Part One. Introduction to the Canadian Constitution.......................................................21 Introduction........................................................................................................................2
1.1 What is a “constitution?”.......................................................................................................21.6 Sources of Constitution..........................................................................................................2
2. Canada’s path to national independence..........................................................................4Part Two - The Nature of Constitutional Law...................................................................6
Reference re: Secession of Quebec (1998 SCC).................................................................6Clarity Act..............................................................................................................................8Judicial Review.....................................................................................................................8
BC v. Imperial Tobacco (2005 SCC) – rule of law constrains courts and executive branch..............9Smith piece J. Smith, “The Origins of Judicial Review in Canada” (1983).....................................10
Judicial Committee of Privy Council........................................................................................10Persons Case (SCC, then Appealed to Privy Council; 1928) – living tree doctrine.........................10Philip Bobbitt’s six forms of argumentation on constitutional issues (from R. Elliot)......................12
Court Procedure.........................................................................................................................13Part Three - Federalism....................................................................................................13
Historical perspective of confederation...............................................................................13CONFEDERATION...................................................................................................................13Types / classification / Theories of Federalism.........................................................................16
R. Simeon Article – Criteria for Choice in Federal Systems.............................................................17Why would Canada become Federal – forces in 19th c.?.........................................................18
Philip Resnick Article – The crisis of multi-national federations: post Charlottetown.....................18Interpretation Doctrine........................................................................................................18
Interpretation doctrines and judicial techniques summary (handout).................................18Distribution of Legislative Powers.......................................................................................19
Powers of the Parliament – s. 91................................................................................................19Powers of the Provincial Legislatures s.92, 92A......................................................................20Other clauses outlining separation............................................................................................21
Pith and Substance Analysis..............................................................................................22Presumption of constitutionality under federal law................................................................23
Bruce Ryder article – classical and modern paradigm.....................................................................23Citizens Insurance Co. v. Parsons (Privy council, 1881) scope of power analysis......................24R. v. Morgentaler (1993 SCC) pith and substance analysis.........................................................25
Incidental Effects.................................................................................................................27General Motors of Canada Ltd. v. City National Leasing (1989 SCC) – necessary incidental doctrine..............................................................................................................................................27
Multiple Access v. McCutcheon (SCC 1982).....................................................................................30STEPS to Double Aspect Doctrine............................................................................................30
McKay v. The Queen (SCC 1965) – early IJI case............................................................................33Bell Canada #1 (1966 SCC) – rule about federal undertakings = IJI...............................................33Bell Canada #2 (1988 SCC) – IJI; upholds Bell #1...........................................................................34Irwin Toy Ltd. v. Quebec AG (1989 SCC) – direct effect on vital/essential part IJI....................35
Ross v. Register of Motor Vehicles (1975 SCC) – incompatibility of intent test...............................37Multiple Access v. McCutcheon (1982 SCC) – narrow application of paramountcy doctrine.........37M & D Farm v. Manitoba Agricultural Credit (1999 SCC) – impossibility of dual compliance......37Bank of Montreal v. Hall (1990 SCC) – incompatibility of intent; middle position..........................37Husky Oil v. MNR (1995 SCC) – Interjurisdictional immunity case: see p. 270 note 6...................38Law Society of BC v. Mangat (2001 SCC) – legislative intent..........................................................38Spraytech v. Hudson (2001 SCC) – incompatibility of intent test.....................................................38Rothmans v. Saskatchewan (2005, SCC)...........................................................................................38Reference re Employment Insurance Act (2005 SCC)......................................................................39
Part One. Introduction to the Canadian Constitution
1 Introduction
1.1 What is a “constitution?”
sets out powers, boundaries of government and relationship to people. “Collection of rules, principles, practices that relate to governing of society.” Who can make law (legislative), enforce law (executive), interpret law (judicial); “mirror reflecting national soul” –Hogg
1.2 Context of constitution (i.e. historical basis): Preservative - ensuring some change remains in force (status quo) vs.
forward thinking (eg. S. Africa) – tries to change the future
1.3 Structuring, organizing relationships (defines boundaries, roles)1. Between different levels of govt. (provincial and federal). Each sphere is all-powerful within
it own jurisdiction.2. Between individuals and the state (mediated by Charter). 3. Aboriginal communities/individuals and Canadian State (both prov. and fed.)
a. Complex and evolving relationshipi. How evolving self-government affects #1. (Changing understanding of
federalism)ii. How S. 35 of Constitution - aboriginal rights – regulates relationship
between Aboriginals and communities.iii. How traditional arrangement of federalism deals with colonial structures and
issues arising from colonial historical regulation (“Indians and their lands…”)
1.4 Distinguishing elements of Canadian Constitution1. Parliamentary Democracy – laws made by legislature2. Federal constitution3. Entrenched aboriginal rights
1.5 Legislative Supremacy (e.g. Great Britain) – 1. no longer a feature of Canadian Constitution2. Charter (1982) specified that there are certain rights that cannot be changed by any branch of government. So, demise of legislative supremacy.3. “Notwithstanding” clause of charter (s. 33 )– certain rights can be overridden for 5 yrs by passing legislation. Only specific rights.
1.6 Sources of Constitution
(Canada has about 26 documents and it’s oral and written)1. Written documents (over 20 statutes and orders in council are considered
constitutional)a. Imperial statutes – legislation from G.B applicable to Canada when acting in
capacity of Imperial Parliament (we have 20+). Two important ones.
i. Constitution Act, 18671. a) created Dominion of Canada by uniting three colonies; b) Set up
legislative and provincial powers; c) Gives Canada its federal structure
ii. Canada Act, 19821. Appended to Canada Act is Constitution Act, 1982 (which includes
Charter: Const. Act is actually a Schedule)2. This is the LAST Imperial Statute b.c. Canada didn’t have a
domestic amending formula for the constitution.b. Canadian statutes (about 8)
i. Acted by federal parliament in ordinary way, but have been deemed “constitutional.” E.g. creation of province of Alberta, Manitoba
ii. Entrenchment: not able to be changed by ordinary legislative process. See 7-50 Rule (7 provinces representing 50%). Entrenched rights. Vs. inalienable rights, which aren’t necessarily conferred a legal status. AND Constitution has supremacy over lesser legislation when there is a conflict.
c. Case Lawd. Court defined principles (sometime unwritten) which become part of
constitution.e. Case lawf. Prerogative and Privilege – understanding that there are certain inherent powers
of the Crown.i. Can be taken away and limited by ordinary statute
ii. Examples1. Conduct of foreign affairs2. Passport3. Granting of the Order of Canada4. Parliamentary Privilege – also known as absolute privilege, is a legal
mechanism employed within the legislative bodies of countries whose constitutions are based on the Westminster system. In the United Kingdom, it allows members of the House of Lords and House of Commons to speak freely before those houses without fear of legal action on the grounds of libel. It also means while a member is within the grounds of the Palace of Westminster he/she cannot be arrested on civil matters; there is no immunity from arrest on criminal grounds. A consequence of the privilege of free speech is that legislators in Westminster systems are forbidden by conventions of their House from uttering certain words, such as "liar" (see unparliamentary language).
5. Example: Royal Proclamation 1763a. The purpose of the proclamation was to organize Britain's vast new
North American empire, and to stabilize relations with North American Indians through regulation of trade, settlement, and land purchases on the western frontier.
b. Issued by Crown after conquest of Quebecc. Important for aboriginal rights
g. Conventions – critical to workings of governmenti. Not written – look at norms of behavior
ii. Not legally enforceable – court will not find s.o. is in breach of constitution or law
iv. Example: Governor General showed too much power6. In practice, GG acts by instruction of government
v. Describe obligatory, but not enforceable practicesvi. Courts recognize and describe conventions
vii. Example: Principle of Responsible Government7. Government Ministers come out of HOC or Senate (they are elected and
are responsible to House of Parliament).8. Not written anywhere, but convention
viii. Why aren’t conventions written? Have to do with historical tie to Great Britain, where constitution isn’t written
ix. Conventions are part of constitution…written documents are read differently in light of conventions
A. Four Imperial Statutes critical to independencea. Colonial Laws Validity Act (1865)b. British North America Act 1867 (Constitution Act 1867)c. Statute of Westminster (1931)d. Canada Act 1982
B. Doctrine of Receptiona. Colonies inherit or receive laws of imperial power in place at time of settlement or
establishment of colonyb. Nothing that became law AFTER that date in GB appliedc. Deals with both reception of common law and statute
i. Shut off date specifically with statuteii. Except Imperial Statute, which applied specifically to colony or several colonies
d. After reception, colonies can make their own statutes, but must be consistent with GBe. Doctrine of Repugnancy – laws contradictory to GB are VOIDf. Two classes of relevant British statutes
i. Laws of GB that become law after reception1. CAN be amended by colonial legislature. Normal laws.
