other things that give voice to regional diversity:
       THE TERMS FOR THE INDIVIDUAL PROVINCES TO ENTER
        CONFEDERATION - requirement to build certain transportation networks, Criminal
        Code prohibition on butter substitutes
       TRANSFER PAYMENTS - allow provinces to use funds according to their regional
        priorities
       FIRST MINISTERS CONFERENCES, meetings now amongst particular Ministers
        within the various Cabinets e.g. all the Ministers of Health, bureaucratic meetings that
        take place within these same subject areas e.g. Deputy Ministers - when policy is being
        developed in these areas, those policies are better able to reflect regional differences and
        concerns
       Quebec has been very bold in the international arena - allows Quebec as a distinct
        governmental entity to become known internationally
       THE NEW NATIONAL BLOOD SYSTEM - ?how? - Ministers getting together to sort
        out a crisis and enable the development of a new policy as a result of meetings at the
        ministerial and bureaucratic level.
       Federal Cabinet is thought to be an institution that is important in terms of representing
        regional diversity - pressure to ensure regional balance within the Cabinet.
       FEDERAL LEGISLATION: A number of statutes allow for provincial variations in
        terms of their implementation. E.g., provisions relating to gambling - lotteries, racetracks
        - prohibited with quite elaborate opting-out provisions for the provinces if a given
        province follows the specific given steps and their regulatory regime meets their criteria,
        then betting etc. is no longer a criminal offence. The old abortion provisions clearly
        allowed for provincial variations, hence in PEI no therapeutic abortions committees were
        established in any of their hospitals and hence it was impossible for any woman to get a

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        legal abortion in PEI;
       REPRESENTATION on the boards of federal Crown corporations and on
        administrative and regulatory tribunals
     Although delegation of legislation between Parliament and the provinces has been held
        unconstitutional, i.e. for provinces to cede jurisdiction to Feds and vice versa, federal and
        provincial governments have found some ingenious ways around that prohibition,
        particularly in areas with some sharing or overlap of jurisdiction. Regulatory regimes
        in transportation and agriculture have schemes with provincially established boards in
        each province receiving delegated power from the federal order of government.
        Parliament and the provincial legislatures can also incorporate by
        reference the law of the other order of government. These have been permitted
        by the courts, allowing provincial input in a significant way into the federal law-making
        process at least substantively.
     SCC—STATUTORY OBLIGATIONS: The Govt. must appoint at least 3 Quebec
        members to the SCC, which has given rise to a convention of sorts in appointments: 3
        Quebec, 3 Ontario, 1 Maritimes, 2 West (often 1 Prairie, 1 B.C.).
     Many other mechanisms, institutional and otherwise, through which regionalism can find
        expression.
   Fair to say that regional diversity within Canada is articulated and protected to a very
    significant degree, on the basis of which it is possible to say that Canada in relative terms is
    more federal that other federal states without those sorts of mechanisms available.




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    CHAPTER 8: INTERPRETING THE DIVISION OF
    POWERS
   This has to do with the constitutional division of powers and the way in which the courts have
    interpreted that division of law-making power.

TWO MAJOR OBJECTIVES OF CHAPTER:
    1.   Identifying the different kinds of legal issues that the division of legal jurisdiction between
         Parliament and Provincial Legislatures.
    2.   A general sense of the ways in which the courts have gone about resolving these legal
         issues.

TWO MINOR OBJECTIVES OF CHAPTER:
  1. To identify the normative criteria that have been considered to be relevant to
         discussion of federalism and law-making authority in Canada.
    2. To give a sense of the procedural aspects of constitutional litigation in this area.

R. Simeon, ―Criteria for Choice in Federal Systems‖ (1982-3)

Normative criteria that are relevant to discussions about federalism:

   The purpose of the Simeon piece is to shed light on possible reform efforts in the area of
    division of legislative jurisdiction between Parliament and provincial legislatures - trying to
    identify the values that are engaged when people are discussing issues relating to how best
    should power or jurisdiction be divided between a central order of government and a regional
    order of government in a federal state.
   However, there is no doubt in Elliot‘s mind that Simeon‘s view is relevant to how the courts
    think, because courts in interpreting the division of powers have a tremendous amount of
    discretion.

   Ss. 91 and 92 language tends to be very general and vague, leaving the courts
    much room to manoeuvre in adjudicating cases in this area, which in turn
    means that courts are likely on occasion if not always to be guided by their own
    conception of what Canadian federalism should look like and how power
    should be divided between Parliament and provincial legislatures, and that
    conception is likely to be based on certain perceptions, feelings, ideas regarding
    these same criteria - judges when they come to decide these cases are going to
    be proceeding on the basis of, articulated or not, commitments of varying
    degrees to the same criteria that Simeon argues constitutional reformers will
    be arguing their cases on.


   THREE CRITERIA, OR VALUES:

    1.   COMMUNITY:
          Community as a value touches on a broad range of groupings or affiliations within a
           given society (kinship, nature of employment, religion, colour, ethnicity, etc.). For
           present purposes, the sort of communities that we are concerned about are regionally
           based communities, in particular regionally based political communities.

            In the Canadian context, Simeon identified three different conceptions of community
             relevant to this area:


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                 1. PAN-CANADIAN, which emphasises our affiliation that we share
                    as Canadians to a nation-state and to whatever values are
                    associated with that nation-state [Trudeau conception of
                    community];
                 2. PROVINCIAL COMMUNITIES, defined by the values and interests
                    that we as British Columbians would associate with being British
                    Columbian [Clark conception of Canada - a community of
                    communities];
                 3. FRANCOPHONE COMMUNITY - sees Canada as two
                    communities, the English-speaking and the French-speaking.
                 4. ABORIGINAL COMMUNITIES (not mentioned in Simeon), not
                    represented in the division of law-making power between federal
                    and provincial legislatures, but in 1982 finding a foothold in s. 35
                    terms aboriginal rights.

       Each conception of community has its own implications for the division of powers. Elliot:
        fourth conception of community.
       Limiting ourselves to the three conceptions that Simeon identified, the implications are
        for Pan-Canadian conceptualists, that you want a strong central government that can
        act on national interests and promote national values.
       By contrast, if the focus is on provincial affiliations, you want a decentralised division
        of powers with strong provinces for the same reasons of allowing them to act on the basis
        of provincial interests and promote provincial values.
       The Quebec conception argues at the very least for a very strong provincial
        government in the province of Quebec, with the other provinces‘ powers to be sorted out
        by English Canada.

2. FUNCTIONAL EFFICIENCY:
    Assuming that you can identify accurately what the proper public policy goals are, which
      order of government can best deliver on those goals? Just as within the value of
      community, there are different takes on this.
    There are some who argue that because of economies of scale etc. the federal order of
      government will be more functionally efficient, while others argue the exact opposite,
      with functional efficiency being a function of proximity and sensitivity to those to whom
      the program is going to be delivered. In this “pathology of size” argument, the central
      government is too distant and remote to be able to properly deliver what is required.
      Where a smaller scale approach is argued to be more effective, it results in strong
      provincial governments being preferred.
    One area in which there appears to be consensus is that overlap and duplication is
      not helpful to efficiency.
    The result of it is confusion in those to whom it is being delivered as to where to turn,
      problems of accountability, etc., so that there is consensus that duplication and overlap
      are not functionally efficient.

3. DEMOCRACY:
     Voter participation in terms of process, liberty and equality in terms of
     substance.
    Just because you prefer one order of government in order to enhance process does not
     necessarily also mean that you will enhance substance.
    If one favours Liberty, one would be more on the side of a strong CENTRAL government,
     which is seen to enhance protection of human rights. CENTRAL governments are better
     able to resist ―majoritarian pressure‖ which might occur at the more ethnically
     homogenous provincial level.
    If one favours participation/ process, one would be more on the side of smaller orders of
     government, with more PROVINCIAL autonomy. More access, people are closer to he
     decision making process, therefore more accountability, etc., etc..


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   Although all of these three criteria are or can be relevant to discussions about the appropriate
    division of powers, experience has told us that different federal states have tended to prioritise
    different values or criteria. E.g., the American discussions about the appropriate division of
    legislative authority there have tended to focus on the value or criterion of democracy. In
    Canada, community has tended to be the value or criterion of choice. In Australia and
    Germany functional efficiency has tended to predominate. While in theory all are
    relevant, in practice different federal states have tended to focus on different criteria or
    values.
   Even if one isolates one particular federal state, depending on the historical circumstances, a
    different criterion or value can tend to come to the fore. Canada in times of economic crisis or
    hardship community has tended to give way to functional efficiency, e.g. 1930s and the
    Depression.

   Even if agreement is reached on which criterion to prioritise, it should not be assumed that
    agreement regarding the criterion is going inevitably to lead to agreement on what the
    appropriate division of legislative jurisdiction or authority is. All the criterion does is
    identify the issues, and what it is the debate is going to be about, rather than
    dictating any particular result.
   Identify the sorts of issues, what conceptions are possible, and where that leads you in terms
    of division of authority.



6 October, 1998

   His criteria can be translated without much difficulty into Simeon‘s criteria of community,
    functional efficiency and democracy.
   If one order of gov‘t definitely wins out over the other, then that its the result. I.e., if it is
    better for Canadians that it be enacted at the fed level, then that is where it is enacted.
   If that normative question cannot be resolved, Lederman says this is a law that can be enacted
    by both orders of gov‘t, which both have an equally strong claims to jurisdiction in the area of
    question.

CHARACTERISATION OF LAWS
           —questions raised                                   by      the       division           of
       powers:
   Identify and explain the differences between the different kinds of legal issues
    that the division of powers has been understood by the courts to give rise to,
    according to the focus of the court‘s inquiry and the consequences of an
    unfavourable holding by the court:

    1.   VALIDITY of legislation: court focuses on the legislation in question, in part or in
         whole, with the focus on the legislation itself. If the question of validity is resolved
         against the provincial enactment, that enactment is ultra vires/ null and void/ of no force
         and effect/ etceteras. S. 52(1) supremacy clause of Constitution says that the Constitution
         is the supreme law of Canada, and any law that is found to be inconsistent with it is, to the
         extent of the inconsistency, of no force and effect. Therefore the term that should be used
         is ‗of no force and effect‘. This also goes for Federal Legislation.

    2. APPLICABILITY of legislation: Focus of inquiry is no longer on the legislation per se,
       but rather on its application in a particular context or set of contexts. Consequence of
       negative holding is that the legislation remains valid but it is inapplicable to the context or
       set of contexts in question.


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    3. OPERABILITY of legislation: the focus of inquiry now shifts to the relationship
       between the federal and provincial enactments in question.3 The consequence of a
       negative holding against the provincial enactment is that the enactment is held to be
       inoperable, or inoperative, to the extent of the conflict, but only for as long as the conflict
       between it and the federal legislation continues to exist. If the federal legislation is
       repealed and the provincial enactment remains on the books, the provincial enactment is
       revived and is constitutionally operable. The same goes for amendments to the federal
       legislation that remove the conflict.

   Suppose we are dealing with a provincial enactment in respect of which the
    validity, applicability and operability have been called into question (a rare
    happening).
   If a question of validity is raised, the focus of that inquiry is on the enactment itself, which
    might be a section within a statute, several sections of a statute grouped together, a major
    component of a statute, the statute in its entirety, or even more than one statute, being
    examined together. The focus is on the enactment.

   In questions of applicability, things are less clear. The assumption is that that
    enactment as drafted is valid. What is at issue is whether or not that generally worded and
    valid enactment can constitutionally be applied in a particular context. E.g., a labour relations
    statute provincially enacted which, on the face of it, appears to be valid provincial legislation
    coming within property and civil rights s. 92(13). However, in this particular hypothetical, an
    attempt is being made to apply this enactment to the labour relations of an undertaking
    involved in transportation or communication that is arguably international or interprovincial
    in character. The legislation as worded is valid, but the question is whether or not that valid
    provincial legislation can constitutionally be applied to this particular undertaking. Will
    depend on whether this undertaking is in fact a federal undertaking, because if it is, then that
    valid provincial enactment will be held not applicable to that particular undertaking. The
    focus of the inquiry is thus not on the enactment itself, but rather on a particular application
    or set of applications of that enactment.

   In terms of questions of operability, they arise in situations in which you have valid
    federal legislation on a particular matter alongside valid provincial legislation on that same
    matter. The question is whether or not, given the existence of these two enactments, both
    valid, one federal, one provincial, the provincial enactment can continue to operate. The
    answer to that question depends upon the relationship between these two enactments, the
    provincial and the federal. Court wants to know if given the doctrines the courts have
    generated in this area, is there a conflict between the federal and provincial enactments? If
    there is, then the provincial legislation cannot continue to operate; if there is not a conflict,
    then it can.


    S.91 and s.92 of the Constitution
   S. 91: P.O.G.G., the exclusive legislative authority of Parliament of Canada includes a
    number of classes of subjects, including
     (2) the regulation of trade and commerce,
     (3) raising of money by any mode or system of taxation,
     (10) navigation and shipping,
     (12) sea coast and inland fishing,
     (14)-(23) underpinnings of a functioning economy,
     (24) Indians and lands reserved for the Indians,




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       (25) naturalisation and aliens,
       (26) marriage and divorce,
       (27) criminal law except the constitution of courts of criminal jurisdiction but including
        the procedure in criminal matters - substantive and procedural criminal law, power over
        penitentiaries,
       (29) such classes of subjects as are expressly excepted in the enumeration of the classes of
        subjects assigned exclusively to the provinces - namely, ss. 92(10)(a-c) - local works and
        undertakings other than those of the following classes.
       Concluding paragraph of s. 91: any matter coming within any of the classes of
        subjects enumerated in this section shall not come within classes of subjects being local
        matters - appears to say that if there is a contest between s. 92(16) and any of the
        enumerated classes in s. 91 (if you have a matter that could be said to fall within 92(16)
        but at the same time could be said to fall within one of the enumerated s. 91 classes), then
        the federal government wins.

   S. 92: In each province:
       (2) direct taxation within the province etc.,
       (5) management and sale of public lands and timber and wood thereon,
       (8) municipal institutions within the province,
       (10), (12) relationship to 91(26) marriage and divorce - the solemnisation of marriage
        within the province,
     (13) property and civil rights in the province,
     (14) administration of justice in the province including civil procedure,
     (15) Elliot suspects the courts would have quite happily acknowledged that provincial
        legislatures had to have the power to enact quasi-criminal offences in order to enforce
        provincial enactments, but this section makes it explicit, but note the wording: the
        imposition of punishment by fine, imprisonment etc. for enforcing any legislation coming
        under the provincial scheme - punishment must be there to render effective policies that
        were validly enacted; concluding section - civil and property matters.
   Note: Ss. 91 and 92 are not the only provisions dividing powers between the
    two orders of government. Ss. 93, 94(a), 95 agriculture and immigration given
    to both orders of government, with in the case of repugnancy, federal
    legislation prevailing over provincial.


    Three different analytical approaches to resolving
    questions of validity:
1. EARLY PRIVY COUNCIL MODEL
   Reflected in some of early Privy Council decisions relating to ss. 91 and 92, and in
    particular in cases like Parsons v. Citizens Insurance, Russells v. the Queen. Based on the
    actual words used in the sections.           They saw this as basically statutory
    interpretation. Approach was to look at the enactment whose validity was being
    questioned, the court determined its matter as a function of the way in which both ss. 91 and
    92 open (P.O.G.G. in relation to all matters, and s. 92 in relation to matters coming within).
    Initial task was seen as the identification of the ‗matter‘ in relation to which the legislature
    had legislated. By ‗matter‘, they meant pith and substance. That matter was then checked
    against s. 92 to see whether it came within any of those classes of subjects.

    i) If following that examination you concluded that this matter did not come within any of
       those classes of subjects, then it was not a matter in relation to which a provincial
       legislature could legislate.
         It was of no consequence whether this matter came within one of the enumerated
             classes of subject in s. 91 or not, if there was no class of subject in s. 92 capable of
             accommodating this matter.

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            However, it was almost always the case that one of s. 92 classes would be capable of
             accommodating this matter.

    ii) If a s. 92 class could accommodate the matter, you then looked at the catalogue in s. 91
        and did the same thing there.
          Interestingly, it was the view of the Privy Council that if this matter could be
              accommodated by any of those enumerated classes of subjects in s. 91, then it had to
              go into the federal catalogue, even though it might fall into a class in s. 92.
          The reason that they gave for taking that position was the concluding paragraph of s.
              91, even though Elliot said it related only to the last class of subjects in s. 92 the class
              of matters of a local or private nature.
          Privy Council said that paragraph should be read to refer to all of the classes of
              subject in s. 92. That concluding paragraph therefore says any matter coming within
              an enumerated class in s. 91 shall be deemed not to come within any class of s. 92.
          Elliot thinks one of the main reasons that Privy Council gave narrow interpretations
              to some of federal heads of power was that given that this was their way of
              proceeding, they realised that the federal government was going to win almost all of
              the time unless they cut back the interpretation of s. 91 matters to include fewer
              matters.
          This explains why s. 91 heads of power like over trade and commerce narrow rather
              than broad scope.


    iii)If they do find a class of subject in s. 92 but none in s. 91, then it is a
       provincial head of power.

2. SECOND ANALYTICAL MODEL – ABEL‘S CONCEPTION
   Advanced by Professor Alan Abel, an American.
   His approach is outlined briefly in the Swinton piece on p. 151. Swinton says Abel‘s approach
    was a three-step approach.
        1. Identification of the „matter‟ of the statute.
        2. Delineation of the scope of the competing classes of subjects.
        3. A determination of the class into which the challenged statute falls.

   Abel‘s view was that the classes of subjects in ss. 91 and 92 could and should be interpreted so
    that there is no overlap at all, between s. 91 and s. 92 or within each section.
   He says that the interpretation of these various classes of subjects could be made a good deal
    easier than might otherwise be thought if one tried to get some sense of what spheres of life
    the federal and provincial governments had been given jurisdiction over, based on the BNA
    Act and the historical context out of which the text had arisen.
   He concluded:
     the Feds have been given primary jurisdiction over the economic dimension
        of our lives,
     the provinces were given jurisdiction over the social and cultural
        dimensions of our lives.

   Insofar as his second step is concerned, the competing classes can be given quite precise
    definitions, and then it is a question of taking the matter and it should be a relatively easy
    task to select the one that is going to be appropriate.
   On the basis of his approach, the concluding paragraph in s. 91 becomes irrelevant -
    essentially read it out, because in his theory no matter will ever come within more than one
    class of subject.
   This theory has been largely ignored by the courts - he was overly optimistic about the ability
    to give all of these classes of subjects definitions that would have amounted to ~35 distinct
    classes of subjects.
   The main contribution of this theory is that it injected a sense if historical awareness of what

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    the drafters intended, as well as recognising the role of a value judgment in the process.

4. THIRD ANALYTICAL MODEL: LEDERMAN MODEL
   This is outlined in some detail at 173-178 of Starr v. Houlden.
   His approach represents a significant departure from both Privy Council and Abel‘s approach.
   His approach is based on the language of aspects, provincial and federal.
   Lederman said that the courts should, after ensuring that they know exactly what the
    enactment in question is about, proceed to ask these questions:
     Does this enactment have a provincial aspect?(By which he meant: does it appear to have
        some connection with one or more of the heads of power in s. 92?) He assumed it will
        always be possible to find a provincial aspect to some provincial class of subjects.
     Then you do the same thing on the federal side: Does this law have a federal aspect? (The
        assumption is that if there is a challenge before the courts, there will be some federal
        aspect.)

   Examine law in terms of its total meaning - not keen on idea of matters.
   The question at this point for Lederman, unlike in the first two models, is an explicitly
    normative question: you go on to ask which of the two, federal or provincial, aspect is more
    important? He does not mean which set provides a better ‗fit‘.
   What he means by important he sets out on p. 176: will we be better off with this law
    enacted at the federal level, or the provincial level? It‘s all about the vision of
    federalism that you hold.
   His criteria can be translated without much difficulty into Simeon‘s criteria of community,
    functional efficiency and democracy
   If one order of government definitely wins out over the other, then that is the result: i.e., if it is
    better for Canadians that it be enacted at the federal level, then that is where it is enacted.

   If that normative question cannot be resolved, Lederman says this is a law that
    can be enacted by both orders of government, which both have an equally
    strong claim to jurisdiction in the area in question.
   Given the above, there is a lot of room for FUNCTIONAL CONCURRENCY and
    OVERLAP.
   The BNA Act gave de jure concurrency to areas like immigration and agriculture, but here,
    Lederman is arguing for de facto concurrency.
   Note: The same question about the same law might be answered differently at different times
    in the development of our country. Query how much deference to precedent, and when it
    would be appropriate to reconsider how jurisdiction should be divided in a particular area.


    Elliot‘s Notes On the 3 Alternative Models

   The first model, however improbable it may appear to us now, cases like Parson, Russell,
    Hodge, and Local Prohibition, show it was the predominant model in the latter nineteenth
    century. However, you won‘t find it being used any more.
   Nor will you find either the Abel or the Lederman model being used in its entirety in the cases
    courts decide today. However, you will see reflected in the cases one or more of the elements
    of both of those from time to time. Perhaps a combination of the two.
   Bottom line: there is no fixed model to resolving these questions.




    Starr v. Houlden (1990 S.C.C.)

FACTS: See p. 166: ―The inquiry before us …‖

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     This concerned an Order-in-Council from the Ontario Provincial Cabinet, under the
      Public Inquiries Act, establishing a Commission of Inquiry into the conduct of Patricia
      Starr (who headed a charity) and Pridell (Corporation).
    There were allegations of wrongdoing, perhaps involving Provincial officials.
    This was challenged on both Federalism and Charter grounds.
ISSUE:
    Could the Provincial Legislature establish a commission of inquiry such as this, especially
      as the people being investigated might face criminal charges?

HELD: No. (Lamer, for the majority).
   Order-in-Council struck down on the basis that in the eyes of the majority writing through
     soon-to-be-C.J. Lamer. This particular inquiry was in substance a substitute police
     investigation and preliminary inquiry with compellable accused with respect to a given
     violation - see. p. 154, 159. Criminal law and procedure was in the federal catalogue of
     powers, and so beyond provincial jurisdiction to enact.

RATIO: The outline of the model.
   What is at the heart, the core of this law? The ―pith and substance‖, what is its most
     important feature (not in the Lederman sense, but in the ―fit‖ sense)?
   The criminal dimension is at the heart, the core of the matter.

   Gives a pretty clear example of the majority of the court ultimately resolving the case that
    came before it on the basis explicitly of one of Simeon‘s three different criteria. Which criteria
    appeared to guide the court in the result it arrived at, and which conception of those criteria
    did the court adopt?
   Note Elliot‘s Notes about Alternative Models above: This is not the model for all such
    cases - these options and the way they work, and the terminology used, change in different
    cases.

   ANALYTICAL MODEL USED: P. 154 (#2):

       It is a two-step process, with the first step identifying the „matter‟ of the law (Order-in-
        Council). He explains this is done by looking for the dominant feature of the law, or its
        „pith and substance‟. Note that just as the description of the first step is longer than the
        second, in the analysis, more time is spent on the first step rather than the second. This
        reflects the role played by the different classes of subjects in determining the matter - try
        to advocate a characterisation that will fit within one of your side‟s classes of subjects.
        From the characterisation Lamer chooses here, there is virtually nothing to do in terms
        of assigning it, because the characterisation was coined with an allocation to s. 91 in
        mind.


   THE FIRST STEP: finding the dominant feature of the law (pith and substance):
   Look at both the purpose and the effect of the law.
   Moreover, we look at the legislative scheme, judicial precedent, and this concept of
    federalism.
   THE SECOND STEP: assignment to a class of subjects.
   Most intriguing to Elliot is the addition at the end of a concept of federalism, defined in terms
    of enduring values in the allocation of power.


WHAT HEADS OF POWER ARE WE DEALING WITH HERE?

FEDERALLY:
 S.91(27): Criminal Law and Procedure in criminal matters.


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PROVINCIALLY:
 S. 92(14): Administration of Justice in Province
 S. 92(16): Matters of a local nature
 S. 92(4): Establishment of Provincial Officers and payment of them.
 S. 92(7): Administration of hospitals, CHARITIES, and the like.



     Doesn‘t tell you here, but at p. 123 Hogg tells you those are Simeon‘s criteria of choice,
      relevant in the context of judicial review of existing federal state, although courts are not often
      explicit about this, so this judgment represents something of an exception.
     It is not common for judges at any level to acknowledge explicitly that their
      judicial review function of division of powers is value-based. They prefer to
      keep their inevitable value judgments hidden, and instead rely on traditional
      legal reasoning methods.

     Note that underlying two-step process is clearly some sense of what competing classes of
      subjects themselves mean - must have some sense of what criminal law means, and what
      competing provincial classes of subject mean.
     Implicit is a third, maybe preliminary, step of developing some sense or understanding of the
      competing classes of subjects. Then you can do your characterisation, and take that
      characterisation and assign it to a particular class or subject, or perhaps more than one class
      of subject.

     Same provision under attack, same analytical approach, same tools relied on,
      completely different characterisations, where her characterisation would result
      in assignation to provincial side.
     4What led each side to their result, and who got it right?

     Majority characterised it as substitute criminal investigation into allegations two individuals
      might‘ve committed a particular criminal offence, whereas
     Minority characterised as being in relation to the governance of the province, in particular
      relationship between elected and appointed representatives within government and outside of
      it.
     No disagreement on the question of what judges should look at in order to
      answer that sort of question. L‘H.D. and Lamer look at the same indicia - case law,
      context out of which the Order-in-Council emerged, the effect of the Order-in-Council, the
      actual language used in the Order-in-Council.
     The difference of opinion that exists as to how to characterise the provision cannot be
      attributed to a difference in opinion as to the proper approach to the question - instead the
      difference is in how to interpret those criteria
     In Lamer‘s view, what was critically important about this particular Order was that it named
      two individuals and identified the particular offence that the government was concerned that
      they might have committed.
     L‘H.D. says it‘s a matter of form rather than substance - in reality, people who are vulnerable
      to criminal prosecution were compelled to testify in front of other commissions of inquiry that
      were upheld by the court - so why be so concerned with the form? Just because it actually
      named the people does not change the actual effect of the inquiry. Elliot: Finds her more
      persuasive.
     She effectively borrows from characterisation given by divisional court before whom case was
      heard at top of p. 166.

     Elliot‘s sense is that what was driving each of them in their own direction was a
      disagreement about the importance of due process concerns insofar as these commissions
      of inquiry are concerned.

4   Oct. 8

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        Lamer‘s analytical framework was based on conceptions of federalism and underlying
         values - unusual for court to be so explicit about value-based normative judgments that
         courts make in these areas.
        He was explicit about the values that really mattered to him, which are due process values
         p. 164 - he‘s concerned that both parties will be denied the traditional rights etc. that are
         normally accorded in a criminal investigation.
        The disagreement is therefore a value-based difference.
        Lamer has throughout the years been one of the most vocal protectors of legal rights
         under the Constitution for those accused of criminal offences.
        By contrast, L‘H.D. is the judge who has been least concerned about those particular
         rights - for her, when those rights come into conflict with other interests, those served by
         the criminal law, she more often than not prefers the latter interests over the due process
         interests.

   So although this is a division of powers case, their discussion is in the larger context of how
    much they value due process rights, it is not surprising that they disagree nor that each was
    the spokesperson for each particular camp.

   Elliot: At S.C.C. level, most judgments are policy-based, and most comments of
    the judges on draft judgments are policy, philosophy and value-based, and in
    terms of which values should win out.

   In practical terms, how significant of a decision is this, if concerned about ability of provincial
    government to look into the malfeasance of some people under the provincial government?

   Not very important - just need to follow the form upheld - don‘t make its language so close,
    don‘t name all the individuals or name more, try and make sure that in the preamble to the
    Commission you identify the governmental-type concerns.

Notes 172
   Note 2: Westray Mine commission of inquiry: Even in post-Starr era, it is not difficult for
    provincial governments to establish these types of body - set out the purposes in the preamble.


        Elliot‘s extractions and extrapolations from Starr case study
                     (for addressing questions of validity).
   Analytical model: in this particular case, the court is quite precise about the analytical
    model that it is using.
   One should NOT assume that particular formulation of the model will be used in each and
    every case.
   Nevertheless, the two step process Lamer identified will be found in almost every case -
    analysis beginning with characterisation of what is the ‗matter‘ of the impugned legislation,
    answered normally in terms of pith and substance versus incidental effects of the legislation;
    followed by the assignment of that ‗matter‘ to a single class of subjects in ss. 91 or 92, or a
    group of class of subjects in 91 or 92.
   In respect of characterisation step, it is a multifaceted inquiry that entails looking at
    language of impugned legislation, the context out of which the legislation emerged, and
    through that context the apparent purpose of the impugned legislation, the effect of the
    legislation, and the relevant case law (decisions in which legislation similar to the impugned
    legislation has been characterised and assigned to one or the other order of government).
   Effects are usually considered insofar as they relate to the intent (above broad range of
    factors).
   Characterisation is influenced in a significant way by the competing classes of subjects -
    because lawyers want the characterisation to fall within the desired class.
   In terms of assignment process, the courts (P.C. and S.C.C.) have tended not to generate
    definitions or tests for the classes of subjects.

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   The classes of subjects, with a few exceptions, have tended to remain
    amorphous and open-ended, the exact opposite of what Abel suggested be done
    - have left them open and capable of incorporating or anchoring a fairly broad
    range of matter.
   There are three exceptions to this, all in the federal catalogue:
     91(2) regulation of trade and commerce has precise definition or test which Feds must
        meet to have the legislation upheld;
     91(27) the criminal law half, not the criminal procedure half - there is a test in respect of
        substantive criminal law, and so Feds to have legislation upheld on basis of criminal law
        must satisfy the requirements implicit in that test;
     P.O.G.G. federal residual power for peace order and good government - courts
        have developed a series of tests with result that Feds must meet one of those tests in order
        to have legislation upheld on the basis of P.O.G.G.
     SO MOST CLASSES REMAIN UNDEFINED, AND CAN ONLY BE
        UNDERSTOOD BY ADDING UP ALL OF THE MATTERS THAT HAVE BEEN
        ASSIGNED TO THEM.

   In questions of validity, certainly at level of S.C.C., judges will inevitably have a lot of room to
    manoeuvre with lots of discretion in terms of the answer they give with respect to questions of
    validity that arise before them, particularly with respect to the characterisation step.
   CASES ARE WON AND LOST AT THE CHRACTERISATION STEP.

TOBACCO CASE BRIEF MENTION (the one Elliot worked on…)
   This had to do with legislation allowing the Provincial Government to sue Tobacco companies
    in order to recoup health care costs incurred by treatment of smoking-related diseases.
   Prov. Govt. sought to uphold it using 92(13).
   Tobacco companies pulled out all the stops—calling it invalid as it affected interprovincial
    trade, extraprovincial entities and so on.
   It worked.
   The statute was struck down.
   The Province will go back to the drawing board and re-enact it without the offensive parts.
   Perhaps the ―enterprise liability‖ scheme in the legislation was too extreme for the judge. In
    contrast to ―entity theory‖ of liability, the companies were to be grouped together in liability…




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Doctrines, Rules and Terms:
    All of these go towards characterising/assigning the matters. [All discussed in the casebook,
                     and in Hogg‟s text with a separate heading for each of these.]

1. PITH AND SUBSTANCE DOCTRINE:
     Often used interchangeably with the word ‗matter‘, but connotes more.
     Pith and substance came into common usage because it was recognised that lawyers and
      courts when engaged in characterisation process, attempting to identify the matter of the law,
      would not engage in that process in isolation from ss. 91 and 92.
     They would engage in that process with the possible relevant classes of subject in mind.
     Lawyers would argue for a matter that they knew would be ascribed to the level of government
      they were advocating for. E.g., in Starr v. Houlden, if you characterised it as a preliminary
      inquiry into those charged with a criminal offence, it would have to go under the criminal
      power.
     Lawyers argue about appropriate characterisation very much with the classes of subject they
      want the court to anchor the law in, in mind.
     Language and ideas emanating from these classes of subjects will be discussed.
     Starr: on the other side, L‘Heureux-Dube‘s characterisation in her dissent p. 166, pith and
      substance says we know we will have all these classes of subject in the background, but what
      we need to look at is what is the heart of this law, its pith and substance, at the core of this
      law.
     What is its most important feature, not in the Lederman sense, but in the ‗fit‘ sense. What is
      the predominant feature. Inevitably, when classifying the law you will get competing classes
      of subjects coming to the fore.

