FEDERALISM CASE CHART
FEDERALISM CASE CHART
|CHAPTER 1 (pp. 1-6) |RATIO |OUTCOME |
|Reference re. Secession of Quebec [1998] SCC – p. |- Basic principles of federalist structure ie. 4 unwritten principles that fill in the | |
|3 |gaps of express terms of constitutional text BUT NOT to dispense of written text | |
|CHAPTER 2: RULE OF LAW (6-11) | | |
|Quebec North Shore (6) |- FC will have jurisdiction not only where federal statue exists but where matter is | |
| |one of federal common law | |
|Beauregard v. Canada (9) |- Constitutional validity of s. that reduced salaries of judges – didn’t offend | |
| |judicial independence | |
|Provincial Judges Reference (Reference re. |- Judicial independence (JI) is at root an unwritten constitutional principle | |
|Provincial Court Judges) (9) |- ss. 96-100 ensure JI for superior, district, and count court; s. 11(d) ensures it for| |
| |PC in relation to offences – problem: what about PC judges for non-offences? | |
| |- 3 aspects of JI: financial security, security of tenure, institutional indep. | |
|BC v. Imperial Tobacco Canada Ltd [2005] (10) |- Rule of law embraces 3 principles: | |
| |1) One law for all (officials of gov’t and private individuals) | |
|BC Gov’t creates statute allowing province to sue |2) Legislation must exist (positive laws that embrace normative order) | |
|tobacco companies for costs to health care |3) State officials’ actions must be legally founded | |
| |- can’t just read into rule of law anything that supports what law should do | |
|Com. argue that violates the Rule of Law |- there are better ways to attack validity of legislation that conforms to express | |
| |words of the Constitution: not best way to invalidate (as unwritten principle) | |
|CHAPTER 3 (11-18) | | |
|Patriation Reference (11) |- positivism view used: historical context can’t alter the fact that there is law in | |
| |BNA Act | |
|Re. Secession of Quebec (12) |- federalism is a vehicle for “the pursuit of collective goals by cultural and | |
| |linguistic minorities which form the majority in a given province” | |
|CHAPTER 4: EARLY JUD. INTER (18-25) | | |
|Citizens Insurance Co v. Parsons [1881] (19) |- Act not F matter as regulation of trade and commerce: 2 aspects to this power |Intra vires |
| |1) Interprovincial and foreign trade |province |
|Ont. enacts legislation about fire insurance |2) General trade power | |
|policies – is this ultra vires Ont.’s power? |- is P matter as s. 92(13) property and civil rights and (16) local and private nature | |
| |- right to hold or deal with real or personal property and civil right to contract and | |
| |sue and be sued | |
| |- is a pogg power of F, but this residual ie. general power NOT to override explicit | |
| |statutory language | |
| |- way to deal with this in 2 stages: | |
| |1) Whether Act in ? falls w/in any of classes of subjects in s. 92 – no? no validity | |
| |2) If does fall into 92, does the subject of the Act also fall w/in one of enumerated | |
| |classes in s. 91 and is the P power therefore overridden? | |
|Hodge v. The Queen [1883] (21) |- Russell not conclusive proof that liquor in F’s power: Parsons says that subjects |Intra vires |
|H charged with contravening regs made by licence |which in one aspect and for one purpose fall w/in 92 may for another purpose fall into |province |
|commissioners in Ont.: 3 arguments: |91 | |
|1) conflicted with F power over T & C (liquor) |- duties of LBs are local in nature, and power here is to make regs in nature of police| |
|2) P can’t delegate (delegates non potest…) |or municipal regs of a merely local character for the good gov’t of taverns | |
|3) P can’t impose imprisonment (F CLaw power) |- PL has the same authority as the FL – neither is inferior to the other | |
| |- if subject of legislation comes w/in power of PL according to 92(15) and not in | |
| |conflict w/ 91(27), authority to have criminal sanction | |
|AG Ont v. AG Canada (The Local Prohibition |- 1) Was Dominion allowed to enact CTA? |Intra vires |
|Reference) [1896] PC (23) |i. Under pogg? |province |
|- liquor case: Ont. enacted statute that by s. 18 |ii. As concerns the regulation of trade and commerce | |
|gave municipalities authority to prohibit only |- Legis contemplated that there may be cross-over with provincial subjects, so | |
|retail sales of liquor (F enacted Canada |concluding part of s. 91 says that “any matter coming within any of the classes of | |
|Temperance Act which allowed provinces to |subjects enumerated in this section shall not be deemed to come within the classes of | |
|prohibit) – this valid |matters of local or private nature” that is in the jurisdiction of provincial | |
| |legislatures (92) | |
| |- F can legislate in matter of L/P nature where legis is necessarily incidental to | |
| |exercise of powers in 91 | |
| |- s. 94 uniformity: distinction b/w what’s L/P and what has become matter of nat. con. | |
| |- F can’t repeal any prov. statute: only repugnancy can do this – settled by judges | |
|Chapter 5: BEGIN OF ECON REG (25-32) | | |
|Montreal v. Montreal Street Railway [1912] (25) |- Concern about P autonomy: if the F makes laws in relation to matters which in each | |
|Challenge to section of Dominion Railway Act that |province are substantially of local or private interest, upon the assumption that these| |
|regulated through traffic on all P railways that |matters also concern peace, order, and good gov’t of the Dom, there is hardly a subject| |
|crossed F railways |upon which it might not legislate to the exclusion of the provincial legislation | |
|AG Can v. AG Alta (The Insurance Ref) [1916] (25) |- deprives private individuals of their liberty to carry on the business of insurance |Ultra vires |
|Dominion Insurance Act: regulates large insurance |- subjects which in one aspect and for one purpose fall within the jurisdiction of the | |
|companies carrying on business across the country;|provincial legislatures may in another aspect and for another purpose fall within | |
|s. 4 prohibited any F person or corporation from |Dominion legislative jurisdiction | |
|undertaking business of insurance without a | | |
|licence (not P incorp corps) | | |
|Reference re. The Board of Commerce Act, 1919 & |- not enacted to meet special conditions in wartime as this is to continue w/o time |Ultra vires |
|The Combines and Fair Prices Act, 1919 (26) |limit (ie. pogg emergency doctrine) |– not a |
|Danger after war: set up B of Commerce and |- F has power to deal with subjects of D generally provided that aren’t withheld from |matter of |
|Combines Act; purpose to restrict abuses (ie. |powers of P to legislate under 92 |sufficient |
|combines, mergers and hoarding of necessities of |- undo comb and hoarding matters in which F has great practical interest: special circs|national |
|life) – PC |may make usch and interest of paramount and overriding importance as to amt to being |import. |
| |outside of s. 92 | |
| |- this may be so also in times of peace (dev’t of National Concern Doctrine) – also | |
| |seen in Russell, but has to be highly special circs | |
| |- F can’t ordinarily legislate so as to interfere with P and C rights in P if situation| |
| |is normal – has to be special circ | |
