3 Levels of Analysis for Division of Power

CONSTITUTION FRAMEWORK

3 Levels of Analysis for Division of Power

STEP 1.VALIDITY - Characterization

Side Note:

The way you characterize is important...

Do I want it upheld? Characterize outside jurisdiction of enacting gov

Do I want it struck down? Characterize inside jurisdiction of enacting gov

What is the PITH & SUBSTANCE (matter/subject) of the legislation?(Morgentaler)

Does this fit within scope of 1 or more heads of power? Is matter within the enacting gov?

1. What is the purpose of the law?

Consider the text; within “4 corners of the page”, look at the Act as a whole, look at the debate around the legislation, extrinsic evidence (Hansard), legislative fact (all the above)

1. What is the effect?

Legal Effect - how does the legislation impact the rights & liabilities of those it regulates?

Practical Effect – actual or predicated impact of the legislation in operation

1. Assess Colourability (Morgentaler)

Is the enacting gov trying to color it within their jurisdiction, when in reality it’s about a matter outside jurisdiction?

Colourability can be determined when what they’re trying to do (purpose) & what happens (effect) doesn’t match up.

STEP (1a).Where does the law fit in the heads of powers? (EI Reference)

Look at the scope of the heads of power & find similar cases to see the characterization.

Conclusion:By looking at the P+S, this law is (in)validas it falls inside/outside the jurisdiction of the enacting legislature and it will be struck down.



VALIDITY of PROVISIONS –ANCILLARYDOCTRINE(GM Motors)

When a particular provision appears to intrude on powers outside the enacting gov’s jurisdiction

ANCILLARY/NECESSARILY INCIDENTAL - Assuming the larger act is valid under a P+S analysis:

1)What is the extent of intrusion of the impugned provision? (Severe or minor)

• Minor intrusion  Go to Rational Connection test in integration
• Severe intrusion  Go to Strict Necessity in integration

2)What is the level of integration of the provision with the larger act?

• Rational Connection Test:

Low threshold – minor intrusion, only have to show a rational connection for integration (is it functionally integrated into the purpose of the Act?)

• Strict Necessity Test:

High threshold – severe intrusion, have to show that the statute can’t survive without it

Conclusion:This provision was a severe/minor intrusion on the other head of power, and was (not) sufficiently integrated into the Act as a whole and will (not) be severed.[**SEVERABILITY: if the provision offends they may be considered on their own & severed, providing the rest of the statute can stand survive without them.]

A) IF THERE’S TWO LAWS IN CONFLICT:

STEP 2A.OPERABILITY - Double Aspect/Paramountcy

Side Note:

If facts havetwo laws, you may be able to assume both are validjust only work through paramountcy:

If conclusion isprov law can be beaten byparamountcy, then only need determine validity of fed law

1)DOUBLE ASPECT DOCTRINE(Multiple Access)

Preliminary Question

Is there a double aspect to the matter so that it falls both within a fed & prov power?

If yes, both fed & prov laws are valid in P+S

2)PARMOUNTCY TEST (Rothmans)

1. Dual Compliance:

Can a person comply with both pieces of legislation at the same time without any conflict?

If no, paramountcy prevails. If yes, ask (ii)

1. Even if dually compliant, does obedience to the prov law frustrate the purpose of the federal law?

Conclusion:The provincial law does (not)frustrate the purpose of the federal law and thus the provision will (not) be “inoperable” to the extent of inconsistency.



B) IF IT’S JUST ABOUT A PROV LAW ISSUE(doesn’t necessarily have fed law on the same matter)

OR IF PARAMOUNTCY FAILED & FED STILL WANTS TO PROTECT CORE:

STEP 2B.APPLICABILITY–Interjurisdictional Immunity

IJI TEST

Should the fed exclusive head of power be immune from the intrusion of a valid, but overlapping prov law?

Note: IJI may prevail even if there’s no fed legislation in place governing the matter.

