Law 100 – Constitutional Law – CANS

Gord Behan

Professor Shigenori Matsui

Federalism

Exam

  • Argue the position you are asked to argue.
  • Create and reject counter-arguments to the position we are supposed to argue.

Analytical Framework

Steps

  • (1)Pith and substance analysis.
  • (2) Assign to a federal or provincial head of power.
  • Sometimes federal and provincial laws legislate in the same subject. This does not mean that the heads of power overlap because the heads of power are mutually exclusive.
  • (3) If incidental encroachment outside jurisdiction, apply necessary incidental doctrine.
  • (4) If federal and provincial laws legislate in different aspects of the same matter apply double aspect doctrine, interjurisdictional immunity doctrine, and paramountcy doctrine.

(1) - Pith and Substance - Validity

  • Identify the subject matter of the law and assign it to a relevant federal or provincial head of power under s. 91 and s. 92, respectively.
  • The pith and substance of the law is the dominant or most important characteristic of the challenged law (Union Colliery).
  • Look at the purpose and the effectin order to determine (CWB).
  • When the law has more than one “matter”, the courts grapple with how to characterize the law.
  • The court makes a judgment as to what the most important feature of the law and the other feature is incidental, making it irrelevant for constitutional purposes.
  • This should be done flexibly and progressively, having regard for context (Reference re Same Sex Marriage).
  • The law must be sufficient specific to come within a class of subject (Saumur).
  • Of course, the incidental effect may intrude in the jurisdiction of another level of government. This is permissible.
  • The actual effect of the law matters (Alberta Bank Taxation Reference) as well as how the law is actually administered (Saumur).
  • However, singling out [for example, province using tax powers to single out banks, which are federal] does not necessarily mean the pith and substance will be in relation to the entity being singled out.

Purpose

  • Federal Sunday closing law would have been upheld under federal criminal law power. This stems from its purpose, which was religious (Big M Drug Mart).
  • Provincial Sunday closing law seeking a secular uniform day of rest was upheld under provincial property and civil rights power (Edward Books and Art).
  • Can look at Parliamentary debates and law reports to determine purpose (Edward Books and Art).
  • Preamble and intention of the legislative body also relevant.

Effect

  • In Central Canada Potash law was characterized as interprovincial and international trade rather than natural resources because it had a substantial effect to the latter.
  • How the law is actually administered is also relevant (Saumer).

Efficacy

  • Cannot bear of wisdom or efficacy of the statute – that is for Parliament (Re Anti-Inflation Act; Re Firearms Act; Ward).

Colourability Doctrine

  • Legislation cannot be coloured such as to fall under one head of power when it is actually legislating in another area.
  • In Morgentaler, 1993, SCC struck down a NS statute as it was coloured as health care legislation but, in effect, as evinced by the purpose for which it was enacted, was about abortion.
  • It means that the form is not controlling in the determination of essential character.

(2) – Necessary Incidental Doctrine - Validity

  • If the pith and substance of a law if found to be within a federal head of power, the incidental effect on the provincial power will be accepted and vice versa.
  • Incidental intrusions into matters subject to another level of government’s authority are expected in a federal system (Canadian Western Bank).

Three step analysis (GM, 1989; Reference re Goods and Service Act, 1992):

  • Initially, decide what degree of fit is appropriate considering the degree of intrusion.
  • Minor encroachments only require a rational connection whereas major encroachments require a stricter test (truly necessary or essential) (GM).
  • (a) Remedial legislation.
  • (b) Limited scope of legislation.
  • (c) Power of other level of government to create rights.
  • (1) Does the impugned legislation intrude?
  • Does it touch on the other level of government’s jurisdiction? If not, analysis ends.
  • Analyze degree of intrusion here.
  • (2) Is the act as a whole valid?
  • The P and S is crucial here.
  • Is the legislation justifiable under a head of power (P and S)? If not, analysis ends.
  • (3) Is the impugned legislation sufficiently integrated with the scheme?
  • Are the impugned provisions sufficiently integrated into the scheme that they can be upheld based on that relationship? If so, legislation saved.