|Fort Frances Pulp and Paper Company v. Manitoba |- in special circ, the provision of p.o.g.g for the country as a whole may involve |Intra vires |
|Free Press Company [1923] (27) |effort on behalf of whole nation in which the interests of individuals may have to be |F |
| |subordinated to that of the community in a fashion which requires s. 91 to be | |
|Regulation of prices for newsprint by F when |interpreted as providing for such an emergency | |
|enacted War Measures Act |- s. 91 goes beyond what s. 92 can cover – exceptional circ requires power in state as | |
|Fs allowed to enact this? |whole | |
| |- in outbreak of war, no authority other than central gov’t is in position to deal with| |
| |a problem which is essentially one of statesmanship – only clear evidence that crisis | |
| |has passed would require to justify the judiciary | |
|Reference re Price Brothers (28): F Board of |- split in SCC: differences in values of man vs. state |Against F |
|Commerce declared newsprint to be a necessity and |- shows that individualistic notion was more popular as newly dominant to state power | |
|set a max price that was well below price in US in|notion (in decline) | |
|1920; Price Brothers refused to comply | | |
|Toronto Electric Commissioners v. Snider [1925] PC|- Lord Haldane: |Ultra vires |
|(28) |- pith and substance an act of civil rights, not one that dealt with criminal law |F |
|Industrial Disputes Investigation Act enacted by |matters (not covered by s. 91(27) | |
|F; applied to mining, transportation, and |- also, didn’t fit under p.o.g.g, as 1) not emergency situation, and 2) not a matter of| |
|communications undertakings, and public service |‘general Canadian interest and importance’ (not for gen adv of Canada and not meeting a| |
|utilities; enabled EE / ER dispute resolution and |want which is felt in Dominion; if falls under 92, belongs to P) | |
|strikes |- labour relations more appropriately a subject for provincial legislation | |
| |- pogg to position of a reserve power to be used only in cases of war or similar | |
| |national emergencies: real residuary power of legislation in normal times is now held | |
| |to be contained in the words ‘property and civil rights’ with regard to which the | |
| |legislative power of the provinces is exclusive | |
| |- Specific powers in s. 91 are to be treated as exceptions to the general jurisdiction | |
| |of the provinces to legislate upon property and civil rights | |
|The King v. Eastern Terminal Elevator [1925] (29) |- argument that the attempt to regulate branch of external trade, and local matters are|Ultra vires |
|F Canada Grain Act: facilitated comm. trans |merely ancillary to that main purpose (as 70-80% exported) |F; |
|(especially international) and issued elevators |- F doesn’t have power, in accomplishing their objective, to regulate the provinces in | |
|certs, etc.; any surplus of grain sold by |particular occupations, by a licensing system and otherwise, and of local works and | |
|elevators and to be given to Board |undertakings, however important and beneficial the ultimate purpose of the legislation | |
|- Provision AND statue impugned |may be | |
|- suggest that should make 92(10) decl. that for |- b/c in large part grain is export trade, can regulate it locally in order to give | |
|gen adv of Can – this done |effect to policy | |
|CHAPTER 6 – DEPRESSION (32-40) | | |
|Proprietary Articles Trade Association v. AG |- CI Act and s. 498 made it C offence to participate in combine |Intra vires |
|Canada [1931] PC (32) |- need to adapt the criminal law – “criminal law in its widest sense” |F |
|F Combines Investigation Act and s. 498 of CC |- power extends to make new crimes | |
|Reference re the Regulation and Control of |- don’t always rely on words of 91, 92 and 132: must go back to constitutional project |Intra vires |
|Aeronautics in Canada [1932] PC (32) |- courts to be zealous in upholding enumerated powers, but underlying project reveals |F |
| |that F to be given powers by which uniformity of leg might be secured where matter of | |
|F, pursuant to Convention, enacted leg regulating |common concern for all provinces | |
|of aeronautics |- aeronautics not under 91 or 92, therefore must be a pogg power | |
| |- aerial naviation is class that affects whole public body of Canada – national | |
| |interest and importance | |
| |- also intra vires b/c of duty under Convention, when s. 132 confers upon it full power| |
| |to do so | |
|Reference re Regulation and Control of Radio |- not in 91 or 92, so must be in residual power of pogg |Intra vires |
|Communication in Canada [1932] PC |- is an indivisible subject: can’t divide into P and F components |F |
|Fs have the power to regulate radio? | | |
|AG Canada v. AG Ontario (Labour Convention) [1937]|- this w/in prop and civ rights in 92: how into 91? Pogg or s. 132? |Ultra vires |
|PC (35) |- No national concern doctrine: in order to override the normal distribution of powers |F |
|New Deal Legislation: Limitation of Hours Work |in ss. 91 and 92, Board of Commerce and AG (Ontario) v. AG (Dominion) have made it firm| |
|Act, Weekly Rest in Industrial Undertakings Act, |law that here must be a situation of “extraordinary peril to the national life of | |
|Minimum Wages Act; F entered conventions and |Canada”: this is to be used very sparingly, and this isn’t a situation as such | |
|enacted these 3 statutes expressly to implement |- s. 132: F can enact pursuant to treaty ONLY with P consent if matter w/in P | |
|its treaty obligations |jurisdiction; just b/c executive assents DOESN’T MEAN that this is to be adopted by F | |
| |or P: depends on the area the treaty concerns | |
|AG Canada v. AG Ontario (The Employment and Social|- not special emergency situation – no pogg |Ultra vires |
|Insurance Act) [1937] PC (36) |- s. 91(3) tax measure: F say that this revenue now F property and can therefore do |F |
|F made compulsory insurance against unemploy for |what they want – however, this invades the civil rights of province | |
|workers |- in pith and substance encroaches upon P and C rights | |
|AG British Columbia v. AG Canada (The Natural |- no connection b/w inter-provincial or export trade as governed transactions BEFORE |Ultra vires |
|Products Marketing Act) [1937] PC (37) |products left province |F |
|F regulation of natural products for the benefit |- 91(2) T&C: this power doesn’t permit reg of individual forms of trade and commerce | |
|of producers (marketing and equalization of |confined to province – are local and provincial matters (Eastern Terminal): F can | |
|prices); limited to products of inter-provincial |acquire juris by dealing with enactments in L and P matters by leg. in ext and inter | |
|and export |trade | |
|AG British Columbia v. AG Canada [1937] SCC and PC|- Parliament not restricted by any rule limiting the acts declared to be criminal acts |Intra vires |
|(37) |which would appear to a court of law to be “in their nature criminal”; enactments |F |
|Amendments to C prohibited 1) selling goods at |within scope of this jurisdiction are not subject to review by Courts (Proprietary | |
|prices that discriminated among competitors and 2)|Articles Trade Ass’n) | |