2. INCIDENTAL EFFECT—THE FLIPSIDE OF PITH AND SUBSTANCE:
     At the same time as identifying the pith and substance of the law, the court also talks about
      incidental effects.
     When deciding pith and substance, the court is really deciding the case.
     Incidental effect is an acknowledgement that there may be (usually are) aspects to this law
      reflecting the other order of government‘s jurisdiction.
     E.g., Starr commissions of inquiry –
       It‘s true that in all previous cases where provincial legislation upheld and commissions
           entitled to do what provincial government asked,
       It‘s true that it was possible that people would have faced criminal prosecution as the
           result of the inquiry,
       But that was an incidental effect of the inquiry, with the pith and substance being
           something else.
       In this particular case, it was the criminal dimension that was at the heart or
           core and so it was characterised as falling under s. 91(27).
       This one he struck down by saying that in those the pith and substance was something
           that came within provincial law and the criminal aspect was merely incidental.
       Here the criminal aspect is the pith and substance rather than merely incidental, so the
           Order-in-Council gets struck down.
     Pith and substance is in effect what is most important, incidental effect is what
      is less important.

3. DOUBLE ASPECT DOCTRINE:
     This doctrine applies to a situation in which, having identified both federal and provincial
      aspects, you cannot prefer one over the other.
     Like in Lederman‘s model, both orders of government are free to enact this kind of law.

4. ANCILLARY OR NECESSARILY INCIDENTAL DOCTRINE:

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   E.g.: Assume a federal law that has within it a provision that, if viewed in isolation, would look
    almost certainly to be an encroachment on provincial legislative jurisdiction.
   However, this particular provision has not been enacted in isolation but as part of a larger
    whole.
   For that reason, when characterising it for division of powers purposes it is appropriate to
    take into account that larger whole and in particular the character for division of power
    purposes of that larger whole.
   The ancillary or necessarily incidental doctrine has evolved to permit courts to uphold
    these questionable parts on the basis of their association with the larger whole.
   The part is described as being ancillary to, or necessarily incidental to, the whole, and on that
    basis is upheld. Pp. 183-4 leading authority on this is General Motors.
     There, Dickson C.J. describes that doctrine in considerable detail such that the doctrine
        as doctrine becomes quite complicated.
     Challenge to federal anti-combines legislation that allowed parties claiming a loss for
        anticompetitive behaviour, to sue parties responsible for anticompetitive behaviour,
        under the Act, to recover that loss.
     This would seem to be a provincial sphere of jurisdiction because property and civil rights
        are all about civil rights of action, and solely in provincial jurisdiction(s.92(13)).
     However, the provision is upheld as necessarily incidental to larger whole.
   This doctrine is far more narrow in scope than the other doctrines, and used far less
    often.

5. COLOURABILITY:
    This is relevant when, in the court‘s view, the legislature has tried to pull a fast one by
     dressing up legislation to make it look like it deals with something within jurisdiction when in
     fact it deals with something outside jurisdiction.
    Because it goes to the bona fides of legislators, courts are naturally reluctant to use the
     term, as it essentially suggests bad faith on the part of the legislative body that enacted it.
    The leading authority is Reciprocal Insurers, 1920s, in which federal legislation purporting to
     regulate the insurance industry, but incorporated not in a distinct statute to that end but
     rather in the Criminal Code, was struck down.
    The background was that for some reason both Parliament and provincial legislatures
     wanted jurisdiction over insurance industry.
    The provinces won, and the Feds kept trying to get into this area by dressing up their
     legislation like criminal law instead of a regulatory law which it was.
    The Court said NO, you don‘t have jurisdiction over the insurance industry, and you can‘t put
     regulatory regime into Criminal Code to get away with it.
    A more recent example of a piece of legislation being struck down because the court was not
     satisfied that the law was really being presented in its true colours was the attempt by
     government of Nova Scotia after Morgentaler to get at abortions by requiring that those
     abortions had to be performed in hospitals.
    This was a pretty clear attempt to get rid of Morgentaler.
    The legislation was struck down, and though they did not use the term colourable, their
     thinking was clearly along those lines.

6. MUTUAL MODIFICATION:
    Describes the process of limiting classes of subjects on either side of ss. 91 and 92 in order to
     give meaningful content to a competing class of subject on the other side.
    A good example of this is the way in which Privy Council went about interpreting 91(2) trade
     and commerce and 92(13) property and civil rights.
    Either one of those could have been interpreted very broadly so as to in effect deny
     meaningful content to the other.
    It was thought to be not appropriate to give either unlimited scope, so rather the courts had
     to come up with some interpretative scheme that would give both independent meaningful
     content.


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    Result was that 91(2) was defined in terms of regulation of international and interprovincial
     trade along with general regulation throughout the Dominion, while 92(13) was defined in
     terms of intraprovincial trade.
    Another example is in terms of marriage and divorce—which are under federal jurisdiction,
     but the solemnisation of them is provincial.

7. EXCLUSIVITY:
    Important because in minds of many, the term exclusive found in the introductory
     paragraphs had to be taken seriously, which meant for those of this view that overlapping
     jurisdiction was not a good idea.
    I.e., extensive use of double aspect doctrine was not a good idea. It was seen to be
     inconsistent with this notion of exclusivity that featured so prominently in the text of 91 and
     92. This view thought the two sets of classes of subject had to be kept distinct from each
     other. Abel‘s thinking was premised on a strong commitment to this notion of exclusivity.
     BRIGHT LINE IDEA.

8. EXHAUSTIVENESS:
    Designed to capture the notion that at least insofar as 91 and 92 are concerned, there should
     be no law that is beyond the reach of Parliament and the provincial legislatures to enact. In
     other words, it reflects the view that when the drafters put 91 and 92 together, they effectively
     granted to Parliament and the legislatures all the law -making powers that a government in a
     unitary state would have.
    There is no gap as far as legislative jurisdiction is concerned.

9. CONCURRENCY:
   Coined to describe areas of jurisdiction that are shared by the two orders of government. This
    what you get with the DOUBLE ASPECT doctrine.
   One must distinguish between fields of jurisdiction that are explicitly in the Constitution itself
    identified as shared fields of jurisdiction (de jure), e.g., s. 95 agriculture and immigration, and
    de facto concurrent fields of jurisdiction that, through the application of the double aspect
    doctrine, have evolved into shared fields of jurisdiction even though they are not so identified
    expressly in the Constitution.


J.D. Whyte, “Constitutional Aspects of Economic Development
Policy”

   Complaint which he then converts into a hope for the future:
   The S.C.C. and, prior to it, the P.C., particularly in the area of economic regulation and
    allocation of jurisdiction in respect thereof made no attempt to step back from language of 91
    and 92 and try and extract what he calls ―deeper structural or organising ideas of the
    Constitution‖ p. 179
   This is reminiscent of Abel‘s concern - where the drafters of the B.N.A. Act were intending to
    accord to Feds jurisdiction over economic regulation, while provinces were to get jurisdiction
    over social and cultural areas of our lives.
   The concern here is that there was no attempt by either S.C.C. or P.C. to do the sort of
    thinking Abel wanted courts to do.
   The result, according to Whyte, is that jurisdictional issues in this area remain confused,
    difficult to resolve and highly unpredictable.
   We need to aim for a tidier division of powers and also enhanced federal jurisdiction.
   ELLIOT: For successful economic regulation in particular, both Feds and provinces
    recognise that there has to be a good deal of co-ordination and Co-operation between them.
    Co-operative federalism is at times recognised by the courts.

Bruce Ryder, “The Demise and Rise of the Classical Paradigm in

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Canadian Federalism: Promoting Autonomy for the Provinces and
First Nations”

   ELLIOT: Particularly important - good job of placing in larger historical and ideological
    context the way in which P.C. in global sense has dealt with questions of validity.

   Two distinct paradigms of judicial review in this area: (1) classical paradigm, (2) modern
    paradigm.

   The distinction between classical and modern is the manner in which under
    each the courts have dealt with notion of exclusivity.
   Under the CLASSICAL PARADIGM, Ryder notes you see strong understanding of
    exclusivity with result that there is little opportunity or room for overlapping jurisdiction.
     This approach sees the classes of subject in 91 and 92 as ―watertight compartments‖, in
        the sense that they constrain both the power of the provinces and the power of the Feds to
        legislate in particular areas.
     This paradigm is associated with judicial activism: with the courts taking the power of
        judicial review seriously, and in relative terms at least, striking laws down and ruling
        them of no force and effect with some frequency.
     This paradigm also reflects the court‘s dislike of Federal meddling in the economy.

   THE MODERN PARADIGM entails a weak understanding of exclusivity, and results in
    considerable room for overlap.
     This means permitting both the federal and provincial orders of government, so long as
        they focus primarily on areas in their jurisdiction, reaching out and having an effect on
        areas outside their jurisdiction.
     This paradigm is associated with judicial restraint, with courts staying their judicial
        review hand, in relative terms striking laws down and ruling them of no force and effect
        infrequently.
   Note the strengths and weaknesses of each effect - see p. 182

   Also extract from this piece

    1. In historical terms classical paradigm predominates through latter nineteenth and early
       twentieth centuries, pretty much up until appeals to P.C. abolished, and the modern
       paradigm predominates thereafter.
    2. However, Ryder also suggests that in addition to noting these paradigms are connected to
       particular historical periods, they are likewise connected to ideological considerations.
        His point is that the classical paradigm associated with judicial activism has
           tended to be used in the context of economic regulation, whereas the modern
           paradigm associated with judicial restraint has tended to be associated with
           regulation in areas outside the economy, particularly in areas of protecting social and
           moral values.
        The ideological component being the suggestion that the use of the classical paradigm
           is a function at least in part of a commitment on the part of P.C. judges to basic
           laissez-faire economic theory, so that economic regulation in ideological terms was a
           bad thing, and they used the power of judicial review to give expression to their
           concerns in that regard.




    Interjurisdictional Immunity and Reading Down

    Applicability
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   Questions of applicability generally arise when you have generally worded provincial
    enactment that when viewed as it is drafted, i.e. its general language, to be perfectly valid
    provincial legislation coming within a provincial class of subject, but that when this
    legislation is applied in a particular context or set of contexts looks to be
    problematic in division of powers terms, looking to encroach on a sphere of
    federal legislative jurisdiction.
   In that context courts will often be asked to deal with questions of applicability: Is it
    Constitutional for the provincial government to apply this otherwise perfectly valid enactment
    in this particular context or set of contexts?
   Typically such questions arise in the context of provincial legislation, and some including
    Hogg argue it can only arise in the case of provincial legislation.
   Note that the very notion that you can ask questions of this kind, that there is a
    category of division of powers called questions of applicability, has been the
    subject of critical analysis by scholars and by judges.
   The most trenchant critic of this notion is Peter Hogg, who in the second edition of his book in
    1985 claimed that questions of applicability were inappropriate, and should never be argued.
    In his view, endorsed by Dickson C.J. in late 80s, the notion that you could hold provincial
    legislation to be inapplicable, which became known as applying the doctrine of
    interjurisdictional immunity, was unprincipled and perverse.
   It was unprincipled because it was inconsistent with the pith and substance doctrine - in
    his view, if the legislation is generally worded and when so worded is valid, that should be the
    end of it. Incidental effect doctrine is designed to deal with legislation touching on federal
    spheres, and that should be of no moment and characterised as merely incidental.
   It was perverse for two reasons:
     firstly because it was unnecessary, because of the paramountcy doctrine that if federal
         legislation conflicts with provincial legislation the federal legislation wins out; and
     secondly because it only works one way (in his interpretation): you can only ask questions
         of applicability in relation to provincial legislation and not federal; it applies only in
         spheres of federal jurisdiction, not spheres of provincial jurisdiction.(Elliot disagrees…)
   At the time Hogg made this argument, there was already a fair amount of jurisprudence
    accepting this idea, which involved the asking of such questions and the application of
    doctrine of jurisdictional immunity in two distinct areas: area of federally incorporated
    companies, and in the area of federally regulated undertakings.
   S. 92 allowed provinces to incorporate companies for provincial objects - so courts inferred if
    the objects were not provincial, then the company could not be provincially incorporated -
    and therefore the incorporation of companies with other than provincial objects must fall to
    the Feds.
   This particular group of cases arose in the early 20th century and involved attempts by
    provincial governments to apply their companies legislation to federally incorporated
    companies, and out of those cases evolved the notion that it was unconstitutional for
    provincial governments to apply their otherwise perfectly valid companies
    legislation to federally incorporated companies if as a result of applying that
    legislation the status and essential powers of federally incorporated company
    would be impaired. E.g. provisions relating to things like the raising of capital
    by federal companies in the provinces without following provincial guidelines.

RECAP….
   Notion of applicability has deep roots in Canadian law; roots lie particularly in two areas: that
    relating to applicability of provincial legislation to federally incorporated companies - s.
    92(11) grants to provinces legislative jurisdiction over incorporation of
    companies with provincial objects - courts recognised jurisdiction in corporate law at
    federal law as well for corporations with other than provincial objects under the P.O.G.G.
    power and also under s. 91(2) regulation of trade and commerce.
   Questions of applicability arose in attempts of provincial regulators to apply
    provincial corporate law to federally incorporated companies, leading the courts
    through the ―impairment or sterilisation‖ test to grant a limited form of

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    interjurisdictional immunity to federal companies in provincial legislation - where the status
    or essential powers of such companies would be sterilised or impaired.
     E.g., provincial legislation relating to the ability of companies to raise capital, limiting in
        some way the ability of companies to raise capital by imposing restrictions - while
        perfectly valid and applicable to provincially incorporated companies, it was held
        inapplicable to federally incorporated companies because their powers would be sterilised
        and impaired - they were free to raise money free of the provincial restrictions

   Federally regulated undertakings s. 92(10)(a) and (b) and (c) transportation and
    communication undertakings. e.g. interprovincial railways, truck lines, bus lines, telephone
    companies, etc.

   A number of late nineteenth/early twentieth century cases granting interjurisdictional
    immunity to those undertakings from otherwise valid provincial legislation, with again the
    test apparently being whether or not applying the provincial legislation would sterilise or
    significantly impair the functioning of the federally regulated undertaking.

       E.g., Toronto v. Bell Telephone 1905 Bell was granted interjurisdictional immunity from
        provincial legislation in Ontario granting municipalities authority to impose conditions on
        ability of company to erect poles within their municipal confine.
       P.C. granted Bell interjurisdictional immunity, allowing them to erect their poles in
        spite of attempt of municipality to impair their ability to do so, on the basis of sterilising
        or impairing the undertaking.

McKay v. The Queen (1965 S.C.C.)

   FOR ALL OF THESE CASES: On what basis does S.C.C. resolve these questions of
    applicability? What is the test they apply in deciding if otherwise perfectly valid provincial
    legislation should or should not be held applicable in this federal context?
   Legislation in question was a municipal bylaw passed by Borough of Etobicoke which
    purported to prohibit, with some exceptions not applicable here, the display of signs in
    residential areas
   The bylaw was generally worded - no list of all the signs that were prohibited, but instead the
    prohibition against the erection of signs was general, with the limits of its application dealt
    with through the named exceptions
   Little doubt that a bylaw of that character on the face of it appears clearly to be valid
    provincial legislation - in the property in the province component of s. 92(13)
   However in this instance the municipality attempted to apply the bylaw to the erection of
    signs supporting the candidate and or party in the course of a federal election campaign.
    Someone to whom the municipality sought to apply the bylaw decided to challenge its
    applicability, on the basis of the power to regulate or prohibit the erection of signs of this
    character during a federal election campaign resides solely with Parliament - would anchor
    this allegedly exclusive power under s. 91 residual P.O.G.G. power
   S.C.C. decides narrowly 5:4.
   What divides the two appears to be a very fundamental question of Canadian
    federalism, namely in circumstances like this, do you
         A. isolate the application that is at issue and examine its constitutionality, or
         B. because the legislation is generally worded, do you focus on the legislation itself?

   Majority of 5 held the municipal bylaw to be inapplicable engaged in an analysis
    of the application itself - of the impugned application of this bylaw to federal
    election signs
   Minority of 4 which would not have held the legislation inapplicable, focused on the generally
    worded legislation itself

   P.187: ―In the case …‖ Cartwright for majority focuses very much on the legislation

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    and in effect drafts a new provision affecting this application and examines it in this context,
    and concludes that if the municipality had enacted that provision it would have been
    inapplicable because proceedings at a federal election is a ‗matter‘ coming within exclusive
    federal jurisdiction:

   ―political activity in the federal field‖ - focuses on the specific application of the legislation
    and concludes that application is beyond provincial jurisdiction


   P.189: ―Undoubtedly …, valid.‖ Martland for minority focused on the general
    legislation itself, not the application of the legislation - focuses on the whole and concludes
    it is valid legislation
   Disagreement is about what the court should be focusing on.

   What matters in the end is that Cartwright won - the fact that he won
    suggests that it is appropriate in situations such as this, as in the old
    cases for federally regulated companies and undertakings, to examine
    in isolation the impugned application.


   TEST: In terms of the test to be applied, it would appear from Cartwright‘s analysis that the
    applicable test is the pith and substance test, but the pith and substance test applied not to
    the legislation as drafted, but to the impugned application.

   LESSONS: (1) in questions of applicability, focus on application not the legislation as
    drafter,
               (2) in focusing on the application, the test you apply is essentially ―pith and
        substance”


    Notes and Questions 190

   Mull the question of whether this case prevents provinces and municipalities from regulating
    any signs in federal elections: what if they erected a large billboard that made it impossible
    for drivers to see oncoming traffic? The provincial interest grows and grows.



Commission du Salaire Minimum v. Bell Telephone Co. of Canada
(Bell #1)

(1966 S.C.C.)

   Provincial legislation at issue is minimum wage legislation, from Quebec
   Again generally worded, nothing specifying that the government of Quebec wanted this
    legislation applied to Bell in particular or federally regulated undertakings in general
   Provincial jurisdiction to enact minimum wage laws would be grounded in property and civil
    rights in the province
   Its origins lie in judgments rendered at late 19th early 20th century by P.C., in particular a
    judgment by Viscount Haldane in which he held that the doing of business within a province
    by any economic undertaking whatsoever had to be pursued through the making of contracts,
    which is all about the creation of civil rights, hence because the provinces have jurisdiction
    over civil rights in the province, they have jurisdiction over the doing of business in the
    province (that‘s how they got jurisdiction over insurance). Bear in mind ‗civil rights‘ in s.
    92(13) is not used in its American sense of human rights, but in the sense of rights in relation

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    to contract and tort.
   The power to regulate business, so the reasoning subsequently continued, had to include the
    power to regulate labour relations. Labour relations was not only itself about the making of
    contracts, but it was also seen to be integral to the functioning of and hence management and
    operation of the business undertaking itself.
   Here, the employer to whom the minimum wage law in question is being applied is a federally
    regulated undertaking. Bell Telephone, under s.92(10)(a) as interprovincial and international
    communications.
   Bell didn‘t want Quebec‘s minimum wage laws applied to it, and challenged the attempt of the
    regulator in question to apply it.
   Issue: provincial minimum wage leg from province of Quebec. Again, generally worded
    legislation. Nothing to specify that Quebec wanted the leg to apply to Bell Canada or federally
    regulated undertakings in general.
   S.C.C. decides that question of applicability that arises here should be resolved in favour of the
    federal side of the question — interjurisdictional immunity is granted, and Bell does not have
    to pay the minimum wages prescribed by Quebec‘s legislation.
   Unanimous reasons written by Martland only a year after his passionate dissent
    in McKay v. The Queen, granting the immunity Bell was seeking.(!!!)

   Test: Basis for granting the immunity:
   Many commentators would say that there is a new test in town that expands the scope of
    interjurisdictional immunity, referring to Martland‘s use of the concept ―affecting a vital
    part‖ of a federally regulated undertaking. They would say that, in his view, that legislation
    affected a vital part of Bell‘s undertaking, in particular labour relations.

   Elliot is not sure that is the best way to interpret it: he thinks it‘s open to same
    interpretation as Cartwright‘s judgement in McKay:
                  applying standard pith and substance analysis to the impugned legislation:
                  asking whether or not in effect a provincial enactment that stipulated that
                     Fed undertakings were to be governed by Quebec‘s minimum wage laws,
                     asking whether or not in pith and substance such a provision would be valid
                     —
   Elliot thinks this interpretation can be grounded in Martland‘s analysis. P. 190 and 191,
    language of pith and substance: if this legislation would be applied to undertaking like Bell,
    then province would be legislation in relation to a matter within exclusive federal jurisdiction,
    namely the regulation of the wages paid by an undertaking to its employees.
   Elliot thinks Martland here is no different from Cartwright’s analysis in McKay,
    in pith and substance in terms of how it applies in this particular instance.

Commission de la Santé et de la Sécurité du Travail v. Bell Canada
(Bell #2)
(1988 S.C.C.)

THREE CASES HANDED DOWN ON SAME DAY BY S.C.C.—
BELL #2, CNR, and ALLTRANS (ALL CONCERNED WITH WORKPLACE
SAFETY).

   Application of Quebec O.H.S. legislation to Bell, granting pregnant workers in that
    province the right to protective reassignment for health and safety reasons
   C.N.R. case: issue was ability of provincial health and safety inspector to inquire
    into a railway accident in which C.N.R. had been involved, which had caused death
    and serious injuries to C.N.R.‘s employees
   Alltrans case, interprovincial trucking business: B.C. legislation that imposed for health
    and safety reasons an obligation to ensure that safety boots were being worn by
    employees in question, as well as requiring establishment of a safety committee in the

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    workplace

   All the legislation is generally worded, with nothing indicating that it is to be applied to
    federally regulated undertakings, with no question that it was valid provincial legislation as
    worded under s. 92(13)
   Provincial regulator in each of these three cases attempts to apply those rules to federally
    regulated undertaking
   Interjurisdictional immunity is granted again - all three of these undertakings get
    immunity from the provincial legislation at issue.

   This judgment is of special importance because Beetz J. typifies in its modern
    incarnation the classical paradigm that Ryder spoke of, i.e.:
        He worked hard to try and keep overlap between provincial and federal spheres of
           jurisdiction to a minimum, and therefore to
        minimise the extent to which double aspect doctrine was applied, primarily because
        he saw as many Quebecois have, the classical paradigm as being the paradigm best
           able to protect Quebec‘s autonomy - minimising the extent to which federal
           legislation can encroach on what is normally seen to be exclusive spheres of provincial
           jurisdiction, leaving Quebec free to legislate in those spheres of jurisdiction.

   Because Beetz felt so strongly about ss. 91 and 92 and how to interpret and understand them,
    he took an academic head on - he took on Hogg and said Hogg was of the view that doctrine
    of interjurisdictional immunity was unprincipled and perverse.
   Beetz indicated that in his view this doctrine of interjurisdictional immunity, the notion that
    can properly ask not only about validity but also about applicability, was very principled
    precisely because ss. 91 and 92 speak of exclusive powers to legislate.
   In this particular instance, where in Beetz‘s view labour relations and working conditions
    within federally regulated undertakings must be within exclusively federal jurisdiction.
   If these are federal undertakings, then the power to legislate with respect to labour relations
    and working conditions within those undertakings must also be exclusively federal, and
   If we were to permit these provincial enactments, laudable as their goals may be, to apply to
    these federal undertakings, then that notion of exclusivity would have to be sacrificed.
   Beetz addressed Hogg‘s contention that doctrine of interjurisdictional immunity was perverse
    by addressing Hogg‘s argument of policy p. 200 midway down by saying that Hogg has
    policy wrong.
   Focusing specifically on provincial legislation of the character at issue in this particular case
    Beetz says if we were to permit provincial legislation to apply to federally regulated
    undertakings, bearing in mind we also have federal O.H.S. legislation directed at these
    undertakings, we‘d be in a hell of a mess.
   Beetz says don‘t leave it to doctrine of federal paramountcy to sort out which of these
    regulations apply as that will just create a lot of litigation and will moreover possibly be
    counterproductive.
   Thus, Beetz says that the doctrine of interjurisdictional immunity IS necessary as a matter of
    policy.
   The doctrine of interjurisdictional immunity properly applied is sound in principle and sound
    in policy, and is reaffirmed as a constitutional doctrine.
   Test Beetz uses in applying the doctrine: on occasion Beetz can speak in terms of
    affecting a vital part of a federal undertaking p.199.
   But Beetz attempts to draw the cases into a coherent whole he wants to see governed by a
    broader general approach. P.195(bottom): ―It should… bear upon those subject in
    what makes them specifically of federal jurisdiction‖  ―crunch‖ language
    according to Elliot and top of p. 198.
   P. 195 attempting to take accounts of fact that doctrine of interjurisdictional immunity
    has been applied in many more areas than federally incorporated companies and
    undertakings: has been applied in respect of R.C.M.P., armed forces, postal
    service, lands reserved for Indians, Indians, etc.

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     There are a lot of federal spheres of jurisdiction that have given rise to questions of
      applicability and in at least some cases have resulted in doctrine of interjurisdictional
      immunity being applied in their favour: works, things, and persons in federal jurisdiction.
     Trying to acknowledge that all of these other areas exist, and draw them together into one
      basic rule and principle: that even though all of these works, things and persons may be within
      special and exclusive jurisdiction of Parliament, they are still subject to provincial legislation
      of general application provided that application does not bear upon those subjects in what
      makes them specifically of federal jurisdiction. Same on p.198.

     5What    does bearing on those subjects in what makes them specifically of
      federal jurisdiction mean?
     Beetz does not answer that question, leaving us in the quandary that we were left in following
      Bell #1.

     It was possible to interpret that judgment as having been based on a test of whether the
      provincial legislation affects a vital part of a federal undertaking, as generally understood. But
      it was also possible to interpret that judgment as amounting to nothing more than pith and
      substance analysis applied not to the generally worded legislation but to its application in this
      particular context.

     The rest of Beetz‘s judgment in Bell #2 is also open to both interpretations. i.e., Beetz‘s use of
      language ‗affecting a vital part‘ on p. 199.

     However, as in Bell #1 there is a great deal of talk about matters and things which come within
      exclusive federal jurisdiction, a reference to pith and substance type analysis.
     Important to bear in mind that we don‘t get to applicability or operability until
      we‘ve resolved the question of validity.                  Once the legislation has been
      determined to be valid, we consider whether this application is valid.

     What is the basis the S.C.C. wants us to decide if a particular application is
      acceptable or not?
     If legislation is valid but you find its application in a situation inapplicable, then you must
      read the legislation down.

     DIFFERENCE BETWEEN THE TWO APPROACHES:

             If we use the ‗affecting a vital part‘ test, the focus would seem to be on and only on the
              effect of applying the law in this particular context.
             If by contrast we use pith and substance type analysis in respect of a particular application
              of the generally worded legislation, we are concerned with much more than effect - Starr
              v. Houlden both Lamer and L‘H.-D. canvassing a broad range of considerations in
              determining the pith and substance of the legislation, not merely effect.
             Going back to affecting a vital part, if focus is going to be solely on effect, then it
              seems that any effect will do to render that legislation inapplicable.
             Under pith and substance, any effect shouldn‘t do. The fact that there is an effect on a
              federal undertaking will be important and relevant, but it will not necessarily be
              determinative.
             This means that using ‗affecting a vital part‘, the doctrine of
              interjurisdictional immunity will be applied more often than if you use the
              pith and substance approach. The choice has a good deal of practical significance.

     There is no indication in Beetz‘s judgment which of the two understandings he has, but it is
      significant that he includes from pp. 201-203 a consideration of the double aspect
      theory, not as applied to the legislation as drafted, but to the legislation as applied in this

5   Oct. 15

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    particular context.

   Elliot understands him to be saying in effect we have valid O.H.S. legislation, but we are
    concerned whether that legislation can be constitutionally applied to these federal
    undertakings.

   The argument is made, but rejected by Beetz, that even if we focus on the legislation as
    applied, the double aspect doctrine should work in favour of the provincial legislation. i.e.,
    should result in the conclusion that the provincial legislation should apply to these
    undertakings on the basis that occupational health and safety as applied has a provincial
    aspect and a federal aspect as applied to these federal undertakings, but neither predominates
    over the other, and hence the provincial legislation should be permitted to apply.
   The fact that Beetz goes through that analysis does suggest that he is concerned
    not merely with affecting the undertaking but with the pith and substance of the
    impugned application.

   On the other side, given the origins of the doctrine of interjurisdictional immunity which lay
    in cases dealing with federally incorporated companies, a focus on effect and nothing more
    than effect makes some sense.
   The test that was and still is used in this category of cases dealing with application of
    otherwise perfectly valid provincial law to a federally incorporated company is very much
    effects-based: Does the provincial legislation sterilise or impair the status of
    federal companies? An analysis which is very much effects-based. So it is not surprising
    that the development of this analysis is effects-based.
   LAW IN THIS AREA IS UNCLEAR POST-BELL #2.
   Generally speaking, both Bells are interpreted in terms of the ‗affecting a vital part‘ approach
    by Hogg, etc.
   Elliot is not so sure that interpretation is necessarily the correct one, and moreover as a
    matter of principle it seems to him the alternative interpretation would be preferable. If pith
    and substance if appropriate in dealing with validity, should also be appropriate for
    applicability - why should you suddenly shift from pith and substance to collateral effect?
   Explains Hogg‘s contention that this doctrine has no principle, because if you take Elliot‘s
    analysis, that complaint is without merit.


Notes and Questions 205

   Re. applicability of otherwise perfectly valid provincial environmental leg to companies: p.
    206 Regina v. Canadian Pacific Ltd. 1985 — held applicable, but reasoning was skimpy.
    Court gave oral reasons, so not a very authoritative precedent. They really just said this case
    was governed by an old precedent.

   Part of a trilogy concerned with the attempted application of provincial occupational health
    and safety to fed regulated undertakings. Here, pregnant workers have the right to protective
    reassignment for health and safety reasons. CNR case: issue was ability of provincial health
    and safety inspector to inquire into a railway accident in which CNR had been involved, which
    had caused the death and serious injuries to CNR‘s employees. Alltrans case: B.C. legislation
    that imposed for health and safety reasons an obligation to ensure that safety boots were
    being worn by employees in question, as well as requiring establishment of safety committee
    in the workplace.
   All the leg is generally worded, with nothing indicating that it is to be applied to fed regulated
    undertakings, with no question that it was valid provincial legislation as worded under
    s.92(13). Prov regulator in each of these three cases attempts to apply those rules to federally
    regulated undertaking.
   All 3 of these undertakings succeed in getting the immunity from the provincial leg at issue.



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Note 2: A.G. (Quebec) v. Irwin Toy 1989 S.C.C.:
   This was a challenge to Quebec legislation that prohibited all forms of advertising to children
    under the ago of 13.
   The prohibition was directed not a TV stations but at the companies looking to do the
    advertising.
   Irwin Toy raised a question initially about the validity of this legislation and tied to have it
    ruled unconstitutional, invalid, null and void, of no force and effect, in its entirety.
   That failed — S.C.C. decided it was valid legislation coming under provincial jurisdiction
    under s.92(13), property and civil rights.
   The Court was then confronted with question of applicability.
   That question was seen to be appropriate because TV broadcasters fall within s.92(10)(a) and
    hence are federal undertakings. Question now became: could this otherwise perfectly valid
    provincial legislation constitutionally be applied to such an undertaking as TV broadcasting?
   Got a purported refinement of the law that only served to further muddy the
    waters.
   Question of applicability was resolved in favour of the provincial legislation — held applicable
    in this particular context.
   The S.C.C. drew a distinction between provincial legislation that applied directly to a federal
    undertaking, and provincial legislation that applied only indirectly to a federal undertaking.

NEW TEST?
 Having drawn that distinction, the S.C.C. went on to say that :
   when you‘re concerned with a provincial law that applies directly to a
     federal undertaking, you should apply the vital part test, but
   when you‘re concerned with provincial legislation that applies only
     indirectly to the federal undertaking, you apply the ‗impairment or
     sterilisation‘ test.
  THIS IS AN INTERESTING INNOVATION, WITH NO REASONS GIVEN AS TO
  WHY…

   In this particular instance, the provincial law applied only indirectly to the federal
    undertaking, since aimed at toy companies and not the broadcasters themselves, so the
    impairment/sterilisation test was the appropriate one to apply.
   They concluded that the application of this law to a TV broadcaster would not impair the
    status of or sterilise the operations of a broadcaster and hence the provincial law could apply.

