Constitutional Law – Midterm Summary
Constitutional Interpretation - Overview
Reference re: Secession of Quebec
Three questions were posed in this trial:
o 1. Under the constitution, can Quebec effect its unilateral secession from Canada?
o 2. Under international law, can Quebec effect its unilateral secession from Canada?
o 3. If there is a conflict between the constitutional and international law, how do we proceed?
Court considers history, including Nova Scotia’s early attempt to secede which was blocked due to reliance of other provinces.
Court also looks at the ‘spirit and intent’ of the constitution and the ‘unwritten rules’, to arrive at the ‘underlying principles’ of the constitution:
o 1. Federalism: achieving unity while respecting diversity.
. Facilitates pursuit of collective goals by minorities.
. “Rational distribution of power”, giving authority to the unit that is best able to pay attention to the shifting needs of society.
. Controls and limits the power of different authorities.
o 2. Democracy: based on ‘majority rule’, but includes the national majority and the provincial majorities, so different majorities are taken into account.
o 3. The Rule of Law:
. A. Law is supreme over the acts of government and private persons.
. B. The creation and maintenance of a body of law, which preserves and embodies the normative principles of normative order.
. C. The exercise of all public power must find its source in a legal rule.
Six ‘Modes’ of Constitutional Interpretation
1. Historical: look at the historical context at the time the constitution was drafted, to try to understand the intent of the drafters.
2. Textual: Parse the words in their present sense in the context of the document in which they are found.
3. Doctrinal: Argument from precedent.
4. Prudential: Pragmatic, policy and cost-benefit arguments.
5. Ethical: What is ‘fair’.
6. Structural: Use the context of the whole constitution and how it fits together, including ‘unwritten principles’.
The “Persons” Case Concerned with the question of whether “persons” in the constitution included women.
Privy Council: BNA Act is a “living tree” allowing Canada to grow within its own limits, and should be given a “large and liberal” interpretation.
Constitutional History
Early Cases in Federal Authority
Citizens Insurance Company v. Parsons:
o Facts: Parsons’ business burned down. Insurance company wouldn’t pay because he didn’t comply with their requirements. He countered that their requirements were incompatible with provincial legislation. They countered that provincial legislation was ultra vires. Privy Council finds it inter vires as falling under ‘property and civil rights’ power, not ‘trade and commerce’ power.
o Significance: Historical context. Federal ‘trade and commerce’ power limited to interprovincial and international trade.
Russell v. The Queen:
o Facts: Federal gov’t passed Canadian Temperance Act, which was prohibition legislation that any area could voluntarily adopt. Provinces also passed laws regulating taverns. Federal Act was challenged, but held to be inter vires because the power to make the law did not fall under s. 92.
o Significance: Historical context. Relies on the now-discredited view of federal power as ‘residual’, i.e. including any powers not explicitly given to the provinces.
Hodge v. The Queen:
o Facts: Tavern keeper was breaking provincial prohibition laws. Held that province did have the power to pass these laws due to ‘concerns of a local nature’ power.
o Significance: Historical context. Invokes ‘double aspect’ theory rather than ‘residual’ theory.
AG Ontario v. AG Canada:
o Facts: Court dealt with the question of whether the Canada Temperance Act could be in force at the same time that provinces had the power to pass temperance laws. Court held that both were inter vires.
o Significance: Historical context. Where Federal and Provincial laws overlap but are both valid, try to follow both if you can, but if not, the federal statute is paramount.
The 1920’s, the Privy Council, and the Narrowing of Federal Power
Montreal v. Montreal St. Railway:
o Facts: Federal gov’t had been given responsibility for railways, and it tried to regulate any streets that crossed the railway lands. This was held to be ultra vires. o Significance: Historical context. Established the principle that where power intrudes significantly on local interest, the federal government cannot legislate with respect to it. (Otherwise its power would be practically limitless.)
AG Canada v. AG Alberta (the ‘Insurance Reference’):
o Facts: The federal gov’t attempted to regulate insurance practices nationwide. SCC held this ultra vires because it deprived individuals of their liberty to conduct business which they would otherwise be free to do within the provinces. (Hence ‘property and civil rights’.)
o Significance: Historical context.
Reference re: Board of Commerce Act:
o Facts: Post-WWI, federal gov’t had expanded, munitions factories were about to shut down, and soldiers were about to return home and look for work. Businesses wanted to create an independent board to coordinate their activities and manage disputes more efficiently than the courts. Consumers worried this might help them create monopolies or inflate prices. The Board of Commerce Act was enacted to help restrict this sort of behaviour. It was challenged by clothing manufacturers who felt prices were being kept artificially low. Privy Council declared it ultra vires, finding that it really dealt with ‘property and civil rights’, and the claims under federal heads of power failed for various reasons.
o Significance: Historical context. POGG was declared to be an ‘exceptional circumstances only’ (war, famine, etc) power, whereas the Act was not phrased in a temporary way. ‘Trade and Commerce’ must be linked to one of the other s. 91 heads to be invoked. Criminal law power doesn’t work because Federal gov’t can’t interfere with provincial concerns just by slapping on a penalty; it is only for things that are ‘inherently’ criminal. These views have since been backed away from.
Fort Frances Pulp and Paper Co. v. Manitoba Free Press Co:
o Facts: Under the War Measures Act, the federal gov’t started regulating newsprint prices and demanding repayment from those who had been overcharging. One such company challenged it as ultra vires. Privy Council said that it would normally be ultra vires, but because of the emergency situation it was inter vires.
o Significance: Historical context.