|selling goods at price designed to eliminate |- only req’t is that F not to, in the guise of enacting criminal legislation in truth | |
|competitors |and substance, encroach upon any of the classes of subjects enumerated in s. 92 | |
|AG Ontario v. AG Canada [1937] SCC and PC (37) |- TM can be upheld under s. 91(2):if Dominion has power to create TM rights for |1st: no |
|Dominion Trade and Industry Commission Act 1) |individual traders, difficult to see why power shouldn’t extend to that which is now a |2nd: yes |
|authorized administrative approval for agreements |usual feature of national and international commerce, a national mark (NCD, pogg?) | |
|among businesses and 2) established national TM |- No reason why legislative competence of Dominion shouldn’t extend to creation of | |
|‘Canada Standard’ (valid) |juristic rights in novel fields if can be brought within list of classes in s. 91 | |
|CHAPTER 5: INTERPRETATION (40-53) | | |
|R. v. Morgentaler [1993] SCC (40) |Determining the pith and substance of a law: |Ultra vires |
|Medical Services Act, enacted by the province of |1) Purpose and Effect |P |
|NS; this act made it a criminal offence to perform|i) Legal Effect | |
|therapeutic abortions outside of hospital; CC |ii) Practical Effect | |
|offence outlawing abortions found |- can look beyond 4 corners of legislation: inquire into the social or economic | |
|unconstitutional; P argues that Act in P & S is |purposes which the statute was enacted to achieve, its background and circs surrounding| |
|about delivery of health services and isn’t a CL |enactment, and second form of ‘effect’, ie. the actual or predicated practical effect | |
|sanction |of the legislation in operation | |
|HELD: legal effect, overlap b/w this and former CC|- extrinsic materials allowed to determine background, context, and purpose | |
|provision, legislative debates, etc. find that P &|2) Scope of Applicable Heads of Power | |
|S of this legis is really criminal sanction |i) Criminal Law: exclusive to F: dominant characteristic is prohibition of activity, | |
| |subject to penal sanctions for public purpose (peace, order, security, health, moral) | |
| |- P ALLOWED to impose punishment to enforce valid P law (92(15)) | |
| |ii) Health: hospitals 92(7); medical prof and practice of med 92(13) and (16); health | |
| |care in P generally in all heads of 92 and 92(16) | |
|General Motors of Canada Ltd v. City National |Test for Necessarily Incidental: |Intra vires |
|Leasing [1989] SCC (43) |1) Whether and to what extent the impugned provision can be characterized as |F |
|Challenge to s. 33.1 of F Combines Investigation |intruding into provincial powers | |
|Act which creates civil COA (prop & civ right) |In this case, the next step is to what extent, so that intrusion can be weighed in | |
| |light of possible justification of section | |
| |2) Court must establish whether the Act is valid | |
| |- If scheme not valid, end of inquiry | |
| |- If scheme valid, then court must determine: | |
| |3) Whether imputed provision is sufficiently integrated with the scheme that it can be| |
| |upheld by virtue of that relationship | |
| |- Requires considering the seriousness of the encroachment on provincial powers in | |
| |order to decide on proper standard for such a relationship | |
| |- requires right definition of fit ie. how well the provision is integrated into the | |
| |scheme of the legislation and how important it is for the efficacy of the legislation: | |
| |not same test in all circs | |
| |- must consider degree to which provision intrudes on provincial powers | |
| |Ex. looser test (functional test) may be okay if impugned provision encroaches only | |
| |marginally on other jurisdiction (spectrum from necessarily incidental (strictest) then| |
| |functionally related, the ‘tacked on’ (easiest) | |
|Multiple Access Ltd. v. McCutcheon SCC (45) |- Difficulty arises where when statute may be characterized as coming within a federal | |
|Ontario Securities Act prohibited insider trading |AND provincial head of power ie. “our community life – social, economic, political, and| |
|in shares trading on the Toronto Stock Exchange; |cultural – is very complex and will not fit neatly into our scheme of categories” | |
|Canada Corporations Act had almost identical |- Securities law is one of these domains: no simple dichotomy between company law | |
|provisions, applicable to corporations |character and legislation affecting property and civil rights | |
|incorporated under federal law; shareholder action|- Because of this, must use test of double aspect doctrine | |
|initiated against insiders of Multiple Access |- Double Aspect Doctrine: applicable when contrast between relative importance of 2 | |
|Ltd., a federally incorporated company with |features no so sharp: when, as here, federal and provincial aspects of legislation | |
|respect to trades on the Toronto Stock Exchange; R|roughly equal in importance there would seem no reason to kill one and let the other | |
|argued that OSA couldn’t apply b/c regulation of |live | |
|trading in shares of federal jurisdiction; in | | |
|alternative, rely on doctrine of paramountcy to | | |
|assert Ontario provisions rendered inoperative in | | |
|case of alleged insider trading in shares of | | |
|federally incorporated company | | |
|Commission du Salaire Minimum (Bell #1) (47) |- all matters which are a vital part of operation of an inter-provincial undertaking as|Ultra vires |
|Whether Quebec Minimum Wage Act could apply to |a going concern are matters which are subject to the exclusive legislative control of F|P |
|Bell Telephone; court upheld that QMWA couldn’t |- After this case (Bell #1), valid provincial law couldn’t apply to federal | |
|apply to Bell or other federally regulated |undertakings if it affected a vital part of their operation or management: this test | |
|undertakings operating in the province, even |created larger area of immunity for federal undertakings ie. INTERJURISDICTIONAL | |
|though no federal minimum wage law existed at the |IMMUNITY DOCTRINE | |
|time |NOTE: not entire P law in issue is declared invalid – only inapplicable to F matter | |
|Ontario Public Services Employees’ Union v. AG |IJI controversial: extends to F exclusivity of jurisdiction not available to Ps and b/c| |
|Ontario (47) |in emphasis on jurisdiction, at odds with tendency of modern federalism to allow | |
| |overlap | |
|McKay v. The Queen [1965] SCC (47) |- PL has no power to enact a prohibition of the sort which the bylaw, as construed by |Ultra vires |
|A displayed sign in house in support of candidate |CA contains as such a prohibition would be a law in relation to proceedings at federal |munic (if |
|during period of federal election campaign; |election and not in relation to any subject-matter within provincial power |read in that|
|convicted of violating municipal bylaw that |1) Verba generalia restringuntur ad habilitatem rei vel personae |way) |
|prohibited display of all signs in residential |- If words general and not express and precise, they are to be restricted in fitness of| |
|area |the matter: to be construed as particular if the intention is particular, and must be | |