ii. Imperial Statutes – imposed on colonies by GB1. CANNOT be amended or repealed by colonial legislature, only by Imperial
Parliamentg. Colonial Laws Validity Act (1865)
i. Move to independence for coloniesii. Clarified relationship between colonial governments and Britain
iii. Seen as liberalizing move.iv. Clarified in a statute what kinds of statutes coming out of Westminster would be
binding to colonies and not amendable or repealable.v. Legislation must say so expressly or necessarily intend (1st section)
vi. Restates Doctrine of Repugnancy (2nd section)vii. Not always obvious whether law is repugnant or not
1. Resolved by courts = judicial review
2. Canada’s path to national independencea. Received law
i. Statute law1. Not those unsuitable for application2. Imperial disallowance (doctrine of repugnancy)
2. 1949 discontinuance of Privy Council as last court of appealb. Colonial Laws Validity Act, 1865 – clarified the relationship between colonial
governments and British laws and Imperial Statutesi. Imperial Statutes binding only on colonies if they say so in express words or by
necessary intentionii. Doctrine of repugnancy
c. British North America Act, 1867 – Imperial statute applied to three BNA colonies (Canada, Nova Scotia, New Brunswick) created Dominion of Canada
d. preservation of colonial status through continuation of British Crown’s reservation power
Sections 91 and 92: first instance of Federalism for Canadae. Each government supreme in its realm of authority
i. Doctrine of repugnancy for Imperial vs. Colonialii. And Federal vs. Provincial
iii. BNA Act created an ORDER of government on National and Provincial level, so ANY law created in Canada that is in contrary to this Imperial Statute is repugnant.
iv. BNA only amendable by Imperial ParliamentStatute of Westminster, 1931…product of colonial dissatisfaction with powers of British Crown
f. Preamble: No imperial statute applies to a Dominion other than at the request and with consent of that Dominion
i. But, Parliamentary Supremacy says that Parl. can’t be bound…and here they are binding themselves
ii. This is a statement of a convention…creates a convention. They are aware of the conflict when writing it
iii. Preamble sets the stage and tone for interpretation of the rest of the statuteg. Repeals CLVA and the doctrine of repugnancy…Dominion can now legislate with
respect to Imperial statutesh. BNA Act Exception – needed to retain repugnancy for federalism purposes
i. DOR no longer policing colonial power, but still maintained in order to police boundary between National and Provincial govts
Abolition of appeals to English Privy Council, 1949Patriation Reference, 1981Canada Act, 1982 … Imperial Statute…result of much political wrangling
i. see: “The National Deal” – Richard (?)j. Preamble says this act as request of Canada, so in compliance with Statute of
Westminsteri. Constitution Act in Schedule B
ii. No act of UK Parliament passed after this shall be extended to Canadian lawiii. French version in Schedule A has equal force as English versioniv. Call it the Canada Act, 1982
k. Schedule B (7 parts)i. Part 1 = Charter
ii. 2 = rights of Aboriginaliii. 3 = Equalization of regional disparitiesiv. 4 = Constitutional conferencev. 5 = Amending procedures
vi. 6 = Amendment to BNA actvii. 7 = General things, but important
1. S. 52 – supremacy of constitution (same as DOR really)a. Parts of constitution (some in another Schedule)
i. Uses word “includes” so list may not be exhaustive
A. Quebec’s Alienationa. Quebec not part of final const. agreement of 1982.
i. 2 attempts to bring Quebec in: Meech Lake accord 1987; Charlottetown accord 1982ii. 1995 referendum – unilateral decision sufficient to remove Q w/existing borders : 50.6 in
favour
b. 1995 – Federal government (Just Minister Allan Roc) to refer three questions to Supreme Court of Canada
i. S. 53 of Supreme Court Act empowers any member of Cabinet to refer questions to SCC
ii. Seek interpretation of Constitutioniii. Challenged because Court becoming involved in politicsiv. Handout on Reference Procedures v. BC Constitutional Questions Act empowers BC ministers to refer question to
BCSCvi. Three questions
1. According to Constitution of Canada, can Quebec unilaterally secede?2. Does international law allow Q to secede unilaterally? (see if there’s a
right of self-determination that would apply)3. In the event of conflict, which would take precedence?
vii. Seen as illegitimate by Q, since SC appointed by Fed Govt.1. Only people can decide Q’s future2. No one there to argue separatist side, so appointed an Amicus Curiae3. Sask and Manitoba, aboriginal groups, minority rights, Guy Bertrand
viii. Decision1. Critical, foundational set of issues2. Little of decision really addresses questions, but more of an historical
background on constitutional principlesa. The significance of confederation
i. Past practice and usage = historical contextii. Respect for minorities
3. Unwritten principles of democratic system are implicit in const.
a. Gives flexible framework for expansionb. Assist in interpreting textc. Look at usage, custom, values affirmed by constitutional
text, principles of Intl law endorsed by nationi. Federalism: power shared by two orders of govt,
recognition of autonomyii. Democracy: self-governance, dignity as human
beings is recognized constitutionally; sovereign people’s will is supreme; individual and institutional aspect; we don’t talk about this specifically in const; obligation to engage opposition in debate
iii. Constitutionalism and the Rule of Law: foundation of legal liberalism; shield against arbitrary exercise of power; uniformly applied = require that everyone is subject to same law; constitutionalism = Const. is supreme law, entrenched (para 74); constitutionalism modifies democracy more than just ‘majority rule’
iv. Protection of Minorities: spotty history, but Charter, linguistic protections
d. Principles function in symbiosis – no one principle trumps other
4. Written text gives certainty and is first place to starta. primacy of written textr
5. Court finds secession is unconstitutionala. Q. #1 = no (through unwritten principles)b. Q. #2 = no (People of Canada don’t constitute type of
people protected by this international law)6. Federal Govt and Q govt both pleased with decision
a. Q. felt court affirmed that it was a political decision, not legal
b. Felt that Canada must negotiate with Quebec about secession
7. Duty to negotiate lies with Canada as a whole8. Federal government passes Clarity Act (2000) to specify
conditions by which Ottawa would talk about secession with Q.ix. Court decides issue without reference to written constitution
The key points:a. Giving the House of Commons the power to decide whether a proposed referendum
question was considered clear before the public vote; b. Specifically stating that any question not solely referring to secession was to be
considered unclear; c. Giving the House of Commons the power to determine whether or not a clear majority
has expressed itself in any referendum, implying that some sort of supermajority is required for success;
d. Stating that all provinces and the First Nations were to be part of the negotiations; e. Allowing the House of Commons to override a referendum decision if it felt the
referendum violated any of the tenets of the Clarity Act. ordinary legislation, which specifies conditions of secession referendum
a. House of Commons, within 30 days, must consider question by resolution whether it is clear or not – will Q result in clear expression of will of province?
xi. Such a question will not be one of getting mandate to negotiate, looking at other solutions, etc.
xii. If no, Gov’t won’t negotiateb. Government has to take into account SIZE of majority in favor when examining clarity
xiii. (but what size is enough?)c. Restates that there is no right to unilateral secession; amendment to constitution is
required (needs negotiation, involvement of all levels of gov’t)d. Any proposal of amendment has to be proceeded by discussion of aboriginal rights,
borders, national debt, minorities that would be effected by this resolution
Judicial Reviewa. Courts review/overview administrative lawb. Power of courts to look at otherwise valid legislative enactments and see whether they are
constitutionally valid.i. If not in compliance, they can declare it unconstitutional and invalid
c. Based on S. 52 of Constitution Act (constitution is supreme)d. Question about use of Judicial Review
ii. McLaughlin: unwritten principles raises for many the legitimacy of what judges are doing
1. Judges usurping legislative role, say some2. McLaughlin says: this practice is fine (see p. 23-)
iii. Character of Judges 3. aren’t elected (PM appoints them to SC), legislators are; undemocratic
character of judges4. Federal vs. local; Supreme Court is federal body (see Quebec secession)
5. Judges don’t mirror general population; class, race, genderiv. Are the judges doing something above the law (politics, etc.)?
6. Law and politics are different; judges should be interpreting law, not making it
v. Are texts apolitical, though? Doesn’t it matter who the judge is when making lawvi. Judges have power, so naturally there area questions about how they act
vii. One critique – made in relation to secession reference; Ted Morton7. S.C. should never have agreed to hear the reference8. Example of Federal Govt. using court for political purpose
a. S.C. can refuse to answer questions9. Questions too abstract and too political10. Federal Govt was trying to use court to achieve something indirectly,
which it couldn’t do directly: lay down ground rules for secession11. Court was forced to deal with this because constitution failed to address
the secession issue12. Outcome of secession reference is POLITICAL13. McLaughlin argues that unwritten rules are legitimate
BC v. Imperial Tobacco (2005 SCC) – rule of law constrains courts and executive branch BC wants to hold Tobacco companies responsible for health damages through legislation Imperial said this legislation is contrary to rule of law
i. retroactivity created an unfair civil trial AND unfair to target specific sectorii. Creative and opportunistic strategy for opposition, but rejected by Court
iii. Rule of Law is fundamental (para. 57) Law is supreme over officials of govt and private individuals Actual system of law required Regulates relationship of individual and state
iv. Rule of law stipulates that officials are bound by law - Collective power of state is bound by law
v. Although law may meet these principles, it is also context of law Advocates read into rule of law what they want and court rejects
a. Imperial wants rule of law to be more than it is – wants to add more content to rule of law
b. Want courts to prohibit “backward-looking” legislationc. Wants to prohibit extra-territorialityd. Wants rule of law to be more expansive, so more opportunities to
declare laws unconstitutional Why? – Court gives two reasons
a. Already protected infringements with other statutes (eg. Charter)i. Written constitution has primacy
ii. Unwritten principles don’t nec. applyb. Role of courts in legislative process
i. Decisions should be made at the ballot box Split between what branches of government can do
a. Rule of law constrains what Judicial and Executive branch can doi. Restrain of how exec can act
ii. Restrain of how courts can interpretiii. BUT, doesn’t limit legislature
vi. Court is conscious of power of judicial review - This is a case where they “pull back”
Smith piece J. Smith, “The Origins of Judicial Review in Canada” (1983)
a. Judicial review isn’t a new ideab. Difference between legislative union and federal union
i. Legislative Union: governed by central state = one government with supreme power – some originally wanted this in Canada
ii. Federal Union: government is split; each branch is sovereign in its own sphere
Judicial Committee of Privy Council
i. Historically: final appellate authority for British coloniesii. Privy Council = historically, advisors to the Crown; includes Cabinet ministers; senior judges
of Englandiii. Judicial Committee = Historically: grouping of senior judges (who are members of House of
Lords); usual group of 5; invite senior judges of colony in questioniv. Technically, only give advice, but PRACTICALLY decisions are bindingv. Prior to 1966, no dissenting opinions
vi. Canada abolished appeals from 1949, so SCC became final court of appeal for Canadian cases Used to be able to appeal from SCC up to JCPC Or, to skip SCC altogether
vii. Influence over Canadian Federalisma. Section 101 of BNA provides for general Court of Appeal for Canadab. Talks about reference procedure and statutory procedure for referencec. Federal disallowance power – relevance to establishment of national court (see book p.