Toronto Electric Commissioners v. Snider:
o Facts: TEC was involved in a strike. Federal gov’t had set up legislation allowing for a board to be created to resolve the dispute, but TEC didn’t want this, so they challenged the legislation because it applied to a Toronto business. Privy Council ruled it ultra vires because it dealt with ‘property and civil rights.’
o Significance: Historical context. Privy Council echoed earlier arguments that the ‘trade and commerce’ power couldn’t be used unless tied to another head of power, and criminal law can’t be invoked just by attaching a penalty. They also dismiss POGG by saying that it too must be tied to another enumerated power. Privy Council also distinguished Russell v. The Queen to the point of rendering it impotent.
The King v. Eastern Terminal Elevator Co.: o Facts: Elevators which cleared grain were allowed to keep swept grain if it was below a certain percentage. Some felt this was a source of unfair profits, so they challenged the Act which permitted federal regulation of the grain industry. The Privy Council held it to be ultra vires.
o Significance: Historical context. The Privy Council held that just because a trade ends up being exported does not mean the federal government could regulate it locally, nor was there a provincial inability to enact similar regulation.
The 1930’s
Proprietary Articles Trade Association:
o Facts: Fed gov’t amended criminal code to prohibit agreements that would restrain competition. They also passed a section of the Combines Investigation Act making it a crime to participate in such an agreement, and created a commission to investigate such matters. This was challenged in court, but upheld as inter vires.
o Significance: Historical context. Broadens the criminal law power from “evils in their very nature” to ‘anything that isn’t blatantly overstepping Federal jurisdiction’, based on the fact that our conceptions of what is criminal change over time, so the criminal law power needs to be read in its broadest sense. The court also dissociated itself from the notion that ‘trade and commerce’ requires another enumerated head before it can be invoked.
Reference re: Aeronautics:
o Facts: Fed gov’t signed an international treaty on aeronautics and passed legislation in order to meet its obligations. This was upheld as inter vires under POGG and various minor powers.
o Significance: Historical context. Lord Sakney emphasizes ‘uniformity’ as the underlying object of the BNA Act and says that Canada as a whole must have the power to meet its international obligations, and the Fed gov’t must have the power to deal with things that the provinces can’t. (Note: this case has usually been distinguished because of the odd mix of powers used in justifying the legislation as valid.)
Reference re: Radio:
o Facts: The Fed gov’t entered into various agreements with respect to Radio. A reference was made concerning whether they had the power to regulate it. Such power was upheld as inter vires under POGG.
o Significance: Historical context. ‘POGG’ is treated as a residual power; radio must fall under POGG because it isn’t in s. 91 or s. 92.
AG Canada v. AG Ontario (Labour Conventions):
o Facts: SCC split 3-3 on whether Fed gov’t could regulate labour conventions because of international treaty obligations.
o Significance: Historical context. Court backed away from earlier position that Canada should be able to uphold its international obligations; instead, they voiced concern that this would sweep away provincial powers. Instead, the Fed gov’t must cooperate with provinces to meet its obligations. Court emphasized ‘diversity’ as the core concern of the constitution.
Natural Products Marketing Act: o Facts: Privy council held this to be ultra vires because it was not framed carefully enough with respect to the spheres of power, even though the various provinces had agreed to this legislation.
o Significance: Historical context. Created public backlash against the Privy Council.
The 1930’s to the 1960’s
In 1949, the SCC took over as the supreme court of Canada, rather than the Privy Council.
In the 1970’s Laskin began pushing a federalist agenda, and federal power expanded greatly and saw the rise of the ‘welfare state’. (Though Beetz, a provincialist, later curbed this somewhat.)
Theory of the constitution is now that it addresses three main concerns:
o 1. Protection of minorities
o 2. Protection of democratic participation
o 3. Functionality: you assign authority to the level of gov’t best able to deal with the problem.
Modern Federalism
Framework for Constitutional Analysis
1. Validity: Are the federal and provincial legislation both valid?
a. Is the federal legislation valid? Under what power? (Examine pith & substance.)
i. POGG: (May compete with provincial powers under s. 92(16) Matters of local/private nature; or 92(13) Prop. & Civ. Rts)
1. Emergency power: per Emergencies Act:
a. Temporary situation
b. Not an ‘ordinary’ situation (Seriously endangering life, health or safety)
c. Not an ‘ambiguous’ situation.
d. Requires clear signal from parliament that this is an emergency. (Reference re: Anti- Inflation Act; Provisions of the emergencies Act)
2. ‘National concerns’ doctrine: look at purpose and effects. Four (non-exhaustive) steps:
a. Newness: is it a new problem that did not exist at confederation in 1867? (Otherwise it may simply be an aggregate of existing powers, not requiring any new POGG power.)
b. Not a ‘temporary’ issue. (Added by Burrows – more to distinguish from Emergency power than a strict step of the test, but should mention it.) c. Unity/singleness/indivisibility: the concern must be specific, not vague and diffuse. (Crown Zellerbach)
d. Provincial inability: any one province acting on its own could not solve the problem effectively.
e. Scale: The federal power in question would not wipe out provincial powers.
ii. Trade and Commerce: (May compete with Provincial powers under s. 92(13) Prop. & Civ. Rts; dominant tide is for most leg. to be supportable by provs under 92(13)).
1. Interprovincial and International Trade Regulation
a. Where regulation aims at extraprovincial trade, some necessarily incidental effect on provincial trade is acceptable, so long as this wasn’t being aimed at.