|HELD: F have IJI in this field, and therefore the |understood as used with reference to the subject matter in the mind of the legislature | |
|court opts to interpret the P statute in the intra|and limited to it | |
|vires way |2) If words in statute are fairly susceptible of 2 constructions or which one will | |
| |result in statute being intra vires and other will have contrary result, the former is | |
| |to be adopted | |
|Commission de la Sante et de la Securite du |- F given exclusive jurisdiction over labour relations and working conditions when that| |
|Travail v. Bell Canada (Bell#2) [1988] SCC (48) |jurisdiction is an integral part of its primary and exclusive jurisdiction over another| |
|One of trilogy of cases dealing with application |class of subjects, as is the case of labour relations and working conditions in s. | |
|of provincial health and safety laws to federal |91(29) an 92(10) a,b and c | |
|undertakings; this case dealt with Quebec law |- This P and E jurisdiction precludes application of these undertakings by P statute | |
|giving a right to protective reassignment to |relating to labour relations and working conditions, since such matters are essential | |
|pregnant worker at Bell Canada |part of management and operation of such undertakings: reflects the theory of IJI | |
| |- works w/in the special and exclusive jurisdiction of F still subject to provincial | |
| |statutes, provided however that the application of these PL doesn’t bear upon those | |
| |subjects in what makes them specifically of federal jurisdiction | |
| |- Theory of IJI, contrary to criticism, doesn’t confer on Parliament any power that it | |
| |doesn’t already have, since it is an integral and vital part of its primary legislative| |
| |authority over federal undertakings | |
|Ross v. Registrar of Motor Vehicles [1975] SCC |- subscribe to narrow approach of doctrine of paramountcy (usually try for dual aspect |Intra vires |
|CC allowed TJ to make order prohibiting the A from|or necessarily incidental, but in some areas, exclusive F req’d) |P; no actual|
|driving a car in Canada at all times or some |- narrow approach: P only inoperative if impossible to comply w/ both; express conflict|conflict |
|times; P Act said any person convicted of offence |or impossibility of dual compliance approach | |
|under the sections in CC were suspended for 3 |- NOTE: like with IJI, finding of doc. of para won’t render P law invalid: it’s | |
|months; R given rest by TJ (not suspended) |suspended so that if F law repealed, conflict disappears and P kicks in again | |
|Multiple Access Ltd. v. McCutcheon [1982] SCC |- no true repugnancy to give rise to the doctrine of paramountcy in case of merely |No conflict |
|OSA vs. Can Crops Act |duplicative provisions since it doesn’t matter which statute is applied | |
| |- the legislative purpose of F will be fulfilled regardless of which statute is invoked| |
| |by a remedy-seeker; application of P law doesn’t displace the legislative purpose of | |
| |Parliament | |
| |- Conflict only applies in situation where the same citizens are being told to do | |
| |inconsistent things: compliance with one is defiance of the other | |
|Bank of Montreal v. Hall [1990] SCC (51) |- question is whether there is an actual conflict in operation between the BA and the |Conflict |
| |LCRA in sense that legislative purpose of Parliament stands to be displaced in the | |
|H defaulted on loan pursuant to s. 88 of federal |event that the appellant bank is required to defer to the provincial legislation in | |
|Bank Act; property was seized pursuant to BA; bank|order to realize on its security | |
|didn’t follow procedures established under s. 27 |- can’t do both concurrently (said that all LCRA required was notice) | |
|of P Limitation of Civil Rights Act |F’s legislative purpose to create security interest susceptible of uniform enforcement | |
| |by the banks nationwide: didn’t want regime made to depend solely on P legis governing | |
|NOTE: difficult to reconcile with Ross |the realization and enforcement of security interests | |
|Law Society of BC v. Mangat (52) |- at superficial level, one may comply with both, but incompatibility of legislative |Conflict |
|Conflict b/w provision in BC Legal Profession Act |purposes approach to paramountcy renders dual compliance impossible | |
|that prohibits non-lawyers to appear as counsel |- purpose in IA provision was to establish an informal, accessible, and expeditious | |
|before IRB and federal Immigration Act that |process: where there is an enabling federal law, the provincial law cannot be contrary | |
|permits this |to Parliament’s purpose, and would be impossible for judge or official to comply with | |
| |both acts | |
|Rothmans, Benson & Hedges Inc. v. Sask,[2005] SCC |- court subscribes to BOTH Ross (impossibility of dual compliance) and Hall |No conflict |
|(52) |(incompatibility of legislative purposes) approaches | |
|Federal TA allows display, sale and marketing of |- test: | |
|tob; s. 6 of provincial TCA bans all advertising, |1) Can a person simultaneously comply with s. 6 of TCA and s. 30 of TA? | |
|display and promotion of tobacco or |- Yes they can: 1) can not admit anyone under 18 on premises or 2) not displaying | |
|tobacco-related products in any premises in which |tobacco or tobacco-related products | |
|persons under 18 are permitted |2) Does s. 6 of TCA frustrate Parliament’s purpose in enacting s. 30 of TA? | |
| |- NO: both general purpose of P (to address national public health problem) and | |
| |specific purpose of F (to circumscribe the TA’s general prohibition on promotion of | |
| |tobacco products set out in s. 19) remain fulfilled | |
|CHAPTER 9: POGG (53-63) | | |
|AG Ontario v. Canada Temperance Foundation [1946] |True test must be found in real subject matter of legislation: if it is such that it | |
|(53) |goes beyond local or provincial concern or interests and must from its inherent nature | |
|modern interpretation of pogg power has been |be the concern of the Dominion as a whole (like Aeronautics and Radio cases), then it | |
|re-emergence of national concern doctrine, first |will fall within the competence of Dominion Parliament as matter affecting pogg, though| |
|introduced by Lord Watson in Local Prohibition |may in another aspect touch on matters specially reserved to the provincial | |
|case: modern articulation of NCD in this case |legislatures | |
|Johannesson v. Rural Municipality of West St. Paul|- field of aeronautics is one which concerns the country as a whole; it is an activity | |
|[1952] (54) |which must from its inherent nature be a concern of the Dominion as a whole | |
|Challenge to municipal by-law controlling location|- NCD | |
|of airport | | |
|Munro v. National Capital Commission [66] (54) |Court foundarguedter of national concern"pital Region under ACt ing and zoning | |
|Munro’s property was expropriated under National |legislation similar to that covered by provincial Planni that 1) national concern | |
|Capital Region Act |doctrine had been adopted in Johannesson and 2) development of National Capital Region | |
| |under Act was a “single matter of national concern” | |
|Reference re. Anti-Inflation Act [1976] SCC (55) |Pogg power: 1) Does inflation amount to emergency or exceptional peril situation? | |