116)viii. Ability of Federal Govt. to reserve up to one year piece of legislation and then veto any act of
provincial governmentix. Did this negate Federalism???
Federal government has ultimate authority over provincesx. Hasn’t been used since middle of 20th century
Convention now exists against this section – beyond political pale Need amendment to get rid of this for good
c. Federalism questionxi. Centralist version
Concern about Supreme Court set up with Judicial Review (can reduce authority of Federal govt.) Would give more power to Provincial
xii. Decentralist Waffled in support of SCC
a. Liked idea of neutral third partyb. Concerned that this party was appointed by federal government
Persons Case (SCC, then Appealed to Privy Council; 1928) – living tree doctrine Who gets to be appointed to Senate; Relationship between Supreme Court and Privy Council;
Important piece of history Brought by five women (Educated and prominent public actors, Privileged, sometimes racist, anti-
union, Nellie McClung, etc.); desire to have Edwards elected to Senate Notion of formal equality between men and women vs. substantive equality = need to look at rich
context of differences between people; Law should be equal on its face; Common law doctrine that women were unable to hold public office; constitutionally barred from
Section 24 of BNA Cabinet could only appoint “qualified persons” to Senate Other qualifications weren’t challenged Age, owner of property, native born in Canada, etc. not challenged SCC found that women were not in category of “qualified persons” Used historical argumentation ANGLIN J. begins with caveat, distancing himself from politics, Then, historical / textual argument
Look at textual context of document itself. What does this word mean? What did they mean by this?
o Framers were representatives, Senate was new body, so no common law precedento No inherent right to be in Senate or not, since this was created in the BNA act as a new
entityo Nowhere else to go to learn about this other than the BNA – “four corners of statute”Unicameral v. Bicameral legislature
In UK, House of Lords (upper house) has very different role than Canada SenateIn common law, women didn’t have legal capacity to hold public office
Doctrinal analysisLooking at precedentTreats constitution as a ordinary statute
Other statutes are binding on BNA in this respectDifferent than the way the Privy Council addresses itFound that words “qualified persons” would not include women
Prudential analysisWould alter society in too great a way
Anglin’s analysis reveals his philosophy of the role of a judge in interpreting a document like the constitutionLord Brougham’s Act (1850)Masculine pronouns should be interpreted to also include womenAnglin argues that “persons” isn’t masculine at all, so doesn’t applyIn early years, SCC was very technical, prudent and cautiousUntil the 1970’s, when the SCC took on a more adventurous stanceIllustration of methods in play (Bobbit’s)Justification for sticking to framer’s intent as basis for constitutional interpretationSome Legitimacy democracyStability and continuityJuxtaposed with need to have a document that evolves with time1. JCPC overturned this
a. PRIVY COUNCILi. Illustration of power of courts to change the interpretation of law
1. Radical departure from way this document had been previously understood
ii. Looks at External and Internal Evidence1. External (historical analysis)
a. English tradition, Roman tradition, Lord Brougham’s Act (1850), Women historically protected from male
b. Pretty clear that “men” meant only men and not womenc. Custom dictated that women were not includedd. But, these conventions stay on longer than they are useful –
become ossifiede. Appeal to history in these matters is not conclusive
f. Court should not apply these historical arguments to Canada2. Internal (textual analysis)
a. Situated British precedents in their context, apart from Canadab. Living Tree Doctrine
i. BNA is a “living tree capable of growth and expansion within its natural limits”
ii. Idea that usage and convention cause constitution to develop
iii. Give it a “large and liberal interpretation”iv. Ethical interpretation look at role of institutions in
context of peoplec. The real point is whether the Governor General has the right to
appoint women to the Senate, not whether anyone has a right to be summoned to the Senate
i. Can presume that the framers set out the important qualifications for Senate
ii. Precedents cited aren’t applicableiii. Word ‘persons’ is ambiguous
1. Term “male persons” is used2. “persons” includes both males and females
b. Supreme court right or Privy Council?i. Argument in favor of SCC
1. Stability and continuity2. Words mean something3. Created by democratic process4. Distinction between law and politics5. Access to judicial review
ii. Privy Council1. Constitution difficult to amend2. Language is broad and vague3. Minority role non-existent in drafting of constitution4. Flexibility of constitution to speak to society to remain legitimate (within
some limits)
Philip Bobbitt’s six forms of argumentation on constitutional issues (from R. Elliot)1. Historical – what was the intent of draftsmen of constitution2. Textual
c. Examine words of document and historical importd. What is present sense of words in provision
3. Doctrinal – argument from previous cases4. Prudential
a. Practicalb. Weighs costs and benefits
5. Ethicala. Characterization of Canadian institutions and role within them of Canadian people
6. Structurala. Logical moves from constitutional text rather than from its partsb. About relationship between institutions to each other and within the framework
a. Standing (see p. 47)i. Courts are a limited resource, so makes decisions about who gets their time to
pose questions on Constitutional lawii. Concern about issues raised by third parties – so, restricted to your own issue
1. But, not everyone has access to courts2. And, government must be held to rule of law
iii. Rule of Public Interest standingb. Notice Requirement (49)
i. Must give Attorneys General notice of constitutional issuesc. Parties and Interveners (50)
i. Allows others with stake in this issue to weigh in on the constitutional issue at bar
ii. Submits written “factum”iii. Sometimes gets to submit an oral argument to the court
Part Three - Federalism
Historical perspective of confederationA. Many of these historical issues still come up in modern lawB. History v. memory
a. History is made up of objective factsb. Memory is subjective historical accounting; link between past-present-future
i. A look back into how things have happened to shape who we areii. As much about forgetting as remembering
iii. Understand present in relation to story we tell ourselvesc. Underlying law is one version or another of a particular ideological interpretation of past
– NARRATIVES ARE IMPORTANTd. Need to question this accounting
i. Minority narratives ignoredii. Conflicting narratives
e. Secession reference as an example of narrative (see Gaugreault-DesBiens, p. 57)i. French-Canadian persecution
ii. Minority rightsiii. Author sees Sec. ref. as a good balance of narratives
f. Legitimacy of Canadian Constitution rests upon judicial consideration of different narratives
g. E.g. 1982 Constitution “night of long knives” where Quebecers were excludedi. Rest of Canada has narrative of bumbling Quebec officials – adds legitimacy to
CONFEDERATION
I. BackgroundA. Arose from several reasons
i. Internal difficulties in Canada East and Canada West1. failure of the Union Act, 18402. Way out of difficulties is for westward expansion
ii. Threat from the United States1. End of US Civil War – removal of slavery controversy
iii. Need for economic development – capitalist’s motivationiv. Termination of reciprocal trade agreement with US
B. John Macdonaldi. Pushed for federal state, confederation
C. Came about with BNA Act, 1867D. Did three things
i. Reorganized the internal government of “Canada” in the pre-confederation sense of Ontario and Quebec
ii. United this entity with New Brunswick and Nova Scotiaiii. Provided for westward expansion to the Pacific
E. On recommendation of Lord Durham’s report, Province of Canada created in 1841i. Distinctions between common law (Upper Canada) and civil law (lower Canada)
preservedii. Status of French language recognized
F. Principle established that govt dependent on confidence of lower house of legislatureII. The Terms of Union
I. “a Constitution similar in principle to that of the United Kingdom”II. Forces shaping Canadian Federalism
a. Agrarian radicalism was not as strong in BNA as in USi. weak Provincial power in contrast to strong state power in US
b. Lack of formed provincial governments (easy to mold to new order)i. Gave specified power to provincial governments
ii. Reserved unspecified, “residual” power for federalc. Desire for access to British capital and markets and military assistanced. Incongruity of British principles of government (monarchy) and federalism
III. Provincial power arose from demands by Quebec wanted some semblance of sovereignty
IV. Hierarchical systems – liked by Centrists – strong central authoritya. Reservation power for level of government directly aboveb. Ottawa appoints federal judges, Privy Council has last word
V. Division of Legislative Powersa. Central government carries out major objectives of Confederationb. Parliament given all powers not specifically assigned to the provincial
legislatures.c. “Peace, Order, and Good Government”d. Federal Powers include:
i. Tax and borrowii. Tariff and commercial policy
iii. Banking and currencyiv. Postal, weights and measures, patents and copyrightsv. Criminal law
e. Provincial Powers include: i. Administration of Justice (apart from criminal)
ii. Organization of the courtsiii. Municipal institutionsiv. Educationv. The family
vi. Social institutionsvii. Law relating to property and civil rights
viii. Certain economic matters1. Shared jurisdiction over agriculture2. Borrow on own credit3. Incorporate companies4. Roads, bridges, etc., not under federal jur.