2. ‘General’ trade and commerce power: five (non-exhaustive, non-absolute) point test for determining whether it upsets the federal/provincial power balance:
a. There must be a scheme of public supervision.
b. It must be overseen by a federal authority
c. It must concern trade as a whole, not a specific industry.
d. Provincial inability to enact similar legislation.
e. Failure to include one or more provinces would jeopardize the scheme as a whole.
iii. Criminal Law Power: three requirements: (May compete with federal regulatory powers, or ‘morality’ powers relating to another s. 92 head)
1. Public purpose/scope (Gets at a ‘public evil’)
2. Prohibition
3. Punishment b. Is the provincial legislation valid? Under what power? (Examine pith & substance.)
i. Economic Regulation:
1. Pith and substance:
a. Does it relate to matters of a provincial nature?
b. A large ancillary effect on trade is permissible, so long as it isn’t what is aimed at.
2. Natural Resources:
a. S. 92(a): Provinces have control over conservation, management, etc of forestry, energy and non-renewable resources.
b. S. 92(a)(2): Provinces can pass legislation concerning export f their primary resources, so long as the legislation is not discriminatory among the other provinces. c. Colourability: are there colourability issues? d. Incidental Effects: i. What are the incidental effects of the legislation on the other jurisdiction?
ii. Are they sufficiently related to the main legislation to be supportable? (GM Leasing)
1. How seriously does the provision encroach?
2. Is the act as a whole valid?
3. How well integrated into and important to the Act is the provision? (Lesser degree of integration is ok where the encroachment found in step 1 is less severe.)
e. Spending powers: are there any issues here?
f. Adjudicature: If a board or tribunal is established, are there issues with stripping power from provincial courts?
g. Policy issues: even where legislation is clearly valid, will policy issues underlying federalism be flagged? (Such as ‘sweeping away provincial powers’)
2. Applicability: does interjurisdictional immunity render the provincial legislation inapplicable?
a. Note that courts don’t really like invoking this these days.
b. Does the provincial legislation trench on a core federal power?
c. Does the provincial legislation affect a ‘vital part’ of the federal interest or undertaking?
3. Operability: does federal paramountcy render the provincial legislation inoperative?
a. Conflict in operation: is dual compliance possible?
b. Conflict in purpose: does the provincial legislation frustrate parliament’s purpose?
Validity of Legislation
R. v. Morgenthaler:
o Facts: Morgenthaler was planning to open an abortion clinic in Nova Scotia. NS passed a series of regulations to the effect that a certain list of operations could not be performed outside a hospital. The SCC struck this down, looking at various sources (including Hansard) to conclude that this was in pith and substance a criminal law. (If purpose was ‘health’, why make such a short and arbitrary list, and why didn’t they commission any reports on whether such legislation was needed?)
o Significance: ‘Colourable’ legislation that aims at another sphere of power while cloaking itself as something else will be struck down.
Canada Western Bank v. Alberta:
o Facts: A piece of provincial legislation was applied to Federal banks.
o Significance: Reiterates the ‘three main concerns’ of the constitution (minorities, democracy, functionality) and the ‘living tree’ analogy which allows for frequent overlap.
**GM Leasing: o Facts: A company brought suit against GM under the Combines Investigation Act for discriminatory pricing practices. GM challenged the section of the Act authorizing civil actions. Court upheld this as inter vires because the ‘dominant purpose’ was federal and the provincial effects were ‘necessarily incidental’.
o Significance: Introduces the idea of an Act’s ‘dominant purpose’ and the possibility that its encroachment is ‘necessarily incidental.’ Sets out a three-step test for whether an effect is necessarily incidental:
. 1. Encroachment: does the legislation encroach on the other sphere?
In this case, yes it does, and significantly so, but the encroachment is not serious because it is remedial legislation.
. 2. Validity of the entire piece of legislation?
In this case, upheld under ‘trade and commerce’ because it deals with interprovincial trade.
. 3. Fit: how does the impugned provision fit into the overall scheme? (For a scheme that encroaches heavily, the provision must be highly integral; for a less serious encroachment, a lesser degree of functional relation is acceptable.)
In this case, there is a functional fit, as the civil action is connected to enforcement.
**Multiple Access v. McCutcheon:
o Facts: Multiple Access was accused of insider trading under provincial law, and challenged the provincial statute. There was identical federal legislation, but the deadline for filing charges under it had expired. Courts upheld both statutes, the federal statute under ‘trade and commerce’ and the provincial statute under ‘property and civil rights.’
o Significance: If federal and provincial statutes are both valid, then the federal does not invalidate the provincial unless there is an express contradiction between the two.
Interjurisdictional Immunity
Interjurisdictional immunity is sometimes invoked to protect federal heads of power where they overlap with provincial concerns. This can be used to protect ‘federal undertakings’, including things which s. 91 reserves to Federal power (such as Indian laws), and things which s. 92(10) transfers to Federal power and which s. 91(29) absorbs into federal jurisdiction.
The modern trend is away from Interjurisdictional immunity. It is only applied where:
o A Provincial piece of legislation trenches on a core federal power, and
o The Provincial legislation has the effect of entirely quashing the federal legislation.