|F Anti-Inflation Act established system of price, |- Laskin for majority said that scope of compulsory app of AIA didn’t amt to non-ER | |
|profit and income controls; applied to private |- inflation too broad a subject to be dealt with by single authority – need F/P co-op | |
|sector firms with more than 500 employees, members|- preamble declaring it a serious national concern: words used don’t matter so much | |
|of designated professions, construction firms with|it’s the actually circs: not determinative but basis for assessing gravity of circs | |
|>20 employees, and other PrSFs declared to be of |- use of extrinsic evidence: can’t determine the answer, but is compelling proof of ER | |
|strategic importance to scheme; binding on F |situation | |
|public sector, but applicable to public sector of |2) Inflation has become a national concern | |
|each province only if an agreement was made |- argument that legis of excep character b/c is monetary policy (F power) which enables| |
|between F and P |it to act as springboard – NOTE: NOT invoking T&C power here (that’s T for whole D) | |
| |- not as though F are opening an area of leg authority that they don’t have | |
| |DISSENT | |
| |- local T&C is w/in P authority, short of national ER: AIA not ancillary | |
| |- argument of NCD: beyond local P concern and is concern of Canada as a whole | |
| |- not so, as this would be compellingly extended to provincial public sector, and would| |
| |have wide control over virtually everything these powers entail; would belong to | |
| |Parliament permanently: only a constitutional amendment would reduce them | |
| |- inflation a subject that would usurp too much of P’s powers – no singleness – can’t | |
| |be aggregate | |
| |- not just to look at intent and purpose of provisions, but the effects | |
| |- ER situation: diff’t from NCD: this only temporary | |
| |- HAS to be explicit and an unmistakeable signal in explicit terms that this ER legis | |
| |- fact that doesn’t apply to P public sector except by consent weakens ER argument | |
|Hauser (59) – NCD applied |regulation of drugs not under F criminal power, but under pogg as was new problem that | |
| |didn’t exist at time of Confederation, and didn’t come within matters of merely local | |
| |or private nature in province, fell within ‘residual power’ like radio or aeronautics | |
|Schneider: |- Said was a local or provincial problem and not one of national concern: failure of |Intra vires |
|Heroin Treatment Act of BC |one province to provide treatment facilities doesn’t endanger interest of another |BC |
| |province | |
| |- heroin dependency, distinct from traffic in narcotic drugs, wasn’t a matter falling | |
| |within F pogg | |
|R. v. Crown Zellerback Canada Ltd [1988] SCC |- F’s have authority in their waters, in waters of P that effect poll to fisheries, and| |
|s. of Ocean Dumping Control Act, prohibits dumping|dumping in P waters that effect P in F waters | |
|of any substance at sea, defined as including |- not under heads of power – look to pogg and NCD | |
|internal waters of Canada other than fresh waters;|- 4 conclusions about NCD: | |
|this act to regulate dumpings at sea in order to |1) NCD is separate and distinct from ER of the pogg power, which is diff’t as is | |
|prevent various kinds of harm to marine env’t; |necessarily legislation of a temporary nature | |
|provisions indicate that Act is concerned with |2) NCD applies to both new matters which didn’t exist at Confederation and to matters| |
|marine pollution and its effect on marine life, |which, although originally matters of a local or private nature in a province, have | |
|human health, and the amenities of the marine |since become matters of national concern | |
|env’t |3) For matter to qualify as national concern in either sense must have singleness, | |
| |distinctiveness and indivisibility that clearly distinguishes it from matters of | |
|TEST for NCD: |provincial concern and scale of impact on provincial jurisdiction that is reconcilable | |
|1) Has it become a national concern? |with fundamental distribution of legislative power under Constitution | |
|2) Has it attained req’d degree of singleness, |4) In determining whether matter has attained required degree of singleness, | |
|distinctiveness and indivisibility? |distinctiveness, and indivisibility that clearly distinguishes: what is the effect on | |
|3) Provincial inability illustrates this |extra-provincial interests of a provincial failure to deal effectively with the control| |
| |or regulation of the intra-provincial aspects of the matter – provincial inability test| |
| |DISSENT | |
| |- pollution wide subject that would be huge F domain | |
| |- NCD: doesn’t have S, D and I that clearly distinguishes it from P concern | |
|CHAPTER 10: ECONOMIC REG (63-81) | | |
|Black and Co. v. Law Society of Alberta [1989] SCC|- Dominant intention of drafters of BNA Act to establish “a new political nationality | |
|(63) |and, as counterpart of national unity, the creation of a national economy” | |
|challenge to rule of LSA prohibiting partnerships |- creation of central gov’t, trade and commerce power, s. 121 an building of | |
|b/w resident and non-resident lawyers – rule was |transcontinental railway expected to help forge this economic union (this section one | |
|to prevent Toronto based firm from opening branch |of pillars of Constitution scheme for achieving economic union) | |
|office in Calgary; argue this violates s. 6 |- word ‘free’ in this section held to mean “without impediment related to the | |
|mobility rights |traversing of a provincial boundary” | |
| |-this same language also seen in A-G Man v. Manitoba Egg Poultry Ass’n (Laskin) | |
|s. 6 is a source for national economy |- concerns about P boundaries played part in entrenchment of interprovincial mobility | |
| |rights in s. 6(2) | |
|Canadian Egg Marketing Agency v. Richardson [1998]|- Terms of s.6 suggest that this right not violated by legislation regulating any |Intra vires |
|SCC (64) – s. 6 revisited |particular type of economic activity, but the effect of such legislation on fundamental|– P&S didn’t|
|Exclusion of egg producers in NWT from Canada’s |right to pursue a livelihood on an equal basis with others |effect |
|national egg marketing scheme; producers in NWT |- tension b/w s. 91 and 92 and s. 6 and further by s. 121 (economic union) |mobility |
|prohibited by law from marketing or exporting eggs|- s. 6 mobility rights are NOT source of economic regulatory power – for individuals |rights |
|inter-P or internat. |only | |
|II. Provincial Powers Over Economic Reg | | |
|A. Agricultural Products | | |
|Carnation Co. Ltd v. Quebec Agricultural Marketing|- transaction may take place within a Province and yet not constitute an “intraP” |Intra vires |
|Board [1968] SCC (65) |transaction which would be subject to P control (Ontario Reference) |P |
|P board determined price to be paid and had power |- Not the possibility that these orders might AFFECT A’s interprovincial trade which | |
|to negotiate with buyer of milk for the price to |should determine their validity, but whether they were made IN RELATION TO the | |