ix. Ownership of natural resourcesVI. John Macdonald
a. Principal author of Quebec Resolutions and BNA Actb. PM 1867-73; 1878-1891c. Hamiltonian conservative
i. State could and should play an autonomous and creative role, rather than merely reflecting the social diversity that lay beneath it
VII. French Reactiona. Guarantees for autonomy of nationality must come before all else in federal
constitutionb. Anything close to a legislative union will not be accepted by French Canadiansc. As long as there was only a single legislature for the two Canadas, Rep by Pop
would have put “our civil law and religious institutions at the mercy of the fanatics”
d. Confederation would eliminate this danger
What emerged (at least in writing) was a strong central governmentPeople had a strong regional identity, diverse populationsConfederation balanced these things
III. Silver, A. The French-Canadian Idea of Confederationa. Provincial autonomy was the safeguard for the Frenchb. They didn’t want a strong central government
Wanted a strong, autonomous government that wouldn’t be messed with by Feds
Jurisdiction on own territory would be absolute Federal matters won’t be about Quebec
c. Rhetoric that persuaded them talked about provincial independenced. Concerns that animate English Canadians can be quite different than those that are
important to French Canadians with regards to confederation
IV. Unitary Statea. One national authority with jurisdiction over all lawb. Local and regional authorities are subordinate to national authority (think relationship of
city to provincial govt.)c. E.g. UK and New Zealand
V. Federal Statea. Division of legislative powers between autonomous levels of governmentb. Not to be confused with separation of powers (legislative, executive, judicial)c. Recognized by Greeks, Romans – long historyd. Many federal states, including all of N. Americae. Different ways of distributing power; different tensions between powers, regions
VI. Characteristics of Federal Statea. Definition: government power distributed between central and regional authorities, so
that individuals living in those regions are subject to both levels of government authorityb. Distribution of powers is necessary, but not sufficient condition
Also need lack of subordination - one is not subordinate to the other Power of disallowance in BNA act is a problem, but this is no longer used
Types / classification / Theories of Federalism
a. Every country has different set of tensions and so there are different models in useb. Many different kinds of federalist states in operation
E.g. Australia, Germany – strong central government
US – Federal involvement in welfare, but different criminal codes in each statec. Edwin Black (Canadian political scientist of 20th c.)d. Canada’s Features / characteristics
i. Divided Federalism – levels of government more separatedii. Four Features
1. Division on powers – clearly divided sets of power between federal and provinces
2. Fiscal Arrangements – a. Each level of government given some level of taxing powerb. Federal Government makes equalization payments to poorer
provinces – subject of some debatec. Federal grants to provinces (health, education, income
assistance)3. Inter-governmental relations
a. High degree of coordination between different levelsb. Executive federalism – high-level executives make decisions
4. Intrastate Federalisma. Is not a formal bridge that links federal and provincesb. No institutional mechanism for airing provincial interests to
federalc. Instead, provincial governments are vocal about needsd. Premiers become national politicians somewhat
iii. Models dominant in Canadian History (where does real power lie?)5. Centralist Model (originally envisioned by framers)
a. Strong central governmentb. Federal disallowance powerc. Power over inter-provincial transportation, communicationd. Power to declare any local work to be federal [S. 92 (10)(a)]e. Residual power to federal government
6. Compact Model (Quebec’s preference)a. Provinces joined, and as part of agreement decided to delegate
power to federal governmentb. Provinces are primary source of powerc. Central government “creature” of provinces
7. Dualist Theorya. Two nations (French & English) informed structure of
federalismb. Coming together of two nationsc. Two powers “make a deal” and give to provinces what each felt
needed to survived. Characteristics of both appear in current systeme. e.g. Quebec vetof. Criticism: ignoring aboriginal people – leaving them out of the
calculus of creating a new nation8. Coordinate (cooperative) model
a. Each level of government is equal to each other and sovereign in its own realm
b. Dominant theory nowiv. Symmetrical
9. All provinces are equal in terms of jurisdiction10. Distribution of power across provinces is equal11. Other provinces than Quebec call for ideal of symmetrical federalism
12. Western Separatist Movement – regions feeling left out of power – would be in favor of Symmetrical
a. Illustrates tensions inherent in federalism in large countryv. Asymmetrical
13. Each province is unique14. Power is separated unequally15. Specifically applies to Quebec
a. power to control immigration, etc.b. Other provinces symmetrical
16. Terms put into Constitution that recognize Quebec as being unique
R. Simeon Article – Criteria for Choice in Federal Systems
a. Link between Federalism and Democracy What are impacts on participation, liberty, equality? Approaches
1. Protect citizens from governmenta. Decentralization and competing governments
2. Smaller units of government are better for citizen participation Critiques
1. Executive federalism (where relations between governments are conducted between politicians, limiting citizen participation)
2. Frustrates majority rule by denying one level of government jurisdiction3. Less accountability (who is responsible for this?)4. E.g. child tax benefit
a. Supplement from federal, but provinces take that backb. Whose fault is it that money gets pulled back? Federal?
Provincial?c. Actually, interaction between the two – who do you sue? how do
you vote?b. Functional effectiveness
Approaches1. Division of labor between government bodies2. Evaluated on ability to respond to the needs of citizens3. Realm of economists and public administrators4. Can tailor policy and responses to the level where they make the most
sense Critiques
1. Difficult to avoid overlap between bodies of government2. Excessive coordination costs, joint decision track3. Competition of laws between levels4. Territorial conflict – conflicts become inflamed
c. Community maintenance Interacts with community concerns Ability of federalism to defend and maintain a balance between regional and
national political communities1. Country-building2. province-building3. two-nation, or Quebec nation –building
Why would Canada become Federal – forces in 19th c.?
a. Discreet units, but close togetherb. Shared heritage, except for Quebecc. Shared fear of annexationd. Desire for autonomye. Quebec’s desire for retaining language and religionf. Presence of indigenous people on territory (not really considered back then, but important
now)
Philip Resnick Article – The crisis of multi-national federations: post Charlottetowna. First Nations are an important part of Canadab. Quebec / Canada tension doesn’t exhaust issues for Canadian Federalismc. Difficulties of Federalism in countries that are ethnically, linguistically dividedd. English and French STILL have different visions of federalism says Resnicke. Now, Harper government in favor of more provincial power
Change in late ‘90s, early 21st c. Politics of provincialism
f. Separating nations and statesg. Three ideas on how Canada can improve tensions between nation and province
Con-federal, like EU
Bruce Ryder Piece (p.237-239) – classical and modern paradigna. Court has to decide whether power lies with federal or provincial governmentb. Provide framework for shifting from classical to modern paradigmc. Judicial philosophies about how balance should be distributed
Interpretation Doctrine
Interpretation doctrines and judicial techniques summary (handout)
I. Interpretation doctrine: reference to general principles and methods used in interpretation a. Doctrinal analysis to determine separation of power between provincial and federalb. Set of interpretation techniques courts can usec. Use cases to reveal rules and formulas for application to other questions
II. Three perspectives / characterizations of doctrinea. Validity
i. Whether or not law survives constitutional challengeii. No constitutional authority for that level of government to pass that kind of law
iii. Pith and substance – dominant characteristic of statute1. Does it fall under S. 91 or 92?2. See Swinton article
iv. Ultra vires (outside jurisdiction) vs. intra vires (inside jurisdiction)v. If true: Entire law is invalid
i. Even if the statute is valid, will it be applicable in this areaii. Application may have to be reduced
iii. Called: interjurisdictional Immunity Doctrineiv. Still will be a core area where this law will be applicablev. If true: law has reduced applicability
c. Operabilityi. Applies as a consequence of the conflict of provincial and federal legislations
ii. Even if law is valid and applicable, there are circumstances where it will be inoperable
iii. While conflict exists between fed and provincial, provincial law is rendered inoperable
iv. Federal paramouncy
Distribution of Legislative Powers
Powers of the Parliament – s. 91
91. 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, in relation to all Matters not coming within the Classes of Subjects by this Act assigned exclusively to the Legislatures of the Provinces; and for greater Certainty, but not so as to restrict the Generality of the foregoing Terms of this Section, it is hereby declared that (notwithstanding anything in this Act) the exclusive Legislative Authority of the Parliament of Canada extends to all Matters coming within the Classes of Subjects
1. Repealed. (44) 1A. The Public Debt and Property. (45) 2. The Regulation of Trade and Commerce. 2A. Unemployment insurance. (46) 3. The raising of Money by any Mode or System of Taxation. 4. The borrowing of Money on the Public Credit. 5. Postal Service. 6. The Census and Statistics. 7. Militia, Military and Naval Service, and Defence. 8. The fixing of and providing for the Salaries and Allowances of Civil and other Officers of the
Government of Canada. 9. Beacons, Buoys, Lighthouses, and Sable Island. 10. Navigation and Shipping. 11. Quarantine and the Establishment and Maintenance of Marine Hospitals. 12. Sea Coast and Inland Fisheries. 13. Ferries between a Province and any British or Foreign Country or between Two Provinces. 14. Currency and Coinage. 15. Banking, Incorporation of Banks, and the Issue of Paper Money. 16. Savings Banks. 17. Weights and Measures. 18. Bills of Exchange and Promissory Notes. 19. Interest. 20. Legal Tender. 21. Bankruptcy and Insolvency. 22. Patents of Invention and Discovery. 23. Copyrights. 24. Indians, and Lands reserved for the Indians. 25. Naturalization and Aliens. 26. Marriage and Divorce. 27. The Criminal Law, except the Constitution of Courts of Criminal Jurisdiction, but including the
Procedure in Criminal Matters. 28. The Establishment, Maintenance, and Management of Penitentiaries. 29. Such Classes of Subjects as are expressly excepted in the Enumeration of the Classes of Subjects
by this Act assigned exclusively to the Legislatures of the Provinces. And any Matter coming within any of the Classes of Subjects enumerated in this Section shall not be deemed to come within the Class of
Matters of a local or private Nature comprised in the Enumeration of the Classes of Subjects by this Act assigned exclusively to the Legislatures of the Provinces. (47) Exclusivity of list in S.91
Powers of the Provincial Legislatures s.92, 92A
92. In each Province the Legislature may exclusively make Laws in relation to Matters coming within the Classes of Subjects next hereinafter enumerated; that is to say,
List of powers of provinces
1. Repealed. (48) 2. Direct Taxation within the Province in order to the raising of a Revenue for Provincial Purposes. 3. The borrowing of Money on the sole Credit of the Province 4. The Establishment and Tenure of Provincial Offices and the Appointment and Payment of Provincial Officers. 5. The Management and Sale of the Public Lands belonging to the Province and of the Timber and Wood
thereon. 6. The Establishment, Maintenance, and Management of Public and Reformatory Prisons in and for the Province. 7. The Establishment, Maintenance, and Management of Hospitals, Asylums, Charities, and Eleemosynary
Institutions in and for the Province, other than Marine Hospitals. 8. Municipal Institutions in the Province. 9. Shop, Saloon, Tavern, Auctioneer, and other Licences in order to the raising of a Revenue for Provincial,
Local, or Municipal Purposes. 10. Local Works and Undertakings other than such as are of the following Classes:
(a) Lines of Steam or other Ships, Railways, Canals, Telegraphs, and other Works and Undertakings connecting the Province with any other or others of the Provinces, or extending beyond the Limits of the Province:
(b) Lines of Steam Ships between the Province and any British or Foreign Country: (c) Such Works as, although wholly situate within the Province, are before or after their
Execution declared by the Parliament of Canada to be for the general Advantage of Canada or for the Advantage of Two or more of the Provinces.
