Sharon Zheng LAW 100 Fall 2011 Hester Lessard

Sharon Zheng | LAW 100 | Fall 2011| Hester Lessard

CHAPTER 5: INTERPRETATION DOCTRINES

A. CLASSICAL PARADIGM OF FEDERALISM – MUTUAL MODIFICATIONS AND WATERTIGHT COMPARTMENTS (JCPC)

Citizens Insurance Company v. Parsons (JCPC 1881-1882) - leading case on jurisdiction and the economy

Facts: Parsons brings actions against two insurance companies who claimed he violated his fire insurance policy. P says that the policy wasn’t printed in the manner required by Ontario statute. D is federally incorporated and interjurisdictional, argues that statute was ultra vires Ontario and thus it doesn’t apply.

Fed / Prov
91(2): Trade and Commerce
POGG power / 92(13): Property and Civil Rights

Issues: When an interprovincial company makes transactions wholly within a province, is it subject to the commerce regulating statutes of that province, or would that application be ultra vires?

Held: Statute (and provincial jurisdiction) upheld. Parsons gets his insurance coverage.

Application of the Mutual Modification Test:

S.91(2), trade and commerce is a narrow power, applies in two areas:

Cross border (international and interprovincial) trade

-First branch is interpreted as imports/exports

-Parson’s doesn’t address general trade across provincial borders

The general regulation of trade affecting the whole Dominion (“general branch”).

-Was almost obsolete until General Motors

-Unclear what this actually means

s.92(13), property and civil rights is a broad power, applies to the regulation of a single trade/ businesses wholly within a province

-Looking at the text of the contract, since the economic transaction was made within the province, easily 92(13)

Ratio:HUGE amount of power given to the provinces + watertight spheres of non-overlapping jurisdiction

Sharon Zheng | LAW 100 | Fall 2011| Hester Lessard

B. MODERN (LIVING TREE) PARADIGM OF FEDERALISM – PITH AND SUBSTANCE / INCIDENTAL EFFECTS (SCC)

R. v. Morgentaler (1993): leading case on pith and substance/ incidental effects

Facts: After the Criminal Code provisions on abortion are struck down, NS passes regulations under the Health Act and Hospitals Act (March regulations) prohibiting abortion. These eventually become the Medical Services Act, which combined abortion with a few other services and levied huge fines for its practice outside of hospitals.

Fed / Prov
91(27): Criminal Law: addressing public evils (health, moral standards etc.) / 92(13): Property and Civil Rights: regulation of medical profession
92(16): Residual powers in local/ private matters
92(7): Hospitals
92(15): Provincial penalty power (ancillary to 92(7) or 92(16))

Issues: Is the Medical Services Act ultra vires the province of Nova Scotia?

Held: Yes, law struck down. The Medical Services Act is a direct attempt to prohibit abortion, and is pith and substance criminal law

Application of the Pith and Substances Test:

1) Determine the “matter” or pith & substance of the legislation

-Dominant aim or purpose of legislation (the “matter”) must fall within the appropriate jurisdiction’s class of subjects

Intrinsic Evidence (“Legal Effects”, four corners of the statute and regulations):
Examine title, preamble, purpose provision
Misleading
Rights and liabilities
Offences and penalties
Very punitive
Administrative regime
Extrinsic evidence (beyond the four corners):

Background and circumstance of enactment
Legislative History
Hansard: legislative debates
Limited weight, unreliable since there’s not single intent of legislature
Used to be only considered in issues of colourability – now more accepted
Related legislation
Policy reports (white papers, royal commissions)

Practical Effects: Actual impact of the operation of the legislation.
Can show that re: purpose of legislation, a law is ultra vires in its effects. But a lack of ultra vires practical effects doesn’t necessarily suggest its intra vires:
Empirical evidence speculative since law just introduced
Even when around a long time, impacts of a law are hard to measure
Practical effects don’t necessarily reveal parliamentary intent (could be incidental effects)

2) Look at competing subject classes in s.91/92. What is the scope of the classes of subjects and what class of subject is the matter included in?