|be paid to producers; buyers buy the milk in Q, |regulation of trade and commerce | |
|process in Q, and sell major part outside of Q |- Once a statute aims at “regulation of trade in matters of interprovincial concern” it| |
| |is beyond the competence of a Provincial Legislature | |
| |- this case, entire transaction took place w/in province, with only possibility of | |
| |interP effect to trade | |
|AG Manitoba v. Manitoba Egg and Poultry |- each transaction and reg had to be examined in relation to ow n facts and in |Ultra vires |
|Association [1971] SCC |determining validity of legislation, issue not as to whether might affect the |Man |
|Response to inter-P chicken and egg war, where O |interprovincial trade and commerce of the A company, but whether it was made in | |
|had surplus of eggs and Q had surplus of chickens,|relation to the regulation of interprovincial trade and commerce | |
|and each attempted to reg the surpluses of each of|- this plan not only affects interprovincial trade in eggs, but it aims at regulation | |
|these goods; Man effected by their leg as innocent|of such trade | |
|bystander, so made replica of law in Man and posed|-Laskin: also ultra vires scheme at issue in this case directed at goods coming from | |
|it as a reference |outside the province (dist from Carnation, Home Oil, Shannon) | |
| |- not to say that goods coming INTO province not be subject to same controls in, for | |
| |example, retail distribution to consumers as apply to similar goods produced in | |
| |province – provinces allowed to have such controls | |
|Burns Goods Ltd. v. AG Manitoba [1975] (67) |- had effect of prohibiting processors from purchasing hogs from producers in another |Ultra vires |
|Man. hog marketing scheme that req’d that all hogs|province except through agency of Board, was u- - attempt to regulate the |Man |
|(from in and out of P) slaughtered in province by |interprovincial trade in hogs | |
|processor be purchased from Board | | |
|Re Agricultural Products Marketing Act [1978] SCC |- Carnation: P jurisdiction over undertakings where primary agricultural products are | |
|(67) |transformed into other food products – conclusion not diff’t even if whole production | |
|- Legis package constituted solution worked out |had been going into extraP trade | |
|through F – P cooperation to problems of |- P may not make use of their control over local undertakings to affect extraP | |
|regulating agri. marketing |marketing, but doesn’t prevent use of P control to complement federal regulation of | |
|- regulating the marketing of eggs in Canada: |extraP trade | |
|provided for sharing of interprovincial and export|A F reg scheme which doesn’t directly impose customs charge but through price fixing | |
|market by allocating quotas to each P and to each |scheme, designed to stabilize marketing of products in intraP trade, seeks through | |
|egg producer |quotas, paying due regard to P production experience, to establish orderly marketing in| |
|- Ont.set quotas on eggs to be marketed intraP |such trade cannot be a violation of s. 121 | |
|that were identical to quotas in nat program |- Indicates greater degree of judicial deference in reviewing scheme that imposes | |
| |barriers to free movement of goods b/c of joint F-P action | |
| | | |
|B. Natural Resources | | |
|Canadian Industrial Gas and Oil Ltd v. Gov’t of |- held that this indirect tax and not w/in P juris: this changed by s. 92A of CA 1982 |Ultra vires |
|Sask [1978] SCC (69) |- effect is that P sets floor price for Sask oil in interP and internat markets in a |P |
|Sask imposes mineral income tax which allows the P|sense | |
|to acquire the benfit of the increases in value of|- P legis authority doesn’t extend to fixing the price to be charged or received in | |
|oil produced in P above set basic well-head fixed |respect of the sale of goods in the export market – involves reg of interP trade and | |
|by statute (same figure that existed before |trenches upon s. 91(2) | |
|increase in world prices or oil) |- diff’t from Carnation where effect of Regs to increase cost of milk purchased in Q | |
|- Effect that producers had to ‘indirectly tax’ |and processed there, mostly for sale outside Q indirectly affected Carnation’s export | |
|consumers to make a profit |trade in sense that costs of production increased | |
|- important that 98% of all oil produced destined |- here legislation is directly aimed at production of oil destined for export and has | |
|for foreign and inter-P export |effect of regulating the EXPORT PRICE since producer effectively compelled to obtain | |
| |that price on the sale of his product – ie. price fixing of good in ex market | |
|Central Canada Potash Co. Ltd. v. Gov’t of Sask |- Sask had in view regulation of marketing of potash through fixing of minimum selling |Ultra vires |
|[1979] SCC (70) |price applicable to permitted production quotas – only market for which the schemes had|P |
|Sask instituted potash prorationing scheme in 1969|any significant was the export market | |
|in response to facing possible trade sanctions by |- True that production controls and conservation measures with respect to natural | |
|US; almost all of its potash sold outside the |resources in P are ordinarily matters within P legislative authority (Ontario Egg Ref) | |
|province, with about 64% in US; scheme controlled |- Situation diff’t where province establishes marketing scheme with price fixing as its| |
|production through licences |central feature | |
| |- Has been held that P legis. authority doesn’t extend to control or reg of marketing | |
| |of P products, whether minerals or natural resources, in inter-P or export trade (Re | |
| |Grain Marketing Act, Lawson, Canadian Industrial Gas) | |
|Ontario Hydro v. Ontario (Labour Relations Board) |- Canada Labour Code applied to EEs employed on or in connection with those nuclear |Fed juris |
|(71) |facilities; sources of federal jurisdiction were declaratory power in s. 92(10)(c) and |upheld |
|Proper juris to issue certs for collective |pogg clause | |
|bargaining for employees at nuclear electrical |- s. 92A amendments: granted province additional powers over natural resources | |
|generating stations |- arouse out of concerns of F intervene w/ natural resources, seen in Canadian | |
|- 92A doesn’t include by virtue of 92(10) or |Industrial Gas & Oil Ltd and Potash: severe limits on provincial power over resources | |
|general power of pogg, over “all works and |that are mainly exported out of province as well as provincial power to tax these | |
|undertakings constructed for the production, use |resources | |
|and application of atomic energy” – includes |- 92(A)(1): restating provincial jurisdiction over resources – one of mainstays of | |
|management of these facilities, displacing any |provincial power | |
|management powers P might otherwise have had under|-Then goes on to authorize provinces to legislate power in the area, as well as to | |
|s. 92A and vital part of power of management is |permit indirect tax in respect of resources so long as such taxes don’t discriminate | |
|power to regulate labour relations |against other provinces | |