Unilateral grabbing of jurisdiction by federal = CENTRALIST government. Not to be confused with disallowance power, which negates a particular law (fell into disuse). This – the DECLARATORY POWER – has been used quite frequently. Doesn’t mean the fed govt owns the work, only regulates it.
11. The Incorporation of Companies with Provincial Objects. 12. The Solemnization of Marriage in the Province. 13. Property and Civil Rights in the Province.
Important14. The Administration of Justice in the Province, including the Constitution, Maintenance, and
Organization of Provincial Courts, both of Civil and of Criminal Jurisdiction, and including Procedure in Civil Matters in those Courts.
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.
16. Generally all Matters of a merely local or private Nature in the Province.
Laws respecting non-renewable natural resources, forestry resources and electrical energy
92A. (1) In each province, the legislature may exclusively make laws in relation to
(a) exploration for non-renewable natural resources in the province;
(b) development, conservation and management of non-renewable natural resources and forestry resources in the province, including laws in relation to the rate of primary production therefrom; and
(c) development, conservation and management of sites and facilities in the province for the generation and production of electrical energy.
(2) In each province, the legislature may make laws in relation to the export from the province to another part of Canada of the primary production from non-renewable natural resources and forestry resources in the province and the production from facilities in the province for the generation of electrical energy, but such laws may not authorize or provide for discrimination in prices or in supplies exported to another part of Canada.
Authority of Parliament (3) Nothing in subsection (2) derogates from the authority of Parliament to enact laws in relation to the matters referred to in that subsection and, where such a law of Parliament and a law of a province conflict, the law of Parliament prevails to the extent of the conflict.
Taxation of resources (4) In each province, the legislature may make laws in relation to the raising of money by any mode or system of taxation in respect of
(a) non-renewable natural resources and forestry resources in the province and the primary production therefrom, and
(b) sites and facilities in the province for the generation of electrical energy and the production therefrom,
whether or not such production is exported in whole or in part from the province, but such laws may not authorize or provide for taxation that differentiates between production exported to another part of Canada and production not exported from the province.
"Primary production" (5) The expression "primary production" has the meaning assigned by the Sixth Schedule. (6) Nothing in subsections (1) to (5) derogates from any powers or rights that a legislature or government of a province had immediately before the coming into force of this section. (49)Existing powers or rights
This was an amendment.Concurrency – jurisdiction over same thing, but Federal Government has paramouncy
Other clauses outlining separation
a. S. 93 education v. Wanted by Quebec
1. Wants it mostly to be about linguisticb. S. 94 Uniform code for Common Law provinces, but only with c. S. 94 A amendment, concurrency re pensions, paramouncy with provincesd. S. 95 Agriculture and immigratione. Plus, aboriginal self-government adds another element to this equation.
III. Stages and terminology re: test for validitya. Does legislation fall within heads of power assigned to government
i. General issue or area legislated uponii. Determine what the matter is
iii. Take that determination and see which head of power in which it fits iv. E.g. Morganthaler case (p. 213) argued: this law isn’t about health care, it’s
about criminal behaviour.v. ‘Class of power’ = ‘head of power’
vi. This is a process of classification1. Matched up to head of power in list
vii. List is not exhaustive, though – new matters have arisen since S. 91 and 92 written in 1867
viii. No science, but it’s an art (Swinton, Lederman, Morgentaler case)b. Ryder
i. Two schools of thought1. If in 91, can’t be in 922. There is some overlap
Pith and Substance Analysisi. Identify matter of legislation = main issue of legislation
1. What is pith and substance2. Dominant characteristic of impugned law3. Legal and practical effect of law4. Looks at
a. Legal effect of law – four cornersi. What is legal impact on individuals?
b. Purpose of legislation – beyond four cornersi. What harm will it address?
ii. What does preamble say?iii. In past, wouldn’t look to policy papers, Hansard, other
process – increasingly brought in, though.c. Practical effects
i. More contextual reviewii. How does it affect everyday life given people’s unique
circumstances?iii. Given different weights by different judges
5. Courts NOT looking at value of law or whether they like it, only whether it is VALID
d. Is this really true, though?6. These things are given different weights by different judges, political
landscape, philosophy of constitutionalismii. Scope of heads of power
7. What area does it delineate8. Statutes are written generally, so courts are often asked to decide where
it applies currently9. Are these watertight compartments?
e. Tightly discreet categories or overlapf. Swinton: latitude of judges due to S.91, 92 jurisdiction is over
areas of law making (classes of subjects), not classes of personsi. Refers not to concrete, discrete facts of world, but larger
classes of subjectsii. But, bound by precedent, historical sense of words
iii. Does matter of law fit into this scope?10. Not scientific process, again – it’s often POLITICAL11. Remember Simeon piece – different values at stake in federalism,
balance of power, which community? which makes functional sense of dealing with this issue?
g. These issues can play into who should have jurisdictionh. E.g. regulation of fisheries
i. Community1. Building national community?2. Provincial community?3. First Nations?
ii. Functionality - Who can regulate best?iii. Democracy - Ottawa is too far away
Presumption of constitutionality under federal law
c. THREE PRACTICES (not Charter cases, though)i. Relies on presumption of constitutionality
1. Court does best to give laws understanding so that it is constitutional
a. If there are two conflicting interpretations, will give it the constitutional one
b. Politics of judicial reviewc. Judicial restraint – give deference to legislature
i. reduced judicial activismd. Courts less willing to overturn laws
2. If law is open to wide and narrow interpretation, and narrow would be constitutional, court adopts narrow interpretation
a. Reading down3. If validity of law relies on finding of fact, court will accept government’s
statement of relevant facts (see anti-inflation case)a. As long as some reasonable basis for the factsb. vs. correctness (courts decide what is best)
Bruce Ryder article – classical and modern paradigma. Competing frameworks of vision
i. Classical Paradigm1. More dominant early on in Canada’s history2. Division of power sets out mutually exclusive levels of government3. No overlap between federal and provincial heads of power4. Watertight compartments5. Would find law invalid or Read it Down6. No toleration of laws that encroach into other jurisdiction7. Disadvantage: may be some things we want to regulate, but can’t with
“watertight” interpretationc. May make it impossible to create effective legislation
8. Creates a more active judiciary, since they are knocking down “messy” laws = judicial activist
9. Economic politics – state should keep out of economic regulation – laissez faire
ii. Modern Paradigm1. More dominant later on, but this chronology is not FIXED: there are
classical instances now – generally speaking, though, modern is predominant
2. Layers can overlap and infringe on each other some – with SECONDARY effects = spillover effects = incidental effects
3. More judicial restraint = more tolerant of lawsd. If dominant characteristic is in wrong jurisdiction, will still be
found invalide. Secondary effects, though, will be more toleratedf. Legislative exhaustiveness is furthered because can have more
complex laws4. Economic regulation by provinces is tolerated
iii. Invoked by courts in all stages of constitutional ruleiv. Not really a change in pith and substance, but more about conclusions reached
about validityv. Responsible government
1. Federalism – divided2. Authority of government from parliament3. Any or all laws are possible by one level of government
a. Modified by Charterb. In general, 1867 gave things to each level
Citizens Insurance Co. v. Parsons (Privy council, 1881) scope of power analysis Provincial statute – must include conditions, in certain ink– consumer protection; Parsons
has national insurance and then disaster – wants to collect; Can’t collect because didn’t comply with conditions of policy; Says doesn’t apply because not in correct type, as Ontario law says; Company says doesn’t apply to them – corporate understanding of regulation Ultra vires; Government says jurisdiction lies in Federal Trade and Commerce head of power, Could also be captured in federal POGG power
Parsons and province argumenti. Says it’s a contract
ii. Property and civil rights head of power, Could also be other sectionsvi. This case is example of classical paradigm it’s an EITHER OR question
1. Exclusivity – two lists are exclusive of each othervii. Mutual modification – court takes overlapping heads of power and changes
them both so that they don’t conflict1. Idea is that drafters couldn’t have intended the two to conflict
watertight compartments2. Presumption: if in provincial list, won’t be in the federal list and vice
versa3. Why is this done from provincial to federal direction in this case?