FINDING:

-Health is Double Aspect: both levels of govt can legitimately legislate

Large portion under 92, small portion under 91

-Doctrine of Colourability: despite being in a primarily provincial area (health), it is in pith and substance regulating morality by limited access to abortion not health = invalid leg made to look valid

Very punitive (duplicates legal effects of the crim code provisions struck down)
History and context

-Doctrine of severance: SCC in Morgentaler: no, all other provisions were just to hide the abortion provision

RATIO: Modern approach of pith and substance/ incidental effects + colourability no longer an evidentiary doctrine, we always conduct a more contextual analysis including extrinsic evid and practical effects

Same Sex Marriage Reference: Living Tree Principle

Facts: Federal govt has legislated very little in the area of marriage – provinces had made a defacto C/L authorizing same sex unions. Federal govt tries to pass the Proposed Act Respecting Marriage. Constitutionality challenged: is same sex marriage within the exclusive federal authority?

Fed / Prov
s. 91(26) Marriage & Divorce: capacity to marry. Requirements: age, opposite sex, two persons, consanguinity (= capacity of marriage) / s. 92(12) Solemnization of Marriage: performance of marriage (= form of marriage)

Issue: Reference Question 1/4

Is there a ‘natural’ limit to the meaning of marriage? AKA is the heterosexual part of C/L marriage inalienable to it.

If no, same sex marriage is caught under marriage
If yes, then same sex marriage is a new subject matter

Held:

-Living Tree Principle: allows an evolving definition of ‘marriage’

Does this kind of change simply fall out of all jurisdiction?

Held:

-Principle of Exhaustiveness: no. This matter is within the boundaries of powers given under the Constitution

Is this change too drastic? Too high an impact on existing law?

Held:

-No: provincial course have already been ruling in favour of same sex unions

Pith and substance/ Incidental Effects:

-Act is about the capacity to marry, therefore under 91(26), federal

Issue: Reference Question 4/4

Is the opposite sex requirement for marriage for civil purposes, consistent with the Charter

Held: This question is not justiciable. A decision here may upset existing unions based on provincial judgements, court answering yes would affect the uniformity of laws across Canada.

Sharon Zheng | LAW 100 | Fall 2011| Hester Lessard

C. JUSTICIABILITY DOCTRINE (Same Sex)

D. ANCILLARY DOCTRINE

General Motors of Canada Limited v. City National Leasing – leading case on the Ancillary Doctrine

Quebec (Attorney General) v. Lacombe – aerodrome case re: Ancillary Doctrine

Facts: Cottagers unhappy with float planes landing in certain lakes in QC, bylaws (bylaw 210, amended to bylaw 260) are put in place to restrict aerodromes. Owner of an aerodrome argues that bylaw 260 is unconstitutional since aeronautics is within federal jurisdiction.

Issue:

Fed / Prov
POGG (aeronautics) / 92(13): Property and Civil Rights

Held:

Pith and Substance:

-Legal effects (intrinsic evidence)

Preamble: bylaw is about balancing recreational vacation uses and commercial uses
Substantive provisions: actually about where you can place an aerodrome by banning them from cottage areas, not really balancing recreational/commercial use

-Extrinsic evidence, precedents say:

Jurisdiction over flying and landing of planes is exclusively under federal POGG
Zoning is provincial, but zoning is about rationalizing land use
This bylaw doesn’t do this – it just prohibits aerodomes in some places

-Therefore: ultra vires

AGQC then argues: Ancillary Doctrine to save the provision

-Argument fails, even though it only mildly encroaches into federal POGG jurisdiction (for same reason as failing pith and substance)

Argument dissent could make:

1)Intrusion is only incidental to federal POGG and therefore it should actually be looked at under paramountcy: where no conflict, both can be valid

2)This is a double aspect field with two valid matters, and both jurisdictions can validly legislate. From here, would move to paramountcy again

Sharon Zheng | LAW 100 | Fall 2011| Hester Lessard

E. PARAMOUNTCY DOCTRINE AND

F. DOUBLE ASPECT DOCTRINE

Multiple Access Ltd. v. McCutcheon (1982) – double aspect, adding dual compliance and federal frustration

Facts: Shareholders of Multiple Access try to sue McCutcheon, who is accused of insider trading. Fed statute (CB ) has a statute of limitations that has expired, so the suit proceeds under the provincial statute (Securities Act). McCutcheon argues that the Securities Act is ultra vires under paramountcy

Issue: Is the Securities Act ultra vires in whole or in part?

Matter: Prohibition of insider trading

Fed / Prov
s. 91 POGG: Corporations Act – regulation of internal relationships within corporations / s. 92(13) Property and Civil Rights: Securities Act – trade and securities

Held: Appeal allowed. Double aspect can apply in securities regulation and federal and provincial laws can apply concurrently.