   Hogg finds this refinement completely and utterly ludicrous(AND IT IS…), and it is given no
    justification in the reasons for judgment.
   Only five members of the court decided this case, and so, given the lack of clarity in terms of
    the doctrine or tests being used by the court in this area of the law, Elliot doubts that what the
    court did here will stay with us for long.
   This is not only because only five JJ. sat but also because this distinction has nothing to
    commend it.
   How can it matter whether the legislation applies directly or indirectly if we are concerned
    with areas of exclusive jurisdiction?
   With this test, one also runs the risk of provincial legislatures merely manipulating the law so
    that their application is indirect rather than direct.


Summary
   Questions of applicability are appropriate questions to ask.
   Doctrine of interjurisdictional immunity, the notion that perfectly valid legislation can be held
    in some situations because of peculiarly federal character of those situations, to be held
    inapplicable.


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   Insofar as questions of applicability are concerned in context of federally incorporated
    companies and purported application to them of provincial legislation, the test remains
    test of sterilisation or impairment. Cf. p. 212 Multiple Access v. McCutcheon. A clear
    test.
   Outside that subcategory of federally incorporated companies, Elliot’s view is
    that the test is not clear:
   Either it is affecting a vital part, or it is standard pith and substance analysis focusing not on
    the legislation as drafted but on the particular application of it that is at issue.
   Note that most commentators, and judges as well, would understand that the
    first affecting a vital part test is the better interpretation of the law in this area
    and hence is the test to apply.
   [Note: Labour relations in a federal undertaking have since been said to really be dealing with
    the federal undertaking, so now the provinces through 92(13) have jurisdiction over labour
    relations in provincial public and provincial private sectors, while labour relations in the
    federal public and private sectors fall within federal legislative jurisdiction. What matters
    now is not that it is labour relations, but in which context, federal or provincial, you are
    working. Regulating labour relations is seen to be integral and subsumed within the power to
    regulate the undertaking.]

4B—FEDERAL LABOUR RELATIONS LAW
   This business was owned by 4 First Nations brothers (Brandt).
   48/68 employees were from the same band,
   10 more were former members, and 10 were non-First Nations.
   The business was located on a Reserve, so the question was…
   Could this company be regulated by Ontario‘s Labour Relations Law?
   The ―Indian Dimension‖ was where the conflict lay.
   HELD: The provincial legislation was applicable. The ―Indian Dimension‖ was insufficient to
    get immunity.
   The reasoning was very proto-Bell #2 (it was 8 years before Bell #2), with this sort of
    reasoning:
     If the provincial statute applies, would it be encroaching on a core/integral element of
         the Federal jurisdiction over Indian rights and land?
    The Court found that this labour regulation did not encroach on any fundamental aspects of
     Indian statutes, etc..
    Federal authority over First Nations (―Indians‖ under the BNA Act and the Indian Act) comes
     from s.91(24)of the Constitution.
    The relevant section of the Indian Act is section 88 (see handout).
    At the time of 4B, s.88 was held to apply irrespective of the context or nature of the
     impugned Provincial legislation.
    Six years later, in Dick v. The Queen, the S.C.C. said that s.88 is relevant only when general
     principles would lead to the conclusion that it was inapplicable. (?)
    So…
      Start with general principles and then move to s.88. It is there to rescue some provincial
          enactments, but what exactly will it save? Maybe some, under this regime.



Paramountcy (Operability)
   Operability arises where there is valid provincial and valid federal legislation in the same
    area. F
   For whatever reason, an entity, whether an individual, a company or organisation of some
    sort, to which the provincial legislation is being applied, seeks to avoid its application.
   This application is not on the basis of the doctrine of interjurisdictional immunity, but on the
    basis that the federal legislation in this field conflicts with the provincial and


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      thereby renders the provincial inoperative.
     The focus of the inquiry is on the relationship between the federal and provincial
      enactments. The question is, do they conflict? If they do, then the doctrine of
      federal paramountcy applies, and the provincial legislation is rendered
      inoperative for as long as that conflict exists.

     Note that there is one provision in the Constitution, s. 94(a), which creates a form of
      provincial paramountcy over federal legislation, dealing with old age pensions and
      supplementary benefits. It stipulates that while Parliament can legislate in those areas, if it
      chooses to legislate in those areas, such legislation cannot affect the operation of any law
      present or future of a provincial legislature in relation to any such matter.
     Where does the rule of federal paramountcy come from?
     In some very limited areas, from the text of the Constitution itself, for those areas where
      Constitution makes explicit provision for de jure concurrency.
       In s. 95, agriculture and immigration, and in s. 92(A)(ii), which granted to the provinces
          jurisdiction to legislate in relation to ‗the export from the province to another part of
          Canada of the primary production‘ from certain natural resources.
     In both of those provisions, the Constitution itself stipulates that in the case of
      conflict between federal and provincial legislation, it is the federal that prevails.
     In the other areas with no de jure concurrency, but rather, de facto concurrency, with both
      areas of government as a result of judicial interpretation being permitted to legislate in the
      same area, where does the doctrine of federal paramountcy come from?
     Not from the text of the Constitution, but … from the courts.
     It has obscure origins, but by the turn of the century, the P.C. had developed (presumably on
      the basis of its general understanding of ss. 91 and 92 and its understanding of Canadian
      federalism) the idea that, in the case of conflict, the federal legislation would prevail and be
      paramount.

     The question now is, what do the courts consider to be a conflict? When are
      courts satisfied that provincial legislation has to give way to federal?


     FOUR POSSIBLE APPROACHES OR TESTS:
      1. Overlap/duplication test. Conflicts arise if there is overlap through to and including
         the point of duplication between the two enactments. The provincial overlaps with, or in
         extreme cases duplicates, the federal. Favours the Feds.
      2. Impossibility of dual compliance test. The only time that you have a conflict is
         when it is practically and legally impossible for both enactments to operate together.
         Favours the provinces. Standard example of this is that the federal law says ―thou shalt
         not do X,‖ while provincial law says ―thou shalt do X,‖ then dual compliance is impossible.
      3. Frustration of the federal purpose test. Conflict arises if permitting the provincial
         legislation to operate would result in the purpose of the underlying the federal legislation
         being frustrated. Court identified the purpose underlying the federal legislation, then
         looks at provincial legislation in terms of its effect, and determines that effect frustrates
         the federal purpose.
      4. Intention to cover the field test. Court looks to see whether or not the Feds either
         explicitly or impliedly in enacting their legislation indicated that they want this to be the
         only legislation in the field. The Feds have indicated whether they want their legislation
         and their legislation alone to govern in the field.

     6While the rule is that in conflicts the federal prevails, there is uncertainty over what actually
      counts as a conflict.
     Possible to identify at least 4 possible, not well-established, candidates for the test for a
      conflict, as set out above.

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   Important points:
    1. Don‘t assume that the above tests are mutually exclusive in the sense that if you choose
       one you are necessarily excluding the others — these tests can exist side by side.
    2. The choice of test can have significant implications for Canadian federalism, easily
       demonstrated by looking at the first two:
                If one were to opt for overlap including to the point of duplication test,
                   that would strongly favour the central order of government.
                By contrast, the impossibility of dual compliance test favours the
                   provinces, because it will be a rare case in which it will truly be impossible
                   to comply with both enactments. If that is your test, provincial legislation will
                   be allowed to co-exits alongside federal legislation with great frequency.


Ross v. Registrar of Motor Vehicles (1975 S.C.C.)

   Identify the relevant federal and provincial enactments, and identify the basis
    on which those enactments were upheld as valid.
   Federal legislation, s. 238 of Criminal Code, provision that permitted trial judges at the
    point of sentencing those convicted of certain driving offences, including driving while
    impaired, to suspend the convicted person‟s driver‟s licence either throughout a particular
    limited time period, or for certain times during given days of the week and in given places
    over the course of a particular time period.(Federal)
   The order further specified that Ross‘ driver‘s licence was not to be suspended.
   (Under my reading of the section, the trial judge was not giving the authorisation to order
    that Ross‟s licence NOT be suspended, just gave him jurisdiction to order a prohibition on
    time and place. Trial judge had no authority to impose the additional order to not suspend
    the licence.)
   In this particular instance, trial judge had decided as part of Ross‘s sentence to suspend his
    licence except for the purposes of driving to and from and in relation to work between certain
    identified hours in the day.
   The case arose because a provincial enactment, the Ontario Highway Traffic Act s. 21,
    stipulated that the licence of any person in Ontario convicted of certain driving
    offences, including driving while impaired, would upon conviction
    automatically be suspended throughout a particular time period, here three
    months, the effect of which was to deny Mr. Ross the benefit of the order made by the
    sentencing judge pursuant to s. 238 of the Criminal Code - Mr. Ross couldn‘t drive at all
    during a period of three months.

   Both enactments challenged on basis of their alleged invalidity
   Federal enactment upheld on basis of s. 91(27), that should be allowed to provide for these
    tailored licence suspensions as part of the Criminal Code
   Provincial enactment likewise upheld on basis of ss. 92(13) and (16) - see pp. 208-9 Duff
    C.J.C.
   Both enactments are upheld as constitutionally valid
   The Court enters the issue of whether or not there is a conflict between the two sufficient to
    give rise to the doctrine of federal paramountcy
   Court held 5:2 that there was no conflict: the provincial enactment is not rendered
    inoperative pursuant to doctrine of federal paramountcy because the doctrine doesn‘t apply in
    these circumstances.

   Question for us: on the basis of what understanding of conflict did the majority
    proceed?

       What test of conflict did they apply? P.209 ―If such an order is made in respect …
        simultaneously‖
        Question is if it is possible for both enactments to work together,  using the test of

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        possible dual compliance.
       Pigeon J.‘s view was that it was possible to comply with both – Ross was not required by
        the order to drive, he was just permitted to drive – he could satisfy both enactment by not
        driving.

   Australian doctrine: Intention to cover the field:
   Pigeon‘s interpretation of Australian law is p. 210 intention to cover the field as the relevant
    test.
   Pigeon goes on to say that is we applied this rule, Parliament did not intend to exhaustively
    cover this field - open to the possibility that the intention to cover the field test might be
    relevant or appropriate but it didn‘t have to be decided in this case because that test wouldn‘t
    result in conflict being found to exist here
   If the frustration of federal purpose test had been applied here, what the result
    have been?
   Possible argument: That the provincial enactment is preventing the trial judge from
    exercising the discretion that Parliament ordered judge to exercise.
   THE BOTTOM LINE as it is generally understood is supportive of possibility of dual
    compliance as basically the only test.



Multiple Access Ltd. v. McCutcheon (1982 S.C.C.)

   Federal legislation: Canada Corporations Act providing for a cause of action on behalf of
    those who claimed to be victims of insider trading on the part of officers or directors or any
    other insiders of a federally incorporated company
   Provincial enactment: Ontario Securities Act which provides exactly the same cause of
    action but without the limitation that the insiders have to be insiders in a federally
    incorporated company.

FACTS:
 In this instance, the cause of action in question was commenced under the provincial
   enactment in circumstances in which on the face of it both that enactment and the federal
   enactment would have application, because the insiders were insiders within a federally
   incorporated company.
 The insiders took a run at the provincial enactment on the basis of the question of validity, of
   applicability to a federal corporation, and of operability - all because the limitation period
   under the federal enactment had run out - so winning on any of those arguments would have
   meant success under both enactments
 Validity: Federal upheld on basis that insider trading provisions properly should be
   characterised as corporate law, part and parcel of creating federally incorporated company
   and hence valid on basis of P.O.G.G. and regulation of commerce - see p. 212 - and prior
   authorities.
 Provincial upheld on basis that it was securities regulation legislation and assigned to s.
   92(13), again because previous authorities indicated securities regulation legislation was
   legislation in relation to property and civil rights
 Court divided 6:3 on this. Note that Dickson on basis of his commitment to modern
   federalism offered the opinion of the majority and applied the double aspect doctrine to
   ensure that both enactments were upheld as valid.
 Minority opinion authored by Estey, but Beetz signed on - the classical view.
 Applicability: Resolved in favour of provincial government, summarised on bottom of p.
   212, applying sterilisation or impairing essential capacities test, always the test for application
   of provincial legislation to federally incorporated companies
 Operability: No conflict, provincial enactment can continue to operate alongside the federal,
   and this particular invocation of that enactment can continue and run its course.



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   Basis the court reached that conclusion: what understanding or test for conflict
    is applied?
   The impossibility of dual compliance p.215 as the ONLY appropriate test: “In
    principle, there would seem … of the other”.
   BUT look on p.214: ―[T]here is no true … purpose of Parliament‖. The language of
    frustration of federal purpose, which is the test that LaForest appears to latch on to and apply
    in Bank of Montreal v. Hall.
   Morden J. of C.A. says once that provincial enactment has been involved, it would be
    impossible for the federal enactment to have any meaning, for any  to, having recovered
    under the provincial enactment, to claim for the same acts in a similar cause of action under
    the federal regime.


    Notes and Questions 215

   Note 3: following Multiple Access (p.216) — question of operability in area of family law —
    makes the point that even if you end up in something like family law, division of powers
    analysis can be quite important. What if after separation a judge orders monthly
    maintenance, and then divorce proceedings start and divorce judge orders a different amount
    for a different term? Is the spouse liable for both, Or only the larger amount, or WHAT?




Bank of Montreal v. Hall (1990 S.C.C.)

   Federal legislation, the Bank Act provisions that serve both to create a special form of
    security and to provide for its realisation in the event that the debtor failed to live up to
    his/her obligations. The enforcement regime gave the bank the right on default to seize the
    property representing the security interest simply upon the fact of the default.
   Saskatchewan provincial legislation s.27 of Limitation of Civil Rights Act (civil rights in sense
    of s.92(13), not in the liberty-related sense): which stipulated that before a creditor was
    entitled upon default by the debtor to seize and dispose of its security interest, the creditor
    was required to give notice to the debtor, and moreover stipulated that if the creditor seized
    the property in question without given that notice, that the loan agreement was effectively
    voided and the creditor lost all of its rights in respect of that property.

FACTS:
 In this instance, the Bank of Montreal did not give the notice required by s.27, and on default
   by Mr. Hall seized the agricultural machinery in question.
 Case arose because Mr. Hall wanted the benefit of the voiding provision in s.27
   of provincial enactment – question was whether he was entitled to that.

   Validity: both federal and provincial challenged, both survived, federal on basis of s.91(15) as
    banking legislation p.217, provincial on basis of s.92(13).


   Applicability: curiously (from Elliot‘s perspective) there was no argument on the part of the
    bank that the doctrine of interjurisdictional immunity should be provided.
     S.27 didn‘t specifically refer to banks and attempts by banks to realise on secured
       property, etc. — it was generally worded. Elliot would have tried a run at applicability
       and attempt to persuade the court that this provincial enactment while it could apply
       perfectly validly in most applications, it could not constitutionally be applied to security
       interests created under Bank Act.

   Operability: in the instance, doctrine of federal paramountcy is found to be applicable —


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    the necessary conflict is found to exist. Unanimously holding by 5 JJ.


   PER LaForest: The Court reached that conclusion using the frustration of federal
    purpose test.

   See p.218 ―On the basis… on its security‖ referring to Multiple Access speaking in language
    similar to dual compliance, but later on he takes the paragraph from that judgement and says
    conflict in the sense that ―the legislative purpose of Parliament stands to be displaced‖.
   He focuses on that question and his inquiry concludes that the effective cheap easy purpose of
    providing and securing bank loans across the country would be frustrated if banks before
    realising on security would have to suborn themselves to a wide range of what might be
    different provincial enforcement regimes.

   However, although that clearly appears to be his focus, he still appears to remain true to
    Multiple Access and possibility of dual compliance test, bringing in the language at top of
    p.219 and mid p.220.
   It is on that basis that Hogg characterises this judgement as based on that test, though Hogg
    thinks it‘s a misapplication of that test.
   P.220 top note LaForest also nods in direction on intention to cover the field test. ―I can only
    conclude … itself.‖

   Elliot interprets this as pretty clear indication that, from LaForest‘s standpoint, what should
    be asked is would the application of the provincial enactment frustrate the ability of the Feds
    to achieve the instrumental purpose underlying the federal enactment?

   This appears to be a break with the pattern of Ross and Multiple Access.



Notes and Questions 220

   Note 2: Husky Oil Operations Ltd. v. MNR, with lengthy passages from Gonthier for majority
    and Iacobucci for dissent. Elliot thought Gonthier J. had it all wrong — DON‘T READ THIS!!!
    (pp. 221-3)

Hogg chap 15 & 16
 Hogg criticisms of doctrine of interjurisdictional immunity is more pronounced in 1985
   edition that in the 1992 edition, because of the S.C.C.‘s disagreement with his view.
 Hogg‘s bottom line … MISSED.




Overall: Rule or Doctrine of Federal Paramountcy:

   There obviously is a rule or doctrine of federal paramountcy.
   The question is when is it appropriate to apply it?
   When there is a conflict between provincial and federal legislation.
   Hogg: the answer to the question is clear. The only situation, in his view, in which a conflict
    can be said to exist, is where there is impossibility of dual compliance.
   Elliot: disagrees, Hogg‘s not right about that. Hogg is a strong advocate of modern
    federalism, and as such interprets cases while being supportive to that view; he wants to find
    as few conflicts as possible (i.e. federal paramountcy in most cases).
   Elliot: this definition is inadequate. Overlap, to the point of absolute duplication, is not
    sufficient to create a conflict.

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    If it is impossible to have a coexistence of both, then there must be a conflict, and the doctrine
     of paramountcy must apply.
    Examples in Hogg: must be concerned with subordinate decision-makers
     (sometime the courts themselves), and not just ordinary citizens’ concerns.

HOGG‘S EXAMPLES
1. Federal and provincial legislation that are valid, stipulate different prioritisations of claims on
   the state of the banker (i.e. you go bankrupt, then what order do the lenders get paid back?)
   Royal Bank of Canada v. Laroux (Larue?).
2. Situation in which federal law stipulating that Japanese citizens in Canada should have the
   same employment opportunities as Canadians, while a provincial law makes it an offence for
   an employer to employ a Japanese citizen in Canada. A.G. (B.C.) v. A.G. (Canada).
3. Making of different custody orders under federal and provincial legislation. After the parents
   have separated, who gets custody, etc. during/after divorce proceeding. Impossibility of
   compliance. Gillespie v. Gillespie.
4. Federal legislation (S.C. Act) providing that an appeal to S.C.C. is possible from any
   judgement from the highest court in a given province; provincial enactment prohibits appeal
   to S.C.C. in certain cases. Crown v. Day. Again, impossibility of dual compliance.

    Hogg‟s terminology; “express contradiction” = impossibility of dual compliance.

FRUSTRATION OF THE FEDERAL PURPOSE TEST
 According to Hogg, this is simply a misapplication of the dual compliance test.
 Elliot: be wary of this interpretation!
 LaForest came up with this test, and a judgement of the S.C.C., albeit only 5 JJ.
 Be careful, and don‘t ignore it. Must include it as, at least, potentially as a possible test. Bank
  of Montreal illustrates that it is a viable test(?)

4TH AND FINAL TEST: INTENTION TO COVER THE FIELD TEST

    Hogg: if the test relies on an implication in the language, then this test is not
     viable.
    Elliot thinks that Hogg is on strong ground here.
    If this is a valid test, the case is strong that it will be applied in the Parliament‘s favour.
    Recall Ross v. Registrar of Motor Vehicles and the Australian (and American) approach,
     where the court said that if this test were a viable test, it wouldn‘t apply to that particular case.
    S.C.C. has numerous chances in which it could have found the intention on the part of
     Parliament but it did not do so.
    Elliot: Ross v. Registrar of Motor Vehicles - Pigeon adverted to Australian approach and
     simply said that if it was a viable approach it would not work in Parliament‘s favour in that
     particular case. In Bank of Montreal, LaForest also nods in that direction.
    In Hall, there is the language of the Intention to Cover the Field Test.
    Elliot: if this test does become accepted, it will be used very rarely, as courts
     will be very reluctant to infer such intentions of Parliament.

    What happens if Parliament doesn‘t leave anything in doubt: ―… and this legislation is the
     ONLY legislation to cover the area‖? Explicit legislation, then what?

    Hogg: only such an express indication of intention should validate this test.
    Elliot: but why wouldn‘t an implicit indication not be equally valid?
    Elliot: Hogg is inconsistent insofar as this test is concerned.
    IF Hogg believes that ONLY an express intention is sufficient.
    Elliot: doesn‘t see why an implied indication would not be good enough. No test is self-
     executing. Were this test to be valid, the track record seems to suggest there is a great
     reluctance on the part of the courts to draw such inferences.


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   Hogg: Courts will be very reluctant to infer in the Parliament‘s favour if the intention is
    implied. When Parliament‘s intention to cover the field is not left to inference but is explicit
    in covering the enactment - should be a viable test. Dick v. Queen which casts some doubt on
    express intention.

   Summary: Where the law does stand:
    1. Overlap or duplication test is not viable
     2. Impossibility of dual compliance test is viable
    3. Frustration of federal purpose test may be viable
    4. Intention to cover the field test cannot be ruled out
So, 1st and 2nd test are viable. 3rd test, potentially viable. 4th, don‘t rule it out.

   ADDITIONAL QUESTION: where should the law stand in this area?
     Elliot: overlap to the point of duplication is not a viable test, otherwise it would have a
      detrimental effect on provincial economies, and their ability to regulate their affairs.
     Frustration of Federal Purpose: Elliot understands LaForest‘s frustration.
     The 3rd and 4th tests are likely to overlap and find equal applicability.

   So,,,,, Where should the law stand?
       Mere overlap even to the point of duplication is not a viable test. It would have a
        devastating effect on provincial autonomy.
       A conflict should be found when impossibility of dual compliance is found.
       Intention to cover the field and frustration of federal purpose will work in the same
        direction but there exists a conflict as to their application.


SUMMARY POINTS
   This section is the last to focus on applicability and operability. Shifting focus to
    validity.
   Keep in mind the jurisprudence that we have already looked at, because those cases tell us a
    lot about the content of the broad range of heads of power in ss.91 & 92.
   For example, if the provinces are not careful in the establishment of commissions of inquiry,
    that is, if the provincial legislation is creating a criminal or pseudo-criminal inquiry, it will be
    invalid i.e. in conflict with s. 91(27).

   Hogg‘s criticisms of doctrine of interjurisdictional immunity is more pronounced in 1985
    edition that in the 1992 edition, because of the S.C.C.‘s disagreement with his view.
   Hogg‘s bottom line is, if you‘re going to apply the doctrine and grant interjurisdictional
    immunity at all, then do so in all cases, and only on the basis of the impairment and
    sterilisation test, one he sees as more difficult for federal undertakings to succeed at - more
    difficult to establish entitlement to immunity than under the affecting a vital part test.




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Constitutional Litigation
   Main procedural issues that arise in constitutional litigation - read ourselves - in particular
    with respect to (1) Notice Requirements and (2) Intervenors.


How Do Constitutional Issues Get to Court?

   Elliot will say nothing about the reference power half of this.

Reference Power (very brief note…)
   The SUPREME COURT ACT s.53 empowers the Federal Cabinet, as the GOVERNOR IN
    COUNCIL to refer directly to the S.C.C. cases, or questions that it deems important.
   Once a question arrives at the S.C.C.‘s doorstep, there is a statutory obligation to hear it.
   The Govt. must inform all of the Provinces‘ Attorney Generals.
   SUBSECTION TO s.53: Allows for INTERVENERS those who petition to be heard- to make a
    written or spoken argument in front of the S.C.C.


   Focus here: on private matters and standing.
   Standing, in this context, means the right to raise a constitutional issue, or the
    right to challenge the constitutional validity, applicability or operability of
    legislation.

   Distinction is drawn between two kinds of private litigation:

    1.   Litigation in which one party seeks to rely on an enactment of some sort, in support of its
         position in the case. With this kind of litigation, it is always open to the other party to
         challenge the validity, applicability or operability of that enactment, as the case may
         be. So either party always has the right or standing to challenge the legislation.

    2. Declaratory proceedings: a private citizen, organisation or corporation of its own motion,
       goes to court in order to attack the constitutionality re. validity, applicability or
       operability of an enactment that for some reason it does not like. The standing, in this
       situation, was very difficult to obtain prior to 1970‘s: you had to show that you were
       ―specially affected‖ to be granted standing. However, as a result of a trilogy of cases from
       1975-81: Thorsen, McNeal and Borowski challenged the requirements, and relaxed them
       somewhat for those engaged in public interest litigation.

   THE LAW THAT EMERGED OF THESE THREE CASES (SUMMARISED IN
    BOROWSKI): A PUBLIC-INTEREST LITIGANT WILL BE GRANTED STANDING
    IF THE FOLLOWING 3 REQUIREMENTS ARE MET:

    1.   Make clear that this challenge raises a serious constitutional issue. Court must
         be satisfied that this is not an off-the-wall type a challenge.

    2. Court must be satisfied that the  is either directly affected by the legislation or
       at least has a ―genuine interest,‖ as a citizen, in its constitutionality.
       (underscore is the recent change in the law)

    3. There is no other reasonable and effective manner in which this issue can be
       brought before the courts (i.e. cannot be raised under the first category).



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   Elliot (and case book): this law remains intact for both Federalism cases and Charter
    (constitutional) cases. Recently, the Court has begun to raise the bar a bit in terms of the
    third question.
   The above do not guarantee one standing—they are not hard and fast rules.
   Since the Charter, the doctrine of these cases has been held by S.C.C. to remain the applicable
    doctrine.
   However, this doctrine will be more narrowly applied, in respect to the Charter, as it was in
    the trilogy of cases.
   Reason: worried about the potential flood of Charter challenges, and the overstepping of
    judicial review (legitimacy, etc.).
Notice Requirements: Elliot skips this — all in the case book.

Parties and Intervenors

   In the pas, the Court turned away very few applicants for intervenor status, especially in the
    ‗80s and early ‗90s, as everyone was coming to grips with the Charter.
   Recently, the S.C.C. justices have remarked that maybe it is time to cut back a little bit. There
    is concern that the intervenors may be taking over the whole reference process itself.
   Elliot skips this — all in the case book.

AND THAT IS THE END OF CHAPTER 8.


    Preview of Chapters 4 to 7

   Chapters 4 to 6 are the most important — they tell the story of the way in division of powers
    particularly dealing with questions of validity was dealt with between 1867-1930. Chapter 7
    addresses the post- World War II era. Ch.4 1867-1900; ch.5 1900-1930; ch.6 1930s
   Our focus is on the evolution of doctrine, particularly as is relates to the scope of the heads of
    power. Particularly to property rights 92(13), 92(16), 91(2), 91(27) [s.91(15), 91(16)?],
    criminal law 92(7)? and P.O.G.G.
   Try to get a sense of the social, political and economic conflict from which these cases arose.
   We will also look at some scholarly reactions to the judgements rendered.




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Chapter 4: The Late 19th Century: Canadian Courts Under the
Influence

   3 of the 4 cases challenge the prohibition and/or regulation of the sale of alcohol. The division
    of powers is examined by the judiciary by the P.C. during this period. The Privy Council was
    pretty much at the top of things, were final appeals from S.C.C. or supreme provincial courts
    would/could go to. P.C. had a decentralist perspective; the S.C.C. a centralist perspective.
   Conflict between those championing the cause of provincial rights (Oliver Mowatt, premier of
    Ontario) and those supporting a strong, centralised Canada (Sir John MacDonald & the
    conservatives).
   The conflict ranged over several issues: …, powers of disallowance, division of powers.
   The battle was won, essentially by Mowatt, because the P.C.‘s concept of
    federalism prevailed.

   Elliot (and case book): legitimacy of judicial review; namely the propriety of the
    courts, in a democratic society, reviewing the constitutionality of legislation,
    and when finding that legislation unconstitutional, striking it down.

   Judicial review was a non-issue in that period because from the standpoint of judges
    subordinate legislative power remained under the legislative authority that was given to them,
    i.e. the judges saw the Parliament and other governments as inferior governments (… to that
    of the superior government of U.K.).
   This was/is a major issue in the U.S.
   This has become a more important issue as a result of the Charter.
   Prior, it was a non-issue in Canada, because from the standpoint of the judges, all that they
    were doing when resolving these issues was dealing with subordinate legislative bodies
    remained within the authority of the supervising legislative bodies.
   Much like ensuring that municipal legislation remains within its jurisdiction today (judges
    have no qualms about this).
   Back then, the courts ensured that provincial and federal legislatures did not exceed the
    authority given to them in the B.N.A., and in the instances authority was overstepped, courts
    had no problem striking the legislation down. Judges believed that they were given authority
    from the U.K. Parliament to strike down the legislation.


Citizens Insurance Company v. Parsons (1881 P.C.; 1880 S.C.C.)

   Provisions in Ontario legislation that had been enacted in 1876 regarding fire insurance
    policies, requiring that all such policies in the province incorporate within them certain
    prescribed statutory conditions. The insurance companies could only avoid these statutory
    conditions if they made it very clear on the face of the insurance policy that these conditions
    did NOT apply.

   Parsons sued Citizens Insurance claiming that the policy had improper disclosure
    requirements, (Citizens Insurance had said that Parsons had failed to comply with the
    disclosure provisions)
   Parsons also claimed that the disclosure requirements were void because they were
    inconsistent with the statutory conditions (provincial) that were imposed on the
    province‘s insurance companies.

   Citizen Insurance challenged the conditions and claimed they were void because the
    legislation imposing them was unconstitutional under s.92(13), i.e. beyond the province‘s
    jurisdiction.

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   S.C.C. upheld the provincial legislation 4:2. Note, the seventh judge only came
    along in 1949 when the P.C. was abolished.
   Read the judgement: various tones, both pro-federal in nature.

   RITCHIE: General perspective adopted were on ss. 91 and 92. Not concerned with
    provincial autonomy but concerned that by upholding this legislation was not destabilising
    the central government.
   GWYNNE: Pro-centralist tone. See bottom p. 48 to top p. 49
   Provincial legislation stipulating fire insurance contracts in Ontario had to include certain
    provisions, which could be overridden, but only if certain requirements were met, which they
    weren‘t in this case

   S.C.C. APPROACH: Upheld law on basis of s. 92(13) property and civil rights. Tone of
    judgments is more important - Ritchie concerned that jurisdiction of Parliament under s.
    91(2) not be unduly fettered, here no such fettering would be imposed. Dissenters took a very
    centralist approach, viewing the provinces as subordinate municipal-type government,
    adopting Macdonald concept of federalism.
Privy Council Judgment Overview

   Privy Council decided this legislation was constitutionally valid. Case from
    doctrinal standpoint is most important for what it says about s. 91(2).

   Per SIR MONTAGUE SMITH
   Analytical model used here is the early Privy Council model –
     After characterising the legislation, you take the characterisation or matter, and go
        through the classes of subject in s. 92 in the case of provincial legislation; if none, the
        legislation is ruled unconstitutional. If you do find a home for it, you then look to see if
        the characterisation or matter fits into s. 91‘s enumerated classes of subjects.
     If no home for it there, then the provincial legislation is valid. If you do find a s. 91 home
        for it, then the provincial legislation is invalid - a function of way in which s. 91 is worded,
        particularly its concluding paragraph.

   Flowing out of the adoption of that model, you find the P.C. here proceeding into discussion of
    what is now known as ―mutual modification‖ .
   It‘s clear that because he‘s proceeding on the basis of this model, he is concerned that if the
    classes of subject in s. 91 are read broadly, then the Feds will win many of these contests,
    rendering much provincial legislation invalid.
   Hence, it is necessary through this process of mutual modification to limit the scope of
    these classes of federal subject, thereby allowing more provincial legislation to stand.
   Eventually what you find in this case is a narrow reading of s. 91(2).
   Reason for embarking on that discussion is a concern not to jeopardise too much provincial
    legislation.


Privy Council judgment in respect of this particular enactment:

   This enactment is in relation to insurance contracts and the rights arising therefrom.
   The focus of the characterisation is surprisingly on contracts rather than on the regulation of
    business.
   It would have been possible for P.C. to see this enactment less as directed to contracts and
    more as to the regulation of a particular business, namely the insurance business, and more
    particularly the fire insurance business.
   Had it been seen as regulation of a business in the public interest, they may have used s.
    92(10) and seen the fire insurance business in Ontario as a local undertaking.



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   Elliot thinks the outcome would have been the same, but it may have had
    significant consequences for division of powers and the authority to regulate
    different sectors of the economy - becomes important whether these businesses
    are really local or not.