c. Politics says Ryderd. Court draws distinction between provincial civil rights and
federal trade and commerceviii. Application of three steps
1. What is the matter?a. Dominant characteristic is regulation of insurance contracts
wholly situate in province property in provincei. But, doesn’t most activity take place in one province?
ii. Federal jurisdiction has to be acted out on provincial territory anyway
1. b.c. federal doesn’t have same borders as provinces do
2. Only a few exclusive federal areas in country3. Illogical then
2. What is the scope of potential heads of powerb. Usually start with heads of power of enacting government
iii. Looks at S.92(13) property and civil rights1. “Civil rights” needs to be defined broadly2. Used Quebec as example idea must be that Q
has jurisdiction to create own civil codec. Then, federal
iv. What is scope of trade and commerce?1. Reading it down so that it doesn’t cover broad
reading of property and civil rights2. Look at UK law3. If ‘trade’ is so broad, why do they also list
‘banking’ and ‘bills exchange’, etc.?4. Trade and commerce covers three things
a. Regulation of trade requiring sanction of parliament
b. “First and second branches” of trade and commerce power
i. Regulation of inter-provincial and international trade
ii. General regulation of trade affecting whole dominion
5. Parsons is seen as limiting trade and commercea. Gives more power to provincial property
and civil rights3. Takes legislation and matching it up
d. Legislation falls under provincial property and civil rightse. Parsons wins
R. v. Morgentaler (1993 SCC) pith and substance analysisa. Background
i. About politics around abortion after striking down federal abortion legislationii. Nova Scotia passes law abortions (and other procedures) done outside of
hospital illegal Summary offence, fine of $10,000 - 50,000 (very large for provincial)
iii. Morgentaler charged under this lawiv. Challenges this law as being unconstitutionalv. Court finds pith and substance of this law is criminal law
In this case, dispute is about first stage of process (what is the matter?)vi. Activist decision
vii. Example of modern paradigm Decision doesn’t say that there is a clear, bright lineeg
b. Dixon, J. for Courti. Three steps in classification
ii. This is an “interlocking process” The steps are going to interact with each other
iii. Mix of politicsc. Three steps
i. What is the matter pith and substance? Look to purpose of legislation and effect
Legal effecta. What are legal terms of the legislation?b. Four corners of law
Practical effecta. How does this affect society as a whole – what actually
happens?i. To define these two things, also look outside of text
extrinsic materials (not all judges are open to this, however)
v. Hansard debates – records of debates and speechesvi. Government reports, white papers
vii. Course of events Looks to evidence and concludes that dominant characteristic is to
restrict abortion Rejects provinces argument that it’s about health and hospitals
b. Wasn’t until second reading of bill that concerns about privatization were raised
c. No evidence of study about cost/qualityd. List of procedures that are not allowed outside of hospitals are
unrelated to each other Severe penalties are allowed, but atypical of provincial penalties need
to look regulatory, not punitivea. Each piece of evidence raises inference that this law intrudes
on federal criminal poweri. Legal effect
1. Four cornersa. Prohibit activity that is traditionally
thought to be within federal jurisdictionb. Actually replicates wording of federal
code2. Extrinsic evidence
a. Wording is same as criminal codeb. Timing of legislation is suspicious
i. Right after Morgentaler announces opening of clinic
ii. Hasty legislationc. History of legislation itself
i. Indicates central concern of legislators was to stop Morgentaler
d. Colourabilityii. Sometimes governments pass laws made to look like it falls under its jurisdiction
“colourable”iii. Government of Nova Scotia “dressed” up law to make it look like health care,
when it knew it couldn’t legislate thisiv. Supreme Court doesn’t come out and say this, however
4. Legislation is so wrong on its face, it couldn’t be colourable5. It’s pretty bad to say a law is colourable6. Instead, merely says it’s ultra vires
Incidental Effects.a. Dickson, J: Pith and Substance Doctrine
i. Looks at dominant characteristics and tolerate incidental effectsii. A law that is in its p and s can remain valid even if it has these incidental effects
outside its jurisdictioniii. Federal laws may be valid even if they have an effect in provincial jurisdictioniv. vice-versa with provincial laws
b. Dominant vs. Incidental effectsc. Dickson: Bottom of page 226
i. Overlap expected and accommodated in a federal stateii. Judicial restraint in knocking down such legislation
iii. Doctrine is part of modern paradigmd. Setting up possibility of conflict between federal and provinciale. Examples
i. Street solicitation for sex1. Province passes regulation of public nuisance
a. Incidental effects of punishing / prohibiting prostitution (normally federal)
ii. Navigation and shipping1. Federal regulates
a. Incidental effect of labour (provincial)General Motors of Canada Ltd. v. City National Leasing (1989 SCC) – necessary incidental doctrine
Sometimes will be a “bold foray” into other jurisdiction Compare this to incidental effects Special handling of this by courts Trade and Commerce case Illustration of Modern Paradigm Challenge to Federal Competition Act (formerly Combines Investigation Act) Federal government tried to enact anti-monopoly legislation in between 1st and 2nd World
Wars under various powers Repeatedly frustrated by courts Successful in setting it up under criminal law power Challenge to S.33.1 civil action authorized for remedy Normally, this would fall under provincial jurisdiction Why would criminal statute create civil remedy (policy point of view)?
Different burden of proof Public policing of each other Effective and cost-effective enforcement Used as a “test case” by attorney general
o Didn’t like narrowing of trade and commerce powero Argued that civil part of act was valid exercise of power
Offensive provision isn’t too intrusive and sufficiently part of otherwise valid legislation Dickson (a centrist) – re: “Watertight Compartments” (p. 227)
Undertow against strong pull of pith and substance Pith and Substance is dominant paradigm Most of time courts will permit some overlap and uphold the law even if
it affects incidentally. Facts
CNL leasing trucks, most of which financed through GMAC; Alleges GMAC is giving better deals to competitors; Violates price discrimination provisions; Sues GM
GM argues that part of statute is outside powers of federal legislationo Most provinces agree (except Quebec)
Federal government says not only constitutional, but is so under Trade and Commerce power
Whole statute not impuned, only this one provision that sets up civil action
If YES, how much does it intrude into power of other jurisdiction?
Spectrum1: Minimum, moderate, high? GM case: clear intrusion, but not that serious
Remedial Limited scope Federal govt. not precluded from creating civil
actiono TWO: Is whole statute constitutionally valid?
Is there a head of power under which the rest of statute falls?
If NO, you’re done GM case: Legislation falls under Trade and Commerce –
it’s valido THREE: If one and two are true, see how integrated, connected
the challenged provision is to the whole statute Based on integration and degree of intrusion, is it
constitutional? Put the conclusions of stage ONE and TWO and
put them together Is there a significant connection between the
provision and the statute as a whole? Is the provision “functionally related to the
general objective of the legislation, and to the structure and the content of the scheme”?
Spectrum 2: “tacked on” to “integral”o If highly intrusive, you need high
standard of integration Sufficiency of integration is matching up
degree of intrusion with degree of integration GM case: provision meets the test – limited
intrusion and functionally significant integration; not really major upset in the big scheme of things
What is difference between Pith and Substance doctrine and Necessarily Incidental?
o Not really clear, but seems to be a matter of degree How much does statute intrude (what is impact of
legislation)? If a lot, might need to use NID analysis If not too much, might just ignore incidental
effects
Double Aspect doctrine a. Lederman excerpt on p. 231
i. Mutual modification as a way of eliminating some of the encroachment of the lists in ss. 91 and 92 on each other…uses the example from Parsons to illustrate this…
ii. imparts, he argues, a degree of exclusivity…iii. nevertheless some overlapping remains…three things have then been done
1. Tolerate ita. overlapping nature of the challenged law has been ignored as only an incidental affect
and the law classified in terms of its dominant effect within its own jurisdictioni. decision that the feature of the law that overlaps is unimportant relative to its
intra vires featureb. This is Pith and Substance doctrine
2. Ancillary Doctrinea. Not mentioned by Lederman…b. If overlapping feature is significant, direct intrusion into other jurisdiction, then have
option of using ancillary doctrine as set out in GM to save it…
3. What if the contrast between the two features is not sharp enough to dismiss one or the other as incidental effect? or, what if one is not clearly a minor part of a larger scheme? a. Ancillary doctrine doesn’t seem workable thenb. Courts have come up with the double-aspect doctrine…conclusion that challenged rule
can be enacted by either fed or prov…that it has a federal aspect and a separate provincial aspect…
i. --under this understanding may well be a valid fed law dealing with same persons about some things also dealt with by valid prov law…
ii. Associated with Ryder’s modern paradigm 1. tolerates overlap between the fed and prov jurisdictions
c. Law has essentially two matters - one federal and the other provincial. d. And the court considers the fed and prov features of the law to be of roughly equivalent
importance, such that neither can be ignored or termed incidental for the purposes of classification of the law.
e. No other guideline exists for determining that a ct will find the situation to be a double aspect one, rather than choose between the federal and provincial features of the challenged law.