McKay:
o Facts: The McKay’s had a federal election sign on their lawn, in contravention of municipal bylaws against posting signs. Court held that a municipal bylaw could not restrict federal electioneering, and ‘read down’ the law accordingly. They held that although this was a civil rights issue, it involved civil rights as a Canadian, rather than a resident of the province. (Note: This is a contentious analysis.)
o Significance: Where a generally worded law has a specific effect that falls outside its jurisdiction, it may be ‘read down’ so that the law does not apply to this area.
Bell #1:
o Facts: Bell Canada challenged a Quebec minimum wage law on the grounds that they were a federal undertaking, and the law affected a ‘vital part’ of their operation. (There was no corresponding federal law.) The law was read down with respect to Bell.
o Significance: Broadened the test for Interjurisdictional immunity. A provincial law will be read down if it impairs or affects a vital part of a federal undertaking.
Bell #2:
o Facts: Bell challenged a provincial law concerning occupational health and safety for pregnant women, again on the grounds that they were a federal undertaking and this affected a vital part of their operation. The law was read down with respect to Bell.
o Significance: shows again that interjurisdictional immunity can be invoked even where there is no equivalent federal law to fill the gap, which is one of the criticisms against its use.
**Canadian Western Bank:
o Facts: CWB argued that provincial insurance regulation did not apply to them, because they were a federal undertaking. The banks rejected this, saying “peace of mind” insurance is not a ‘vital part’ of the bank’s operation.
o Significance: Scaled back the scope of interjurisdicitonal immunity, noting that it is no longer the ‘dominant tide’ of federalism. The test is changed back to the higher standard that the provincial law must ‘sterilize’ the federal law, not merely affect or impair it. Also, they narrow the concept of ‘core value’ to ‘basic minimum and unassailable content’, and state that a ‘vital part’ of the operation must truly be indispensible and essential. (They cite concerns about the asymmetry of having it only work one way, concerns about sweeping away provincial powers, creation of legal vacuums, undermining ‘subsidiarity’ [that legal decisions are best made at the level most affected by them], and the fact that the federal government can always use paramountcy if it needs to.)
Paramountcy
Where both federal and provincial act are valid, the federal act may ‘take priority’ over the provincial act and render it inoperative where there is:
o 1. Conflict in operation: dual compliance is impossible; or,
o 2. Conflict in purpose: the provincial legislation frustrates federal purpose.
Ross:
o Facts: Ross was convicted of drunk driving under the criminal code. He was banned from driving for six months except two and from work. However, the Ontario Highway Traffic Act mandated that his license be suspended for three months. He challenged the OHTA as inoperative under the criminal code, but the court upheld the OHTA as operative because both can be followed concurrently. (The fact that he was not banned from driving to and from work does not constitute a positive entitlement.) Also, the OHTA’s consequences were civil, not criminal.
o Significance: The court sets aside the broader ‘covering the field’ reading of paramountcy, whereby any provincial legislation was inoperative if it even dealt with the same subject as a piece of federal legislation, and endorsed a narrower reading of paramountcy.
Multiple Access v. McCutcheon:
o Facts: Both federal and provincial legislation on insider training were almost identical. Both were upheld as valid and the provincial act was found to be operative. “Duplication is the ultimate harmony.”
o Significance: Court said they would not invoke paramountcy unless there is an express contradiction in trying to follow both Acts.
Bank of Montreal v. Hall:
o Facts: Hall defaults on loan. Banks immediately seized his land under the federal Banks Act. But provincial Limitations of Civil Rights Act required banks to apply for a court order before doing this. Court holds the provincial legislation inoperative, because although you could comply with both Acts by following the stricter one, the provincial Act frustrates the purpose of the federal Act, which was to allow for collection of collateral without having to worry about provincial red tape.
o Significance: In addition to express contradictions, paramountcy can also apply where the provincial legislation frustrates the purpose of the federal legislation.
Law Society of BC v. Mangat:
o Facts: Federal and provincial legislation, both valid, disagreed as to whether one needed to be a licensed lawyer in order to charge a fee to represent someone in court. Provincial legislation was found inoperative.
o Significance: No express contradiction, because you could follow the stricter requirement, but the provincial legislation was found to frustrate federal purpose.
**Spraytech:
o Facts: This case checked a municipal bylaw restricting pesticide use against the federal Pest Control Products Act. It was upheld as operative because the federal act was not meant to be a ‘complete code’, so the provincial legislation was not frustrating federal purpose, nor was there any issue with dual compliance.
o Significance: The first case to expressly formulate the two-step test.
Rothmans v. Benson & Hedges:
o Facts: Federal regulations restricted tobacco advertising but allowed its display in stores. Provincial legislation prohibited display in any store where 18-y.o.’s or younger were allowed. Both schemes were valid and the provincial legislation was held operative, because the provincial legislation reinforced the federal purpose rather than frustrated it.
o Significance: Reinforces the two-step test. Court seems to be trying to determine if the Federal legislation was intended to ‘cover the field’, but they don’t put it like this.
**Canadian Western Bank: o Facts: This is the same case that was seen under Interjurisdictional Immunity. The provincial law required the bank to be licensed to sell insurance, but the federal Bank Act didn’t. Courts uphold the provincial legislation as operative, because you can comply with both by getting the insurance certificate, and the extra provincial requirements supplement the federal legislation without frustrating it.
o Significance: The court endorses paramountcy as more suitable for federalism than Interjurisdictional immunity. They also distinguish Bank of Montreal v. Hall in order to avoid the ‘occupying the field’ test.
Sources of Federal Power
Peace, Order and Good Government (POGG)
The historical context from the Privy Council was that POGG could only be invoked in emergency-type situations, such as war or plague.