   By heading into s. 92(13), the requirement that the businesses being regulated are local is not
    needed.
   For the way jurisdiction ultimately evolved in a ―provincialist‖ rather than federalist fashion,
    this case has great implications.
   The property and civil rights jurisdiction vested in the province is sufficiently broad to
    provide a home for that matter, and in support of that conclusion, they invoke supporting
    arguments. For example, they argue that s. 91(18) talks about bills of exchange and
    promissory notes, which are contracts, and ―had drafters thought contracts and rights arising
    therefrom were under some general federal head of power, they wouldn‘t have had to put that
    in the federal side.‖ (not a real quotation).
   S. 94 allowed for uniform legislation in three provinces, which only made sense if property
    and civil rights included contracts.

   The P.C. found a home for this legislation in s. 92, so, under this model, you need to see if a
    class of subjects in s. 91 will accommodate this matter. If yes, the legislation will have to be
    struck down, since if there is a home in both lists, the Feds win.
   P.C. says there is no home in s. 91 because the only federal head of power that
    was suggested as being capable of accommodating such a matter was s. 91(2),
    and s. 91(2) on basis of mutual modification model was read narrowly.
   This is the most significant part of this case, because in a sense what the P.C. said about s.
    91(2) in this case is still relevant and governing today.

   P. 52 S.91(2)
    (1) come to be understood as regulation of international trade,
    (2) come to be understood as regulation of provincial trade, and
    (3) regulation of trade affecting the whole Dominion.
   These three branches of s. 91(2) have since been collapsed into two - the first and the second
    are now the first branch of s. 91(2) the regulation of international and interprovincial trade,
    and the third one, general regulation of trade throughout the Dominion has become
    the second branch.
   The equivocation regarding that particular branch ―it may be that‖ in this judgment has
    disappeared - general regulation of trade and commerce is now clearly
    established as a distinct branch of s. 91(2).
   Supporting arguments in support of this interpretation of s. 91(2) include a reading of s. 91 as
    being concerned with subjects of national and general concern throughout the Dominion.
   The fact that in s. 91 you find listed all sorts of aspects of doing business - bills of exchange,
    promissory notes, banking, insolvency, weights and measures, etc. - from which they conclude
    would be unnecessary if regulation of trade and commerce were to be construed broadly.
   P.C. also goes off to active union of 1706 between Scotland and Britain and talk of similar
    language used there.
   Broad interpretation with no definition of (13), while narrow definition of s.
    91(2).

   One curiosity is that early in the judgment, Sir Montague Smith indicates a strong preference
    for proceeding in a very case-by-case ad hoc fashion to give content to these various classes of
    subject - see p. 50 - remain true to that with respect to s. 92(13) which they don‘t define.
   However they do define s. 91(2), and the definition has stuck and resulted in the division of
    legislative jurisdiction in the area of regulating the Canadian economy being one that favoured
    significantly the Provinces over the Feds.
   Many critiques of P.C. interpretation of s. 91(2):
          For example: no reference is made in the P.C. judgment of the obvious difference

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             between the language used in s. 91(2) and the language used in the counterpart in
             the American Constitution, which gave Congress power over foreign trade, inter-
             state trade, and trade with the Indian nations.
            It is pretty clear there that Congress, by virtue of Commerce clause and language
             therein, was given a limited power to regulate the economy.
            The irony is that their Congress clause, drafted narrowly, has been interpreted
             broadly; whereas ours drafted broadly with intention of rejecting the American
             experience has been interpreted very narrowly
            Americans got what we were supposed to get, and we got what the
             Americans were supposed to get, as a result of this case.


    Historical Context for the Following Cases

   More historical context regarding drinking: liquor in latter nineteenth century was very
    important issue, primarily because of the rise of the temperance movement.
   In terms of Canadian federalism and interpretation of ss. 91 and 92:
     It was important because of the value to government at that time of the power to regulate
        that particular business (in part in the revenue generated through the power to regulate
        and also through the opportunities that power provided for patronage).
   Many important cases at that time involve federal or provincial attempts to prohibit or
    regulate this trade

Russell v. The Queen (1882 P.C.)

   Challenge to 1878 Canada Temperance Act, federal statute, amounting to local option scheme
    for prohibiting the sale of liquor - legislation provided for procedure to be followed in
    municipalities across the country to opt in to a prohibitory regime in the area of the retail sale
    of liquor, summarised at bottom of p. 53
   Scheme subjected to challenge in two cases, Fredericton and Russell, one of Fredericton
    parties died before the case went to P.C. so Russell became authoritative
   In Fredericton case, S.C.C. upheld the Act on the basis of s. 91(2) despite the above case
   Russell: P.C.: The legislation was again upheld, but on the basis of different reasoning
   Methodology is the same as Parsons - characterisation, s. 92 classes of subject, depending on
    your answer go to s. 91
   In this instance, there was no need for the court to engage in any detailed analysis of the s. 91
    heads, and that because none of the heads of power in s. 92 was capable of accommodating
    this particular enactment
   They said therefore this must be valid federal legislation, at the very least on the federal
    general power to enact for the P.O.G.G. of Canada
   Heads of provincial power rejected in s. 92:
   S. 92(9) provinces get exclusive jurisdiction over shop, saloon, tavern,
    auctioneer and other licences in order for the raising of revenue for local or
    provincial purposes.
   This section was proffered because allowing the Feds to do what they were trying to do here,
    that is to allow for prohibition of retail sale of liquor, then provinces who wished to continue
    to raise revenues through the issuing of licences to saloon and tavern owners would be
    frustrated.
   Dissenting judge of S.C.C. adopted this in partial support of his dissent.

   P.C. gave this provincial head of power very short shrift - because it was a revenue/funding
    provision, not a moral provision.
   P.C. said their interpretation of s. 92(9) was that it merely provided for provincial legislation
    establishing a licence system, but not a licence system to regulate the business but merely to
    raise revenue. So the question was whether or not the scheme in question was one to raise the

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    revenues referred to, and that was the only relevant question to ask.
   The fact that it might inhibit or entirely frustrate the ability of provincial
    governments to raise these revenues through this particular device was
    considered irrelevant, on the policy arguments that allowing the provincial
    argument to prevail here could result in severe curbing of the ability of the Feds
    to prohibit what they saw as harmful activities.

   S. 92(13) PROPERTY AND CIVIL RIGHTS:
   Argument is that this legislation, when it takes effect, clearly has a significant effect on the
    ability of tavern owners amongst others to do with their property, the liquor they want to sell,
    as they wish, and to make contracts in relation to that property as they wish.
   P.C. rejected this argument primarily because: while they are prepared to see a connection to
    property and civil rights, they don‘t see the property and civil rights aspect of this legislation
    as being the dominant aspect. Bottom of p. 56 onto 57 good example of pith and substance
    analysis and incidental effect analysis without actually using those terms

   S. 92(16) ALL MATTERS OF MERELY LOCAL OR PRIVATE NATURE IN
    THE PROVINCE
   This argument is also rejected, despite of plausibility of provinces‘ argument that on the face
    of it, this statute appears to be approaching this problem very much on a locality by locality
    basis.
   If this really were national problem of general concern, then presumably the legislation would
    apply uniformly across the board, but it doesn‘t, it permits municipalities to opt in, providing
    evidence that it is a local matter and not of national or general concern.
   P.C. said it‘s true the legislation allows for local opting in, but it is nevertheless the case that
    from the standpoint of the Feds they saw this as a problem of national concern, one in respect
    of which it was good to have a uniform law throughout the Dominion.
   ―The objects and scope are still general, to provide a uniform law throughout the Dominion.‖

   NOTE THAT THIS PARTICULAR TYPE OF ANALYSIS WAS NOT OFTEN
    ADOPTED, NEITHER THEN NOR NOW.
     The characterisation of something as being of merely local or of national concern was not,
      and is not, a determination generally based on whether Parliament thinks it is a good idea
      to approach it on a uniform basis.
     If that is the test it will always be in Parliament‘s hands to decide if something is of
      national or local concern - unduly favourable of federal jurisdiction.
     Subsequent cases see an approach based more on the character of the
      problem itself rather than on Parliament’s characterisation of the problem as
      either local or national.

   Really significant thing about this case as a precedent is that in the end the
    legislation is upheld on basis of P.O.G.G. - p. 58 - rather than looking at the
    classes of subject in s. 91.

   In spite of the fact that this legislation was assigned to P.O.G.G. very much on the basis of the
    application of this particular model (and not on the basis that the legislation met any test for
    P.O.G.G.) it was so assigned by default, as a source of federal legislative jurisdiction.
   In spite of that, this case came to be viewed, and is still viewed, as an authority on
    the content of P.O.G.G. - some judges go to bizarre lengths to try to explain this
    case as such an authority.


Hodge v. The Queen (1883 P.C.)

   Legislation at issue - back into provincial sphere - Ontario Liquor Licence Act, enacted in


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    1896, also known as Crooks‘ Act, which empowered Boards of licences commissioners
    established in various municipalities across the province to regulate trade in liquor via various
    licensing regimes.
   Attack on this legislation based on two grounds:
    1. That invalid as encroachment on Parliament‘s power under s. 91(2), and
    2. Not a federalism division of powers argument as such but rather on the administrative
        law principle that a delegant cannot delegate unless given the power to do so by
        the enabling statute.
        ―Delegatus non potest delegare.”

   Another argument arose out of another case called Frawley which related to s. 92(15)
    jurisdiction to authorise imposition of hard labour on top of imprisonment as a punishment
    for provincial quasi-criminal offences - see mid- p. 59.
   FIRST ARGUMENT based on Macdonald‘s proposition that Russell, properly interpreted,
    meant the Feds had exclusive jurisdiction over all aspects of the liquor trade in Canada.
    Macdonald later enacted a regulatory regime on the basis of his interpretation of Russell,
    which was eventually struck down.
   P.C. disagreed and called that a misreading of Russell, which dealt with a particular kind of
    enactment (temperance legislation) and not this type of enactment, which is a regulatory
    regime.
   Further, there is no reason why the provinces cannot enact this legislation, provided they do
    so on the basis of the heads of power that they are assigned.
   This could be supported on the basis of several such provincial heads of power s. 92 (8, 15, 16)
    - (8).
   These confer the power to legislate in relation to municipal institutions in the province and
    just empower provinces to create such institutions.
   The province can only give those institutions powers that the province itself has
    independently under other powers in s. 92.
   The P.C. saw the authority for the regulatory power to come from
     (16) a matter of merely local or private nature in the province.
     (15) relied on in respect of hard labour provision, lies in fact that like most regulatory
         regimes, this regime created some offence-creating provisions.
   Power to create such offences to ensure the regulatory regime as teeth when the scheme is a
    provincial one is found in s. 92(15), which refers merely to fine, penalty or imprisonment, and
    not hard labour.
   Note p. 60 bottom that this is the first case in which the double aspect doctrine is mentioned.

   P.C. proceeds into the second argument, viewed as more significant at the time:
   This is the argument that the provincial legislatures, under the scheme created in B.N.A. Act,
    should be viewed very much as subordinate law-making bodies, not only to the Imperial
    Parliament but also to Parliament of Canada.
   As a subordinate law-making body, provincial legislatures should be viewed as delegates of
    the Imperial Parliament, and therefore subject to the administrative law
    principle that a delegate cannot delegate unless enabling statute explicitly or
    necessarily gives the delegate that authority.
   P.C. said no, provincial legislatures should not be viewed in that light.
   They are of the same stature of the Parliament of Canada, and therefore have the same
    authority to delegate their law-making functions as the Parliament of Canada.
   Each should be taken as supreme legislative authority within jurisdictional spheres assigned
    to them in ss. 91 and 92.
   As a result of this decision, provincial legislatures were seen to take on added
    stature and significance.
   Canada was thus seen to be moving more in the direction of a true federal state - co-ordinate
    orders of government that were independent.
   That way of thinking was confirmed in Maritime Bank, noted at p. 63 in relation to proper
    way of viewing provincial executive governments vis a vis the executive government in Ottawa

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    instead of just at the legislative level - co-ordinate not subordinate executively as well as
    legislatively.
   Hard labour argument: Failed.
   P.C. decided that authority to impose imprisonment in s. 92(15) should be interpreted to
    include authority to impose ‗incidents to imprisonment‘, including hard labour.

HISTORICAL ASIDE:
 7After Russell and before Hodge, Macdonald and others interpreted Russell as meaning liquor
   traffic was exclusively for Feds to regulate.
 Feds therefore enacted their own regulatory regime, which became known as the McCarthy
   Act in contradiction to Ontario‘s Crooks Act regulatory regime from Hodge.
 That Act was soon challenged and struck down, with the courts now having Hodge to rely on.
 Also in 1886, the Feds decided to re-enact, in a slightly different form, the Canada
   Temperance Act, validity of which had been at issue initially in Russell.
 Four years later, Ontario decided to enact its own local prohibition scheme, which was
   similar in structure if not detail to the Canada Temperance Act
 What we have here is both the federal and provincial governments attempting to regulate and
   prohibit the trade in liquor.
 Although Ontario scheme was enacted in 1890, its validity was not called into question until
   the mid-90s.
 Initially, S.C.C. ruled on its validity, declaring the provincial legislation
   unconstitutional — at least at this point there was symmetry — Feds allowed
   under Russell to prohibit but not to regulate, the provinces under this and
   Hodge were allowed to regulate, but not prohibit. Once up to P.C., that
   symmetry disappears.

A.G. Ontario v. A.G. Canada (The Local Prohibition Reference) (1896
P.C.;
1895 S.C.C.)
   Seven questions were put to the P.C., at top of p.67.
   Critical question was the last one:
     ―Has the Ontario Legislature jurisdiction to enact s.18 of the Ontario Act 53, Vict. C.56,
        entitled “An Act to improve the Liquor Licence Acts,‖ as said section is explained
        by Ontario Act, 54 Vict. C.46, entitled “An Act respecting local option in the
        matter o liquor selling‖?…

   This was understood to relate to the validity of the Ontario scheme - also understood by P.C.
    to be a question about the operability of that scheme if the scheme was declared to be valid -
    operability ended up also being addressed by P.C.
   In the reasons, P.C. decided that before it would address validity with respect to the
    provincial scheme, it would address question of validity in relation to (in the context of) the
    new and improved federal scheme of 1886.
   P.C. did that in part because it ultimately came to the question of operability in respect of
    the provincial scheme, and before addressing that, they wanted to ensure the federal scheme
    against which it would be measured was likewise valid.

   Another reason was the analytical framework that the P.C. adopted in these early
    cases, i.e.: taking matter of enactment through the provincial catalogue, and if a home is
    found for it there; then through the federal catalogue as well, with Feds winning out if one of
    enumerated s. 91 classes is found capable of accommodating the matter.
   P.C. says the preference for federal over provincial jurisdiction is one that the Feds get only if
    the enactment can be supported on the basis of one of the enumerated heads of power -




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    based on concluding paragraph and wording in s. 91
   On the basis of that, the P.C. sees a distinct head of power in the opening words of
    subs.1.
         This is completely unlike in Russell, where P.O.G.G. was used to describe not a
            distinct head of power but the entire sphere of jurisdiction allocated to Parliament.
         Here P.O.G.G. is interpreted as a distinct head of power.

   Moreover, as a distinct head of power, the view of the P.C. writing through LORD WATSON
    is that P.O.G.G. must be interpreted narrowly - see p. 68 bottom.

   The exception he‘s talking about is if you get a matter within s. 91, it‘s deemed not to come
    within s. 92, even if looking at just s. 92 it might appear to do so.
   Inference: given the distinction between s. 91‘s enumerated classes and P.O.G.G., judges are
    to infer that P.O.G.G. as distinct head of power cannot be interpreted so as to encroach
    on any of provincial classes of subject. Same attempt at definition on p. 69

   P.68: ―There may, says Watson, therefore, … classes of subjects enumerated in s.92.‖

   Just as Parsons turned out to be a critically important to definition of s. 91(2) trade and
    commerce, this judgment was crucial to definition of P.O.G.G. as a distinct head
    of power.

   That head of power evolved beyond this case to have at least two, possibly three distinct
    branches. One of those and the most important is called the national concern branch, and
    its origins lie in the passages noted above on pp. 68 and 69
   Watson goes on to say we‘ve already decided in Russell that legislation of this character when
    enacted by Parliament is valid legislation under P.O.G.G..
   There is no necessity therefore for us to take these definitions I‘ve come up with and apply
    them, the matter‘s already been decided, we have authority on this, and that authority Russell
    is enough to do the job.
   Elliot says it seems to him all this discussion of P.O.G.G. and these narrow
    carefully crafted distinctions thereof is really obiter dicta.
   Lord Watson saw this case as an opportunity to express this particular view and set it down in
    what he hoped would be an authoritative form.
   Bottom line: The new federal enactment, Canada Temperance Act, 1886 is
    upheld as valid federal legislation under P.O.G.G.
   Having reached that conclusion, Watson goes on to address whether that enactment could be
    supported on basis of s. 91(2), regulation of trade and commerce.
   Why? Because of analytical framework, he‘s looking ahead to the question of operability.
   He proceeds on the assumption that if federal enactment can be supported on basis of
    enumerated head of power in s. 91, of which s. 91(2) is an example, then the concluding
    paragraph of s. 91 will operate and the provincial legislation would be unconstitutional.
   This is because: if this enactment can be supported on basis of s. 91(2), then the matter of that
    enactment is deemed not to come within any of the heads of power in s. 92, and so the
    provincial enactment cannot be valid.
   SO it is crucial with respect to the validity of not just the federal but also the provincial
    enactment to determine if it can be supported on the basis of s. 91(2).
   Watson says it can not fall within s. 91(2), because regulation is very different from
    prohibition, which is what this legislation is about - p. 70 - if you are prohibiting retail sales in
    liquor, you can‘t be said to be regulating them, because nothing is left to regulate - so s. 91(2)
    is not available
   P.70: ½ way down: ―A power to regulate …‖. So, having reach this conclusion, Watson is free
    to decide on the provincial enactment‘s validity.
   Watson is then free to go on to address question of validity of provincial enactment free of
    the constraint that would have existed if s. 91(2) had been found to provide support for this
    enactment.

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   In Russell, when P.C. looking at 1878 version of Temperance Act in context of argument that
    this was really property and civil rights legislation, the P.C. said it affects those, but that is
    incidental to what this is really all about.
   What this is really all about criminal law, prohibiting something that has been taken by
    Parliament to be socially harmful. It‘s curious that the Feds when this went to the P.C. did not
    try out what P.C. had said in this regard and invoke s. 91(27) along with s. 91(2) - would have
    been much more promising for the Feds than s. 91(2) - Feds did not invoke it, and the power
    they did invoke was rejected.

PROVINCIAL ENACTMENT
   Watson goes off to look at the provincial enactment, beginning in the context of its validity.
   Province of Ontario relied on four heads of power in support of this enactment, two of which
    are clearly rejected.

   First rejected is s. 92(8), regarding municipal institutions in the province.
   Relevance of s. 92(8), given that we‘re dealing with prohibitory legislation, that this in effect
    amounted to a delegation to the local level of an authority to legislate, as it was a local scheme.
   This was given short shrift by P.C., because, in their view, this section just allows legislatures
    to establish municipal governments, but says nothing about the kinds of powers legislatures
    can delegate to those governments.
   p. 70 bottom ―Since...‖ - the only authority a provincial legislature can delegate to
    municipality is an authority that the legislatures themselves can legislate - limited to the
    creation of a particular governmental mechanism, but says nothing about the authority that
    mechanism of municipal government can be given.
   Next rejected was s. 92(9) shop, saloon, tavern, auctioneer and other licences for
    raising revenue. This was rejected on the basis of the same reasoning as in Hodge, that this
    section is there to authorise provincial legislatures to make provision for licensing schemes in
    order to raise money, but not to regulate or for any other purpose, and clearly prohibitory
    scheme does not meet that purpose.

   Other sections invoked, s. 92(13 and 16). Although Watson upholds this legislation, he
    does not assign it to either, although he does say it cannot be assigned to both.
   He says there is a clear connection to both sections.
   The connection to 92(13) is the same one that the province unsuccessfully sought in Russell,
    but they had more success here, as the legislation in question affects the ability of persons to
    deal with their property and make business with that property, seen as important here,
    whereas that was seen as merely incidental in Russell.
   S. 92(16), reference is made to fact that this is a local option scheme, again suggesting P.C.
    has started thinking very differently.
   Another thing to note about s. 92(16) is that Watson is adamant that this is a
    distinct head of power, in much the same way as the P.O.G.G. is a distinct head of power
    on the federal side.
   P. 71 – The section is there not to subsume all of the enumerated classes in s. 92, but as a
    distinct power to perform a residual role on the provincial side, just like the P.O.G.G.
    performs a residual role on federal side.

   THE PROVINCIAL ENACTMENT IS UPHELD AS VALID, LEADING WATSON
    INTO A DISCUSSION OF OPERABILITY.
   It is significant here is that although no authorities are provided in support of this, Watson
    considers doctrine of federal paramountcy to have been clearly established.
   He terms it ―settled law‖ that if you have valid federal and valid provincial enactment, with the
    latter conflicting with the former, the federal wins out and provincial is held ―inoperative‖ for
    as long as the conflict exists.
   On basis of that settled law, he goes on to look at interaction of federal and provincial local
    prohibition schemes, and decides that the provincial need not give way to the federal

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     except in those localities where voters have opted in to the federal scheme, or in
     the future decide to opt in to the federal scheme.

    One might not get the same result under the current interpretations of conflict - for Watson,
     if you had the federal regime imposed in a particular locality, you could not also have the
     provincial scheme imposed.
    This is close to duplication, and found to be sufficient here. This part of the judgement
     has been overtaken by subsequent decisions.


Concluding Notes

 Regarding both theorising at that time regarding nature of federalism, and about the compact
                                         of federalism.

    COMPACT THEORY: Way of understanding Canadian federalism that was based on the
     premise that B.N.A. Act and Canada as a nation-state was a product of a compact or
     agreement amongst what were to become the four founding provinces.
    That particular way of understanding the Constitution took hold very quickly and became the
     dominant way of understanding Canadian federalism in Quebec - see excerpts on p. 76
     reflecting that.
    That interpretation outside Quebec, while seen as plausible way of understanding how Canada
     came about, was never really taken to explain the division of powers or federalism generally.
    In Quebec it is seen as the best way of understanding Canadian federalism.
    One of the consequences of that construct was that it meant the provinces had a veto over
     Constitutional change. The reasoning was that if Confederation was to be understood as a deal
     amongst the founding provinces, you couldn‘t change the deal without the consent of those
     provinces.

Summary of Main Points of this Chapter
1. In terms of constitutional doctrine, the limited scope given to s. 91(2) in Parsons and to
   P.O.G.G. in Local Prohibition.
2. The relationship between that limited scope and both the analytical framework
   or model that was used in division of powers in those days by P.C., and the obvious desire on
   the part of the P.C. to protect provincial legislative autonomy.
3. Relevant to Canadian federalism generally: Note the equal, or co-ordinate, status given
   by the judicial committee of the P.C. to the provincial order of government vis-à-vis the
   federal.
    First in Hodge dealing with legislative branch of provincial order of government, and
       subsequently in:
    Maritime Bank, relating to the executive branch of provincial order of government (see
       note following Hodge).
4. Different visions of Canadian federalism expressed by S.C.C. and P.C. in those
   days.
    P.C. vision of federalism being that of classical federal state, co-ordinate orders of
       government, division of legislative authority between the two orders of government,
       meaningful autonomy for regional order, etc.
    S.C.C. vision, much more in keeping with both Macdonald‘s vision and also with the text
       of the Constitution. Here, it was suggested the two orders of government were not
       intended to be co-ordinate, the Feds were intended to be superior, reflected in fed power
       to appoint provincial Lt. Gov., to disallow provincial legislation, etc..
    That vision is reflected in early S.C.C. judgements, but it was not the vision the P.C. had,
       and so it was not the vision that eventually prevailed.
5. The limited scope given by P.C. to both s.92(8) & (9), reflected particularly in Local
   Prohibition.

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6. The settled nature of the paramountcy doctrine by the end of 19th century.




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Chapter 5: The     Early  20th    Century:                                                   The
Beginnings of Economic Regulation
   This deals with courts acting as regulators of economic matters.


Lord R.B. Haldane, ―Lord Watson‖ (1899) p.79
   Deals with Local Prohibition case and others decided in late 1800s.
   HALDANE in a sense became Watson‘s successor, not only as most prolific of judgments on
    Canadian constitutional cases, but also in sense that he carried on Watson‘s vision of
    Canadian federalism as a form of federalism consistent with the classical notions of a federal
    state.
   Points out contrast between S.C.C. vision of federalism and Lord Watson‘s, and clearly prefers
    Watson‘s
   Haldane served as counsel for a number of the cases that went before Watson
    (on the side of the Feds I would imagine).

Reference Re the Board of Commerce Act, 1919 & The Combines and
Fair Prices Act, 1919 (1922 P.C., aff‘g 1920 S.C.C.) p.83

   Leading in to this the text notes several cases, including the Insurance Reference of 1916,
    which dealt with the federal enactment Dominion Insurance Act. That act purported to
    regulate large insurance companies doing business in Canada, but exempted from its reach
    insurance companies that were incorporated provincially, and that did their business
    exclusively within the province of their incorporation.

   Feds had for some time prior to this attempted to get a foothold in area of
    regulating insurance, but had been consistently frustrated in their attempts by
    the courts, including the P.C. - bottom of p. 80.

   Not only did Haldane give reasons, but he practically deified s. 92(13), which was now being
    interpreted as embodying a notion of freedom of contract.
   Property and civil rights were important in nineteenth century political theory of the sanctity
    of freedom of contract. Under this idea, any attempt by Feds to regulate almost any aspect of
    the economy would be suspect because it would pose some sort of legislative obstacle to free
    commerce and business.
   Some areas were left to the Feds, like banking, and the exceptions in subs. 13 re:
    interprovincial transportation.
   The underlying assumption at this point (as above)was that any attempt by Feds to regulate
    any aspect of the economy would interfere with property and civil rights.
   The other preliminary note is that during the period immediately following WW I, the
    Canadian economy was in disarray, undergoing the difficult change from a war-based
    economy to peacetime economy.
   One of the consequences was the legislation at issue in Board of Commerce case, which was
    an attempt to deal, through an administrative regime, with two problems seen to be
    particularly acute at that time:
     one being combinations amongst businesses (anticompetitive behaviour), and
     the other being the hoarding of goods in order to reduce the supply and thereby increase
        prices and improve profits.
   This was characterised as an administrative regime because it created the Board of


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    Commerce, which had significant investigative and regulatory authority.
   The other Act was Combines and Fair Prices Act. These two Acts were intended to be read
    together and operated together with the other
   This case arose out of order Board of Commerce made regarding the appropriate profit
    margins in the retail clothing sector of the economy.

S.C.C. TREATMENT OF THE CASE
 Case first went to S.C.C. as a reference - at that time S.C.C. still only had six judges until 1927
   when got 7, the 8th and 9th were added when appeals to P.C. abolished
 S.C.C. divided 3:3
 Clearly was a sharp division within S.C.C. about appropriate way to understand Canadian
   federalism and therefore to interpret the division of powers. One group, led by Anglin C.J.C.,
   tried to preserve S.C.C.‘s original concept of federalism, not in terms of one order being
   subordinate, but rather in terms of the appropriate balance of power - accepted that the
   orders were co-ordinate. Anglin tried to give as much content as possible to Feds, and
   minimise content given to provincial heads of power.
 On other side, Duff, later C.J.C., adopted P.C. vision of Canadian federalism and
   gave expression to that vision in their judgment.

PRIVY COUNCIL TREATMENT OF THE CASE
 Haldane viewed these two enactments as clearly unconstitutional, and clearly an
   encroachment by the Feds on provincial legislative jurisdiction over property and civil rights.
 Haldane says in relation to s. 91(2) regulation of trade and commerce, an even more
   draconian view than P.C. had seen fit to adopt in early years, that it is not a distinct head of
   power itself, but to be used by the Feds only to support legislation enacted under some other
   federal head of power - basically s. 91(2) is a subsidiary or subordinate head of power, not an
   independent source of power, at least insofar as regulation of Canadian economy was
   concerned.

   Haldane appears to proceed very much on basis of his own highly idiosyncratic interpretation
    of ss. 91 and 92, but again the end result is an exceedingly limited scope for this head of
    power.
   In terms of P.O.G.G., he again performs radical surgery on the law as it then stood. He
    interprets P.O.G.G., without any reference to Watson in Local Prohibition origins of national
    concern, as providing Parliament with legislative authority to deal with nothing more than
    national emergencies.
   The P.O.G.G. power as a distinct head of power amounts to an emergency power
    on part of Feds to save country from national emergencies like war, famine,
    pestilence, etc.

   As far as s. 91(2) is concerned, Haldane introduced the novel notion that s. 91(2) should not
    be understood to be independent source of legislative power insofar as Parliament concerned.
   Rather, it is an ancillary or auxiliary head of power that Parliament could only rely on in
    support of legislation anchored on basis of some other head of power, with particular
    reference made in this case to P.O.G.G..
   No authority is cited in support of this seemingly narrow interpretation of s. 91(2), nor any
    argument of a policy nature. It is simply asserted that s. 91(2) is now to be
    interpreted in this exceedingly narrow manner

   Having so defined the scope of P.O.G.G., he went on to conclude that there was no national
    emergency of the kind required in this particular instance, sufficient to support these two
    enactments
   So P.O.G.G., like s. 91(2), falls by the wayside, leaving s. 91(27) criminal head of power, to
    which he also gives a narrow interpretation - see p. 86, with example of incest.
   In this instance, the offence-creating provisions the Feds would be relying on would fall
    outside this ‗fixed domain‘ (fixed domain meaning that what should be construed as criminal

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    is only what the drafters of the B.N.A Act would have considered criminal.
   P.86: ―It‘s one thing to construe the words … as enabling the Dominion … of criminal
    jurisprudence.‖ This goes way beyond the ―fixed domain‖ of criminal jurisprudence.
   Offences created here were to ensure that the orders made by the Board, regulatory-type
    orders, were enforceable - this clearly went beyond his fixed domain of criminal jurisprudence
   Parliament cannot enact a regulatory regime that (viewed in isolation) would encroach on
    provincial legislative jurisdiction, add one or more offences designed to give the regime teeth
    and then suggest that because the regime has those offences within it the scheme as a whole
    can be supported on basis of s. 91(27) criminal law. No bootstrapping is permitted here.
   Again, Parliament can’t support an ultra vires regulatory regime by attaching an
    offence-creating provision.
   Court will focus on the pith and substance of the regime itself. Pith and substance is to be
    derived from the regulatory regime itself, and not by the teeth of the offence-creating
    provisions.

   Summary with respect to s. 91(2):
     Very narrowly interpreted, merely subsidiary head of power, and not one Feds can rely on
      otherwise in support of legislation, but exists only to buttress P.O.G.G.
     P.O.G.G. likewise restricted to narrow scope that Parliament can rely on only in event of
      national emergency;
     s. 91(27) narrowed in two ways, through notion of fixed domain of criminal jurisprudence,
      coupled with thou shalt not be allowed to bootstrap.
     The concept that domain of criminal jurisprudence is a fixed one, as originally
      understood, has NOT continued, but the ―no bootstrapping‖ rule has remained with
      us.


   General observations of this judgment apart from the interpretations of those
    three heads of power:

    i) Running through entire judgment is the proposition that Haldane counted for a great deal
        that was derived at least in part from his judgment in Insurance Reference, that, as a
        general rule:
         It is not permissible to Parliament (it is beyond legislative jurisdiction of fed order of
            government) to regulate particular trades and businesses.
         In Insurance Reference dealing with regulation of insurance industry, it was held
            Parliament could not regulate that industry even in the attenuated form attempted in
            that case.
         Similar decisions reached wrt other trades and businesses, giving rise to the general
            rule.
         Parliament can regulate banking s. 91(16), transportation and communication
            92(10)(a, b, or c), but the presumption is that provincial legislatures were given
            authority to regulate particular trades or businesses - important to tariff statutes.
         Haldane looked at this in terms of freedom of contract - see top p. 86 ―liberty
            of inhabitants of the provinces‖ referring to the liberty of contract that informed his
            interpretation of property and civil rights in insurance reference, and that led to
            entrenchment of this proposition.
         Note: 50 years later, it was determined Parliament could regulate generally for
            national economy, inflation etc.
    ii) Haldane at end of the judgment talked about advisability of federal and provincial Co-
        operation in area of economic regulation.
         He talks about P.O.G.G. and why that will not provide necessary anchor for the
            legislation, and says p. 87: ―… without the co-operation of the Provincial Legislatures.‖
            — that notion of federal-provincial Co-operation became important theme in following
            decades.
         This is one of the main reasons why regimes for regulation of agriculture are the

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            product of co-ordinated federal and provincial enactments.
           Basically the Feds regulate interprovincial and international trade in agricultural
            products, and the provinces regulate intraprovincially, with interlocking schemes.
           If such legislation is desirable it can be enacted, but must be enacted on basis of
            federal-provincial Co-operation and not by any order acting on its own.