Multiple Access v. McCutcheon (SCC 1982)a. Deals with issue of overlap and provides discussion of double aspect doctrineb. Different from the cases we have looked at so far in one important aspect? - 2 pieces of
legislation – (required for double aspect)FACTS:
MA = federally incorporated company, incorporated under CBCA which contains prohibitions against insider trading...
Charges brought against Pres McCutcheon, a director and two senior officers for violating provisions against insider trading in the Ontario Securities legislation...
Brought at the instance of the company...provisions of Ont leg provide that any person who is a shareholder can apply to the court and ask for an order compelling the securities commission to proceed against the wrongdoers on behalf of the corporation.
Federal Companies Act does the same thing - Different regulatory mechanism, but basically a shareholder can get a judicial order that compels a fed official to investigate...
Pres and directors of MA used their inside knowledge of an upcoming deal between MA and Canadian Marconi...brought stock in their own company in anticipation of deal...bought law...then sold high when deal became known and raised stock prices...
Charged under Ont. Legislation...
Argue that leg is ultra vires Ont...or, alternatively and more convincingly, that the federal legislation is paramount and therefore the Ont legislation is suspended...(latter is their major defence).
Note: Ont provisions and fed provision are almost exactly the same...mirror images of each other...duplication
Also, can't be charged under the fed scheme because statute of limitations...time for feds to charge has expired...so if they manage to escape liability under Ont leg, then go free
ANALYSIS
Both pieces of legislation regulate the same behaviour: insider trading Ultimately, this case is about paramountcy rule: if there are two pieces of conflicting
legislation then the federal is paramount.
STEPS to Double Aspect Doctrine
1) Look at each of the two pieces of legislation on its own2) Is it intra or ultra vires?
a. essentially, do a pith and substance analysis of eachb. Looked at the federal legislation
i. Is it in pith and substance related to a federal head of power?1. If not, then strike down
c. If it is, conduct similar inquiry in relation to provincial leg alone.d. If you have two pieces of equally valid legislation of roughly equal importance, then
move on to the parmountcy stage of the inquiry.
Note: The Court's question of what is the pith and substance of each piece of leg is not the same question as what is the field
i. In the field of real life activity, what is being regulated is insider trading.ii. The pith and substance of the fed leg is fundamental corporate relationships:
duties and obligations of directors and senior officers to shareholders.iii. The pith and substance of provincial legislation is trading in securities, a broader
head of power.iv. Different matters or different pith and subst can attach to the same field.
Field = area of human activity being regulated. Not the same as matter – has to do with activity - In this case, field = insider trading
v. What is this federal company law power? Dickson points to a 1915 cases, Wharton, in which JCPC said that feds can set up statutes for incorporation of companies under both general branch of s. 91(2) and POGG...so this is just part of this jurisdiction...power goes well beyond incorporation…extends to matters
such as protection of creditors, interests of shareholders…aspects of internal ordering…see discussion on middle of p. 243…
e. Concludes: Insider trading is a double aspect field...i. has a prov securities aspect and a fed companies law aspect...and that both are of
roughly equivalent importance...two different things going on in the same field…regulation of corporate relations and regulation of insider trading…
ii. Court is cautious about the identification of double aspect field... doesn’t undermine the division of powers divide that much...not everything will have a double aspect...
iii. Some examples of limited number of double aspect field...temperance, insolvency, highways, trading stamps, observance of Sunday...
f. Dickson: can't just stop and say that cross jurisdictional effects are simply only incidental effects and can be tolerated...can't do this as have both fed and prov occupying the field...extensive overlap
i. Court says on p. 235: Double aspect doctrine is applicable when the contrast between the relative importance of the two features is not so sharp…here corporate-security fed and prov characteristics of insider trading leg are roughly equal in importance…so keep both valid…
ii. If ct doesn’t want to find is a double aspect field1. find one law ultra vires…labour regulation good example where this
happens…iii. Whether ct will or won’t find double aspect depends on ct’s attitude towards
behaviour under regulation (Dickson in case talks about social undesirability of insider trading) as well as on theory of federalism or theory of state… (Centralism, modern paradigm)
g. Defendants tried another argument in addition to federal Paramountcy – Interjurisdictional Immunity
i. MA is a fed regulated company being charged under a prov law...argue that fed regulated entities are immune from such prov regulations...have iji
ii. Dickson rejects this argument...says only have immunity to extent that prov rules sterilise or impair companies...this fed law doesn't prevent company from functioning as a company so no iji
iii. Dickson also says that prov leg in no way singles out fed companies for special, targeted treatment...if prov did this, would be another way of offending division of powers...doctrine of singling out...
iv. Instead, prov law is a law of general application (applies to all companies) which happens to incidentally affect federal entities...
h. So Dickson, after these detours, turns to the main argument, the argument about Paramountcy...articulates express conflict test for when paramountcy applies
i. why doesn’t Dickson simply treat this as a pith and substance/incidental effect situation for each law?
i. Can’t do this where actually have two laws that potentially conflict…use incidental effect when have just one law and the spillover is into jurisdiction that other gov’t hasn’t legislated over or filled up…or if have two laws and no real possibility of conflict or overlap…
Interjurisdictional Immunity Doctrine
I. Backgrounda. So far, what we’ve covered talks about validity
ii. Two: if possible, will give interpretation that is reasonable and constitutional = judicial restraint
d. What kind of interpretation should be given to this statute when a broad reading would prohibit this sign?
i. Any activity that infringes on election would be ultra vires a provinceii. Legislation can’t do something indirectly that it can’t do directly
1. If it singled out federal election signs – would be invalid2. Can’t do this indirectly either
iii. Statute has to be interpreted so that federal election signs aren’t covered1. Reads law down
e. This is a case of inter-jurisdictional immunityi. This area of federal jurisdiction is immunized
ii. Statute is read down to protect the federal jurisdictionf. Martland – Dissent
i. Parliament hasn’t ruled on this subject, so no conflictii. No exclusive jurisdiction of federal government in this area
iii. No rule that provincial legislation can’t incidentally limit speechBell Canada #1 (1966 SCC) – rule about federal undertakings = IJI
a. Factsi. Provincial Legislation regulating minimum wage, working conditions, etc.
ii. Wants to escape regulation, so uses federalism to get out of provisions of provincial legislation
iii. Provincial government argues their statute does apply1. At least until a federal law comes out2. If doesn’t apply, no regulation for Bell
iv. What matters fall in 92(10)?b. Martland –
i. 91(29)3. Matters lie within exclusive jurisdiction of federal
ii. What lies in jurisdiction of federal govt.4. Area of federal jurisdiction that is exclusive control5. Must have complete, sole control over what is vitally part of that
undertakingiii. Grant of immunity over federally regulated undertaking
6. That is at the vital core of thisiv. Is this a minor aspect or vital part of the undertaking
7. If so, immunity issuev. Minimum wage IS vital part, so provinces can’t regulate this
8. Legislation touches vital or essential part of running of federally regulated operation, so lies immunized from provincial impact
c. Legislation is Read Down so not applicable to that areai. Reading down is permanent
Bell Canada #2 (1988 SCC) – IJI; upholds Bell #1a. Provincial law – pregnant woman has right to move away from computer monitor
i. A pattern emerges of provinces trying to protect under-represented populations
b. Beetz, J – ii. Summary of relevant rules (propositions 1-5)
Provincial jurisdiction over health Provincial jurisdiction over labour relations and working conditions
Federal jurisdiction over labour relations and working conditions in federal undertakings
o Federal jurisdiction in this area is exclusive Prohibits legislation that affects labour relations directly
o IJI applies to some, but not all, areas of federal jurisdiction Read the cases to know which E.g. railways, lands reserved for Indians, etc. IJI applies to CORE of federal juris. over these things We’re dealing with core of federally-regulated
undertakings Fourth proposition – summary of case law Fifth proposition – summary of double-aspect doctrine
o Later in the decision, says double-aspect isn’t relevant hereo One ought to be cautious when finding double-aspect areas
Would end up with one big jurisdiction Would be resolved with paramountcy Risky for keeping up a strong provincial jurisdiction
because it ends up in favor of federaliii. Upholds Bell #1
Had been criticized o because IJI is contrary to modern paradigmo Why do you have to give immunity to fed, since they have
paramountcy Explicitly says this is federal exclusivity
o Part of unassailable exclusivityo To deny this would undermine the federal government from
having exclusive jurisdiction in this area P. 250 Concurrent powers
Different than overlapping powers Different from double-aspect In practice, this is the same, but the term should be
reserved for those concurrent Paramountcy
o Although it enables federal government to pass its own legislation, that is often ineffective and inefficient
Bell #2 adds new twisto Federally regulated and federally incorporated are not the
same Federal jurisdiction comes from different place Different grants of power [S. 91(29) and 92(10)]
o In past, they were treated alike re: iji Needed to show “impairment or sterilization”
o Now, there is a specific test for federally regulated undertaking
Test for “vital and essential” part This is a less stringent test
Provincial leg. doesn’t necessary have to impair or sterilize now
Impairment or sterilization test isn’t necessary Example of impairment or sterilization
Province passes law that prevents company from exerting federally legislated rights
Irwin Toy Ltd. v. Quebec AG (1989 SCC) – direct effect on vital/essential part IJIo Facts
Province regulating market actor again Limiting / regulating television advertising to kids
Regulated commercial expression as well as iji issueo Further qualification to the test
In relation to Vital and Essential Part test Effect on federal legislation must be DIRECT – then IJI If indirect effect – even if it has impact on vital and essential part –
NO IJI What is difference between direct and indirect
o Direct regulation is for advertisero Indirect effect is for broadcaster (federally regulated
undertaking)o Is it about regulating this particular entity (direct)?