(3) – Double Aspect Doctrine - Validity

  • Subjects in which one aspect and for one purpose fall within s. 92 may in another aspect and for another purpose fall within s. 91 (Hodge v. The Queen).
  • The federal and provincial government can regulate on different aspects of the same subject if they are both founded in a relevant head of power.
  • Applies when the contrast between the relative importance of the two features is not so sharp (Multiple Access).
  • The double aspect doctrine recognizes that both Parliament and the provincial legislatures can adopt valid legislation on a single subject depending on the perspective from which the legislation is considered, that is, depending on the various “aspects” of the “matter” in question (Canadian Western Bank).
  • Double aspect doctrine gives rise to the possibility of conflict between a valid federal law and a valid provincial law. The resolution of such conflicts in favor of the federal law is the function of the “federal paramountcy” doctrine.
  • In certain circumstances, the powers of one level of government must be protected against intrusions, even incidental ones, by the other level. For this purpose, the courts have developed two doctrines. The first, the doctrine of interjurisdictional immunity, recognizes that our Constitution is based on an allocation of exclusive powers to both levels of government, not concurrent powers, although these powers are bound to interact in the realities of the life of our Constitution. The second, the doctrine of federal paramountcy, recognizes that where laws of the federal and provincial levels come into conflict, there must be a rule to resolve the impasse. Under our system, the federal law prevails.

(4) – Interjurisdictional Immunity Doctrine - Applicability

  • An exception to PS/paramountcy doctrine.
  • Incidental effects of legislation cannot apply if they affect the “core” of the jurisdiction even if there is no federal law.
  • Recognizes that “classes of subject” in ss.91 and 92 must be assured a “basic, minimum and unassailable content” that are immune from legislation enacted by another level of government (CWB).
  • Should only be applied where there is a precedent – limited applicability (CWB).
  • Court should favour the applicability of both the federal and provincial law.
  • If the effect of a provincial law would be to impair the status or essential powers of a federally incorporated company, or to affect a vital part of a federally- regulated enterprise, then the provincial law, although valid in the generality of its applications, will not apply to the federally incorporatedcompany or federally regulated enterprise (John Deere, 1915).
  • The applicability of the provincial law is denied even when there is no conflicting federal law.
  • Also applies to federal undertakings (Toronto v. Bell Telephone, 1905).
  • It has been expanded to include federal elections (McKay v. The Queen, 1965).
  • IJI was tightened inCWB where the court held that it would only apply if a “core competence” of Parliament or a “vital of essential part of an undertaking it duly constitutes” would be impaired by the provincial law.
  • A mere affect was not enough.
  • Vital - sterilization or paralyzing not required, but an “adverse consequence” must place the core or vital part of the undertaking “in jeopardy”.
  • The vital part is limited to functions that are essential, indispensable or necessary to the federal character of the undertaking.
  • Will not apply if the provincial law lies beyond the core of the federal undertaking (federal head of power) (CWB).
  • The court should try and give effect to statutes enacted by both levels of governments and IJI thus should be applied with restraint (CWB)
  • If the provincial law would impair the “basic, minimum and unassailable” core of the federal subject, then the IJI doctrine would apply instead of pith and substance. Pith and substance is the default doctrine (CWB).
  • If there is a valid federal law in the area, paramountcy would apply instead of IJI.

(5) – Paramountcy - Operability

  • If a valid federal and a valid provincial law are in conflict (inconsistent), the provincial law is inoperable to the extent of the inconsistency.
  • Applies when Parliament’s power is under a head of power or necessary incidental (CWB).
  • The onus is on the party relying on paramountcy to demonstrate the laws are incompatible. The court prefers to interpret the laws in a way that they both operate.
  • (1) Impossibility of dual compliance (express contradiction).
  • “Compliance with one law breaches the other” (Smith v. The Queen, 1960; Multiple Access, 1982).
  • If the laws apply the same standards (can be read harmoniously) paramountcy will not apply (MA).
  • (2) Frustration of the federal purpose.
  • Where it is possible to comply with both, but applying with the provincial law frustrates the purpose of the federal law, paramountcy is engaged (Law Society v. Mangat, 2001).
  • Must first decide the purpose of the federal law then decide if provincial law frustrates that purpose.
  • A provincial law that is supplementary or duplicative of a federal law is not deemed to be inconsistent with federal law.
  • There is no “cover the field” doctrine such that the federal law in is deemed to exhaust all possible laws in that area (Mann, 1966; Ross, 1973; Bell, 1973).
  • Duplication is not a test for paramountcy – it does not matter if the two laws are largely the same (Multiple Access).