Fort Frances Pulp and Paper Company v. Manitoba Free Press Co.
(1923 P.C.) p.88

   Decided in following year by P.C., speaking through Viscount Haldane.
   Order of Paper Control Tribunal established in 1918 pursuant to 1914 War Measures Act
    giving federal government, as distinct from Parliament, sweeping powers to legislate in
    wartime conditions in what the federal government thought was the best interests of the
    country.
   Paper control tribunal was empowered under War Measures Act by delegated authority to
    regulate the prices of newsprint. The particular order that the tribunal made that was
    challenged in this case was made in July of 1920, and was in fact made in confirmation of an
    earlier order six months prior-ish by a distinct body with similar authority at the grass roots
    level called the Paper Controller
   Obviously this order was made a year and a half after World War I had ended —
    the country was no longer at war.
   Nature of particular order: required FFP&P to repay monies that in the view of the Tribunal
    FFP&P owed to the Manitoba Free Press in respect of newsprint that FFP&P had sold to MFP.
    Underlying the order was the Tribunal‘s view that Fort Francis Pulp and Paper had
    overcharged for this newsprint, it had charged more than the price set for newsprint would
    have permitted.
   FFP&P refused to abide by that order, and MFP sued for the monies on the basis of that order.
    FFP&P in response attacked the validity of the order.
   The order is upheld as valid on the basis of emergency doctrine that Haldane had
    fashioned the previous year in Board of Commerce.

   Haldane develops his particular interpretation of P.O.G.G. and does so in part on
    double aspect doctrine, and more so on the basis of Haldane‘s sense that in times of
    emergency, of true national emergency, the state had to have the authority to take whatever
    action the state thought required in order to preserve itself and the well-being of the people.
    see p. 89 Haldane invokes ?Gable? Galeon? type thinking — power of the state to preserve
    itself implied on basis of Constitution as a whole, though this is anchored in the P.O.G.G.
    clause.
   P.89: ―That the basic instrument …public opinion as such.‖
   So, if the country is confronted with a true emergency, it is necessary to preserve
    itself in the face thereof by action of the central government. Authority is
    anchored in the P.O.G.G. clause.
   Having recognised this doctrine, Haldane goes on to deal with a tricky question in context of
    this particular case:
     What role should courts play in reviewing the exercise of legislative authority on part of
         Parliament when there is reason to believe that the emergency no longer exists?
   The war had ended some 18 months prior to the issuance of this order.
   The war itself clearly amounted to an emergency of the kind that would justify this exceptional
    authority on Parliament‘s part, but the war was over.
   What attitude should courts take in dealing with legislation of this character in these
    circumstances?
     Haldane said courts should be very careful before striking legislation down when that
    legislation is defended on basis of this doctrine.
   He uses different language at different points to express that kind of cautious approach - p. 90


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    twice, and top of p. 91 - general attitude is one of tremendous caution.
   If the court has little doubt that at some point there was a national emergency, and Feds try to
    defend legislation on basis of that emergency, courts should be loath to question the judgment
    the Feds exercised in relying on that emergency for the enactment.
   As a general proposition it has by now come to be understood that this doctrine
    permits only temporary legislation.
        the legislation must be temporary in nature for Feds to be able to rely on this
         doctrine.

   P.90: ―But very clear evidence that the crisis … <next para> It is enough to say that there is no
    … the Paper Control Tribunal.‖ and p.91: ―Their Lordships … still be operative.‖

   In summary, the courts should be loath to second-guess the judgement of the government.
   And yet, the court did put a barb on it: it only supports temporary legislation, and cannot
    justify permanent legislation.


Toronto Electric Commissioners v. Snider (1925 P.C.) p.92

   Federal Industrial Disputes Act had been in force for some time and had worked well.
   Labour relations regime here was a precursor to those we have now, applicable to relatively
    narrow range of economic sectors - mining, transportation, communication, public service,
    applying only to businesses with more than 10 employees.
   The Act provided the administrative machinery of a tribunal authorised to attempt to resolve
    labour relations disputes between employers and employees.
   Legislation challenged by employer in 1920, Toronto Electric Commissioners.
   Validity of statute upheld at Ontario C.A. 4:1 on basis of s. 91(2), indicating continuing
    support within Canadian judiciary for greater federal legislative jurisdiction in area of
    Canadian economy.
   However at P.C. the opposite result was arrived at, and P.C. through Haldane
    declared the legislation unconstitutional. HALDANE AGAIN!
   The Feds relied on s. 91(2), s. 91(27) and P.O.G.G. - none were found sufficient to provide the
    necessary authority.

   Nothing new added insofar as s. 91(27) doctrine.
   Haldane applied the same no-bootstrapping analysis he employed in Board of Commerce.
   However, note that when Haldane looked at s. 91(27) and rejected it as appropriate source of
    authority for this legislation, he sees labour relations statutes, regulatory regimes in this area,
    as yet again an encroachment on property and civil rights in the province.
   Again, that is based on an interpretation of civil rights component grounded in notion of
    freedom of contract.
   Any labour relations regime will represent some sort of interference in freedom of contract
    employers and employees would otherwise enjoy; hence, the pith and substance in this
    instance is not the creation of a new crime of any sort, but rather interference with civil rights.
   Important lesson to take is notion that labour relations regime prima facie amount to
    interference with civil rights and hence are properly enacted by provincial legislatures and not
    the Parliament of Canada.
   Because of Bell #1 and 2, the S.C.C. came to recognise that labour relations in federal
    undertakings fell within exclusive federal jurisdiction.
   Labour relations is no longer a distinct matter but a split matter in sense that
    there is in labour relations in both spheres - jurisdiction over labour relations
    goes with jurisdiction over the undertaking or business itself.

   S. 91(2) nothing new, just the application of Haldane‘s interpretation in Board of Commerce.
   It is merely an auxiliary, or ancillary, head of power that provides no independent basis for


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    exercise of regulatory authority on Parliament‘s part.

   P.O.G.G.: nothing new in terms of doctrine.
   Emergency doctrine is said to be the governing doctrine in terms of scope of s. 91‘s opening
    clause, and there is no suggestion of an emergency here.

   Elliot: interesting historical footnote:
     Haldane‘s interpretation of Russell v. the Queen:
       p. 94: ―Their Lordships think …‖ — suggests what was really behind P.C. decision
        upholding Temperance Act was P.C.‘s unstated conviction that intemperance at that time
        amounted to a national emergency.(!) We‘ll see this commented on later.


Historical Treatment of Haldane‘s Interpretations

   S. 91(2) interpreted as auxiliary and not independent head of power, might lend support to
    legislation Parliament has authority to enact under another head of power such as P.O.G.G..
     Did Haldane‘s position last?
     No - rejected by P.C. in 1920

   S. 91(27) interpreted by Haldane as a ―fixed domain‖ of criminal jurisprudence, which
    suggests some notion that the scope of criminal law was to be determined on basis of what
    sort of criminal offences existed in 1867.
   So understood, that interpretation likewise soon fell by the wayside in exactly the same case as
    s. 91(2), first case we‘re looking at in Ch. 6.

   P.O.G.G. limited by Haldane to situations of national emergency:
   Did and didn‘t last - did take hold in the sense that from that day forward basically P.O.G.G.
    has been interpreted and understood to authorise Parliament to legislate in situations of
    national emergency.
   P.O.G.G. is still accepted to include the national emergency doctrine.
   However, it did not last in the sense that the national emergency doctrine is not the
    only branch or component of P.O.G.G. today.
   There are also the national concern doctrine with its origins in Watson Local Prohibition,
    as well as:
   (Arguably) A third branch that Hogg terms the gap branch, reflecting the notion that
    P.O.G.G. should be understood to include, based on some authorities, the authority on the
    part of Parliament to legislate in respect of matters for which no home can be found in any of
    enumerated classes in either of s. 91 or s. 92 . P.O.G.G. fills in the gap.

   RETURN to two general themes of Board of Commerce:
   Firstly: the notion that it is not open to Parliament as general rule to regulate particular
    trade and businesses.
   Jurisdiction to regulate particular trades and businesses is allocated according to Haldane to
    provincial legislatures under s. 92(13) property and civil rights.
   It is now generally accepted, there are exceptions like banking, etc.
   Second theme: need for Co-operation a continuing theme in Canadian jurisprudence.
   The fact that provinces, on their own, may not be able to effectively regulate an area of the
    economy is not reason enough to grant jurisdiction to Parliament.
   Thus, if such legislation is to be put in place it must be on the basis of federal-
    provincial legislation.




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The King v. Eastern Terminal Elevator Co. (1925 S.C.C.) p.95

Decided not by P.C. but by S.C.C.

   Legislation at issue: Canada Grain Act enacted in 1912, and in particular subs. 95(7) added to
    the Act in 1918.
   That particular provision, described on p. 95, purported to regulate the profits of grain
    elevator operators, particularly in Port Arthur/ Port William area now known as Thunder Bay.
   In fact, this provision changed the system by which profits of such operators would be
    determined and to reduce those profits - details on p. 95 - regulated remuneration that grain
    elevators were entitled to for storing grain while in transit.
   This grain company, Eastern Terminal Elevators, didn‘t like the new provision and in the end
    challenged its validity.
   Outcome: 4:1 ruled the act invalid in its entirety, and not simply this particular
    provision.


Anglin‘s Dissent

   Dissent authored by Anglin C.J.C., who in this and other cases was the staunchest defender
    of federal legislative jurisdiction in this and other areas, and the most reluctant to adopt P.C.
    interpretation of ss. 91 and 92.
   In his judgment, we see that he would have liked to have been able to uphold this provision on
    basis of s. 91(2) regulation of trade and commerce.
   He goes back to Citizens Insurance v. Parsons and indicates he would like to take the P.C.
    approach in that case, finding authority for the Feds to regulate international and
    interprovincial trade, with this provision being necessarily incidental part.
   However, he recognised that he couldn‘t do this because Haldane in his three judgments
    had interpreted s. 91(2) in this very narrow manner.
   It is apparent that Anglin disagreed strongly with what Haldane had done, indicating he
    could see no reason for such a narrow interpretation.
   However, he felt obliged to accept that interpretation and acknowledged that on basis of that
    interpretation s. 91(2) would not provide the necessary support.
   This led Anglin into P.O.G.G. where he defied Haldane and resurrected Watson’s
    national concern interpretation.
   He expressed the view that this legislation satisfied that test and could be supported on that
    basis.
   Perhaps recognising he might be vulnerable to criticism for doing so, he went on to uphold the
    legislation on the national emergency doctrine as well, on basis that if we don‘t let Parliament
    regulate the grain trade and include grain elevators in its regulatory regime, then we are likely
    to confront a national emergency, and:
     there is no reason in principle why Parliament should be denied authority
         to prevent a national emergency if it has the authority to deal with national
         emergencies.

   Note Anglin not only disagrees with Haldane‘s s. 91(2), but is also offended by his
    interpretation of Russell - see p. 96.


Duff‘s Majority Judgement

   Anglin‘s judgement had started with the Act and noted that the industry was very important
    to Canada, and focused on fact that the majority of grain produced in Canada was sold outside
    the area in which it was produced— there was substantial interprovincial and international
    trade in this product.
   In that light according to Anglin, fact grain elevators regulated like this was simply ancillary

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    or incidental part of the larger scheme
   Duff takes different approach by starting not with the Act but with the particular provision
   What is important to Duff about this provision is that it amounts to attempt by Parliament to
    regulate local trade or business of grain elevators.
   In Duff‘s view, based on Haldane‘s 1916 reasoning in the Insurance Reference, that was
    something parliament simply could not do , even though it was acknowledged that most of the
    grain was going into international and interprovincial trade.
   One gets a sense that even if all the grain had gone there, Duff‘s view would have remained the
    same: it was simply not possible for Parliament to regulate trades and businesses
    like grain elevators as part of this larger regulatory scheme.
   If a regulatory regime were to be established here, Parliament would likely require co-
    operation of provinces, each legislating within their own domain.
   Alternatively, Parliament would have to use declaratory power in s.92(10)(c) in respect of the
    various works implicated in the grain trade like grain elevators, and thereby bring those works
    within federal legislative jurisdiction — note this Act was enacted in 1912, before the 1916
    Insurance Reference — would have been appropriate approach if Parsons determined the
    appropriate approach.
   Duff‘s approach is very similar to the sort of thinking in interjurisdictional immunity cases
    (MacKay, Bell 1 and Bell 2) where:
     the focus is very much on the particular, with that particular being recognised as within
         the other sphere‘s jurisdiction, and then
     the decision is made that the other sphere‘s jurisdiction must be protected.
   It‘s not exactly the same because this legislation was not general but very specific, and
    intended to apply to grain elevators, but it is still the same kind of thinking that is most closely
    associated with classical federalism.
    One must work to keep the spheres separate, each order of government has its own exclusive
    spheres of jurisdiction, and judges are to ensure those spheres of jurisdiction are respected.

   Parliament, after this decision was rendered, took up Duff’s offer, and declared
    all feed mills, grain elevators, and all other implicated works to be works for the
    good of Canada, thereby bringing them within federal jurisdiction.
   Duff was very careful to protect the provinces.
   For Duff, the argument that so much of this was going to international and interprovincial
    trade didn‘t justify what Parliament did here — to Elliot it did — because if 90% is going out of
    the province, then it is in pith and substance s.91(2) regulation of interprovincial and
    international trade — if very little goes out, then that argument doesn‘t hold and it looks like
    Parliament encroaching on provincial jurisdiction.
   Anglin‘s dissenting view was: the ultimate concern with such a scheme was that it needed the
    integrity to work well for all within it. The scheme would not work if there were players along
    the way reaping unwarranted profits or no profits — scheme had to provide reasonable profits
    to all involved.


A scholarly interlude……

H.E. Smith, ―The Residue of Power in Canada‖ (1926) p.100

Critical Points:
 Smith believes that what has gone awry in terms of the way in which division of powers
   between Parliament and provincial legislatures has been interpreted, particularly by P.C., is
   that the legislative history underlying B.N.A. Act of 1867 has not been taken into account by
   judges.
 In Common Law tradition, when one is interpreting contract or deed or will, it has always
   been considered helpful to look at what was in minds of those involved.
 Courts don‘t seem willing to look at intentions of drafters of the statute [interesting that he


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    still views BNA Act as a statute, not something special like Constitution].
   Were courts to treat statutes the same way as deeds, wills, contracts, etc., and were the
    legislative history to be examined, judges would know that those who put B.N.A. Act together
    intended to have a strong and powerful central government.
   p.101 ―Upon … of Canada‖ — from this standpoint, it was a technical legal problem
    preventing judges from looking behind the text to find what those who put the text there
    intended the text to mean — he wants historical argument to used [Bobbitt].


J.R. Mallory, Social Credit and the Federal Power in Canada (1954)
p.101

Critical Points:
 Much more of a psychological analysis of Viscount Haldane.
 In early part of 20th century, Haldane was very much a supporter of the Labour Party, which
   Mallory acknowledged, because he can‘t reconcile that fact with what appears to him to have
   been a dislike on Haldane‘s part of attempts by the state to regulate the economy.
 Mallory‘s analysis of all these Haldane judgements leads him to conclude that what really lay
   behind Haldane‘s highly restrictive interpretation of federal power was a commitment to
   19th century liberalism, and laissez-faire economic theory.
 That wouldn‘t be complete without strong dislike of government interference in all matters
   economic — doesn‘t seem to fit well with Haldane‘s support of Labour Party.
 Mallory goes on to say laissez-faire economics, whatever its merits in 19th
   century, simply didn’t fit problems confronting Canada in early 20th century -
   pp. 102-3.


Cairns, ―The Judicial Committee and Its Critics‖ (1971) p.103

   More positive.
   Not supportive because of his understanding of kind of federalism drafters intended, but
    supportive because as things evolved, P.C. view of Canadian federalism fit a lot better than a
    view of federalism that would have resulted in Parliament having broad powers over our
    social and economic lives.
   Thesis: the provincial bias that the P.C. evinced in its judgements was in fundamental
    harmony with the regional pluralism of Canada.
   He goes on to outline elements of that regional pluralism that evolved in latter 19 th and early
    20th century.
   Cairns draws support from fact that central institutions without judicial prompting had
    recognised the appropriateness of decentralisation of Canadian federalism, noting the Feds
    had essentially ceased using powers of reservation and disallowance.
   This is a different interpretation, based on extra-legal developments rather
    than legal developments or legal text.

OTHERS………..
 The casebook says that the literature holds out the following as other reasons underlying the
  Privy Councils pro-provincial, or anti-Parliamentary approach which, at times seemed almost
  aimed at undermining Parliament, and the S.C.C. – keeping them in their place?
 Concern over preserving the British Empire
 Reluctance to make a vague phrase (P.O.G.G.) into as major head of power
 Attitudes towards Home Rule for Ireland
 A desire to preserve the P.C.‘ s own power
 Haldane‘s affectation for Hegelian philosophy
 The possibility that the P.C. was interpreting the B.N.A. Act correctly(!)


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Summary of Chapter

1.   Important to have some appreciation of Haldane‘s views on s.91(2), 91(27) and P.O.G.G., not
     because those views represent constitutional doctrine in those areas today, but because they
     did represent the doctrine at one time, and, as such, are a very important part of the history of
     judicial review in this area.
2.   It was during this period that the following proposition came to be recognised and firmly
     entrenched in the law: the jurisdiction to regulate particular trades and businesses is
     presumptively provincial because the term ―civil rights‖ in s.92(13) was interpreted in a way
     that suggested freedom to contract as a critical component of provincial legislative
     jurisdiction thereunder.
3.   The P.C. held the conviction that the provincial sphere of jurisdiction to regulate particular
     trades and businesses had to be respected and protected by the courts even when:
     a. the Feds attempted to deal with economic problems e.g. Board of Commerce combines
           and hoarding, on an economy-wide basis, not just in particular presumptively provincial
           sectors, and even when
     b. regulation of particular trades and businesses could be said to be incidental to the
           regulation and international and interprovincial trade: King v. Eastern Terminal
           Elevators.
4.   Consequential upon all that is the need in many instances, and in particular in
     the agricultural sector, for federal-provincial co-operation in the creation of
     regulatory regimes.
5.   The holding in Snyder that later became attenuated by Bell 1 and 2 that labour relations, like
     the regulation of particular trades and businesses was within provincial legislative jurisdiction
     under s.92(13) again, reflecting interpretation of that power, imported into it a notion of
     freedom of contract — attenuated — labour relations is no longer an intact matter or sphere of
     jurisdiction, it has become a divided sphere with jurisdiction over labour relations going along
     with jurisdiction over the particular sector of the economy in question. Those sectors like
     banking, shipping, aeronautics radio, TV that surmount provincial presumption, have federal
     jurisdiction in their labour relations as well. Jurisdiction over labour relation in provincial
     sector remains provincial.
6.   National emergency doctrine: although not the only way to interpret P.O.G.G. now, it is one
     way to interpret P.O.G.G.
     iii) If federal legislation is to be upheld on basis of national emergency doctrine, it must be of
          temporary duration.
     iv) Fort Francis: judicial review of federal legislation, assuming it is temporary in nature, that
          Feds seek to support on basis of this doctrine, must proceed in a cautious manner.




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Chapter 6:                The 1930s: The Depression and the
New Deal
   The first 3 cases are each important in their own right, but it is also helpful to view them as a
    group, because they were all decided in 30s.
   They appeared to signal a very different part on P.C., which no longer included Haldane,
    towards division of powers between Parliament and provincial legislatures.
   This was not only in terms of doctrinal positions P.C. staked out, but also in terms of their
    attitude towards their judicial review role, particularly noticeable in Aeronautics and Radio
    cases, which deal with a provision of the Constitution….

   SECTION.132:
        “Parliament and government of Canada shall have all powers necessary or proper for
         performing all obligations of Canada or any province as part of Commonwealth to
         perform obligations to any other country under any treaty‖ — see p.118-9 Labour
         Conventions.
   The Law is that in terms of the making of treaties, the federal government and the Feds
    ALONE speak on behalf of Canadians — only the federal government has the authority to
    enter into, and take obligations under, treaties with foreign countries.
   Unlike some countries, once Canada has entered a treaty and obligated itself to do certain
    things that involve the state of Canadian law, those obligations entail the enactment of new
    legislation or the amendment of old.
   Unlike in some countries, treaties in Canada have never been and are not self-executing.
   In the U.S., which doesn‘t consider itself bound by international law at the best of times, the
    treaty is of no force and effect until it has been approved by the House (and presumably, the
    Senate)
   It is not automatic that the provisions of a treaty that Canada enters into become part of
    Canadian law.
   They only become part of Canadian domestic law if and when legislation of the
    kind required is enacted.
   When Canada was first created, it was not considered an independent sovereign state capable
    of entering into treaties with foreign countries.
   If Canada was to be a party to a treaty, it was a party because the British government entered
    into the treaty on Canada‘s behalf — Canada was represented in international sphere NOT by
    Feds of Canada but by the government of the U.K.
   S.132 was there to stipulate that in respect of the obligations that Canada was confronted with
    in treaties entered into on its behalf by the British government, the power to enact the
    legislation that would give effect to those obligations rested with the Parliament and
    government of Canada.
   The implication that flowed from that was that it was true regardless of the subject matter
    dealt with in the treaty.
   Even if the treaty was in an area coming within exclusive provincial legislative jurisdiction,
    e.g. education to this point and, in time, labour relations, the power to enact the
    necessary legislation rested not with provincial legislatures but rather with Parliament.


Proprietary Articles Trade Association v. A.G. Canada (1931 P.C.)
p.107

   Dealing with two federal enactments, Dominion Combines Investigation Act and provision of
    Criminal Code, both of which in slightly different language criminalised agreements to lessen
    competition in the marketplace.

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   Combines also created an administrative tribunal and empowered that tribunal to administer
    that Act, granting it amongst other powers significant powers of investigation.
   Basically had much slimmed down version of legislation struck down before in Board of
    Commerce, with a prohibitory rather than regulatory thrust.
   Outcome: it worked. Legislation was upheld, on basis of s.91(27) criminal law.
   The fact that it was upheld on this basis was in itself important because in meant Parliament
    could through prohibitory means deal with anti-competitive behaviour in the marketplace. It
    also meant that the Feds were really limited to a prohibitory approach, and in fact that was
    understood to be the case through to the 1980s when the S.C.C. finally did what academics
    had been urging for years, and decided combines legislation could be justified on s.91(2)
    regulation of trade and commerce as well as s.91(27) crim, on basis of the general
    regulation of trade branch rather than the interprovincial and international trade.

   Lord Atkin‘s comments on Haldane‘s interpretation of both s.91(27) and
    s.91(2).
   In respect of s.91(27) criminal law power, Atkin makes it clear he doesn‘t like Haldane‘s idea
    that there is a notion of a fixed domain of criminal jurisprudence, particularly if by that term
    Parliament under s.91(27) was to be limited to re-enactment or refinement of offences that
    had already been created in the law in 1867.
   In place of that understanding, Atkin advances very different interpretation of s.91(27),
    grounded in purely formal requirements: permits Parliament so long as it uses proper form to
    create whatever offence it wants — have to have prohibition couple with penal consequences.
    P.108.
   THERE IS A THREE PART TEST: you need the following….
         Prohibition
         Penalty
         Appropriate subject matter
   Qualifier p.109: Parliament cannot use s.91(27) colourably and merely in aid of what is, in
    substance, an encroachment on provincial legislative jurisdiction. I.e. no bootstrapping
    proposition in Haldane‘s judgement in Board of Commerce and Snider.

   In terms of s.91(2): in dicta, Atkin distances himself from Haldane‘s restrictive
    interpretation.
   S.91(2) is not merely auxiliary or subordinate head of power, but was an
    independent authority like all of the other enumerated heads on the federal
    side.
   From doctrinal standpoint, it is significant that P.C. rejects Haldane‘s narrow interpretation of
    s.91(27) of a fixed domain, at least in terms understood as enabling Parliament to create
    offences only with respect to things that were offences in 1867, and rejects Haldane‘s even
    narrower interpretation of s.91(2) that was merely auxiliary power.


Reference Re The Regulation and Control of Aeronautics in Canada
(1932 P.C.) p.109

   At issue was a comprehensive scheme enacted by Parliament regulating most aspects of
    aeronautics, licensing of pilots, etc., enacted in implementation of treaty obligations that were
    contained in a treaty entered into on Canada‘s behalf by British Crown
   This was known as an ―Empire Treaty‖ relating to Canada amongst other members of
    Commonwealth.

   HOLDING: Upheld as constitutionally valid.
   Approach of Lord Sankey is set out as the appropriate approach to take in division of
    powers cases, a dramatic departure from P.C.‘s approach during Haldane period.



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   First: a suggestion that as important as individual cases are, courts should remember that
    their job is to interpret the text of the constitution, and in particular, to interpret that text in
    manner consistent with what it understands to be the main object with which the B.N.A. Act
    was passed.
   The suggestion here to be wary of paying too much attention, or attaching too much weight, to
    doctrine fashioned by P.C. in previous cases, and more attention to text and purpose.
   Thus, it is suggested that the court should move away from doctrinal argument
    and concentrate more on textual, historical and perhaps structural argument in
    Bobbitt’s terms.

   Sankey then goes on to indicate that in his view (and presumably the view of his colleagues)
    while there is no doubt that one of main purposes of B.N.A. Act was to protect provincial
    autonomy, the real object of that Act (p.110) was to give central government those high
    functions and almost sovereign powers.

   There should be a re-orientation away from provincial autonomy and
    protection thereof, and instead an emphasis on ensuring Parliament was able
    to legislate on matter of general interest to Canadians.

   Finally, (at p.110) he rejects what had become standard features of division of powers
    judgements, reflected especially in S.C.C. King, piecemeal analysis.
   This involved examining legislation provision by provision, on a compartmentalised basis, to
    see if Parliament can be said to be encroaching on particular provincial head of power.
   Moreover, the suggestion here that, instead of trying to find support for legislation on basis of
    a whole slew of enumerated heads of power, there should be willingness on the court‘s part to
    think more broadly.
   The court should aim to see the big picture, “taking a broader view of the
    matter,” and clearly, by implication, making greater use of P.O.G.G. as source of
    federal legislative jurisdiction.
   This is a dramatic change in approach to a pro-federal stance from the usual pro-
    provincial one.

   What does he actually do with respect to the matter in question?
   HE UPHOLDS, ON THE BASIS OF S.132.
   Parliament shall have all powers necessary to fulfil treaty obligations — here,
    there was an Empire Treaty, complete with obligations Canada undertook in that treaty.
    Parliament was legislating in implementation thereof.
   He noted that it might be possible to support components of this particular legislation on
    s.91(2) trade and commerce, (5) postal service, or (7) national defence)
    enumerated classes, but those were procedural and unnecessary — s.132 in and of itself
    was enough to provide support.
   No reference was made to s.92(10)(a) — there was no suggestion that we were dealing
    with interprovincial transportation — we don‘t know why it wasn‘t considered to be relevant.

   Sankey goes on to look at P.O.G.G., and say (p.111) aerial navigation has attained such
    dimensions as to affect body politic of Dominion — bringing in Watson‘s national concern
    doctrine — if that is in addition to or in replacement of emergency etc. we don‘t know.
   As events unfolded in S.C.C. era, federal jurisdiction over field of aeronautics has been
    recognised to rest NOT on s.132, but P.O.G.G.
   1952 S.C.C. Johanssen The Feds were no longer able to rely on s.132 because Empire
    treaties came to an end and Canada acting independently in international sphere was
    signatory.
   s.132 would not do, so another basis had to be found, and that basis was P.O.G.G. with no
    suggestion that s.92(10)(a) might be that basis.



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Reference Re Regulation and Control of Radio Communication in
Canada (1932 P.C., aff’g 1931 S.C.C.) – p.111

   This case was similar to the Aeronautics Reference in the sense legislation enacted by
    Parliament in implementation for obligations contained in a treaty, but with one important
    difference — this treaty was not an Empire treaty, but rather one that Canada had
    entered into on its own.
   Legislation is referred to courts for purposes of determining whether it is valid, and in spite of
    that important difference, the answer is: yes the legislation is valid.
   Viscount Dunedin for P.C. begins with s.132, but because of the difference, holds that
    federal jurisdiction in area of radio communication does NOT lie in that provision.
   However, fact that s.132 does not cover this situation was not the end of analysis — Dunedin
    goes on to look at P.O.G.G. as possible alternative source of federal jurisdiction.
   Dunedin says: because the legislation was enacted to implement treaty obligations, or treaty-
    supplementing legislation, and that power is not mentioned anywhere in enumerated classes
    of subjects in ss.91 & 92, such legislation must be taken to fall within P.O.G.G.

   This is an example of third branch of P.O.G.G. known as gap test — where there is a gap, it
    must fall to Parliament to enact such legislation under P.O.G.G. — questionable range.
   Hence, even though s.132 is not directly relevant here, p.112 — comes to the same thing.
   A prudential argument is made: that it makes sense for federal government to
    legislate in implementation of treaty obligations because it is federal order of
    government to legislate in implementation of treaty obligations because it is
    federal order of government that is accountable in international sphere.
   (P.113) Discussion of argument provinces made along lines of:
     separate sending of signal from receiving of signal : maybe the Feds have
        jurisdiction over sending of signal, but once those signals are received and transmitted to
        local residents etc., the provinces have jurisdiction.
        In a sense, the Provinces were urging them to engage in the very piecemeal analysis
        Sankey rejects in aeronautics Reference.
   Dunedin rejects that and says it is all one thing, all one undertaking and they are not prepared
    to divide legislative jurisdiction in area of radio communication — jurisdiction goes in its
    entirety to Parliament.

   (P.113) P.C. did see merit in discussion of s.92(10)(a) , and they saw radio communication as
    fitting nicely within s.92(10)(a) and provides alternative source of jurisdiction.

   This is important because in the modern day, S.C.C. has relied on s.92(10)(a) to give Feds
    jurisdiction in radio communication, in terms of both hardware involved, but also in terms of
    the content of what we hear on the radio and watch on TV.
   Recall the Capital Cities Communication and Dionne? cases in 1950s where S.C.C. fixed
    jurisdiction in the Feds with respect to both the hardware and the content.
   S. 92(10) thus provides the necessary basis for current Canadian content rules and
    regulations.
   Side note: if you read those judgements, you will see court splits 6:3 on that point, with all
    3 Quebec judges in dissent, a clear indication they saw power to control content of radio and
    TV was integral to Quebec‟s cultural integrity.

   BOTTOM LINE: s.92(10)(a) provides source of federal jurisdiction over radio, P.O.G.G.
    provides jurisdiction over aeronautics.


Reflecting on the First Three Cases

   Note the results: the Feds win all three — no so surprising, with respect to first case


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    prohibitory legislation with respect to anti-competitive basis, but the other two cases very
    significant.
   Very different approach — more purposive, less piecemeal, and consistent with now a pro-
    centralist rather than pro-decentralist approach on Canadian federalism, and out of that
    approach evolved pro-federal doctrine.

On into Depression cases following :
   These three judgements we looked at were quickly forgotten — P.C. returned without too
    much trouble to its former approach and to earlier doctrine, at least in general sense.

   (P.114-5) A list of major statutes enacted by Parliament at least in part to deal with
    Depression-related problems — eight statutes in all.
   Two of the Farmer‟s Creditors Arrangement Act and Natural Products Marketing Act were
    designed to provide protection to farmers vis-à-vis their creditors and through comprehensive
    regulatory regime for marketing of natural products which moved in significant proportions
    in interprovincial and international trade.
   The thrust of legislation was supposed to be regulation of interprovincial and international
    trade, with main purpose to improve marketing and stabilise prices.
   Four enactments were designed to protect industrial works — three of those were
    enacted by Parliament in implementation of international labour organisation for Canadian
    workers Limitation of Hours of Work, Weekly Rest and Minimum Wages Acts — enacted as a
    package on basis of treaty obligations. Fourth statute to protect industrial workers was
    Employment and Social Insurance Act to provide unemployment insurance for industrial
    workers.
   The last two were designed to protect business and consumers, the first in the form
    of an amendment to Criminal Code designed to deal with forms of anti-competitive behaviour
    that had not to that point been criminalised, and secondly:
   Dominion Trade and Industry Commission Act, which did two things.
     It established a Commission and gave that Commission authority to regulate competition.
     Secondly, it established a national trademark called Canada Standard, which was
         available to those who met certain product requirements set out in the statute.
     The idea was that if you want the marketing benefit of Canada Standard label, you must
         meet the requirements.