What about relation to Impair and Sterilization test? That effect can be direct or indirect
Pith and substance tolerates incidental effects, IJI doesn’to Pith and substance applies more ofteno IJI applies when provincial legislation hits in power that DEFINES federal jurisdiction
i. Several doctrines tolerate overlap between federal and provincial1. pith and substance2. ancillary3. double-aspect
ii. When there’s a conflict – use paramountcyiii. Framers understood 91 and 92 to be watertight compartments, so no explicit
stipulation on what to doiv. Judiciary set up own response to this problem = federal paramountcyv. Paramountcy where there is a conflict, the federal law will be paramount; the
provincial legislation will be inoperative as so far as the conflict.1. What is a conflict?2. The solution is provincial leg. is INOPERATIVE, not invalid3. MUST have two pieces of legislation: federal and provincial
Steps
i. First , PITH and SUBSTANCE on each piece of legislation on its own – is it valid?
1. If one is invalid, no problem no more conflictii. Second , is there a conflict between them (THIS is the paramountcy doctrine)
2. Continuum of positions on conflict taken by courts (narrow to broad, from high threshold in defining conflict to low threshold)
a. e.g. Fed leg: .08 alc; Prov leg: .06b. Express Conflict impossibility of dual compliance
i. E.g. Multiple Access v. McCutcheonii. Focus on individual – can ind. obey both laws together?
iii. High threshold of where conflict arisesiv. Permits more overlap
c. Incompatibility of Intent range of analysis in the middlei. Look at more than whether federal govt. is present
ii. Look at federal intent, records why law was maded. Covering the Field negative implication; presence of federal
government in the field means federal govt intends to cover the field
i. Focus is on whether there is a federal law or notii. Broad understanding, threshold of conflict
iii. Tolerates no overlapiv. e.g. Bank of Montreal v. Hall
iii. Provincial law is inoperable cannot have effect on federal jurisdiction where there is a conflict
3. Not permanently inoperable, since if federal law is removed there won’t be a conflict
4. Inapplicability is permanent law cannot apply to that area of jurisdiction (for Interjurisdictional immunity)
e. Only inapplicable to area where govt. is immunizedf. Happens even when there isn’t a federal law on the books
Ross v. Register of Motor Vehicles (1975 SCC) – incompatibility of intent test Facts – guy convicted of drunk driving. Federal judge says license not suspended,
province suspended it anyway Analysis
1. Both found to be intra vires2. Judge rules thing that he didn’t have right to – ultra vires in that part3. Applies “covering the field” test and decides ‘NO’, govt. isn’t trying to
exclude all legislation4. Applies incompatibility of intent test
a. Was it the intention of the fed govt. that this should be the only law?
b. Toleration of overlap for highway safety issues – policyc. Court discusses the Australian rule of fed
Paramountcy...inconsistency does not lie in the mere co-existence of two laws but in the intention of the paramount leg to express by its enactment what shall be the law governing a particular conduct or activity...when a fed statute discloses such an intention, it is inconsistent with it for the law of a state to govern the same conduct...p. 258
d. Court says if were to apply this question...would say that Parl did not intend to state exhaustively the law in this area...therefore would find no conflict...and prov order stands
Multiple Access v. McCutcheon (1982 SCC) – narrow application of paramountcy doctrine Two pieces of legislation almost identically overlapping Analysis
Under coving the field, there would be no question Decides a conflict will only exist in very few cases Lots of overlap will be tolerated Modern paradigm Paramountcy does not apply – can comply with both laws without problem “Watershed” cases – new approach to conflict under paramountcy Can regulated individual meet requirements of both laws?
M & D Farm v. Manitoba Agricultural Credit (1999 SCC) – impossibility of dual complianceiv. Court being asked under federal stay proceedings to stop action by bank,
province asks proceedings to commence5. Bank could wait until stay ended and commence new proceedings6. Instead, asked court to go ahead at same time - conflict
v. Impossibility of dual compliance7. Provincial law inoperative
Bank of Montreal v. Hall (1990 SCC) – incompatibility of intent; middle position Farmer has loan and defaults; Federal has jurisdiction over banks; Statute states that if
farmer defaults, bank can seize equipment immediately; Provincial law says that creditor must serve notice on debtor first; General application – not just banks; Bank takes foreclosure proceedings without notice
Analysiso Bank COULD comply with both if it served notice, acting by stricter regime – so
no imcompatibility (?)o Looks at intent of parliament
Wanted to give powers to banks to reclaim money more easily Point was to remove any delay or protection of debtor if default That is the conflict
o Not occupying field test, not express conflict testvi. Decision – provincial law inoperative
Husky Oil v. MNR (1995 SCC) – Interjurisdictional immunity case: see p. 270 note 6 Case was resolved using IJI (applicability) rather than paramountcy Sask. Worker’s compensation law found inapplicable to bankruptcies
Law Society of BC v. Mangat (2001 SCC) – legislative intent Can non lawyers appear before immigration hearings? Analysis
i. Court says a double-aspect to this1. Statutes from both levels can coexist as long as there is no conflict
a. If conflict, provincial law is inoperableb. What is intent of the federal law?c. Representing without a fee indicates it’s parliament’s intention to
broaden the number of people who can be at these hearingsSpraytech v. Hudson (2001 SCC) – incompatibility of intent test
Pesticide use, federal say can use , provincial law says not; company uses it Analysis
1. Incompatibility of intent test – examination of intent is CLUEa. Bank of Montreal v. Hall approach.
2. Federal law is permissive, not mandatory3. So, no conflict; no federal paramountcy4. Purpose of federal legislation is not that you HAVE to use the pesticide,
but that you’re allowed to use it.5. It is okay that bylaw goes further
I. Continuum revieweda. Court doesn’t use the “occupying the field” test any longerb. More often used
i. Dual compliance (see Multiple Access)1. Is it possible to comply with both?
ii. Frustration of Parliamentary Intent (see Bank of Montreal)1. Despite the fact that dual compliance is possible, does the
provincial legislation frustrate the intent of the federal law2. E.g. Mangat
a. Could comply with both laws, but the federal intent was to have greater access to immigration system
b. Wanted to set up system that was less formal3. Contrast to Spraytech (which wasn’t Frustration ex.)
a. Legislation was permissiveb. Fed didn’t care whether pesticide was used or not
Rothmans v. Saskatchewan (2005, SCC)a. Overview
i. Tries to render inoperative provincial laws that limit advertising in places where kids go
ii. Two pieces of legislation, federal and provincialiii. Saskatchewan sets out parameters, Rothmans says it’s inoperative
b. Analysisi. Court First looks at dual compliance
ii. Then, looks at the frustration factoriii. para. 14: A provincial enactment must not frustrate the purpose of a
federal enactment, whether by making it possible to comply with the latter or by some other means. In this way, impossibility of dual compliance is sufficient but not the only test for inconsistency
iv. Then – if there can be dual compliance, does the provincial legislation frustrate the intent of the federal legislation
v. Look at general and specific provisionvi. Finds that dual compliance is possible, and does not frustrate the federal
intentvii. Attorney General of Canada says there is no inconsistency also – helpful,
but not conclusiveII. Reading down under paramountcy
a. It’s not permanentb. If the conflict is removed, there is no longer a problemc. However, interpretation of heads of power is permanent
Reference re Employment Insurance Act (2005 SCC)
Does federal government have jurisdiction to grant maternity benefits and parental benefits to individuals who take time off of work? As a result of this decision, Quebec got an agreement to run its own program with expansive benefits.
Pith and substance analysis – look at what is being challenged (if that fails, go to necessarily incidental, or just incidental effect)
Para 8: rare that subjects fall entirely in one head of powerOutlines pith and substanceNot watertight compartmentsDiscussion of double-aspect, necessarily incidentalLiving tree metaphor – model was, generally, women weren’t in the workforce; this has changed
Characteristics of federalism may vary, one court to another, and involves POLITICS
para 15. Pith and substance: purpose, practical and legal effects23: Purpose of benefits – 27: Effects – used to assess constitutional validity34: Dominant characteristic – replace employment income of women36: What head of power?45+ :Give progressive and dynamic interpretation to that head of power
Ongoing politics of people relying on progressive interpretation to argue for more federal involvement in maternity benefits