| |- Other issues, such as generation, production, and exporting of electrical energy: in | |
| |most of provinces, generation and distribution of electrical energy is done by same | |
| |undertaking, UNLESS purely F undertaking by connection to other P | |
|III. Fed Powers of Economic Reg | | |
|The Queen v. Klassen [1960] Man. CA (72) |- use necessarily incidental method of interpretation for this scheme (impugned section|Intra vires |
|Canadian Wheat Board Act; s. 16(1) prohibited |only) |F |
|delivery of grain to grain elevator contrary to |1) Impugned provision | |
|provisions of Act; total quantity of grain |- provision does certainly violate P and C rights of P: serious interference with | |
|delivered by producer in year couldn’t exceed |intraP business of grain and operators of flour, feed, and seed-cleaning mills | |
|quota established by CWB; any elevator and many |2) Constitutional validity of scheme | |
|other of building used in grain trade were “works |- interference with property and civil rights which results under legislation is | |
|for the general advantage of Canada” pursuant to |incidental and ancillary to achievement of purpose of Act, the P & S of which is | |
|s. 92(10)(c) and 91(29); K argues that as all of |provision of an export market for surplus grains, a matter which has undoubtedly | |
|his wheat for intraP trade, not relevant for him –|assumed a national importance | |
|not for the general adv of Can b/c he didn’t |- in order to ensure equality of delivery opportunity (basic feature of scheme), need | |
|engage in export / interP trade, so CWBA not valid|this legis to extend to intraP business, as not fair for one guy in intraP trade to be | |
|for him |able to sell as much as he wants where others, b/c in interP and export trade have | |
| |limits | |
| |- w/o reg of intraP, whole system would be unworkable | |
|Caloil Inc. v. AG Canada [1971] SCC |- Regs clearly show thar impugned enactment is a control of the imports of a given |Intra vires |
|to enforce energy policies, F passed regs that |commodity to foster dev’t and utilization of Canadian oil resources |F |
|prevented oil importers from transporting any gas |- Restriction of distribution of imported product to denied area intended to reserve | |
|across line running NS through Ont. and Que; aim |market in other areas for benefit of products form other Provinces of Canada | |
|to provide market for western Canadian oil west of|- Interference with local trade restricted as it is to imported commodity, is integral | |
|line and to restrict sale of imported oil to |part of control of imports in furtherance of extra-provincial trade policy and can’t be| |
|eastern half of Canada |termed “an unwarranted invasion of provincial jurisdiction” | |
| |- interference of P & C rights is merely necessarily incidental to scheme where there’s| |
| |interP or international flow of goods and this is what’s being targeted | |
|Dominion Stores Ltd. v. The Queen (74) |Parsons, Eastern Terminal, Lawson, AG BC v. AG Can restrict s. 91(2) power of T&C to |Ultra vires |
|Canadian Agricultural Products Standards Act |trade in international and interprovincial sense: F not empowered to regulate local |F |
|(CAPSA); mandatory provisions applied only to |trade simply as part of scheme for reg of inter-P and international trade | |
|products moved in interP and internat trade; |- Therefore, Parliament may not regulate, in the guise of regulating trade and | |
|wholly intraP sales could be caught only if seller|commerce, reach in to fields allocated by provinces by s. 92(13) and (16) and regulate | |
|voluntarily chose to use the trade name and |trading transaction occurring entirely within province | |
|thereby subject to F standards |Ie. needs to be a flow of goods | |
|B. General Regulation of Trade | | |
|Caloil |Expansion of necessarily incid. doctrine: still requires that good move across P | |
| |borders | |
| |- need to find a national economical health policy – general regulation of trade power | |
|Macdonald v. Vapor Canada [1977] (75-76) |- attempt by Laskin to revive its use from John Deere, Parsons, Dominion Trade | |
|Not used in this case, but discussed |- opened door to permit new justice for F reg of economic matters and doctrine of gen. | |
| |reg of trade subsequently surfaced in other cases | |
|Labatt Breweries of Canada Ltd. v. AG Can (76) |2nd branch of Parsons |Ultra vires |
|regs prescribing minimum and maximum alcohol |- was not of general national concern is reg of single trade or industry: clear that |F |
|content for beer marketed as “light beer” |neither national ownership or trade or undertaking or even national advertising of its | |
|(targeted other foods as well) |products will alone suffice to authorize imposition of fed trade and commerce | |
| |legislation | |
|Majority looked first at: |Laskin, dissent | |
|1st branch of Parsons: interP and foreign trade |- Rested his judgement noy on labelling provision, but under general trade power | |
|- not so here: wholly w/in P |- F should be able to “fix standards that are common to all manufactures of foods…to | |
| |equalize competitive advantages in the carrying on of businesses concerned with such | |
| |products” | |
| |- support for this power under s. 121 of CA 1867 as well, which precludes interP | |
| |tariffs, marking Canada as whole as economic union | |
|AG Canada v. Canadian National Transportation Ltd |Dickson would’ve supported under general trade power – would encroach P power: |Intra vires |
|[1983] SCC (77) |- different situation occurs where what is at issue is general legislation aimed at the|F: upheld |
|F’s ability to initiate prosecutions for offences |economy as a single integrated national unit rather than as a collection of separate |under CL |
|under F Combines Investigation Act; argument was |local enterprises |power |
|that prosecution of criminal offences was power |-this legis is qualitatively diff’t from anything that could practically or | |
|that belonged to P under s. 92(14) respecting |constitutionally be enacted by individual province, either separately or in combo | |
|administration of justice within P |- the focus of such legislation is on the general, though its results will be | |
| |manifested in particular local efforts any one of which may touch upon “property and | |
| |civil rights in the province” but its P&S will be matter of general interest throughout| |
| |the dominion | |
|General Motors of Canada Ltd. v. City National |In MacDonald, Laskin had 3 hallmarks of validity of legis under 2nd branch (adds 2): |Intra vires |
|Leasing [1989] (77) |1) Impugned legislation must be part of general regulatory scheme |F |
|s. 31.1 of federal Combines Investigation Act |2) The Scheme must be monitored by continuing oversight of a regulatory agency | |
|creates a civil COA for certain infractions of |3) Legis. must be concerned with trade as a whole , NOT a particular industry | |
|CIA; makes section constitutionally suspect, as a |4) Legis should be of a nature that the Ps jointly or severally would be | |
|civil cause of action is within domain of |constitutionally incapable of enacting; and | |
|provinces to create |5) Failure to include one or more P or localities in the legislative scheme would | |