   All of these were enacted in 1934-5 by Conservative government of PM Bennett,
    and they represented a ―Canadian New Deal‖ similar to FDR‘s New Deal
    legislation in U.S..

   Enactment of those statutes was not enough to guarantee Bennett‘s re-election in 1935, and
    Conservatives were replaced by Liberals and Mackenzie King. King referred the whole batch
    of enactments to S.C.C. to determine their constitutional validity.
   END RESULT WAS THAT OF THE EIGHT, TWO AND ONE HALF SURVIVED —
    FIVE AND ONE HALF WERE DECLARED UNCONSTITUTIONAL.

W.P.M. Kennedy, Our Constitution in the Melting Pot (1934) p.115

   Kennedy and Macdonald are scholars closely associated with criticism of P.C.
   They are also of the view that circumstances had changed dramatically since 1867 and Canada
    desperately needed a strong central government, which was not the case, given jurisprudence
    at that point in time.. Macdonald, ―Judicial Interpretation of the Canadian
    Constitution‖ (1935) p.116




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A.G. Canada v. A.G. Ontario (Labour Conventions) (1937 P.C.) p.117

   At issue: three statutes enacted in implementation of treaty obligations in I.L.O. conventions.
   3:3 split in S.C.C.
   P.C. gave clear response: all three enactments are declared invalid.
   See Lord Atkin‘s description: bottom p.118, top 119, by way of preliminary setting of the scene
    for legal analysis, going over material Elliot covered with respect to treaties, etc.
   S.132 quickly rejected as inapplicable as Canada was a signatory and these
    were not Empire Treaties.
   Atkin goes on to look at P.O.G.G. in two distinct stages:

   FIRST, HE ANALYSES THE ARGUMENT DUNEDIN SET OUT IN RADIO
   REFERENCE.
    Dunedin had admitted that s.132 is not directly applicable, but as treaty-implementing
        legislation was not enumerated in s.91 or 92, we‘re dealing with P.O.G.G.
    Atkin rejects that completely and suggests that line of argument was not true basis for
        Dunedin‘s decision in Radio Reference.
    Atkin goes on to say that there is no such thing for division of power purposes
        as treaty-implementing legislation.
    In those situations where s. 132 is not applicable, the fact that the legislation is designed
        to implement treaty obligations becomes completely and utterly irrelevant.
    Legislation is to be examined for division of powers purposes quite apart
        from the treaty-implementing aspect.
    It should be approached in the way legislation enacted in normal course is approached.
    So approaching it, and citing Snider, he quickly concludes labour relations comes under
        exclusive provincial jurisdiction under s.92(13), and hence is beyond federal legislative
        jurisdiction.
    Uncharacteristically, he explains why he take that position:
1. Because otherwise provincial autonomy, which he sees as absolutely critical to Canadian
   federalism properly understood, would be placed at serious risk. Bear in mind treaty-making
   was becoming a much more popular practice on part of government than it had been in the
   latter 19th century.
2. Any other results would leave it open to federal government to being within federal legislative
   jurisdiction matters that would normally come into provincial jurisdiction by entering into
   treaties in respect of those.
 Bottom line: Dunedin’s analysis in Radio Reference is rejected just five years on.
    Unless s.132 is relevant, then the treaty dimension disappeared, and you examined the
        basis of legislation in the way you would normally examine legislation enacted by
        Parliament.

SECOND STAGE OF EXAMINATION OF P.O.G.G. WAS WITH RESPECT TO
EXISTING DOCTRINE ON P.O.G.G.
 Absent Dunedin‘s judgement in Radio Reference.
   What had happened between Radio Reference and this case was that Duff C.J.C. in Natural
   Products Marketing Reference, had done what Atkin thought was a masterful job of making
   sense of the earlier P.C. judgement by subsuming Watson‘s national concern doctrine within
   Haldane‘s emergency doctrine.
 Duff interpreted Watson‘s judgement as if he too was really talking about national
   emergencies.

   At this point, P.C. says the law with respect to P.O.G.G. is law set down by Duff C.J.C. in
    Natural Product at S.C.C.: that P.O.G.G. is limited to dealing with national
    emergencies.
   There is but one branch to P.O.G.G. and that‘s it.
   Very pro-provincial autonomy (last paragraph p.122): even though Canada is


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    independent player on international stage, in terms of legislative jurisdiction with respect to
    implementing treaty obligation, she is still governed by watertight compartments of s.91 & 92.
   Query: why was Depression not seen to amount to national emergency?
     Any thought along those lines was given very short shrift, probably because the
        enactments that came out of that period were permanent in character and not temporary,
        and therefore probably impossible for Feds to defend them on basis of doctrine of
        national emergency.


Ramification of Labour Conventions

   Still to this day the law, in spite of fact it has been severely criticised and even called into
    question on occasion by S.C.C. in dicta in other cases.
   The bulk of the criticism stems from concern that if Labour Conventions does represent
    the law, then it hampers Canada‘s ability to be a full and active participant on international
    stage, at least insofar as treaty-making is concerned.
   Why? If in making a particular treaty Canada undertakes obligations it can only meet by
    dumping Canadian Law, then Canada, unless the treaty obviously deals with matters
    exclusively within federal jurisdiction, can‘t be sure it can meet the obligations.
   Canada has not entered a range of important treaties for those very reasons.
   There are a range of mechanisms or techniques available to federal states like Canada to deal
    with this problem: mostly Hogg‘s ideas, these…….
         3. Consult with provinces and get their consent in advance of entering such treaties.
         4. Ensure that the treaty contains a ―federal state clause‖ which absolves the central
             government of any responsibility in a federal state where because of the division of
             legislative jurisdiction within that state, the regional authorities don‘t fulfil the
             obligations undertaken.
         5. Instead of having federal state clause in the treaty, Parliament of Canada when it
             ratifies the treaty as it must do under our law, attaches to the Treaty a reservation
             along the lines of a federal state clause — an acknowledgement that jurisdiction rests
             with the provinces for whom the Feds cannot be responsible.
         6. A two-step process in which the Feds enter a framework treaty or agreement, which
             agreement in its body contains a provision for the making of subsidiary agreements by
             the provinces.
   A couple of years ago, there was a major dispute between Feds and Quebec re: such
    arrangements with respect to enforcement of child support orders in France and Quebec with
    each side agreeing to enforce the other‘s orders.
   The dispute arose because Quebec insisted on language suggesting Quebec was contracting as
    the sovereign state. (surprised?)


A.G. Canada v. A.G. Ontario (The Employment and Social Insurance
Act) (1937 P.C. affi’g 1936 S.C.C.)

p.122, text.

   This was fourth of four statutes designed to protect interests of industrial workers in the 1934
    Canadian New Deal package.
   This one created a form of unemployment insurance and like the other three enactments, it
    too was struck down as unconstitutional.
   BASIS FOR STRIKING IT DOWN: this was an interference in provincial legislative
    jurisdiction over property and civil rights.
   That was on basis of similar type of thinking to Snider where P.C. allocated labour relations to
    provincial legislative jurisdiction on that same basis.
   Like many judgments in this area, P.C. did not give extensive reasons; here their reasoning
    may be described as somewhat cryptic, not least in ignoring the S.C.C.‘s allocating the sphere

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    to the Feds on power to tax under s. 91(3) and power to spend what is federal property (under
    the now s. 91(2)(a)).
   This field of jurisdiction ends up on federal side of ledger through Constitutional amendment
    with agreement of the provinces.
   Little turned on this decision in terms of its significance for future doctrine, because shortly
    thereafter Constitution was amended, and with agreements of all provinces, unemployment
    insurance was added as new class of enumerated subject s. 91(2)(a).


A.G. B.C. v. A.G. Canada (The Natural Products Marketing Act) (1937
P.C. aff’g 1936 S.C.C.) p.124

   THIS IS THE MOST IMPORTANT OF THE REMAINING CASES, IN DOCTRINAL
    TERMS.
   Back we go to the piecemeal analysis, it would seem……….
   This statute attempted to regulate, primarily for the benefit of producers of natural
    products, the marketing of those products, providing that the principal market for a
    product was outside the province in which that product was produced.
   This certainly reflected some sensitivity at least to the doctrine in this area, in particular the
    notion that federal legislative jurisdiction in regulation of trade and commerce was limited to
    regulation of international and interprovincial trade.
   In spite of that limitation, this legislation did regulate the marketing of these natural products
    within the province within which they were produced as well as without.
   Although legislation only attached to natural products whose primary market was outside the
    province, once you had such a product, then trade in that product was regulated in both its
    intra-provincial as well as extra-provincial aspect.
   For that reason, this legislation was struck down on basis of reasoning similar to
    King v. Eastern Terminal.

S.C.C. TREATMETNT OF THE CASE
 S.C.C.: speaking through Duff focused in on the intra-provincial trade dimension of the
   scheme, and held that intra-provincial trade fell within exclusive provincial legislative
   jurisdiction.
 Hence, in spite of the way the statute was drafted, it was unconstitutional, and
   unsupportable on basis of s. 91(2).
 STATE OF THE LAW AT THAT TIME AND STILL TODAY: Duff says not only is it
   within exclusive provincial legislative jurisdiction to regulate local businesses and occupations
   (King), but it is also within exclusive provincial legislative jurisdiction to regulate trade in
   particular classes of economy insofar as it is local in provincial sense. (see p.124)

PRIVY COUNCIL TREATMENT OF THE CASE
 p. 125: Atkin echoes that language
 p. 126: Having carved up regulation of natural products into intra- and extra- provincial,
   Atkin discusses federal and provincial Co-operation, because you can‘t effectively regulate
   with just one side.
 It may well be necessary for you to cooperate, but even when Parliament and provinces co-
   operate, make sure you don‘t overstep your bounds - judiciary will scrutinise your efforts
   carefully.
 Question: Shouldn‘t this be question of applicability or operability rather than
   validity?
    Argument is, here, because of the way the thing is drafted, pith and substance is
       regulation of extra-provincial trade.
    Any infringement on intra-provincial is merely an incidental effect, ancillary to or
       necessarily incidental to regulation of extra-provincial trade.



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   Majority view of the court is that you can‘t do it that way, because end result will inevitably be
    that the provinces will lose control over a very important sector of their economy.
   Why not approach it on basis of operability?
     There was no provincial legislation in this sphere regulating intra-provincial trade in these
         products, so no question of operability could arise.
   Applicability?
     Turns critically on how the federal legislation is drafted.
     If it is drafted generally so that no distinction is drawn between extra- and intra-
         provincial, then you can get question of applicability.
     However if drafted explicitly purporting to regulate intra- as well as extra- provincial
         trade, then you don‘t get applicability, and must focus on explicit terms directed at
         regulation of intra-provincial trade.
   If legislation in question is express in dealing with something it probably shouldn‘t deal with,
    then you only get question of validity. If legislation is general and those responsible for its
    enforcement apply it in contexts that raise questions, then you get a question of
    applicability.

   Could the court just strike down part of the Act that is ultra vires?
     Yes, but in those days courts were reluctant to do that.
     King resulted from the amendment of one subsection, with the end result that the entire
       statute was struck down.
     The reason they gave was that they saw that provision as being an integral part of the
       scheme, and without that section the scheme might not have been enacted.
     Courts today will strike out part of a scheme.
     Legislators today are more sophisticated, in the sense that you will sometimes find
       questionable (with respect to both division of powers and Charter) sections in the
       legislation, with a provision at the end saying that if any of the Act is found
       unconstitutional, it should be severed from the statute, leaving the rest intact.


The Other Cases p.126

   Case on Criminal Code Amendments: Upheld on basis of s. 91(27), confirming Feds
    can legislate in area of anti-competitive economic behaviour, but confirming that if they do so,
    their approach has to be prohibitory in thrust and not regulatory.

   That distinction was confirmed in the next case, dealing with Dominion Trade and Industry
    Act, which had two major components:
     The FIRST was the establishment of this Commission and granting to it of authority to
        approve certain agreements made between businesses to restrict competition.
     This entailed the establishment of regulatory body for authority on investigation and
        review etc. to approve certain kinds of anti-competitive commercial agreements, thereby
        rendering them immune from criminal prosecution.
     Second major component of this enactment is the creation of a national trademark
        called Canada Standard.
     Insofar as first component is concerned, and as for the distinction between
        regulatory and prohibitory approaches to anti-competitive behaviour, that one was struck
        down as attempt to regulate local (interprovincial) businesses, which only provinces
        under s. 92(13) can do.
     For Feds to legislate in area of anti-competitive behaviour, their approach
        must be prohibitory sustained by s. 91(27), and regulatory under s. 91(2)
        will not do.
     P.C. on Canada Standard trademark - decision went the other way, amazingly, on
        basis of s. 91(2) on the general regulation of trade branch and not the international
        and interprovincial branch.


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        Parsons used international and interprovincial and general regulation of trade
         throughout Dominion - quickly joined creating two branches. This was the second branch
         relied on here.

    Next case: Other enactment designed to protect farmers - Farmers Creditors Arrangement
     Act to alleviate economic hardships on farmers vis-à-vis their creditors - success for Feds,
     upheld on s. 91(21) bankruptcy and insolvency.


RESULTS: APPRAISAL AND RE-EVALUATION OF WHERE WE
STAND

    Feds lose most of the cases - eight went before courts, only two survived in their entirety, one
     survives in part, five were struck down.
    Note that the ones struck down include all four enactments designed to protect
     industrial workers, as well as the more important of two enactments Natural
     Products Marketing designed to protect agricultural sector.
    APPROACH:
      No longer do we have broader purposive approach of Sankey, no longer do we have
         concern about ability of central order to legislate in matters of concern to the country.
      Back we go to emphasis on particularities and on preserving provincial autonomy.
      Only in area of s. 91(27) do we get anything approaching solid base for federal legislation,
         which is fairly narrow in scope.



ACADEMIC CONSIDERATION OF THE SITUATION

    Kennedy and Scott - in total and utter despair.
    p. 128 Kennedy, Scott p. 129
    Kennedy calls for four steps to be taken:
1.   Repeal the B.N.A. Act
2.   Write a new Constitution
3.   Provide workable and some constituent machinery
4.   Get rid of appeals to the Privy Council
    Discussion of major report in 1939 by O‘Connor for Feds comprehensive analysis of ss. 91 and
     92 and what courts did from very critical perspective.
    Also commentary from more favourable, including Pigeon (who later joined the S.C.C.)
     extolling the virtues of P.C. approach (thought they had done a bang-up job) primarily
     because it preserved autonomy of Quebec, and…
    Lederman in mid-1970s: less enthusiastic than Pigeon but less inclined to criticise P.C., his
     take being that P.C. struck an appropriate balance between federal and provincial authority

Also see: F.R. Scott, ―Some Privy Counsel‖ (1950) p.131




Summary

7. There was an important though short-lived change in both methodological approach
   and perspective on Canadian federalism, which is reflected in first three cases. In particular,
   these were the references on aeronautics and radio communication, if only because
   those changes legitimised very different ways of thinking about division of powers cases than
   one finds reflected in most if not all of the other cases we looked at in Ch. 4, 5 and 6.
8. From Proprietary Articles of Trade Association case: P.C. distanced itself very

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      quickly from Haldane‘s approach to both s. 91(2) and s. 91(27).
     Insofar as s. 91(2) concerned, it was resurrected as an independent source of federal
      legislative authority, and
     Insofar as s. 91(27) concerned, it was interpreted as authorising federal legislation creating
      offences not known in 1867, and was not limited to some notion of a fixed domain of criminal
      jurisprudence that would have been recognised in that year.
     On the contrary, s. 91(27) authorised legislation of a broad scope subject primarily to purely
      formal requirements of creation of an offence coupled with a penalty, so long as it is not
      colourable by improper ulterior motives on Parliament‘s behalf.
9.    Allocation to Feds of both aeronautics and radio communications, initially via the
      two references on basis of s. 132 and P.O.G.G. for aeronautics, and on basis of P.O.G.G. and s.
      92(10)(a) for radio communications. More recently, in the S.C.C. era, those same allocations
      have been made in the case of aeronautics on basis of P.O.G.G., and in case of radio
      communications on basis of s. 92(10)(a). In these cases as well, there seemed to be
      the suggestion of a “GAP” approach.
10.   Note Labour Convention rule regarding legislative jurisdiction to implement treaty
      obligations, and consequences thereof. I.e., troubles it caused, how Feds and provinces got
      around those troubles, etc.
11.   The allocation, courtesy of Natural Product Marketing Act Reference, to provinces of
      jurisdiction over intraprovincial trade, i.e. trading transactions that take place wholly
      within province of production, based on s. 92(13).
12.   Insofar as P.O.G.G. is concerned, apparent resurrection of national concern
      doctrine in Aeronautics Reference, as well as creation of what is arguably the gap test in
      Radio Reference. It is also important to note Duff in Natural Products Marketing Act,
      endorsed by P.C., represents the locus classicus in this area. Duff, trying to remain true
      to Haldane‘s legacy, returned to the national emergency doctrine as the only viable
      doctrine in respect of P.O.G.G., subsuming the national concern doctrine within
      it.
13.   Note the decision to assign unemployment insurance to provinces, and subsequent
      Constitutional amendment assigning that field to the Feds(3 years after the P.C.‘s decision).




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Chapter 7: The                        Modern             Canadian              State          and
Federalism
   Purpose is to outline broader political context within which federalism disputes over last 50
    to 60 years have been litigated
   Vehicle used for that purpose is lengthy excerpt from 1986 book

K. Norrie, R. Simeon, and M. Krasnick, Federalism and the Economic
Union (1986)

   P.134
   Starts with assertion that if those responsible for drafting B.N.A. Act in 1860s were to be made
    aware of the way in which division of legislative authority had evolved, primarily in terms of
    what courts said about that division and more importantly the nature of legislative activity
    both orders are now engaged in, they would be astounded.
   Address two main questions: What are the major differences between then and now?
    Pp. 134-top of 137. They identify two major differences, then go on to address second major
    question: How did these differences come about? Pp. 137-141. Insofar as their
    discussion of latter question is concerned, useful application of three criteria of choice Simeon
    identified in piece we looked at in Ch. 8. Begins with functional efficiency, then looks at
    democracy, and ends with community. Makes an attempt to explain these differences
    between latter 19th and 20th centuries on basis of thinking about these three criteria of choice
    or values.

   Elliot‟s additions to that piece, in terms of providing contextual sphere for era where S.C.C.
    has been responsible:
   One: Post- P.C. era was an era in which Co-operation between Feds and provincial orders of
    government became very much the order of the day, and remains so.
     There are ongoing and important disputes between those two orders of government and
         especially the use of federal spending power, but also tremendous Co-operation between
         the two orders of government.
     Perhaps that is even greater now given fiscal concern about duplication of regulation and
         duplication of spending of tax dollars.
   Two: As result of change from P.C. to S.C.C. as final court of appeal, decisions in this area
    have changed as well, and some would say not for the better.
     For one thing, instead of getting only one judgment (P.C. had rule until 1966 of not
         allowing dissents), we now can get multiple judgments - sometimes 5 or 7 different
         judgments.
     Doctrine therefore becomes more complicated to extract.
     Another related change is that the judgments get longer and longer.
     That too makes extracting doctrine more difficult.




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Chapter 9:                Peace, Order, and Good Government
   MODERN ERA

Note on the Historical Development of the P.O.G.G. Power

   Russell: in the early days, the PC did not see POGG as a separate head but as an all
    encompassing source of Federal legislative jurisdiction. This was endorsed by many, even
    after the PC abandoned the position.
   Local Prohibition: departure from Russell; POGG viewed as a distinct head of power and one
    which had to be interpreted very narrowly: ―strictly confined to such matters…truly of
    national concern.‖
   1920s, Haldane judgements: POGG a distinct head of power, providing legitimate authority
    only in cases of national emergency, i.e. war.
   1930s Aeronautics Reference resurrects national concern; Radio Reference gap test;
   Duff: locus classicus—national concern is subsumed into national emergency
   Canadian Temperance Federation (1946)—new version of the Canada Temperance Act.
    Upheld by the PC on the basis of Russell (Viscount SIMON was quite anti-Duff).
     Significance is in approach to POGG as being only in national concern doctrine;
        emergency doctrine subsumed into it.
     TEST is in the legislation, not the situation. Similarly, ―to legislate for prevention appears
        to be on the same basis as legislation for cure.‖
   Reference re Japanese Canadians (1947)—not referred to in the casebook.
     Regards an order in council deporting Japanese Canadians after the war finished.
     Upheld as constitutionally valid under POGG using Haldane and Duff (National
        Emergency).

K. Swinton, The Supreme Court and Canadian Federalism: The
Laskin-Dickson Years 1990

   P. 233
   End of P.C. appeals.
   Johannesson v. West St. Paul (Municipality )—Municipal by-law restricting
    the siting of airports within municipal boundaries.
     By-law struck down as ultra vires municipal or even provincial jurisdiction. Aeronautics
        fell entirely and exclusively within federal jurisdiction.
     (Note that s.132 was no longer available because the treaties no longer Empire Treaties.
     The treaties relied upon in the Aeronautics reference had lapsed and been replaced by
        treaties enacted by the Parliament of Canada).
     SCC acknowledges National Concern doctrine separate and distinct from the National
        Emergency doctrine.
   Munro v. National Capital Commission (1966)—Parliamentary statute
    (National Capital Act) establishing the NCR and the NCC.
     The power of the NCC to expropriate was challenged unsuccessfully.
     Act upheld under POGG using the National Concern test.
   Jones v. AG New Brunswick (1970s)—challenging the Official Languages Act.
     Act upheld on the basis of POGG, not on basis of National Concern, but on a gap type test,
        i.e. no enumerated classes in 92 or 91 hence fell to the Feds by default [not in casebook].

   S.C.C. was, by this time quite attached to the National Concern doctrine and also willing to
    use a gap test.

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   LASKIN—strongly pro-centralist; highly critical of PC; ―modern‖ federalist, particularly
    o questions of validity, liked double aspect doctrine; not only accepting of judges exercising
    judicial review having lots of discretion but also liking it.
   BEETZ—strong believer n provincial autonomy; supporter of PC; classical federalist,
    preferring exclusivity, ―water-tight compartments‖; accepted that discretionary authority
    existed, did not like it, preferring to constrain discretion through the faithful use of doctrine.

PREAMBLE TO THE ANTI-INFLATION ACT REFERENCE
   It was enacted by the liberals after an election in which they had denied that they would do
    any such thing.
     Inflation was a pressing problem.
     The Act established a system of wage, price, and profit controls applicable to the federal
        public sector, the federal private sector, and the provincial private sector (i.e.
        areas regulated by the federal government), and applicable to the provincial public
        sector if the provincial government concerned consented.
   SCC—Feds relied primarily on the national concern doctrine and in reserve on the national
    emergency doctrine. In the result, the act was upheld on the basis of the national emergency
    doctrine by LASKIN.

EXTRINSIC EVIDENCE:
       In PC days, extrinsic evidence (Hansard, written records of Ministerial or MP statements,
        Royal Commission Reports, etc.) were generally not admitted.
       SCC allows it, particularly in references since references come straight to court without
        any kind of factual or other records.
       Deemed admissible because it had some relevance to the issues the court had
        to resolve.
       Part of the problem with reference cases is that the Court lacks the factual basis of regular
        cases, which makes the reference cases very abstract.
       Nonetheless, the Court will determine what weight to give to it.

National Emergency Doctrine—majority in the decision consisted of two different
groups (Laskin/Ritchie).
1. Clearly, the national emergency doctrine was both distinct and viable for the purposes of
    POGG power.
2. Also clear that the doctrine would support legislation in cases of war, insurrection, and
    peacetime emergencies including those of an economic character.
3. Doctrine will sustain legislation only of a temporary character.
4. Doctrine can be relied upon to support legislation of a preventative as well as of a curative
    nature.
5. If the Feds are in a position to rely on the emergency doctrine, then the courts must take a
    cautious approach to dealing with challenges to such legislation. Onus is on the challengers to
    show that there is no basis on which the Feds could believe a national emergency exists.
    Beetz and Laskin actually agree on the above points.

   Beetz felt the Feds needed to send a clear and unmistakable signal in the legislation itself that
    it was in response to a national emergency in order to be able to rely on the doctrine.
   Laskin also wants an indicator that the doctrine is being relied upon, but sets a lower standard
    than Beetz.

   Part of Beetz’s analysis has become accepted in that unlike the national concern
    doctrine, the national emergency doctrine amounts to a pro tanto amendment to
    the constitution.
     He argues that if Parliament is allowed to rely on the emergency doctrine, it would
        essentially be granted authority to legislate in areas exclusively within provincial
        control. However, his conclusion that there must be a clear and unmistakable signal has
        not been accepted.

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   Beetz’s judgement re: national concern amounts to a majority judgement. (Laskin
    did not deal with national concern since upheld it on basis of national emergency doctrine).

        His approach begins with an assessment of the nature and degree of the Act‘s assault on
         provincial jurisdiction.
     He then notes the characterisation which was proffered by the Feds in support of the act:
         ―the containment and reduction of inflation.‖
     Accepting this basis, the consequences for provincial autonomy would be dramatic and
         extensive.
   DOCTRINAL INNOVATION: in law there is a limit to the way in which a piece of
    legislation may be characterised.

Reference Re Anti-Inflation Act (1976 S.C.C.) p.239

   National Concern doctrine: now speaking for not just Beetz and Degrandpre, but now
    Beetz is judgment of majority on this issue
   Federal government proffered as appropriate characterisation the restraint and reduction of
    inflation, which led to discussion by Beetz of nature of characterisation process - its
    malleability, etc.
   Then Beetz made a doctrinal innovation
   Beetz was concerned about implications for provincial autonomy and Canadian federalism
    generally of accepting the Feds‘ characterisation of the Act in this instance.
   This concern stemmed from the fact that the Act reached out and caught not only federal
    public and private sectors but also provincial private and public sector, even
    though the provincial public sector came in only on consent.
   Beetz‘s view was that provincial autonomy specifically with respect to the power of provinces
    to have exclusive legislative jurisdiction over various economic matters would be placed at
    risk, and in order to avoid that risk being realised, Beetz rejected the Feds‘ characterisation.
   He did so on basis of creation of a test for the acceptance of new matters in context of
    P.O.G.G., specifically the national concern doctrine
   That test flowed in part out of Beetz‘s interpretation of some of previous cases where national
    concern doctrine used successfully by Feds - p. 250 square bracket Beetz reviewed a number
    of the relevant cases
   Test is at bottom of p. 250 – The new matter proffered by Feds as the basis supporting the
    legislation has to have:
     a degree of unity that makes it indivisible,
     an identity which makes it distinct from provincial matters, and
     a sufficient consistence to retain the bounds of form.
   Moreover, and, in a sense, transcending the test, the courts have to be very mindful, when
    applying the test, of the impact on provincial autonomy of accepting this proffered new
    matter.
   In this case, Beetz’ application of the test is brief, and he concludes it is not
    satisfied p. 251
   P. 250 Beetz: in pith and substance the Act relates to property and civil matters.
   This conclusion is not based on the idea that containment of inflation is not a national
    concern.
   Rather, it is based on his view that the restraint and reduction of inflation is simply NOT a
    matter - it not an acceptable matter or acceptable way to characterise this or any other
    enactment.
   In terms of doctrine, it relates not only to national emergency doctrine, but also
    to national concern doctrine - major innovation in respect of latter is
    introduction for first time of a limitation in law to the characterisation process.
   Bottom of p. 249 Beetz says the circumstances giving rise to this enactment, and the
    motivation Parliament had in creating this enactment, while not irrelevant, should not be our


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    primary concern in characterisation.
   We should look at what means are being used to further those ends and what the legislation
    actually does - and this uses weights and measures, etc., to further controls of inflation.


Note: Emergency Legislation After the Anti-Inflation Act

   The statute, enacted as a result of concerns expressed over decades about War Measures Act,
    the statute enacted in 1958 designed to legitimise federal enactments in times of federal
    emergency, also contains provisions limiting the exercise of that power
   It is fair to say that given nature of those limitations, while Beetz may have lost battle insofar
    as emergency doctrine concerned, he won the war, because one limitation is the need for a
    declaration concisely describing the state of affairs constituting the emergency which has to be
    made by Parliament, thereby imposing through this statute the obligation to give the courts
    the clear and unmistakable signal that Beetz wished to impose through process of judicial
    review.


Note: The National Concern Doctrine After Anti-Inflation

   The Hauser case features prominently in the note
   While interpreted by S.C.C. and others as dealing with national concern doctrine, is in mind of
    others Elliot included not an application of that doctrine but an anomaly and a case that
    should be treated with extreme caution
   Elliot is happy if we don‘t even read that note.


THE ENVIRONMENT AND CROWN ZELLERBACH

Way in which courts have dealt generally with the environment as a field
of legislative activity:

   Management of the environment is, obviously, critically important.
   It is a sphere of legislative activity that could conceivably encompass virtually everything that
    we do
   For that reason, and spelt out clearly in LaForest‘s Crown Zellerbach dissent, the courts
    including S.C.C. have been reluctant to characterise legislation, and particularly federal
    legislation, in terms simply of managing the environment.
   Were they to do that, likely result would be that the matter would be assigned to Parliament
    and Canadian federalism in their view would essentially collapse. This is far too great a threat
    to Provincial autonomy.
   If the control and reduction of inflation as a matter would put Canadian federalism at risk,
    courts have reasoned that would be even more true if managing environment were accepted as
    distinct matter
   Instead courts have engaged in the kind of piecemeal analysis that Viscount Sankey in
    Aeronautics Reference considered inappropriate - courts have carved up the management of
    the environment into a whole slew of different sub-matters. This is a very ad hoc basis.
   Courts have parcelled the sub-matters out, some to Parliament and some to provincial
    legislatures.
   In parcelling those sub-matters or subject matters out, the courts have tended to work on the
    basis of which level has jurisdiction over a particular activity that could be said to lead to
    harm to the environment, which jurisdiction has authority over the land or more generally the
    place where the activity in question occurs, and which jurisdiction has authority to deal with
    the harmful effects of the activity
   Jurisdiction over activities: E.g. Industrial activities: Parliament has jurisdiction over

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    navigation and shipping. Shipping as an activity can result in harm to the environment.
    Courts have said Parliament can deal with harm to the environment caused by shipping.
    Similarly interprovincial transport: trucking, bus lines, railways, etc. can likewise cause harm
    to the environment, and because Parliament has jurisdiction over those activities, Parliament
    can seek to limit harm caused by those activities. E.g. provinces have jurisdiction over
    forestry and mining, and so are entitled to limit harm caused to the environment by those
    activities.
   Jurisdiction over location those activities take place: If it takes place on federal Crown land,
    jurisdiction goes to Parliament on basis of its ownership of that land. Similarly for provincial
    Crown land.
   In terms of effects, more complicated: E.g. federal jurisdiction over fisheries. If there is an
    activity that could harm the environment and through that harm the fishery, then Parliament
    can control that activity, at least insofar as potential harm to the fishery is concerned.
    Similarly Parliament can use its criminal law power to protect against harmful effects of at
    least some activities seen to attach the environment - confirmed by S.C.C. ~1997 Hydro
    Quebec broadly worded fed statute in this area
   Summary: Can‘t characterise environmental legislation as being environmental legislation.
    Instead courts have insisted on more particularity focusing on activity, location or particular
    harmful effect in question, and jurisdiction will be divided accordingly.
   All of this is set out in case that follows Crown Zellerbach - Friends of Old Man River Society
    p. 276 LaForest.