Johannsen:
o Facts: During the expansion of the aircraft industry, the federal government claimed authority over this new matter. A local municipality wanted to control where an airstrip was located.
o Significance: Control over aeronautics was given to the federal government because it wasn’t really ‘divisible’ among the different provinces or municipalities.
Monroe:
o Facts: A man’s property was expropriated by the federal government to create a green belt around Ottawa.
o Significance: Creating a green belt was upheld as a matter of ‘national concern’.
**Reference re: Anti-Inflation Act(1976):
o Facts: Prices had been rising steeply, and the federal government wanted to control inflation, even though prices, wages and so on have traditionally been considered ‘property and civil rights’. The federal enactment was upheld under POGG emergency power.
o Significance: Different ‘branches’ of POGG were established: the ‘emergency power’ and the ‘national concerns’ doctrine. Betz’ dissent is more important, though; he does not uphold the legislation under either branch:
. Emergency powers: the legislation does not clearly declare an emergency, contains too many exemptions to be consistent with emergency legislation, and the extrinsic evidence suggests parliament thought they could use POGG here independently of an emergency.
. National concerns: must be cautious here, because unlike emergency powers, this creates permanent extensions to federal power. Four requirements: newness (cannot be an aggregate of powers that existed in 1867), uniqueness/singleness/indivisibility (must address a clear concern, not a vague one), provincial inability (a province acting on its own could not solve the problem), and scale (giving this power to the feds would not wipe out provincial power). Beetz says this problem is too vague, to broad in scale, and is not a new problem so it can be dealt with using existing powers. **R. v. Crown Zellerbach:
o Facts: Company moved some wood debris from one part of a cove to another. They were charged with ocean dumping without a permit. The question was whether the federal legislation was ultra vires with respect to provincial waters. Majority said it was inter vires under ‘national concerns’.
o Significance: Court endorses Beetz’ four-step test for ‘national concerns’, though the majority and dissent use it to draw opposite conclusions.
Oldman Rivers v. Canada:
o Facts: Province wanted to build a dam. Federal regulation required an environmental impact assessment, but the province tried to get around this by calling it a ‘provincial project’.
o Significance: Court says the environment is a ‘co-ordinate’ field of legislation which both federal and provincial governments have a part of. Province can’t get out of federal oversight just by declaring something a provincial project.
Economic Regulation
Framework for an ‘Economic Regulation’ Question:
1. Citizen’s Rights:
o A. Right to individual mobility: Charter s. 6(2)(b) and 6(3).
o B. S. 121
o C. “Inhering in the concept of citizenship”, both individually and collectively.
2. Provincial Powers:
a. Pith and Substance
i. Does it relate to a matter of a provincial nature?
ii. A large ancillary effect on external trade is permissible, so long as it isn’t what is aimed at.
b. Natural Resources
i. S. 92(a): Provinces have control over conservation, management, etc of forestry, energy and non-renewable resources.
ii. S. 92(a)(2): Provinces can pass legislation concerning export of their primary resources, so long as the legislation is not discriminatory among the other provinces.
3. Federal Powers:
a. Regulation of Interprovincial and International trade
i. When it aims at a national matter, a necessarily incidental effect on provincial trade is permissible. b. ‘General’ trade and commerce power: five (non-exhaustive, non-absolute) point test, to assist in determining whether the legislation upsets the federal/provincial power balance:
i. Must be a scheme of public supervision
ii. Must be overseen by a federal authority
iii. Must concern trade as a whole, not a particular industry.
iv. Provinces must be unable to enact similar legislation.
v. The absence of one or more provinces would jeopardize the scheme.
Provincial Powers of Economic Regulation - General
The primary debate here is between the efficiency of economic integration versus the political autonomy of provinces to control trade.
Black and Co. v. Law Society of Alberta:
o Facts: Provincial regulations were preventing out-of-province lawyers from practicing in Alberta. They made a successful charter challenge under 6(2)(b) (right to pursue living in any province) and 6(3) (no discrimination based on province of current residence).
o Significance: Court affirms right to individual mobility. Also notes that removing internal barriers was one of the goals of the BNA Act.
Canadian Egg Market Agency v. Richardson:
o Facts: Canadian egg marketing scheme was based on 1972 egg-production levels, at which time the NW Territories didn’t produce any, so the scheme wasn’t letting them participate. Federal scheme was challenged under charter 6(2)(b) and 6(3), but court upheld the federal scheme.
o Significance: Court says that the charter mobility rights apply to individuals, not economic concerns.
**Carnation Co. v. Quebec Agricultural Marketing Board:
o Facts: A Quebec board was fixing milk prices. Carnation bought the milk in-province, processed it and exported it. They challenged the provincial scheme as regulating interprovincial trade. Courts upheld legislation as inter vires.
o Significance: Legislation is allowed to indirectly affect interprovincial trade so long as it doesn’t aim at doing so. (I.e. so long as its pith and substance is property and civil rights within the province.)
Lawson v. Interior Fruit Tree & Vegetable Co.:
o Referenced in Carnation. A BC act regulating marketing of agricultural products was found ultra vires because it fixed prices and transportation within province no matter where the goods were destined to end up.
Shannon v. Lower Mainland Products Board: o Referenced in Carnation. A BC statute regulating packing, storing and transportation was upheld as inter vires because it only affected goods that stayed within the province.