Ratio: Dual compliance is possible, and it doesn’t frustrate parliamentary purpose

Bank of Montreal v. Hall – an example of frustrating parliamentary purpose

Facts:

Special loan for farmers set up under the Bank Act: very high loans but if you default, the Bank will be present immediately to seize equipment
Hall defaults on loan and bank moves in the seize the equipment
In SK, statute in place that creditors must get court approval before they seizing property.

Issue:

Fed / Prov (Sask)
91(15) Bank Act / Act saying that creditors need court approval before seizing property

Is dual compliance possible?

Held:

It would frustrate parliamentary purpose to have dual compliance: in the Bank Act, farmers get these terms and the quid pro quo is that the moment you default it’s gone

Govt of Sask v. Rothmans, Benson and Hedges (SCC) – an example of NOT frustrating parliamentary purpose

Facts

-Federal and provincial tobacco acts intra vires, regulating tobacco advertising. Prov act more stringent.

-Rothman’s is charged under provincial act, argues there should be paramountcy

Issue

-Matter: Regulating tobacco advertising

Fed / Prov (Sask)
Criminal Law Power – Federal Tobacco Act, provisions show it’s primarily concerned about youth, but spec. allows advertising in corner stores / 92(13) Property and Civil Rights - Tobacco Act, does not allow advertising in any retailer where young people are permitted

Held

-Dual compliance would not frustrate parliamentary intent: both intent to prevent ads reaching youth

Exemptions in federal law under criminal law power is unusual – it’s meant to demarcate the scope of the offence
Provincial statute more specifically demarcates the scope of offence – that’s okay

Sharon Zheng | LAW 100 | Fall 2011| Hester Lessard

G. INTERJURISDICTIONAL IMMUNITY

Note: Courts dislike finding IJI

-Inconsistent with modern pith and substance/ incidental effects approach

-Has a centralizing tendency: applied in an apparently lopsided way

Although provs (esp QC) prefer clear bright lines and find this less threatening than paramountcy

-Creates legal vacuums and gaps

-Principle of subsidiarity

Derived from the EU, preference for assigning jurisdiction to the government that’s most effective and closest to the citizens

-Inconsistent with cooperative federalism - governments to work out and negotiate, NOT courts to decide

Canada Western Bank v. Alberta – IJI

Facts: Two valid laws dealing with insurance, CWB doesn’t want to comply with Alberta’s laws. Banks have, in the past, been an area granted IJI.

Issue: Is bank insurance an area of federal IJI?

Fed / Prov (Alberta)
91(15) – Bank Act / 92(13) Property and Civil Rights – Alberta Insurance Act

Held: No IJI

1.Core: insurance is not at the core of the federal jurisdiction of banks. The insurance is packaged with loans they banks provide, and is therefore only collateral, not vital and essential

2.Impairment: CWB doesn’t require all people who get loans to get loan insurance, so it doesn’t impair their ability to function

And bigger policy reasons: banks aren’t the only entities providing insurance, wouldn’t be fair to give them exemptions.

INSITE Case: Canada (AG) v. PHS Comm Services Soc. (2011) – IJI in a Double Aspect Field

3 Arguments from the claimants

Controlled Drug and Substances Act is ultra vires

-But encroachment into the medical consent is only incidental effect to the CDSA

The dominant purpose of the CDSA is not to regulate medical practice and there are things regarding medical practice you WOULD want the CDSA to control

s 4(1) and 5(1) of CDSA should be read down, as not applying to INSITE
If statute will bear the meaning of reading down and that will make it constitutional, then it can be used
Interjurisdictional immunity

Held: NO IJI

-1. No precedent

-2. Exclusive core is hard to delineate, too large to delineate with bright lines

-3. IJI is hard to apply to double aspect fields (based on past evidence)

-4. Legal vacuum

Would prevent federal criminal law to regulate important legal moral issues
Ex. human cloning, euthanasia

Sharon Zheng | LAW 100 | Fall 2011| Hester Lessard

CHAPTER 6: DIVISION OF POWERS AND ABORIGINAL PEOPLES

A. S.88 INDIAN ACT

Natural Parents v. Superintendant of Child Welfare (1976) – Adoption and Federal Aboriginal Jurisdiction

Facts: Aboriginal child goes to hospital for neglect (60s scoops – key legal principle: “best interests of the child”, narrow view of individual, excludes community). Natural parents argue that he should be raised by relatives in the native tradition. Provincial Adoption Act erases birth parent relationships for all purposes. Adoption Act requires consent of birth mother, but judges tended to dispense with its need wrt Aboriginal women. There’s no fed law re: adoption so no paramountcy. This case is a constitutional challenge to the whole 60s scoop.