R. v. Crown Zellerbach Canada Ltd. (1988 S.C.C.) p.262

   Legislation at issue: Federal Ocean Dumping Control Act
   Regulated dumping of any substance and hence all substances in marine, i.e. salt, waters
   Purpose of regime: To control marine pollution
   Critical component of scheme involved obligation on anyone intending to dump substances in
    marine waters of applying for a permit to do so.
   In this particular instance, Crown Zellerbach dumped something into marine waters without
    having the requisite permit and as a result was charged with an offence under the Act.
   Note that the waters into which Crown Zellerbach was dumping this substance were
    provincial waters off the coast of B.C. between Vancouver Island and Vancouver in Gulf of
    Georgia decided in 1984 to be provincial rather than federal - the lands and the waters were
    provincial.
   Moreover the company in question involved in the forestry business, was provincially
    regulated - a provincial undertaking.
   Furthermore the land base that Crown Zellerbach was using was provincial Crown land.
   Provincial undertaking operating from land base owned by provincial Crown dumping
    substances into provincial waters.
   This particular federal statute had clearly been enacted by Parliament in fulfilment of
    obligation undertaken in treaty Convention on Prevention of Marine Pollution by Dumping
    of Wastes and Other Substances.
   However, this statute went further than that treaty or convention called for, because by its
    terms it imposed this regulatory regime not only on the territorial sea, but also on bodies of
    water like the provincial Georgia Straight by s. given on p. 262 where sea is defined to include
    internal waters of Canada other than inland waters.

   The case ended up being about question of whether this federal enactment
    could be sustained on basis of national concern doctrine.
   Feds did make reference to ,and seek to rely at least in part on, some of these alternative
    heads of power, but even majority judges weren‘t prepared to sustain legislation on those
    distinct heads of power
   Focus on inquiry ended up being on national concern doctrine and whether or


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    not Parliament could invoke that doctrine to sustain this enactment - on that
    question court divides narrowly.
    4 say yes, 3 say no
   LeDain for majority begins by summarising some of the traditional sources of jurisdiction
    in this area that Parliament must be accepted to have. e.g. p. 263. However, for LeDain, that
    will not be enough to sustain this enactment.
   Begins with summary of state of law pp. 265-66 as he understands it to that time - four
    paragraphs:
     The first asserts that national concern is independent doctrine and source of fed power,
         independent and different from national emergency;
     The second says that the doctrine can be used for things that didn‘t exist at the time of
         Confederation and for things that became matters of national concern;
     Three is restatement of doctrine of Beetz‘s Anti Inflation Act reasoning, including
         concern about impact on provincial jurisdiction;
     Four gives us something new: It is designed to incorporate in the analysis what can be
         described as a prudential concern, which is:
          If the court can be satisfied that leaving this particular sphere of legislative activity to
             the provinces is not going to accomplish the public policy goal underlying the
             enactment of such legislation, then that will make it more likely if not certain that this
             will be seen as matter of national concern and hence something that Parliament has
             legislative jurisdiction over.
              This has become known as the PROVINCIAL INABILITY TEST.

   Note from way LeDain formulates the fourth paragraph provincial inability test, that he ties
    the test into question of whether or not the matter has the branches of Beetz‘s test.
   This seems to be a separate part of the analysis, going not to whether the matter can be
    accepted as a matter, but instead assuming the matter can be accepted as a matter, whether or
    not that matter really is a matter of national concern.
   LeDain applies that doctrine on basis of characterisation of this enactment in terms of the
    control and regulation of marine pollution.
   His conclusion is that the test is met; in this instance, he sees no reason to get to provincial
    inability dimension, and concludes the test is met as set out in paragraph three as written
   His analysis focuses on the distinction between salt water and fresh water.
   This legislation he sees as limited to the protection of salt water, not fresh, and because,
    invoking the U.N. report, there are differences (p. 268) he then says control of regulation of
    marine pollution has the singleness and indivisibility required, and distinction on those
    lines will ensure that the impact on provincial jurisdiction will not be great.

   LAFOREST reaches the opposite conclusion.
   When he comes to apply the test, he is not satisfied that distinction between salt and fresh
    water pollution is a satisfactory one, beginning at bottom of p. 272 to mid-273.
   He notes that the divide between the two is often difficult, and that polluting fresh water may
    in the end harm salt water.
   What it bears out, in the sharp division, is that this test of Anti Inflation that has now become
    the test.
   It is not an easy test to apply, in that it is not a test that in many cases is going to lead
    obviously and only to one answer.
   Even those old cases that Beetz drew on in fashioning this test can be analysed on the basis of
    that test in a way that would suggest that they were wrongly decided.
   The test is far from self-executing.
   Elliot suspects judges will be driven by their conception of Canadian federalism
    - whether using Simeon‘s criteria of choice or some others, and whether these
    criteria are articulated or not, they will decide this is something appropriately
    dealt with by Parliament or better left to provincial legislatures.

   LaForest: Signal of what he would do for majority sustaining federal enactment in Hydro

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  Quebec.
 He doesn‘t rely on P.O.G.G., but rather on s. 91(27).
 He places considerable emphasis on s. 91(27) criminal law; he clearly thought that
  Parliament, by focusing on harmful effects, could use its criminal law power to very good
  effect in this area.
 The other thing to note, irrelevant to understanding of doctrine, if you read his reasons, you
  get good sense of the extent to which LaForest dislikes doctrine.
   When he comes to apply national concern doctrine (bottom p. 272), you will not see him
       saying that ―this is the test,‖ but that it ―has been said‖ that this is the test.
   He hated doctrine and the notion of being pinned down, especially in area of
       constitutional law.
   He wanted to remain unencumbered by doctrine so that he could do the right thing in
       cases that were not anticipated when the doctrine was fashioned.
   Important: LeDain‘s test in paragraphs 3 and 4 of the summary of the doctrine provided
       by LeDain.
THE BOTTOM LINE RE: THE “ANTI-INFLATION TEST”
 Realise that the test is anything but self-executing — it is a test that leaves judges with lots of
  room to manoeuvre, not simply because of vagueness of terms singleness, distinctiveness,
  indivisibility, etc., but also because of underlying concern about not using national concern
  doctrine in such a way as to jeopardise provincial autonomy. Judges‘ senses of when that line
  is crossed may differ markedly.

Friends of the Oldman River Society v. Canada (Minister of
Transport) (1992 S.C.C.)




Note: New Developments 281

   Developments post-Crown Zellerbach:
   Refers to two cases and one legislative initiative
   Ontario Hydro 1993:
     This case is important because it resulted in Parliament, on basis of national concern
      doctrine, being granted legislative jurisdiction over production, use and application of
      atomic energy.
     The rationale is in LaForest‘s reasons — defence concerns, extra-provincial dimension,
      etc. — not a straightforward application of national concern test, but you can see evidence
      of that test in his reasoning.
     At same time as court allocated those to Parliament, it also allocated labour relations
      within atomic energy sector to Parliament, and in that sense is consistent with cases like
      the two Bells is that it confirms court‘s standpoint that jurisdiction over labour
      relations in a particular sector goes with jurisdiction over the sector.
   Hydro Quebec case — note that it is a Que. C.A. decision —
     S.C.C. has now pronounced its judgement in that case.
     S.C.C. judgement was to the effect that the legislation, a segment of Canadian
      Environmental Protection Act dealing with toxic substances, was valid federal legislation,
      not on basis of P.O.G.G., but on s.91(27) criminal law power.
     The majority reasons were authored by LaForest.
     Go back to his dissent in Crown Zellerbach — you will note that LaForest refers to
      s.91(27) as a head of power with considerable potential insofar as federal jurisdiction over
      the environment is concerned — comment made there in passing turns out to be

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        significant.
       Note that this decision was made in spite of fact that this statute in dealing with toxic
        substances had distinctly regulatory rather than prohibitory character.
       It is seen to be a significant case for that reason, as it id difficult to reconcile with the ―no
        boot-strapping‖ comments in Board of Commerce and Snider.
       A note about treatment of P.O.G.G. by dissenting judges (majority didn’t get
        to P.O.G.G.):
         Co-authored by Iacobucci and ?: considerable concern about implications of what
             LaForest had done.
         Rejected s.91(27). In their view, the test established by Beetz initially and LeDain and
             articulated in Crown Zellerbach was not satisfied.
         The legislation didn‘t have requisite singleness, distinctiveness and indivisibility to
             qualify as matter of national concern given the implications of recognising is as such
             for provincial autonomy — judgement driven by concern about the need to protect
             provincial autonomy.

   Legislative initiative: relates to area of new reproductive technologies. Issue was
    whether or not federal legislation dealing with new reproductive technologies could be
    supported on basis of national concern doctrine.

Summary With Respect to P.O.G.G.

   It is clear from Reference re Anti-Inflation that P.O.G.G. has at least both a national
    emergency and national concern branch.
   In terms of doctrine relating to national emergency branch, see Anti-Inflation Reference.
   In terms of doctrine relating to national concern branch, see Anti-Inflation Reference and
    Crown Zellerbach.

   It is the view of some, including Hogg and Elliot, that there is a third branch
    called the GAP branch.
     It is there to account for a small number of decisions, including Jones case, which have
        resulted in federal legislation being upheld on basis of P.O.G.G. without national
        emergency or national concern type reasoning being used.
     Rather, the legislation is upheld simply on basis of P.O.G.G. performing a residual role
     These are cases where court appears to have concluded that it is clear that the legislation
        cannot fit within any of enumerated classes in s.92 or s.91,  if falls within P.O.G.G.

   Although there are at least two, and maybe three, branches to P.O.G.G., note that history tells
    us that the courts including the S.C.C. are generally reluctant to use P.O.G.G. as a source of
    federal legislative jurisdiction.
   Insofar as NATIONAL EMERGENCY DOCTRINE is concerned, it is true that restraint
    will be shown when Feds invoke that doctrine, but the Feds have rarely invoked it.
    Therefore, there are very few examples of legislation being upheld on that basis.
   Insofar as NATIONAL CONCERN DOCTRINE is concerned, the reluctance is most
    pronounced, because of concern about balance and preserving provincial autonomy and not
    permitting Parliament to threaten that provincial autonomy through a head of power with the
    potential of national concern doctrine.
   Insofar as the GAP TEST is concerned, it is very rare.



Chapter 10: Economic Regulation
   Concentrate on the two middle parts.



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The Constitution and the Economy

   Both Parliament and provincial legislatures, quite apart from s.91(2) for federal
    and s.92(13) for provincial side, have considerable authority to regulate
    economic matters.

   On federal side, there are a number of classes of subjects that have an economic dimension.
   The same can be said of a number of the classes of subjects on the provincial side.

   However, the focus of this chapter is on s.91(2) regulation of trade and
    commerce and s.92(13) property and civil rights in the province, since most of
    the litigation has been focused there.

   The theme that editors decided to incorporate in their treatment of jurisprudence in this area
    was the strengthening of the Canadian economic union, a major concern in the latter
    20th century particularly as a result of freeing up of trade internationally through both
    multilateral trade agreements and bilateral agreements.
   They ascribe a constitutional character or dimension to that theme, and the identification and
    brief discussion of some of the internal trade barriers that exist in Canada, which are
    obviously seen to be inconsistent with the strengthening of Canada‘s economic union.
   Constitutional character of this theme: Note s. 121 of 1867 Act, which is reflective
    according to LaForest etc. of desire on part of drafters to create in this new country a single
    economic unit:
    All articles of the growth, produce or manufacture of any one of the provinces shall after
    union be admitted free into all of the other provinces.
   Beyond s. 121, LaForest in context of Black v. Law Society of B.C. notes J.C.P.C. and S.C.C.
    pronouncements emphasising the importance of viewing Canada as an economic union or
    unit.
   Note especially: Rand J. in Winner early 1950s in which managed to imply out of notion of
    Canadian citizenship what amounts to a right very similar to now s. 6?(b) of Charter mobility
    rights. Finally note is made of s. 6(2) of Charter by LaForest.
   Bottom of p.288-289: some of the internal trade barriers. Attributable not only to provincial
    action but also to federal action, barriers which are seen to represent obstacle or threat to
    strengthening the economic union.

Provincial Powers Over Economic Regulation


    Review of s.91(2)

   Starting point is Parsons and Sir Montague Smith‘s interpretation that it authorises federal
    legislation with respect to:
         1. international trade and
         2. interprovincial regulation of trade in matters of interprovincial concern, and
         3. finally with some equivocation general regulation of trade affecting the whole
             Dominion.

   Recall the three distinct branches.
   This conception remained intact until Haldane decided s.91(2) was nothing but an auxiliary or
    subordinate head of power, that Parliament was only entitled to rely on when it could sustain
    legislation primarily on another head of power. However, that interpretation didn‘t last long.
   Lord Atkin 1931 PAT? rejected that interpretation and effectively revived the Parsons
    interpretation.
   From that point on s.91(2) came to be understood as having two branches,
         1. international and interprovincial trade, and

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        2. general regulation of trade.

   Note s.91(2) however understood had sustained very, very little federal legislation until the
    post-P.C. era — Elliot thinks the only case where P.C. sustained federal legislation on this
    basis was in 1930s depression cases when it upheld Canada Standard national ™ component
    on that basis.


    Summary of s.92(13) Property and Civil Rights

   There exists no test of the kind that had been created with respect to s.91(2).
   Hence, there is no way at getting at content of s.92(13) through the articulation of doctrine.
   Instead the content of s.92(13) was a function of those areas of economic regulation that over
    time the courts particularly the P.C. had sustained on basis of s.92(13).
   There were a number of kinds of economic regulation that had been so sustained, with the
    result that s.92(13) had become a very significant source of provincial legislative authority by
    the time of the ―demise‖ of the P.C. (insofar as we are concerned).
   Kinds of economic regulation: regulation of particular businesses, occupations and so on,
    including e.g. insurance, operation of grain elevators, etc., were presumptively s.92(13)‘s
    territory.
   Only those kinds of businesses specifically allocated to Parliament in s.91 or 92, shipping,
    interprovincial communication, banking, etc., plus courtesy of Aeronautics Reference,
    aeronautics at least in part of basis of P.O.G.G.
   Apart from those, the regulation of businesses qua businesses were seen to be territory of
    s.92(13).
   Labour relations was also seen to be s.92(13) until the later division.
   National Products Marketing Act Reference — intraprovincial trade in natural products was
    likewise part of s.92(13)‘s territory.




SOME QUESTIONS TO THINK ABOUT:

   Why draw a distinction insofar as s.92(13) is concerned between regulation of businesses and
    regulation of local trade? Aren‘t they the same?
     The distinction comes from cases decided before S.C.C. took over, and which S.C.C.
        continued to rely on.
     Elliot thinks it‘s a function of the way the cases came to the courts and the way division of
        powers was analysed.
     Provinces regulating businesses qua businesses through e.g. licensing regimes gave
        presumption that ability to regulate businesses qua businesses is provincial.
     On other hand, some cases like Natural Products instead proceeded on basis that there
        was regulation of particular transactions, particular trading transactions, out of which
        comes proposition that authority to regulate intraprovincial trading transactions likewise
        falls within s.92(13).

   Way in which Elliot formulated provincial jurisdiction in relation to trade:

       s.92(13) authorised provinces to regulate local trade in natural products.
       Is it really only NATURAL products, or is it other products? It is other products as well.
       If the transactions being regulated are wholly intraprovincial, jurisdiction rests with the
        provinces and not the Feds.


J.R.S. Prichaud with J. Benedickson, ―Securing the Canadian

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Economic Union: Federalism and Internal Barriers to Trade‖ (1983)

   There exists a tension between federalism and economic integration.
   They discuss benefits of economic integration, the meaning of and effects of economic
    distortions — government actions harmful to economic integration, and qualifications on the
    proposition that governmental intervention is a distortion and hence bad.
   At the end, there is a note about the significance, in any federal state, that we attach to local
    communities and their ability through their elected representatives, i.e. provincial
    governments, to legislate in a way that sustains and protects those communities.


Carnation Co. Ltd. v. Quebec Agricultural Marketing Board (1968
S.C.C.)

   Legislation at issue: three Orders by the Quebec Agricultural Marketing Board established
    pursuant to provincial legislation.
   One Order established a plan called Quebec Carnation company Milk Producers‘ Plan with
    regulated the relationship between Carnation Milk Company and Quebec milk producers that
    supplied that company with its milk, including the fixing of the price at which the milk was to
    be sold and bought.
   The other two Orders were orders of that character, fixing that price.
   Carnation was unhappy with that price and challenged the constitutionality of those orders on
    basis that they amounted to an attempt by the Board, and hence the province, to regulate
    interprovincial trade in milk.
   This was because most of this milk product, after it had been processed by the company, was
    exported out of the province to other parts of Canada.

   OUTCOME: S.C.C. UPHOLD THOSE ORDERS ON THE BASIS OF S.92(13).
   Note some of the earlier cases in this area discussed in the reasons:
     Early 1930s Lawson in which provincial B.C. legislation was struck down because in the
       court‘s view S.C.C. speaking through Duff, the regulatory scheme that had been
       established was directed not only at agricultural products, specifically fruits and
       vegetables, that would end up being consumed in B.C., but also agricultural products
       destined for export. P.294 ascribes that character to the legislation, which once ascribed
       is seen as fatal.
     1938 Shannon: again involved challenge to B.C. agricultural products marketing
       legislation. Scheme in question was directed at the control and regulation within the
       province of the transportation, packing, storage and marketing of any natural product,
       including natural products that had come into the province from other jurisdictions.
       Outcome: Legislation upheld as valid. P.295 top Atkin P.C. says the legislation is confined
       to regulating transactions taking place wholly within the province. In this case the
       argument was that the transactions regulated took place wholly in B.C.
     Mid 1950s S.C.C. Farm Products Marketing god-awful case.
     Some of the judges (4 out of the 8) expressed concern about making the test for who had
       jurisdiction over a particular feature of the marketing of agricultural products where the
       transaction being regulated took place.
     The mere fact that a transaction took place within a particular province‘s boundaries
       should not be taken necessarily to mean that the province and that province alone could
       regulate that transaction.
     They were expressing a concern about the kind of reasoning used to sustain provincial
       legislation in Shannon.
     Behind that concern was the sense that in the regulation at least of natural or agricultural
       products one should be concerned not about where a particular transaction took place,
       but rather about the flow through various stages that an agricultural product goes through
       from the time it is produced until it is consumed.
     This was articulating a sense that it is artificial to forget the pre- and post- transaction

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          aspects.
     All three cases are seen as significant by Martland.

     Martland‘s ultimate analysis: bottom p.296: ―In the present case … make them invalid.‖
      Suggests an approach along pith and substance in one way and incidental effect in another.
     Pith and substance is regulating something purely local, the relationship between Carnation
      and milk producers.
     The regime may have some effect on Carnation‘s overall business and interprovincial trade in
      processed milk, but not that effect is merely incidental.
     The pith and substance of this legislation is regulation of intraprovincial
      activities.



A.G. Manitoba v. Manitoba Egg and Poultry Association (1971)

     Context out of which this case arose:
       Ontario egg producers wanted to be able to sell in Quebec, and Quebec chicken producers
         in Ontario, during a war with cheaper products from the other province.
       The provincial governments set up apparently neutral regimes, that in fact were not
         implemented neutrally to both intra- and extra- provincial producers.
       Manitoba, which produced surplus chickens and eggs got hurt.
       So Manitoba set up the same scheme, referred to its C.A. then appealed to S.C.C. to get a
         decision binding on Ontario and Quebec.
       This led to the interesting situation that the Manitoba government lawyers were arguing
         for a scheme to be upheld that they actually wanted to be struck down.
          Some have accused them of failing deliberately.

     The scheme Manitoba established, applicable both to eggs produced in Manitoba and outside,
      was a comprehensive regulatory scheme, applying to production and marketing.
     An administrative body was empowered to regulate such things as packaging, grading, etc. as
      well as the power to fix prices.
     Reference sent to Manitoba C.A., and then appealed to S.C.C.
     S.C.C. strikes the legislation down on basis of the same kind of analysis as in
      Carnation, but in this instance the pith and substance was the regulation of
      interprovincial trade in eggs p.299 (very bottom).
     This is another pith and substance analysis, but with a different result.
     8Martland says legislation is unconstitutional because it‘s aimed at interprovincial trade in

      eggs, in this case trade from outside Manitoba into Manitoba.
     In addition to Martland there are also excerpts from Laskin‘s reasons on behalf of himself plus
      one.

     Laskin: ends up in the same place, striking the legislation down, and on essentially the same
      basis — that the legislation is directed at interprovincial trade in eggs p.303 bottom – 304
     Laskin expresses reservations at beginning of his reasons about answering the questions in
      the reference at all — based on what he saw as significant problem for this reference, which
      was the lack of a full factual underpinning for the constitutional questions that were being
      asked.
     Top of p.301, Laskin the judge, no longer the academic, talking about s.91(2) and the scope of
      power it affords Parliament, and doing so in a way that makes clear he would like s.91(2) to be
      given considerable content
     A necessary balance has been coming into view over the last two decades.
     Laskin is saying now that S.C.C. has the final say, they‘ve been increasing bit by bit the context

8   Nov. 26

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    of s.91(2).
   We haven‘t ignored provincial concerns, hence the reference to Carnation, but we have been
    pouring more content into s.91(2), striking what he sees as a more appropriate balance.


P. Weiler, ―The Supreme Court of Canada and Canadian Federalism‖
(1973)

   From his book In the Last Resort, a very critical evaluation of performance of S.C.C. over a
    range of areas of law.
   He was scathing in his criticism about the way the S.C.C. dealt with Canadian federalism — so
    much so that Pigeon of S.C.C. stated that someone should contemplate commencing contempt
    proceedings against Weiler.
   Weiler does two things: one is critique decision in Manitoba Egg on a number of grounds, but
    also to go on to say something about judicial review in this area, making an argument,
    somewhat ironically given his criticism of court‘s judgement in this case, for greater judicial
    activism in cases of this character.
   His critiques of this judgement:
     The court should never have answered the question, not only because there was not a
         sufficient factual underpinning which he saw as critical to an informed response to
         those questions,
     but also because Manitoba wasn’t performing the adversarial role that it should
         have been give the peculiar circumstances out of which this reference arose —
         circumstances including that Manitoba wanted to lose this case.
   He also critiques judgement on the merits — levelled at pith and substance reasoning in many
    cases — we don‘t get any full and adequate explanation for the result — the court simply uses
    labels. That, he suggests, isn‘t enough  we need more.
   Also criticises the decision as being inconsistent with previous authorities like the Shannon
    case from late 30s involving scheme not different in any fundamental respect from the scheme
    at issue here.
   Also invokes another case, Home Oil out of B.C. in which provincial regulatory regime relating
    to setting of prices for oil in B.C. including oil imported into B.C., was upheld as
    constitutionally valid.
   At bottom his concern, from bottom p.306-7, is that he sees no relevant functional or
    economic difference between scheme at issue here and scheme at issue in the Carnation case.
   With respect to judicial review: in a sense what he does here, looking back at Simeon‘s criteria
    of choice, is make a democracy-based argument for the courts to scrutinise carefully, and not
    be too tolerant of provincial legislation in this area of regulation of the production and
    marketing of natural products — see: p.307: ―As a matter of plain … which make them.‖
    because whatever kind of legislation you get, is bound because of interrelated economy to
    have extra-provincial effect, with harms suffered by those outside the jurisdiction, which no
    right to vote or ability to complain because they are outside the jurisdiction.


    Note p.307

   Case about regime regulating the marketing of hogs.
   S.C.C. struck down too — critical component was like the scheme in Manitoba Egg, the
    regime requirement that all hogs sold in Manitoba had to be sold through a hog agency,
    caught not only hogs produced in Manitoba but also those imported from other provinces.
   Because of that feature, the court saw this as legislation directed at interprovincial trade in
    hogs, and hence beyond provincial legislative jurisdiction.




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Re Agricultural Products Marketing Act (1978 S.C.C.)

  Worst judgement in English-speaking world!
  Reference has 13 or 14 questions about a truly complicated interlocking regulatory scheme,
   some provincial, some federal, concerning the marketing of eggs.
 Laskin writes long reasons for 4JJ.
 Pigeon starts by saying what has to be one of the most bizarre judgements of the court, then
   says ―being pressed for time‖ he‘ll limit himself to the essential — end up writing for 5 JJ.
 P. 311 should be ―interprovincial‖ not intraprovincial (3 lines down from Laskin); p.312 7 lines
   up from bottom, should be interprovincial not intraprovincial.
 Two federal statutes and one provincial statute establishing a comprehensive interlocking
   regulatory scheme for both the production and marketing of eggs, a cradle-to-grave scheme,
   with lots of regulations and order-in-council.
 Main provisions were the establishment by the federal legislation of provincial production
   quotas, along with individual producer quotas established by the provinces.
 The scheme was administered at national level by body that still exists, the Canadian Egg
   Marketing Agency, with powers referred to bottom p. 308 to top 309.
 Complementing that regime provincial regulatory agencies within each of the provinces.
 Pigeon’s reasons: proposition that the control of production, whether agricultural or
   industrial falls to the provincial legislatures. Pigeon in developing that proposition draws a
   distinction between production of something that goes into the marketplace, and trading
   transactions in relation to that thing.
1. Insofar as the production stage is concerned, jurisdiction goes tot he provinces. Interestingly
   this is not on basis of property and civil rights, but on s.92(10) local undertakings — why this
   pops up when it‘s been ignored for decades is not explained.
2. In the course of developing this, with respect to s.95, concurrent jurisdiction over agriculture
   and immigration. There is oblique reference to this jurisprudence — p.309 middle. S.95
   ended up playing almost no role at all, since is was construed in such a way as to be limited to
   legislation in support of agriculture. Actually legislating to regulate agricultural products and
   trade therein was not included under s.95.
 Pigeon again: other important thing, which goes some way to explain why his reasons are as
   short as they were, relates to comments he makes to bottom of p.310-1 about the fact that this
   is a co-operative federal-provincial scheme.
 Critical comment is at top of p.311: ―I do not overlook the admonition … all brought to
   nought.‖ —Atkin‘s admonition to scrutinise involvement in co-operative schemes — would be
   unfortunate if this were all brought to nought — the message being so long as the court is
   satisfied that the tow orders of government must share jurisdiction if anything is to be done
   effectively, so long as the two orders make a genuine attempt or a sincere co-operative effort
   to try to create an interlocking regulatory regime that meets governmental needs, then who
   are we to strike it down?
 Laskin: what he has to say about s.121, provision that provides that all goods, produce, etc.
   from the various provinces should be able to move freely across provincial boundaries.
 In this case, those who were opposed to this scheme invoked s.121 in support of argument the
   heart of which is: P.312 top: ―The statute here, by authorising … by s.121 of the Constitution.‖
   from their factum. This argument is rejected by all of the members of the S.C.C.
 P.312 Laskin discusses some of leading authorities with respect to s.121, and he notes it does
   apply both to Parliament and provincial legislatures — its applicability is not limited only to
   the provinces. Laskin also notes that in fairly recent case 1958 Murphy v. C.P.R., Rand J. has
   given interpretations to s.121 that extended its scope considerably beyond interpretation that
   had been given prior to that time.
 Prior to that time: p.312 bottom: ―In Gold Seal Ltd … into another.‖ for old and also Rand‘s
   interpretation, which provided main basis for challengers‘ argument here.
 Laskin is obviously somewhat uncomfortable with that interpretation, but he manages to

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    skate around it at bottom of p.312-313: ―Accepting this view… in favour of any Province…‖ —
    out of which we can draw the inference that s.121 remains of very limited scope.
   In effect it would appear that short of the imposition of customs duties or like charges at
    provincial boundaries, s.121 is going to only render unconstitutional any legislation that
    renders a punitive regulation favour of or against any provincial, in that provinces‘ ability to
    move particular products across provincial boundaries.
   Recalling theme that editors identified at beginning of this chapter, it‘s apparent given this
    interpretation of s.121 that this provision goes only a very short way to insuring that Canada
    functions as a single economic unit.


    Note p.313

   Note 1: Central Canada Potash (1979 S.C.C.) — there was a sister case decided at the same
    time C.I.G.O.I Canadian Industrial Gas and Oil — those two schemes, both of which had
    been enacted by legislature in Saskatchewan, involved in a sense a test of the court‘s
    commitment to proposition Pigeon had set down in the case we just looked at regarding
    production being a matter falling to the provinces to regulate.
   Potash is a significant industry in Saskatchewan, most of the potash used to make fertiliser is
    exported outside Sask., mostly to the U.S.
   In 1970s, NPD government created a regulatory regime in order to protect producers to
    potash in Saskatchewan. That scheme involved production quotas, price fixing, etc.
   That scheme, like scheme in C.I.G.O.I., was struck down by S.C.C. in spite of the holdings from
    Pigeon in Agricultural Products marketing Act Reference.
   Rationale for that was because so much of the potash was going outside province of
    Saskatchewan., the appropriate characterisation to give to the scheme was regulation of
    international trade — even the production part of the scheme was so characterised. The entire
    scheme was struck down.
   That not only muddied the waters, but led to an outcry about an alleged pro-centralist bias on
    the part of S.C.C., which accusations were taken seriously enough by some that Hogg
    eventually wrote an article asking if there was pro-centralist bias, with Hogg concluding that
    no there wasn‘t.
   These two cases and Manitoba Egg were seen by those championing provincial rights as the
    S.C.C. departing from P.C. notion of Canadian federalism and dragging us down the American
    track.

Summary in Term of Scope of Provincial Power

   As result of Carnation, Manitoba Egg, Burns Food, Agricultural Reference, and Potash, the
    picture is a bit muddy at least in part because in the first two cases we looked at the S.C.C.
    invoked pith and substance/incidental effect type of analysis, and you can never be sure where
    such analysis is going to lead — not an easy approach to make predictions on the basis of ?.
   Fair to say that as a result of those cases, production prima facie, presumptively, falls to the
    provinces to regulate.
   We also know from Agricultural Product Reference, if legislation in issue is part of federal
    provincial intergovernmental regime, the courts are likely to show it deference.
   There is still clearly something to division made in earlier cases that production to one side,
    once you start getting into trade, intraprovincial trade and the transactions involved in that
    will prima facie go to provinces, transactions in interprovincial and international trade will
    prima facie go to the Feds.

Federal Powers Over Economic Regulation

   A and B reflects the two branches.
   Focus in each of the sub-parts is on doctrinal developments, which in both cases the editor

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    indicate suggested that S.C.C. was prepared to pour more content into both of those branches
    than had the P.C.
   Insofar as the first branch regulation of interprovincial and international trade is concerned,
    on the basis of a greater willingness through application of pith and substance/incidental
    effect type analysis to permit Parliament, so long as it was regulating interprovincial and
    international trade, to subsume within its regulatory regime at least some regulation of
    intraprovincial trade. NECESSARILY INCIDENTAL DOCTRINE.

   Second branch: through the establishment of a test designed to insure that this branch had
    some meaningful content insofar as Parliament‘s power to regulate Canadian economy was
    concerned


Regulation of Interprovincial and International Trade

The Queen v. Klassen (1960 Man. C.A.)

   Leave to appeal to S.C.C. denied.
   Related to provisions of Canadian Wheat Board Act which prohibited feed mills from
    accepting any grain beyond that permitted to individual producers under the quota assigned
    to them pursuant to that Act.
   In this particular instance, a feed mill owned by Klassen accepted grain outside or beyond the
    amount of this particular producer and was charged.
   One of his defences was that it was beyond Parliament‘s jurisdiction to impose this sort of
    restriction on him as part of this scheme.
   In his case, the grain that he took was converted into feed grain and returned to local farmers.
    There was no indication that any of his grain had ever ended up outside the province in
    question, Manitoba.
   In spite of that, and in spite of King v. Eastern Terminal, this challenge failed. The legislation
    was upheld.
   JJ. Basically say the regulation of this local business or trading activity is integral to the
    viability of the larger scheme, which larger scheme is directed at interprovincial and
    international trade in grain — for policy-based reasons — it‘s important that the system not
    get clogged by unmarketable grain, and important that all producers have equal access tot he
    mills, etc.
   Gist of judgement: in pith and substance, this entire regime was directed at regulation of
    interprovincial and international trade in grain. Any impact on local business, feed mills,
    local trade transactions in this surplus grain, was merely incidental.
   NOTE: here, s. 92(10)(c) is mentioned.