AG Manitoba v. Manitoba Egg & Poultry Association:
o Facts: Quebec and Ontario had competitive pricing schemes for eggs and poultry, and Manitoba was losing out on both fronts. Manitoba could not directly challenge the provincial schemes, so they made their own, hoping it would be struck down by the SCC and thus apply to the other provinces as well. The court agreed that the scheme was ultra vires.
Agricultural Products Marketing Act:
o Facts: Ontario had replicated the national egg marketing quota system in its own legislation. The question was whether the federal scheme was valid. The court upheld the federal scheme.
o Significance: The court said that normally this would be a provincial matter, but in this case they were sensitive to the cooperative nature of the undertaking and the fact that you couldn’t initially whether an egg was bound for local or extraprovincial trade, so the schemes will have to interlock to some extent.
Provincial Powers of Economic Regulation – Natural Resources
Historically the courts were willing to let the federal government interfere in this area, but the 1982 amendment to the constitution gave it explicitly to the provinces under s. 92(a).
S. 92(a)(2) allows them to make laws with respect to export of their primary resources, so long as the legislation is not discriminatory among the provinces.
Canadian Industrial Gas and Oil Ltd v. Government of Saskatchewan:
o Facts: Saskatchewan gov’t set a price for oil that was higher than the 1973 (pre-crisis) rate, and said they would claim any difference between the 1973 rate and their rate. Thus, they would receive the full benefit of any increase in the price of oil. This was struck down as ultra vires.
o Significance: Historical context. The courts held that the legislation was directly aiming at regulation of interprovincial and international trade.
Central Canada Potash v. Government of Saskatchewan:
o Facts: The potash market was almost entirely based on exports to the US. The US complained of commodity dumping and market depression, so the Saskatchewan government tried to set a fixed price. This was struck down as ultra vires for regulating international trade.
o Significance: Historical context. Again, provinces were not allowed to regulate commodities destined for extraprovincial trade.
Federal Powers of Economic Regulation: Trade and Commerce
There are three main branches of this power:
o 1. Interprovincial trade
o 2. International trade o 3. The ‘general’ trade and commerce power
Regulation of Interprovincial and International Trade:
The Queen v. Klassen:
o Facts: The Canadian Wheat Board had a series of rules regulating the delivery of grain to elevators. This was challenged by a grain elevator, claiming that the production of grain was a local matter, but the legislation was upheld as inter vires.
o Significance: Federal regulation was permissible because the trade it aimed at (the grain trade) had become a national matter, and its effect on provincial trade was necessarily incidental. Also, the scheme wouldn’t work if all the grain wasn’t recorded, because the gov’t wouldn’t be able to properly set quotas. (They didn’t know if the grain was destined for provincial or interprovincial trade.)
Caloil Inc. v. AG Canada:
o Facts: Federal legislation drew an East-West boundary through the nation and regulated the trade of oil across that boundary. Caloil was charged with violating the legislation. They challenged it successfully.
o Significance: The government redrafted the legislation so it applied only to internationally imported oil, and it was upheld.
Dominion Stores Ltd. v. The Queen:
o Canada had created a special voluntary ‘Extra Fancy’ label for apples. Dominion used them on apples that didn’t meet the standards, but because the apples were being sold within the province, the court found the legislation ultra vires because it was capturing provincial trade.
The ‘General Trade and Commerce Power:
McDonald v. Vapour Canada:
o Facts: This was a challenge to the portion of the Trademarks Act that allowed a civil cause of action. It was held that the federal government could not create a civil cause of action. (Note that this was before GM Leasing, which held that this was permissible in some cases.)
o Significance: The first three criteria for invoking ‘general trade and commerce’ were laid out: a scheme of public supervision, oversight by a federal authority, and it involves trade as a whole rather than a particular industry.
Labatt Brewers of Canada v. AG Canada:
o A federal attempt to regulate the labelling of beer was held not to meet the Vapour Canada criteria, because it aimed at a particular industry.
**General Motors Leasing:
o Facts: GM didn’t give one of its dealers the same special financing it was offering to other dealers. The dealer sued them under anticompetition legislation, but GM alleged the federal government couldn’t create a civil cause of action. The court upheld the legislation under the ‘general’ trade and commerce power.
o Significance: The court endorsed the three-step test from Vapour Canada, but added two more: provincial incapacity to enact similar legislation, and the failure to include one or more provinces would jeopardize the scheme as a whole. Court also notes that these five steps are non-exhaustive, failure on one of them is not immediately fatal to the legislation, and they are really just a way of figuring out if the scope of the Act would upset the federal/provincial power balance. Also gives three-step test for establishing whether an effect on the other jurisdiction is ‘necessarily incidental’: 1. How much does the impugned provision intrude on provincial powers? (If none, can stop there) 2. Is the Act as a whole valid? 3. If the Act is valid, but the provision prima facie invalid, how well integrated into and important to the Act is the provision? (less integration is ok if the encroachment in step 1 isn’t serious.)
Kirkbi AG v. Ritvik Holdings Ltd:
o Facts: Lego’s patent had expired, so they tried to patent the surface of the block. There was some disagreement with another company using the surface, and the federal legislation was challenged because it created a civil cause of action. The act was upheld, and the provision was held to be sufficiently integrated into the act for it to be okay.
o Significance: The five-step test was endorsed and applied. The scheme was regulatory and did not affect a specific industry. It could not be implemented effectively on a province-by-province basis, and required implementation across jurisdictions to protect the industry as a whole.