1. Is there precedent for the application of the IJI doctrine?

Is the power in question specific or general? If general, no IJI (Canadian Western; Insite)

Federal entities: banking, not insurance (Canadian Western); aeronautics (COPA)

1. Does the prov law entrench on the core of the federal power? (COPA; Bell #2)

Core is the “basic, minimum and unassailable” elements or “vital” parts of a fed institution (Bell #2)

1. Is the provincial law intrusion sufficiently serious to invoke IJI?

Difference b/w affects and impairs -“core competence” is placed in jeopardy (Can Western)

Must be serious, meaning that it must have adverse consequences

Conclusion: The prov law (does not) impairs the vital core of the federal head of power to invoke IJI;[If it applies, law is “read down” to be inapplicable to the protected matter]

CRIMINAL LAW

FEDERAL HEAD OF POWER

91(27): The criminal Law, procedure of criminal law

PROVINCIAL HEAD OF POWER

92(14):The administration of justice in the province...including...Provincial courts, both of Civil and of Criminal jurisdiction, and including procedure in civil matters in those courts

92(15): The imposition of punishment by fine, penalty or imprisonment for enforcing any law of the province made in relation to any matter coming within any of the classes of subjects enumerated in this section –regulations

92(16): Matters of a merely local or private nature in the province – local interests of public order & morality(McNeil; Rio Hotel)

TEST FOR CRIM LAW TO JUSTIFY ITS P+S UNDER FEDERAL POWER - 91(27)

(Margarine Reference)

1. Does the law have prohibitions + penalty?

If you have the two, it’s “prima facie” indication of “criminal law”

Fedcrim law can’t be in P+S regulatory & flip side, regulations can’t have a crim purpose

Prohibition & penalty preserving:

• “Public peace, order security, health, morality” (Margarine reference)
• “The protection of a clean environment” (Hydro-Quebec)
• “The protection of vulnerable groups “(Malmo-Levine)

2. Does the law have a valid criminal law purpose?

Is the law aimed at prohibiting/preventing an evil?

What is the undesirable effect upon the public against which the law is directed?

Fedcrim law can’t be in P+S regulatory & flip side, regulations can’t have a crim purpose

*Legislation cannot be enacted colorably

(Prov: Say it’s aimed at one thing, but has effects that result in criminal penalties – Arkinstall)

(Fed: Creating prohibition & penalty for something that’s in prov jurisdiction – Margarine Ref)

The law cannot be colourable – needs a valid criminal purpose to be criminal power

TRADE & COMMERCE

Trade & Commerce powers can fall under federal & provincial head of powers:

FEDERAL HEAD OF POWER

91(2): Trade & Commerce – 2 braches of power:

1. International & inter-provincial trade & commerce
2. General trade & commerce (General Motors)

PROVINCIAL HEAD OF POWER

92(13):Property & Civil Rights

• Intra-provincial trade; local matters of trade & commerce

TEST FOR VALIDITY UNDER FEDERAL 91(2) POWERS: GENERAL TRADE & COMMERCE

(General Motors)

This test indicates valid legislation under the general trade & commerce power, 91(2)

*Don’t need all 5 elements

1. Is the law in question part of a regulatory scheme?
2. Is the scheme regulated/monitored by a regulatory agency?
3. Is the law concerned with a general trade as a whole rather than a single industry?
4. Are the provinces of incapable of legislation, either alone or together?
5. If you failed to include a province, would the scheme be jeopardized?

POGG

• Parliament has the power to make laws for the peace, order and good government of Canada, in relation to all matters not coming within the classes of subjects by this Act assigned exclusively to the Legislatures of the provinces;
• Power comes from s.91 of the Constitution

3 BRANCHES OF POGG

1)GAP – where discrete subject, not mentioned in s.91 & 92

• Limited application
• Ex: Radio Reference – radio/treaty implementation power is under POGG

2)EMERGENCY – temporary concern, present, or imminent threat

• Courts have to be satisfied that there is a rational basis that call of Parliament was legitimate (that it was a legit important issue)
• Test for Emergency power in Anti-inflation Reference

3)NATIONALCONCERN – concern is permanent

• Concern of Canada as a whole, as a matter affecting POGG
• Early cases: Local Prohibition, Russell
• Test for National concern in Crown Zellerbach

TEST FOR EMERGENCY POWER UNDER POGG (Anti-Inflation Reference)

TEST FOR NATIONAL CONCERN UNDER POGG (Crown Zellerbach)