    B. Laskin, “Note on The Queen v. Klassen” (1959)

   Federal regulation of grain, seen as integral to functioning of larger scheme regulating
    international and interprovincial trade in grain.
   First, Laskin complains about P.C. approach to s.91(2) and describes it as the ―saddest legacy‖
    of P.C. judgement, describing p.317 P.C.‘s consistent refusal to look at problems as a whole.
   Describes The King v. Eastern Grain Terminals as ―wrongheaded.‖
    P.317: ―What, it may … a legislative scheme.‖
     Then congratulates Man. C.A. for its approach in looking at economic and social problems
         in its whole, and recognising that everything has a legal aspect — Anglin‘s dissent in King
         is very much the language and spirit of Man. C.A.‘s judgement.
   Then look at American cases decided in 1942 — American approach in this area has been very
    generous to Congress, the central order of government.
   If, in order for federal regulatory scheme to be effective, to fulfil its regulatory purpose court is
    satisfied that it is necessary to incorporate within that scheme the regulation of intrastate(if

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    there is an impact on interprovincial and international trade) trade as well as interstate or
    international trade, then so be it.
   Back to the judgement: p.P.315 (½ -way down): ―‖ — whether the interference is necessarily
    incidental — but at end of judgement, p.316: bottom ―… that the Act is not legislation … and
    civil rights incidentally.‖; talks about pith and substance — confusion on part of judge —
    necessarily incidental means a component part looks bad, but you can sustain the component
    part on the basis that it is absolutely necessary to the whole, which is valid.
   The pith and substance assumes that you start and really limit your look to the whole, and
    that whole may have some problematic features — but those features you end up saying don‘t
    affect the pith and substance, they are merely incidental to the larger whole.
   Which tool you use is an effect of where you start your analysis — if you start with the part,
    you uphold it on basis of necessarily incidental — if you start with the whole, you uphold it as
    being merely incidental. Elliot thinks that proper way is to focus on the part, not the whole.
    Courts do both.
   Much of these cases are on the basis of deciding where you want to end up, and you just use
    tools to get there.

    Caloil Inc. v. A.G. Canada (1971 S.C.C.)

   Federal legislation regulating the energy sector, in particular regulation of importers of
    foreign oil and gas.
   Component of the scheme at issue was a limitation on where foreign oil and gas imported by
    these importers could be sold — the limitation was that it could only be sold East of a North-
    South line through part of Quebec and part of Ontario.
   Rationale for this limitation was to protect the domestic market of oil and gas produced in
    western Canada.
   The reason the aspect of the scheme was subjected to challenge was that if you looked simply
    at the regulation, it appeared to be regulation of interprovincial trading activity.
   Parliament had the legislative authority to regulate the importation, but the argument was
    that once imported, regulating where the oil could be sold amount to unconstitutional
    limitation on Parliament of things in jurisdiction of provinces.
   Unsuccessful — territorial limitation was upheld — ―true character of enactment appearing to
    be an incident‖ p.318-9: Pigeon‘s paragraph.
   Following on Klassen, seen as departure from Parliament highly attenuated ability to regulate
    trade and commerce under first branch of s. 91(2), and appeared to bear out Laskin‘s
    prediction that jurisprudence in this area was heading off on new course, one that allowed
    Parliament in some instances at least to regulate intraprovincial trading activities when such
    regulation was seen as integral to scheme directed primarily at interprovincial and
    international trade.

   SWINTON PIECE
   However, at end of 1970s, R. v. Dominion Stores, referenced at top of p.320 in Swinton piece,
    that suggested that this new approach had not taken hold as firmly as Laskin would have liked
    — Laskin now on S.C.C. dissented — and hence suggested that compartmentalised approach
    in this area was still alive.
   Dominion Stores involved challenge to part of a statute called Canada Agricultural Products
    Standards Act. Part 2 of that Act made it obligatory to use grade names for agricultural
    products moving in international and interprovincial trade e.g. for apples, Canada Extra
    Fancy — had to apply to those apples the appropriate grade name if moving them in
    international or interprovincial trade.
   Part 1 of the Act stipulated that if you wished to use grade names in respect of agricultural
    products traded intraprovincially, and you didn‘t have to, but if you wished to use those grade
    names, then you had to unsure that you met the relevant standard for the grade name that
    you use.
   Would think given Klassen and Canada Oil that his would have been easy win for Feds — just
    trying to protect the integrity of their federal scheme.

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   The Feds LOST, and Estey, writing for the majority, without reference to Klassen or Cal Oil
    went back to old compartmentalised or bifurcated approach, and said Part 1 was attempt to
    regulate intraprovincial trade, which was to be regulated only by provinces, citing King and
    Natural Products Marketing Act from 1970s.
   At end of Estey‘s judgement, a truly bizarre twist — says of course, the law I‘ve applied to
    arrive at the result I‘ve arrived at may be incorrect - threw things into disarray, but at the very
    least indicated that the hold of the old approach on Canadian judges remained a fairly strong
    one.




General Regulation of Trade
   Second branch of s.91(2).

    K. Swinton, The Supreme Court of Canada and Canadian
    Federalism: The Laskin-Dickson Years (1990)

   See discussion above.
   Explains why this second branch is important to federal authority in the area of economic
    regulation.
   it‘s important because, even if Klassen and Caloil represented last word on Parliament‘s
    jurisdiction under the first branch, (because were it not for this branch, Parliament‘s authority
    to regulate the general economy would be limited to those contexts within which goods were
    moving across national and or provincial boundaries) — federal authority would be
    contingent on the existence of international and/or interprovincial trade in some
    product or other.
   Absent such trade, Parliament would have no authority.
   Second branch gives at least the promise of federal legislative jurisdiction without the element
    of international and/or interprovincial trade being present.
   Secondly, she gives brief historical synopsis of jurisprudence relating to second branch,
    including John Deer Plow, but also referring to a 1975 case decided by S.C.C. MacDonald v.
    Vapor Canada.
   There. Laskin C.J.C. although he struck down the federal enactment in question, a provision
    of federal Trademark Act, nevertheless made it clear that in his view, for unanimous court,
    this second branch did have some real content.
   This was not realised in the case, but he made it clear that lawyers should come back in future
    cases and argue on the basis of it because he wanted to force some meaningful content into it.
   Lastly, Swinton gives a sense of challenge the second branch posed for the courts, which had
    traditionally been accustomed to focusing on international and interprovincial trade.
   This is because, she contends, if meaningful content is to be given to this second branch, it will
    necessitate courts engaging in different kind of analysis.
   They must engage in interest balance between national interest and provincial autonomy — in
    defining scope of this second branch, inevitable courts would be required to confront fat of
    tension between these competing interests.

Labatt Breweries of Canada Ltd. v. A.G. Canada (1980 S.C.C.)

   Challenge to provisions, not only of the Act but of various regulations passed thereunder, of
    federal Food and Drug Act, which provisions prescribed compositional standards for a very
    broach range of, inter alia, food products, including beer and specifically light beer.
   Labatt breweries decided it was going to sell a beer that it labelled and called ―Special Lite‖
    beer the maximum alcohol content that the standards for light beer prescribed by 1.5% - had
    4% when 1.2-2.5% was allowed.

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   Proceedings were taken against Labatt, and in its defence, Labatts challenged the
    constitutionality of the provisions in question.
   Three heads of power were advanced by Feds in support of the impugned provisions —
    s.91(27), P.O.G.G. and s.91(2).
   Insofar as s.91(27) is concerned, Estey rejects it essentially on basis of no bootstrapping — but
    doesn‘t cite Board of Commerce or Snider — simply get p.325 — first stage is establishment of
    compositional standards, second stage is the obligation to conform to those standards if
    you‘re going to sell the product with that name — his concern is with the first stage, the
    prescribing or fixing of the standards — that in his view is something Parliament cannot do on
    basis of criminal law power — whether or not it can do the second, it cannot do the first.
   In terms of P.O.G.G., never likely to succeed — Feds attempted to invoke their limited
    jurisdiction in area of protection of health in support of notion that this legislation could be
    validated on basis of P.O.G.G. — failed because Estey refused to accept that these
    compositional standards had anything to do with protection of health.
   Left Estey with s.91(2) which is also rejected.
   First branch said to have no application here, because there was no evidence that any of this
    light beer was being traded internationally and interprovincially — bottom of p.326 local
    nature of production — the reason the first branch is rejected ends up being reason for
    rejection of second branch as well.
   Legislation characterised as attempt by Parliament to regulate production in a single industry,
    and as we know from Reference Re Agricultural Products Marketing Act, cited top of p.328,
    regulation of natural products is prima facie within provincial legislative jurisdiction.
   Estey goes on to consider second branch at some length —
     says the test for whether or not second branch can be used by Parliament in a context is
         whether or not the question or problem being dealt with is of general interest
         throughout the Dominion,
     This is the test drawn from Haldane early part of the century and not from Laskin‘s more
         recent judgement in MacDonald v. Baker Canada.
   Having set that out as test, Estey says based on authorities in this area, we know that test is
    not met if industry in question has national rather than local ownership, nor is
    the test met if advertising in this particular industry occurs at national rather
    than local level.
   He adds we also know that ―unrestricted geographic play‖ will not suffice — that the
    legislation is national in scope won‘t do to satisfy this test.
   Brings him back to this being an attempt by Parliament to regulate production in particular
    industry.
   He goes beyond that to say that much of this Act, the part of the Act pursuant to which not
    only this industry has been regulated by establishment by compositional standards for
    particular types of food, but these provisions with respect to other types of foods likewise are
    unconstitutional because they too are attempts by Parliament to regulate the production in a
    particular industry or trade.
   What this enactment lacks is any sense that Parliament here is attempting to
    regulate economic activity in a sweeping general sense—instead amounts to
    series of attempts by Parliament to regulate individual trades.
   He distinguishes a case on the basis that in that case, Parliament was establishing a special
    type of product label, Canada Standard, which people could opt into or not as they chose —
    here by contrast these product names were common product names, common labels, and the
    scheme was compulsory, not optional.
   Laskin dissented here as well just as he did in Dominion Store, and would have upheld this
    legislation on basis of s. 91(2) giving voice to his view that Parliament should be accorded
    much greater jurisdiction over Canadian economy than old P.C. approach permitted, on
    basis of both first and second branches, and he made use of second branch here.


    Lessons to Draw From Labatt‘s in Relation to Second Branch


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   Doctrinally not a lot — Estey was not a doctrinalist.
   Pretty clear that this second branch, general regulation of trade throughout the Dominion, is
    no more likely to sustain federal legislation on basis of s.91(2) where that else can be
    characterised as it is here as an attempt by Parliament to regulate the production stage of a
    particular industry.
   If there is any significant doctrine here, it comes in Estey‘s comment that for Feds to have
    legislation sustained on basis of second branch, for that legislation to regulate economic
    activity in a sweeping general sense.


    Note, p.330

   Dickson writing for a minority indicated that in his view, federal Combines Investigation Act
    could be sustained on basis of second branch of s.91(2).
   Previously federal legislation dealing with anti-competitive behaviour in marketplace had
    traditionally been sustained and sustained only on basis of s.91(27) — this was seen as a
    significant breakthrough for Feds, even though it was a small group of JJ. — majority didn‘t
    address this issue.

General Motors of Canada Ltd. v. City National Leasing (1989
S.C.C.)

   GM was concerned with relatively new provision of Combines Investigation Act, s.31.1 which
    created a civil cause of action on behalf of any person who was economically harmed by
    conduct of others that amounted to violation of one of the provisions of the Act.
   In this case, it was discriminatory pricing that was alleged.
   Prosecuting was not the only way of dealing with it — in addition to proceeding with criminal
    charges, any one harmed economically by that conduct, here discriminatory pricing, could sue
    the offender to recover the losses that conduct caused.
   In this case, City National Leasing took advantage of that provision and sued GM on basis of
    allegations that GM was guilty of discriminatory pricing.
   GM defended on basis that this new provision was unconstitutional — argued creation of civil
    causes of action was something that provinces along have jurisdiction to do, because creation
    of new cause of action are quintessentially property and civil rights.

   Court is very clear in approach it take, giving clear and authoritative statement
    on application of pith and substance doctrine — because the S.C.C. says that
    initially the focus is on the single part of this larger whole.

   THREE STEP TEST
   The framework that‘s established in such instances, the court says, should be as follows:
   First in looking at this single vulnerable part, in isolation from the rest, the court should ask
    to what extent, if at all, does this single part encroach on jurisdiction of the other order of
    government?
   Here, to what extent, if at all does new s.31.1 encroach on provincial jurisdiction under
    s.92(13)?
   Next part is to look at the whole to which this little part is attached, and ensure that this
    whole is constitutionally valid — the rest of the Combines Investigation Act is within federal
    legislative jurisdiction.
   If so, step three is where the question becomes, can this problematic part be sustained on
    the basis of its relationship to valid whole?
   In exploring that question, Dickson says the nature of this relationship required will be a
    function of the extent to which the part encroaches on the jurisdiction of the other order of
    government — if the part encroaches significantly, then the nature of the relationship required
    has to be very tight, formulated in terms like ―necessarily incidental‖.

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    If by contrast the part encroaches only minimally on the jurisdiction of the other order then
     the relationship need not be so close — it is enough if the part is functionally related to the
     whole.
    Spelled out on p.338 in last paragraph before VI.

    One of the major doctrinal innovations in this case relates to approach courts
     are to take in applying necessarily incidental doctrine - in deciding whether or
     not a problematic part of a larger whole can survive on basis of its relationship
     to the larger whole.


    This case is very important in terms of necessarily incidental doctrine and how
     to apply it.
    Equally important because of what it says about second branch of s.91(2) and the test that it
     establishes in that regard p.334-6, culminating in five part test, extracted from MacDonald v.
     Vapour Canada as source of three parts, and CN Transportation as the source of the other
     two parts of the test.

  THOSE FIVE COMPONENTS ARE (P.335):
1. The legislation in question has to establish a regulatory scheme, or a ―general regulatory
   scheme‖
2. That 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
   industry
4. The legislation should be of a nature that the provinces jointly or severally would be
   constitutionally incapable of enacting
5. The failure to include one or more provinces or localities in a legislative scheme would
   jeopardise the successful operation of the scheme in other parts of the country (Language akin
   to provincial inability test forming part of doctrine for national concern of P.O.G.G.).

    Although Dickson defends all five parts of the test on the need to protect provincial
     jurisdiction over the economy and to protect provincial jurisdiction from federal
     encroachment, it is not easy to understand the significance of the first two
     criteria — why it must be general scheme monitored by regulatory body is somewhat a
     mystery.
    Bottom p.335-6: Dickson is equivocal about the finality or definiteness of this particular test
     — top p.336 ―preliminary checklist‖, ―indication of validity‖, ―not…an exhaustive list‖ — sets
     out a test as a believer in doctrine, but reluctant to commit the court to this test and no other
     — leaving it open to tinker with the test, and the indicia, add one or more to it — but for the
     purposes of this case, these are the five indicia and the test that he uses.

    Dickson then proceeds to apply that framework and that test in context of this
     case. BACK TO THREE STEP TEST.
    First step, look at s.31.1 and look at whether and to what extent it can be said to encroach on
     provincial jurisdiction by creating new cause of action — concludes that it does encroach, but
     encroaches minimally — generally left to provincial jurisdiction under s.92(13) but says it is
     minimal because it is a purely remedial and not substantive portion of the Act — substantive
     provisions are the prohibition, and this merely adds an additional remedy; secondly it is
     limited in scope to prohibited activities as defined by the Act, thirdly court has already upheld
     in other context the creation of civil causes of action created by Parliament.
    Act as a whole: applies five part test he just articulated: concludes the five parts of the test
     are all met, and hence this legislation can be upheld on basis of second branch of s.91(2) —
     general scheme, two regulatory agencies; also of the view that the other three requirements
     are met — last para. P.340-2 — conclusion first full para. at top 342 concludes that this is not
     an attempt to regulate particular trade or industry, unlike Labatts, but rather is concerned
     with trade as a whole; it is beyond provincial jurisdiction to create a scheme like this; and


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    failure to include one or more provinces in this scheme would jeopardise its other parts.
   He says p.341 if this is going to be done, it has to be done at the national level.
   No scheme of this character enacted at provincial level could hope to reach all anti-
    competitive behaviour in Canada given the nature of the Canadian economy.
   So Act as a whole is valid under second branch of s.91(2).
   Therefore move to third step: look at relationship between problematic part and the larger
    valid whole.
   Because in this instance he has decided the encroachment on provincial legislative jurisdiction
    embodied in s.31.1 is minimal, the necessary relationship required between s.31.1 and the rest
    of the Act is a functional relationship, which is easily met.
   He goes on to say even the more stringent test of necessarily incidental would still be met.
   And hence the part is able to piggyback on the validity of the whole, and the part along with
    the whole is sustained as valid legislation, p.344 his analysis of the connection between the
    two.
   Top p.343: Dickson indicates that the fact the combines Investigation Act is here being
    upheld on basis of s.91(2) does not preclude provinces from legislating in area of competition
    policy, provided they limit the scope of their legislation to those things reachable by provincial
    legislation — things like consumer protection, labour relations, marketing and the like —
    results of that being that this is an area in which according to Dickson we have de facto ,if not
    de jure, concurrency — the legislation will be valid, but it may not be operable if there is
    conflict between the provincial and federal legislation.
   So necessarily incidental doctrine has three branches, and the second branch of s.91(2) has a
    five branch test. The three-part test applies to necessarily incidental doctrine wherever it
    arises; just as the five-part test is applied to s. 91(2) second branch wherever it arises.


    With respect to s.91(2):

   Clearly has two branches, firstly regulation of international and interprovincial trade, and
    secondly regulation of general trade throughout the Dominion.
   First Caloil, Klassen Dominion Stores: much will depend on willingness of particular court
    through either necessarily incidental doctrine, or pith and substance/incidental effect
    doctrine, to permit Parliament to encroach on intraprovincial trade — no clear guidelines on
    how willing courts will be — the first two cases suggest quite willing, Dominion suggests
    otherwise.
   Second branch is five part test of GM - whether it is constricted or expanded, and how it is
    applied, are to come in future cases.
   With respect to second branch, given nature of the test and history in relation to second
    branch, it is unlikely that second branch will sustain much federal legislation, given tendency
    particularly emphasised in P.C. era and not forgotten by S.C.C. to protect provincial
    autonomy, it will be unusual statute that is sustained on that basis.


    Note, p.345

   Reference to possibility of sustaining federal securities legislation on basis of second branch.

Strengthening the Canadian Economic Union

   Not responsible for this.
   Overview of some of the initiatives or developments that have taken place in last ten or twenty
    years that are either designed to or could have effect of strengthening Canadian economic
    union.
   Firstly, Canadian constitutional reform — have been attempts to extend s.121 referred to in
    Products Marketing Reference, which as interpreted did little to strengthen economic union


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   Secondly proposals to strengthen role of federal Parliament through court recognition, to give
    greater protection for and strengthening of Canadian economic union - dissenting views -
    some say unlikely the courts will give you what you‘re looking for, a view Elliot shares
   Third avenue - change through intergovernmental Co-operation e.g. 1994 agreement on
    internal trade, purpose of which to try to bring down some of barriers that now exist to free
    trade throughout the country
   Fourthly change through international influences - potential for barriers within Canada to
    come down either as result of direct application of new G.A.T.T. and N.A.F.T.A. or the indirect
    effect of such agreements - that it‘s an embarrassment for trade to be freer externally than
    internally

                 A. Constitutional Reform to Reduce Barriers

                          1) Report of the Special Joint Committee of the Senate and the
                          House of Commons, A Renewed Canada (1992)


    Questions

                 B. Constitutional Change: Strengthening the Federal Role Through the Courts

                 C. Constitutional Change Through Inter-Governmental Co-operation

                 D. Constitutional Change Through International Influences




Chapter 12: Morality and the Criminal Law
   Two parts, one relating to scope of federal power, and one relating to provincial.
   Only responsible for scope of federal power.


Federal Powers Over Criminal Law

   Federal power with respect to criminal law comes from s. 91(27)
   Board of Commerce: Viscount Haldane indicated s.91(27) should be interpreted on basis of
    some understanding of the ‗fixed domain‘ of criminal law, suggesting this section authorised
    Parliament to create those kinds of offences known to the law in 1867 but no more.
   Next step: categorical rejection of that approach by Lord Atkin in Proprietary Articles case,
    who substituted for that approach what amounted to an essentially formal test of criminal
    law, so that the test was is there a prohibition, couple with a penalty? The only qualification
    that he placed on Parliament‘s power if that formal test was met, was one grounded in terms
    of the colourability doctrine.
   That was state of the law when S.C.C. took over from P.C.
   First was Margarine Reference.


Reference re Validity of Section 5(1) of the Dairy Industry Act
(Margarine Reference) (1949 S.C.C.)

   S.C.C. was troubled with implications of Atkin’s formal test because of what it


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    took to be the possibilities that it created for federal encroachment on provincial
    areas of jurisdiction
   In addition to Atkin‘s purely formal test, a substantive additional component was added.
   Legislation at issue: Provisions middle p. 378 that prohibited amongst other things the
    manufacture and sale in Canada of margarine
   Feds sought to sustain this legislation on basis of s. 91(27), and in particular on basis of Lord
    Atkin‘s test — there was a prohibition, and there was a penalty.
   WE GET A NEW TEST: THREE PARTS:
          Prohibition
          Penalty
          Designed to further a ―typically public purpose‖.
   Instead of working through the colourability qualification, Rand said that in order for
    legislation to be sustainable on basis of s. 91(27), you needed not only prohibition coupled
    with a penalty, but you needed as well a public purpose underlying the prohibition which ‗can
    support it as being in relation to criminal law‘ .
   By this, he meant the sort of purpose that one can say underlies the creation of true crime —
    such things as the protection of public peace, of public order, of public security, health,
    morality — the ‗ordinary though not exclusive ends‘ served by criminal law.
   Having created that additional requirement, Rand goes on to hold that this requirement is not
    met in this particular case.
   Purpose of the prohibition against manufacture and sale of margarine is to
    protect the dairy industry, which was not an adequate public purpose that
    could sustain legislation as being in relation to criminal law.
   As it happens, this case went on to P.C., since it started early enough that P.C.
    still had jurisdiction in relation to it, but P.C. simply agreed with S.C.C.,
    endorsing the doctrinal innovation.


    Notes, p.379

   Since Margarine Reference:
   Especially see note 3.
   Doctrine has stayed intact: (1) prohibition, (2) penalty, (3) typically criminal
    public purpose. Still have the colourability rider as well.
   On basis of that doctrine, Parliament has been able to enact a broad range of prohibitions,
    including those sustained in RJR MacDonald and more recently the Hydro Quebec decision is
    the good news for Feds
   S.91(27) has been held unavailable to Parliament in some cases — Labatt was viewed as an
    attempt by Parliament to regulate local trade or industry; Boggs.
   Conclusion: while court takes three part test seriously, s.91(27) does provide considerable
    power to Parliament; it is a ―relatively fertile ground‖ for Federal legislation.
   The limitation in this area it seem to Elliot comes less from what the doctrine relating to
    s.91(27) will permit that it does from an unwillingness on Parliament‘s part to use the criminal
    law in a broad range of areas.
   Criminal law is a sledgehammer approach, one that governments will generally use with some
    care.
   That practical concern is more of a limitation than the law relating to s.91(27) on the amount
    of law being enacted on basis of criminal law power.


R.J.R. MacDonald Inc. v. Canada (A.G.) (1995 S.C.C.)

   RJR dealt with the 1988 statute enacted by Conservative government, the Tobacco Products
    Control Act,
       1. prohibiting the advertising of tobacco products, and
       2. creating an offence provision for failing to provide unattributed health warning on

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             tobacco products.
        3. Prohibition against placing any other messages on the packages
        4. Created penalty provisions.
   Challenged on both Charter and federalism grounds - Charter challenge was successful, but
    federalism one was not.
   Legislation was upheld on basis of s. 91(27), 7:2 (Laforest group, Major group)
   LaForest goes through history, applies Margarine Reference test and holds it was satisfied -
    the public purpose here was the protection of health.
   P. 385 In the course of his reasons, LaForest discusses question of whether or not the
    existence of exemptions can have the effect of changing what might otherwise be criminal law
    into something else - whether or not it is open to Parliament to use s. 91(27) even in cases
    where it provides exemptions.
   LaForest says p. 385 the creation of exemptions in and of itself will not render legislation that
    would otherwise be valid on basis of s. 91(27) invalid - open to Parliament to create
    exemptions.
   This legislation exempted foreign magazines advertising foreign cigarettes.

   RJR had argued that the 3 part test should be changed, among other things. They also argued
       1. This was unheard of legislation. Parliament was stepping in to prohibit the
          advertising of a lawful enterprise.
        LAFOREST: That sounds like Haldane‟s view, which has been abandoned.
       2. Parliament under s.91(27) cannot prohibit the advertising of a product where the
          manufacture and sale of it is legal (more of the technical aspect of the argument).
        LAFOREST: Unimpressed. No such rule should be imported, not least because the
          inefficacy of banning X may prove too great. Parliament should be allowed to
          attack the harms of the product through indirect means.
       3. Exemption argument, from above.


Provincial Power to Regulate Morality and Public Order

R. v. Hydro-Quebec, 1993 (supra)

   Not responsible
   Good news for Feds.
   Court upheld toxic substances on basis of s. 91(27) even though there was a distinctly
    regulatory character to the provisions in question.
   Was view of the four dissenting judges that the initial requirement of a prohibition was not
    even met
   Majority through LaForest disagreed and decided that even though there was regulatory
    character, there was still a prohibition coupled with a penalty enacted for typically criminal
    public purpose, which they said was protection of the environment - did not have to be
    protection of human health (accepted by all 9 JJ.)
   This case was significant in showing the Court‘s willingness to overlook regulatory features of
    the Legislation and uphold it.


Firearms Reference
 The legislation was passed in 1995 amidst much scrutiny and criticism from Alberta, among
    others.
   AB launched a reference to the A.C.A. to debate the constitutionality of it.
   This was largely seen as just political exercise: that the A.C.A. would strike it down as asked.
   However, the court there split 3:2 to uphold it!!


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       3 held it was valid criminal law.
       2 held that there was an infringement of s.92(13).

   A two-step Starr v. Houlden style test is used to determine the validity.
   The ―purpose‖ in the ―PITH AND SUBSTANCE‖ test is given a very generous definition, so it
    is not surprising that the legislation is upheld.
   The second step is our very own three-step s.91(27) test, which it passes.



Provincial Power to create offences

   In the U.S.A. and Australia, criminal law power is given to the provinces.
   For us, s.92(14) is the source of Provincial jurisdiction in the criminal law sphere.
   Enforcement of the law has been delegated to the Provincial A.G.‘s.
   Provinces do have some say in what areas of the Law are to be criminalised.
   Federal statutes do make provisions for exemptions (e.g.: Lotteries, horse racing).
   Provinces also have the power to create independent offences, under s.92(15).
     The idea is that their power is derivative—they have the power to give teeth to something
        that was enacted under a different head of power, e.g.: M.V.A., B.C. Securities Act.
     The Courts have been very sympathetic in allowing a fair bit of functional concurrency.

McNeil
   This concerned a Provincial FILM CENSORSHIP REGIME.
   Laskin thought it was an indirect way of getting obscenity laws in.
   Major thought it was more to do with regulating a local business.

Westendorp v. The Queen
   This concerned street soliciting, where municipal street soliciting provisions were struck
    down.
   DOCTRINAL FOOTHOLD? Nope.
   So much rests on the characterisation process.
   Laskin here was afraid of the implications for CIVIL LIBERTIES….



Chapter    15:                     Aboriginal                Peoples           and            the
Constitution
   We focus on SELF-GOVERNMENT, which some, like Gordon Campbell, call a third order
    of government.
   There are 3 classes of Aboriginal Peoples, as defined in s.35(2) of the Constitution: Indian,
    Inuit, and Metis.
   MACKLEM PIECE: ABORIGINAL SELF-GOVERNMENT
     This deals with s.35(1) rights, mentions Sparrow as important.

   The ―Constitutionalisation‖ of Aboriginal self government can happen 2 ways:
    1. Litigation under s.35(1), arguing that ―aboriginal rights‖ should be held to include the
       right to self-government.
    2. Treaty Negotiation: An example of this is the Nisga’a Treaty, and requires a
       grounding in the ―treaty rights‖ section of s.35(1).

   The excerpt from the Royal Commission report has a tidy and succinct case for the right to
    Aboriginal self-government. (pp 530-534).

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Jim Aldridge guest lecture
SOME BACKGROUND
 Pamajweon: self-government claim.
 There, the S.C.C. said that you must specify that which you claim to govern, and it must be
  an ―integral part of one‘s distinctive culture at the time of First Contact.‖ (also in Van Der
  Peet).
 The paragraph at the end of Delgamuuk says ―specify the right to self-government‖. The
  case seems like no decision, but it does contain important ideas.

The Nisga‘a Treaty
   1976- Negotiations start.
   1996 – First agreement reached.
   1998 – Final agreement reached. Ratification follows.

The Key Clause: Nisga‘a have the right to self-government and the right to pass
laws .
 There follows a Chapter on it.
 These laws will have the same weight and effect as other laws.

   The treaty acquires Constitutional protection, which was a first.
   Usually, self-government claims were put in a separate, unprotected document, as a matter of
    policy.
   The reasoning behind that was that the native ―government‖ would merely delegate authority,
    after having had some delegated to it.
   The delegating statute is always able to be changed, overridden, or revoked.
   The Nisga‘a argument was that the right to self-government was inherent and not derived
    from Parliament.
   This is both symbolically and practically important.

CONSTITUTIONAL PROTECTION DERIVES FROM S.35 OF THE CHARTER
 In 1982, there were only two sections.
 Th ere was an amendment, adding s.35(3), ―For greater certainty…‖
 This was a technique of giving constitutional protection in advance… a very Canadian thing to
  do.
 This is similar in flavour to s.149 of the B.N.A. Act, 1867, relating to Provinces‘ prospective
  entry into Confederation.
 Note that s.35 is, technically, not subject to the limitations under s.1!!!
   The S.C.C. invented a test by which s.35 might be infringed.
       Valid legislative objective
       The infringement is justified in a manner consistent with the ―honour of the Crown.‖
 Then , they set up a ―justificatory standard‖, comprised of 6 things. The Court has since said
  that standard can vary in a manner consistent with the ―honour of the Crown.‖

BACK TO THE NISGA‘A TREATY
 During the negotiations, Charlottetown popped up.
 They had a model for self-government.
 There would be a list of powers that could be exercised, and once they did so, Federal Law in
  that sphere would be displaced.
 After that (Charlottetown), Feds and the Provinces didn‘t feel like negotiating any exclusivity
  clauses.
 So, they were advocating concurrency, which was sneaky because it meant that Federal laws
  would always prevail in any conflict.


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   Conflict was defined quite narrowly, in terms of ―impossibility of dual compliance‖.
   The negotiators showed that EVERY Nisga‘a law would be concurrent with some other order‘s
    law. Therefore, every potential sphere of jurisdiction has its own paramountcy rules.
   With very internal matters (land, etc.) Nisga‘a law prevails.
   With respect to things like buildings codes, Federal Laws prevail, but Nisga‘a can make ―meet
    or beat‖ regs… more stringent than the Federal ones.
   Nisga‘a laws are subject to the Charter, with the concomitant democratic safeguards, such as
    voting, universal suffrage, and fiscal accountability.

    The treaty had to be ratified by the Nisga‘a, the Province, and the Feds.
    Province ratified with “settlement legislation” which involved the longest debate in the
     history of the legislature.
    In Parliament, the Reform Party introduced 471 amendments to a three page Bill. 471
     amendments were voted down.
    The Bill received its third and final reading on Dec. 13, 1999.
    Then, the Senate held it up, focussing on the constitutionality of self-government.

   Provincially, Campbell has sought a declaration that the Constitution of Canada does not
    allow for the creation of an order of Government that is not subject to the authority of the
    Feds.
   He argues that you can‘t amend the Constitution without a referendum.
   The Court refused to rule on Bills before the House of Parliament.

   MAY 11, 2000: The treaty is effective.
   MAY 12, 2000: Off they go to Court.

    Campbell, et. al.:
      Ss.91, 92 are exclusive and exhaustive.
      There is simply no residual power left.
      Therefore, any other government must be a delegate.
   RESPONSE:
     No.
     That just exhausts power derived from the Crown.
     Nisga‘a power comes from previous habitation, with inherent laws.
     This isn‘t anything new… it has been recognised since first contact.
     Justice Marshall (U.S.A.) trilogy of cases which ―accurately states the U.K. law.‖
     B.N.A. Act did not extinguish First Nations power.
   Williamson, J. gave the decision.

   S. 35 provides the Constitutional framework in which Aboriginal rights are to be
    reconciled with the Crown’s sovereign power, in a compatible manner.
   The Nisga’a treaty is valid, as it is consistent with the S.C.C.’s rulings, and with
    s.35.

    the end.




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