Criminal Law Power
Federal Criminal Law Power:
Three criteria for invoking the criminal law power:
o Public purpose/scope (correcting public evil)
o Prohibition
o Penalty
R. v. Hydro-Quebec (1997):
o Facts: Hydro-Quebec was charged with a violation of an interim order made under the Environmental Protection Act, restricting its PCB emissions. They challenged the act, but the SCC upheld it under the Criminal Law power.
o Significance: The criminal law power is “plenary in nature”. The Act is aiming at a public evil, and invoking the Criminal Law power is less invasive to provincial power than the ‘national concerns’ doctrine of POGG. Dissent argued that it was a regulatory scheme.
**Reference re: Firearms Act (1995):
o Facts: Federal government passed new, more expansive gun control laws, which the Alberta government challenged as basically being a regulatory and licensing scheme, due to complexity of legislation and discretionary power given to the chief firearms officer. But the court upheld it as inter vires under the criminal law power, because it enhanced public safety and attached a penalty.
Provincial Powers The criminal code is enforced by provincial AGs, allowing for some ‘local flavour’ in the administration of justice.
Nova Scotia Board of Censors v. McNeil:
o NS passed an act allowing them to censor films and take away the license from and fine anyone who broke the bans. A citizen brought a private action seeking to have this declared ultra vires. The legislation was upheld because its pith and substance was property and civil rights – it was regulating a trade within a province. Also, the consequences were not really penal in nature. (Laskin dissents that the criminal law power is meant to be a ‘brake’ on provincial power, but this view is not in accord with modern federalism.)
AG Canada v. Dupond:
o Montreal, in response to a series of riots, passes a law prohibiting all gatherings. This is upheld as inter vires, though Laskin dissents again, claiming this is akin to creating a ‘mini criminal code’ and pointing out that it targets peaceful and violent gatherings alike.
R. v. Westendorp:
o Facts: Calgary passes a bylaw attaching additional penalties to soliciting for the purposes of prostitution. It was struck down as ultra vires for encroaching on the criminal law power.
o Significance: This legislation is struck down because it is a ‘blatant attempt’ to punish prostitution. The relevant provisions are not well integrated into the act, and if the legislation were truly concerned with obstruction of public places, it wouldn’t single out prostitution.
Rio Hotel v. New Brunswick (Liquor Licensing Board):
o The province acted under the auspices of liquor licensing to prohibit nude performances in licensed establishments. The legislation was upheld as inter vires.
o Significance: The legislation was upheld because it involves a ‘marketing device’ available for liquor, which is property and civil rights, and there is no ‘penalty’ apart from license revocation. Westendorp is distinguished because it was blatant and not well integrated.
R. v. Morgenthaler:
o Provincial abortion regulation is held ultra vires because it wasn’t really about women’s health; it was a colourable attempt to criminalize abortion.
Flexibility Between Levels of Government
Federal Spending Power
This is a way for the federal government to exert influence on provincial concerns. It can attach conditions to the money it gives to the provinces; for example, by requiring them to adopt a certain set of laws in exchange for funding. (S. 94 gives the federal government the power to make provisions for the uniform application of law across the country. The spending power is also bolstered by s. 91(a) – public debt and property, s. 91(b) - taxation, s. 106 – authority of parliament to spend money, and various miscellaneous sections.)
Two qualifications: o Provincial consent is required, so they could choose to opt out of the scheme in question.
o Quebec is specifically excluded from s. 94.
Pros and cons: there are concerns that the spending power undermines federalism and responsible government, because the federal government can exert influence over provincial matters, and citizens don’t get a say in how the money is spent. On the other hand, it equalizes opportunity across the provinces and prevents a ‘race to the bottom’.
There are three ways of using the spending power:
o 1. Direct Federal Aid:
. The government may give money directly to citizens, such as via social assistance programs, so long as this does not constitute direct regulation of a provincial concern.
o 2. Cost-Share Programs:
. The federal government may broker deals to partially fund provincial programs.
. This can cause funding problems if the federal government decides to back out of the program later on.
o 3. Equalization Grants:
. The federal government may give money to the poorer provinces in order to equalize the provinces.
. Rationales: promotes equal opportunities, furthers economic development, provides essential services of equal quality for all Canadians.
. Authorized under s. 36 of the Constitution Act (1982).
Reference Re: Canada Assistance Plan:
o Facts: The Canada Assistance Plan was worked out through various agreements with the provinces. However, the funding scheme was part of the Act, not the agreement, and was later amended by the Federal Government. BC launched a reference to see if this violated reasonable expectations. The court said it was within parliament’s power.
o Significance: Parliamentary cannot be bound in the future by what it has decided in the past. Intergovernmental agreements are not binding contracts, and you cannot bind future parliaments on contract principles. Parliamentary sovereignty trumps contract and ‘reasonable expectations’.
Delegation
Originally, federal parliament and provincial legislatures could not delegate power to one another, but this requirement has grown less strict in recent years.
Permissible forms of delegation:
o 1. Administrative delegation: functions may be delegated to an official or minister created by the other level of government, or a tribunal created by both levels. This allows one level of government to deal with issues falling within the sphere of the other. o 2. Incorporation by Reference: legislation at one level of government can incorporate or reference laws passed at the other level of government. This can be used to reference laws as they currently exist, or laws as they may be amended from time to time. (I.e. ‘all provincial laws respecting aboriginals and aboriginal territory shall apply.’)
o 3. Conditional Legislation: A law or legislative provision at one level that won’t come into effect at the other level unless a condition is met. (Such as the approval of that level’s government.) This is allowed in the interests of administrative efficiency and harmonization.