Issue: Does the Adoption Act encroach on exclusive federal 91.24 jurisdiction over “Indians and lands reserved for Indians”?

Fed / Prov (Alberta)
91(24) – Indians and lands reserved for Indians:
the core of this “Indianness” is an area of IJI that can’t be encroached by provincial incidental effects / 92(13) Property and Civil Rights and (16) Matters of a merely local or private Nature in the Province – Adoption Act

Held: Aboriginal people and lands is an area of IJI, but the Adoption Act does not encroach on the fed jurisdiction

Adoption Act is an incidental effect  and therefore paramountcy applicable as the act erases status
Three-way split – no majority finding over whether S.88 is declaratory
Laskin (himself plus 3 judges) – referential incorporation
Agrees with the band that there is a large, exclusive jurisdiction space around the Indian family relationship (IJI core of “Indianness”, which replaces “vital and essential aspects”)
However, not the same reasons as the band
Views it as federal regulated space (not indigenous regulated space)
Finds that regulatory usefulness of the family tie brings it within the notion of Indianness
Therefore, finds for IJI, however, finds that S.88 is referential incorporation (therefore, provincial law applies)
While the argument can be made under limit 3 of S.88 (“exception to extent of inconsistency with Indian Act”) Lasking doesn’t accept this and rejects paramountcy
Martland (himself plus 1 judge) – incidental effects
Finds it doesn’t go to the heart of IJI
Agrees with the band that S.88 is declaratory (no ref incorp), but should consider it is an incidental effect and raise paramountcy
However, it does not trigger paramountcy because the conflict is insufficient and therefore no inconsistency (dual compliance)
Beetz (himself plus 2 judges)
Both routes lead to same decision, which means that it’s unnecessary to determine which route is accurate
In Dick, he decides on the Laskin route
Issue of justice: the right of the child to adoption

Sharon Zheng | LAW 100 | Fall 2011| Hester Lessard

R. v. Dick (1986)

Facts: Aboriginal man from the Alkali Lake Band is charged with hunting out of season.

Issue: Does a restriction against year round hunting in the provincial Wildlife Act impair the capacity of the Shuswap band and invade the fed jurisdiction under 91.24? Does it go to the heart of “Indianness”?

If yes, is it a provincial law of general application that has been referentially incorporated by s.88 and therefore impacts Dick anyways?

Held: The law goes to the heart of Indianness (Shuswap provided a lot of evidence that hunting and fishing has a core impact on the community), but it is referentially incorporated by s.88 and therefore applies to Dick regardless. Also, this is a law of general application - despite the high impact on Indians, SCC rejects that it ‘singles out’.

Ratio: Provincial laws of general application may regulate Indians in their Indianness because they are invited into federal law by referential incorporation under s. 88 if they don’t trigger any of the exceptions.

Kitlkatla

Facts: Under the Heritage Conservation Act, culturally modified trees are considered a heritage object and their removal is at the discretion of the BC Minister of small business, tourism, and culture. Minister allows the removal of CMTs for the exploration of resources, Kitkatla Band brings action, objecting the logging permit

Issue: Does the Heritage Conservation Act encroach on exclusive federal 91.24 jurisdiction over “Indians and lands reserved for Indians”? Ie. Are the culturally modified trees at the core of the Kitkatla cultural heritage?

Fed / Prov (BC)
91(24) – Indians and lands reserved for Indians / 92(13) Property and Civil Rights – cultural objects

Held: 1) The Act is ex proprio vigore intra vires because a) the ultra vires provision is incidental b) IJI doesn’t have to be triggered since the CMTs are deemed not part of the Kitkatla cultural heritage’s core Indianness. 2) The law applied to Indians because it’s of general application – it singles out aboriginal objects but not aboriginal people.

Sharon Zheng | LAW 100 | Fall 2011| Hester Lessard

CHAPTER 7: DIVISION OF POWERS AND THE POGG POWER

Section 91, Constitution Act, 1867: It shall be lawful for the Queen, by and with the Advice and Consent of the Senate and House of Commons, to make Laws for the Peace, Order, and good Government of Canada