POGG Powers

  • If the subject does not fall within a provincial head of power under s. 92, Parliament has the power to make laws for peace, order, and good government of Canada (Russel v. The Queen, 1882).
  • A residuary power that ensures the list of powers under the Constitution is exhaustive.
  • It is considered a federal head of power like any other federal head of power.
  • POGG may be engaged when Parliament is dealing with a subject that concerns the entire dominion and uniformity in law is thus desirable (Russel).
  • The exercise of federal power not outlined in s. 91 should be restricted to matters that are unquestionably of Canadian interest and important. Parliament should not trench upon provincial heads of powers (AG Ontario v. AG Canada, 1896).
  • Great discretion is necessary in deciding what is merely local and provincial or when a matter has truly become a national concern (AG Ontario).
  • A mere want throughout the dominion or a general advantage for Canada is not enough to engage POGG powers (Toronto Electric Commissioners, 1925).

National Concern

  • The POGG power is not confined to emergencies (Canada Temperance).
  • If a subject goes beyond local or provincial concern because it has attained such dimensions to affect the body politic of Canada and it is not a provincial power under s. 91, then it will be a federal POGG power (Johnannesson, 1952).
  • In this case, aeronautics.
  • Other examples include the national capital region (Munro, 1966) and marine pollution (Crown Zellerbach).
  • “marine pollution, because of its predominantly extra-provincial as well as international character and implication, is clearly a matter of concern to Canada as a whole”.
  • Atomic energy also engaged national concern (Ontario Hydro, 1993).
  • “the production, use and application of atomic energy constitute a matter of national concern because it is predominantly extra-provincial and international in its character and implications”.
  • The Official Languages Act, limited in its application to federal Parliament/Government and its institutions was deemed to have engaged POGG powers of national concern (Jones v. AG New Brunswick, 1975).

Test (AG Ontario v. Canadian Temperance Federation, 1946):

  • The subject matter of the legislation must:
  • (1) Go beyond local or provincial concern or interest; and
  • (2) Inherently concern the entire dominion.

Test (Crown Zellerbach, 1988) – Current Framework:

  • (1) National concern is separate and distinguishable from POGG emergency. Emergency powers are temporal in nature while national concern powers are permanent.
  • (2) National concern applies to both new matters which did not exist at confederation AND matters that were originally local or provincial but have since become matters of national concern.
  • Must be significant to all parts of Canada.
  • Uniformity is essential because the problem is beyond the power of the provinces to deal with – provincial inability test.
  • The failure of one province to act would have negative implications on other provinces that had acted.
  • (3) National concern requires a singleness, distinctiveness, and indivisibility that clearly distinguish it from matters of a provincial concern. Furthermore, the scale of impact on provincial jurisdiction must be reconcilable with the fundamental distribution of powers under the Constitution.
  • Must 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” (Anti-Inflation Reference, 1976).
  • Provides a check on the federal power.
  • Distinctness is necessary but not sufficient to engage the POGG power.
  • (4) In determining the above, it is necessary to consider the extra-provincial effect of the failure of provinces to control or regulate the intra-provincial aspects effectively.
  • The higher the effect of provincial failure, the more likely POGG national concern will be engaged.