Nova Scotia Interdelegation (1951): An old case which established that parliament and legislatures could not delegate to one another.
**Coughlin v. Ontario Transport Board:
o Facts: A federal act had delegated to a provincial board the power to make highway regulations.
o Significance: Upheld as inter vires because it was not a delegation of law-making power, only regulatory power. Parliament retained the power to amend any regulations made by the board.
The Amending Formula
Found in s. 38 of the Constitution Act (1982)
A constitutional amendment requires the support of at least seven of the provinces, comprising at least 50% of Canada’s population.
S. 39(2): A proposed constitutional amendment must garner the requisite support within three years.
The Judicial Function
Establishment of Courts
There are several ways to establish courts in Canada:
o 1. Inferior courts: provincial courts, provincially appointed.
. Created by authority of ss. 92(4) and 92(14).
. Jurisdiction over small crimes and traffic matters.
. Over 90% of criminal law cases are heard by inferior courts.
o 2. Superior courts: provincial courts, federally appointed.
. Governor General may appoint these courts under s. 96. (So they are sometimes called ‘s. 96 courts.)
. This is usually the level at which jury trials take place.
. Includes BCCA and BCSC
o 3. Federal courts: federally appointed. . Created by authority of s. 110.
. Limited to the statutory matters that are assigned to them, such as taxation, immigration, etc. (Although the same actions can be brought in provincial courts.)
. Includes the Federal Court of Canada and the SCC.
Administrative Tribunals
A comparatively recent development. These provincially appointed administrative bodies are created to handle specialized issues, because they can deal with them more quickly and cost-effectively than the court system, and has the advantage of utilizing specialized knowledge.
However, there is some concern about stripping jurisdiction away from superior courts.
Three-step test to check if tribunal is improperly stripping away superior court jurisdiction (the ‘Residential Tenancies Test’):
o 1. Historical analogy:
. Is the tribunal’s power analogous to a power that was given to s. 96 courts at confederation?
. This step is to be construed narrowly; that is, courts should favour the idea that the superior courts did have jurisdiction over the matter in question. (Sobey’s)
. The historical analogy should not look solely at the province in which the case takes place, but should rather look at the powers of all provincial courts at Confederation in 1867. If a majority had the power, it will be said to have been within their jurisdiction. If there is a 2-2 tie, the tiebreaker is whether UK superior courts had that power. (Sobey’s)
. If a matter could have been handled in 1867 by superior or inferior courts, then the province had authority, but if it was exclusive to superior courts, then they didn’t. (Sobey’s)
. If no, then there is no problem. If yes, proceed to step 2.
o 2. Judicial function:
. Is the tribunal acting in a judicial manner, such as by resolving disputes between parties, adjudicating disputes through a recognized body of rules consistent with fairness and impartiality, etc? Or is it, for example, more of a policy-setting body?
. If no, then the provinces have jurisdiction to create the tribunal.
o 3. Institutional setting:
. If there is a judicial function to the tribunal, is it essential to its function, or merely necessarily incidental?
. For example, the CRTC can resolve disputes in television media, but the purpose of this is to set broader policy, rather than simply to resolve a grievance.
. If legislation establishing a tribunal fails on all three steps, it is held to be invalid.
o 3b. ‘Core’ superior court powers: . Is the tribunal exercising a ‘core’ s. 96 power?
. Added to the test by MacMillan Bloedel.
. A tribunal cannot take away from a superior court’s jurisdiction a ‘core,’ constitutionally granted power.
Labour Relations Board of Saskatchewan v. John East Ironworks (1949):
o Facts: It was decided that the functions being performed by the labour relations board were not analogous to the functions of the superior courts.
o Significance: Established that you can create a tribunal without worrying about stripping away adjudicative function, if you are creating a ‘novel jurisdiction’ – i.e., the tribunal is addressing a new subject. The test is whether what you are doing is ‘analogous’ to something a district or county court already does.
Reference re: Residential Tenancies Act:
o Facts: A reference concerning a proposed piece of legislation to govern landlord/tenant relationships. It would create a tribunal with exclusive jurisdiction to oversee the resolution of disputes, including powers to evict tenants or order compliance with the Act. The court held the legislation to be invalid because it was exercising a judicial function historically analogous to the superior courts, and this function was not necessarily incidental.
o Significance: Establishes the three-step test.
MacMillan Bloedel:
o Facts: Federal government had created a Young Offenders Act. A young offender was charged, and the federal court referred his case to the provincial courts, but they also held him in contempt. He challenged this as outside federal jurisdiction, since he had to be tried in a provincial court as a young offender. Held: you cannot strip away the power of ‘contempt’ from superior courts, because it is constitutionally granted and is a ‘core’ power of s. 96, so taking it away would amount to an amendment.
o Significance: Superior courts were held to have ‘core’ jurisdiction which cannot be stripped away without constitutional amendment.
Sobey’s: Adds qualifications to the ‘historical analogy’ step of the test: must be construed narrowly, and be based on the power of the courts at confederation in 1867.
Crevier v. Quebec (AG):You cannot shield a tribunal from judicial review; its decisions must be appealable to the proper appellate body. Nor can you get around this creating a private appellate board specifically for that tribunal, and then shielding that from judicial review. (Note that an appellate court reviewing the decisions of a tribunal probably wouldn’t challenge their findings, but would merely review whether they had properly acted within the powers given to them.)