Emergency

  • The onus rest with the opponents of the legislation to establish that there is not a rational basis for finding the existence of the emergency. The existence of the emergency need not be conclusive (Re Anti-Inflation Act).
  • This makes the federal emergency power broad.
  • However, it must be designated as an emergency.
  • In emergency circumstances, Parliament may exercise power outside its assigned heads of power. Only under highly exception circumstances will Parliament be able to invoke this power. It must be in the interest of the entire dominion (Reference re Board of Commerce Act, 1922).
  • In some circumstances, where there is extraordinary peril to the ordinary life of Canada, POGG emergency powers may be engaged (Toronto Electric).
  • The issue must be so serious that Parliament was called upon to prevent the nation from disaster (Toronto Electric).
  • The war is a sufficiently great emergency to engage POGG emergency powers such that Parliament can temporarily legislate in an area that would normally be exclusive jurisdiction of the provinces (Fort Frances Pulp and Paper, 1923).
  • “in practice, the emergency doctrine operates as a partial and temporary alternation of the distribution of powers between Parliament and the provincial Legislatures. (Re Anti-Inflation Act, 1976).
  • No permanent measure has ever been upheld under POGG emergency.
  • The Anti-Inflation Act was upheld under POGG emergency. Inflation and unemployment were rampant in Canada and the measures were temporary.

Reconciling the two branches

  • It seems that limited and specific subject matters are justified under national concern while broad and sweeping under emergency. If broad and sweeping could be justified under national concern, there would be no limit on federal power (Anti Inflation Reference).
  • POGG has two functions:(1) Permanent residual power; (2) Temporary jurisdiction over all matters required to deal with an emergency.

Trade and Commerce

  • S. 91(2) of Constitution.
  • PC concluded that rights arising from contract belong to provincial power, s. 92(13) (Citizen Insurance Company v. Parsons, 1881).
  • The power to regulate trade and commerce does not include the right to regulate a business or trade in a single province but does include political arrangements regarding trade in matters of interprovincial and general regulation of trade affecting the whole dominion (Parsons).
  • An independent federal head of power is not required to invoke the trade and commerce power (Proprietary Articles Association, 1931).
  • This decision affirmed, however, that Parliament could not regulate particular businesses in the province.
  • The regulation of trade and commerce does not permit the regulation of individual forms of trade or commerce confined to the Province (AG BC v. AG Canada, 1937).
  • An exercise of trade and commerce power can still be upheld is it interferes with the provincial power of property and civil rights (Murphy v. CPR, 1958).

Inter-provincial and International Trade and Commerce

  • It is settled that Parliament has authority to regulate international and interprovincial trade.
  • The main question is whether Parliament can regulate intraprovincial trade in order to regulate international or interprovincial trade.
  • The interference with local trade, restricted to an imported commodity, was deemed integral to the extra-provincial trade policy and therefore was not an unwarranted invasion of provincial jurisdiction (Caloil Inc, 1971).
  • The invasion was necessary incidental.
  • Could be the case for regulating any national market, but the SCC has yet to go this far – Hogg.
  • Parliament cannot regulate local trade simply as part of a scheme for the regulation of international or interprovincial trade (Dominion Stores, 1980).
  • Conflicting decisions. Perhaps what emerges is whether the regulation of intraprovincial trade is necessary for the scheme.
  • Where the federal government and provincial governments are cooperating with interlocking legislation, it is more likely it will be upheld (Reference re Agricultural Products Marketing Act, 1978).
  • The trade and commerce power will not authorize the regulation of a single trade or industry, even if the industry is dominated by a few large firms which advertise and market their products on a nation-wide basis (Labatt Breweries, 1979).

Limits on Provincial Power to Regulate Interprovincial Trade

  • The question is not whether the legislation affects interprovincial trade but, rather, whether it was enacted in relation to the regulation interprovincial trade (Carnation Co Ltd, 1966).
  • P and S / necessary incidental.
  • Where the aim and essential part of provincial legislation is the regulation of interprovincial trade, the legislation will be struck down (Manitoba Egg and Poultry, 1971).
  • Direct regulation of interprovincial trade is outside provincial jurisdiction and cannot be treated as an accessory of the local trade (Burns Foods, 1975).
  • Provinces cannot impose a duty/tax that purports to fix the price charged of received in the export market (Canadian Industrial Gas & Oil Ltd. v. Saskatchewan, 1978; Central Potash).

General regulation of Trade Affecting the Whole Dominion