|Case good example of applying NI doctrine |jeopardize the successful operation of the scheme in other parts of the country | |
|Kirkbi AG v. Ritvik Holdings Inc. [2005] SCC (79) |1) Does s. 7(b) Encroach on Provincial Powers? |Intra vires |
|s. of TM Act allows civil COA |- Encroaches on important provincial power, intrusion minimal |F |
|- necessary to question validity of TM Act as well|2) Validity of Fed TM Act | |
|– NI test applied |- here go through 1-5: is part or reg scheme, scheme monitored, concerns trade as | |
| |whole, Ps would be incapable of enacting, failure of P would jeopardize it | |
| |3) Extent of Integration | |
| |- determine appropriate test of “fit”: 1) how well the provision is integrated into | |
| |scheme of legislation and 2) how important it is for efficacy of legislation: (City | |
| |Nat. Leasing) | |
|CHAPTER 11: CRIMINAL LAW (81-91) | | |
|1. Federal powers Over Criminal Law | | |
|Reference Re. Validity of s. 5(a) of the Dairy |- what is crime: act which the law, with appropriate penal sanctions, forbids; properly|Ultra vires |
|Industry Act (Margarine Reference) [1949] SCC |look for some evil or injurious or undesirable effect upon the public against which the|F: not valid|
|Section 5(a) of Dairy Industry Act impugned, which|law is directed |CL |
|reads that no person no person shall import, |- That effect may be in relation to social, economic, or political interests, and the | |
|manufacture, etc. any margarine or butterine |legislature has had in min to suppress the evil or to safeguard the interest threatened| |
|manufactured from any fat other than milk or cream|- not just ‘bad behavior’, but is prohib that leg can be used as device to effect + | |
| |result | |
| |- REQ’T #1: Is the prohibition then enacted with a view to a public purpose which can | |
| |support it as being in relation to criminal law? | |
| |- Public peace, order, security, health, morality: examples of legit. public purposes | |
| |- P&S has to be this legit. public purpose: can’t be colourable attempt to control P | |
| |juris | |
| |- REQ’T #2: formal req’ts of prohibition and penalty | |
|Boggs v. The Queen [1981] (82) |Example of F law that met formal req’ts of CrL prohibition and penalty invalid b/c of | |
| |absence of CL purpose (other than Margarine) | |
|Dominion Stores Ltd. v. The Queen (82) |Economic reg enforced by crim sanctions failed to meet CL purpose | |
| |- this found to be marketing leg with no criminal purpose | |
|Labatt Breweries (82) |Same here: no consumer protection purpose | |
|RJR MacDonald Inc. v. Canada (Attorney General) |1) Public interest / concern targetted |Intra vires |
|[1995] SCC (82) |- ‘health’ not enumerated head under CA 1867: given amorphous nature of health as |F for CL |
|Tobacco Products Control Act enacted by parliament|constitutional matter and resulting fact that Parliament and prov legs may both validly|purposes; |
|in 1988; purpose of Act in s.3 to “provide a |legislate in the area, important to emphasize plenary nature of criminal law power |later found |
|legislative response to a national public health |- Margarine Reference: protection of health is one of ‘ordinary ends’ served by |to violate |
|problem of substantial and pressing concern and to|criminal law, and CL power may validly be used to safeguard the public form and |s. 2(b) of |
|a) protect health of Canadians b) to protect young|“injurious or undesirable effect” |Charter |
|persons and c) to enhance public awareness of |- Scope of feds to create criminal legis with respect to health matter is broad, and | |
|hazards”; Act prohibited all advertising and |circumscribed only by req’t that legislation must contain prohibition accompanied by | |
|promotion of tobacco products offered for sale in |penal sanction AND must be directed at legitimate public health evil | |
|Canada; argument that was in P jurisdiction over |- if P&S of Act is for CL purposes ie. public health, it’s valid | |
|advertising (92(13)(16)) |2) Penal sanction - yes | |
| |Other notes | |
| |- def’n of Cr L is “not frozen as of some particular time”: power to create new crimes | |
| |- can use a circuitous path to accomplish its goals as long as goals constit. valid | |
| |- can have exemptions (in this case for foreign tobacco) | |
|RJR MacDonald: where C purpose found, deviation |presence of exemptions didn’t preclude finding that legis was criminal law | |
|from form allowed | | |
|Cosman’s Furniture [1976]: same as above |-regs setting out standards of baby’s cribs in Hazards Products Act were found to be | |
| |valid exercise of CLP as were directed at safeguarding health and security of infants | |
|Hydro-Quebec: SCC same as above - regs |went even further in finding that reg scheme with large measure of administrative | |
| |discretion satisfied req’s of criminal law | |
|Zelenski [1978] SCC: Ancillary civil remedies have|provision of CC authorizing court to order A found guilty of indictable offence to pay | |
|also been upheld under criminal power: |compensation to victim was upheld | |
|Goodyear Tire: provision allowing cts to make |departure from form has been allowed where purpose of law is prevention of crime | |
|order prohibiting repetition of comp. offences | | |
|Swain: S. of CC that provided for detention in |While acknowledged that criminal committal provisions were not designed to impose | |
|provincial mental health facility of persons |punishment, Court found that they were a valid exercise of preventative branch of | |
|acquitted of offence for insanity reasons IV |Criminal law power | |
|R v. Hydro-Quebec [1997] SCC (84) |- env’t not under national concern doctrine b/c no singleness |Intra vires |
|F Canadian Env’tal Protection Act which |- only qualification to F plenary power over Claw is that can’t be employed colourably |F |
|established process for regulating the use of |1) Purpose | |
|toxic substances |- has to be legitimate: listed purposes in Margarine not exhaustive: RJR not frozen | |
|DISSENT: 2 criteria: |- purpose of CL is to protect our fundamental values | |
|1) Must contain prohibitions backed by penalties|- can regulate the env’t: is a public purpose in Margarine, and is a major challenge of| |
|- doesn’t fit in here: no probhib, just series of |our time that reqs action | |
|prohibited substances: no definition of offence |- NCD diff’t from CL power: CL aimed at some public evil that F wishes to suppress | |
|- administered not by POs |- legitimate use of CLP isn’t an encroachment on P power, though may effect matters | |
|- provinces exempt |falling in P ambit | |
|- just broad delegation of regulatory authority to|- note that nothing precludes P from using 92 powers to reg and control pollution | |
|G in C – regulatory in nature |- find in this case that this not attempt to REGULATE substances: it’s a limited | |
|2) Must be directed at a “legitimate public |prohibition, which is enforced by penal sanction and undergirded by valid C objective –| |
|interest” |valid Cr Leg | |
|- acknowledge that may fit in here |- not concerned with whether the prohibs incidentally affect property and civil rights,| |
| |but whether prohibs are directed at a public evil | |
|Reference Re. Firearms Act (Can) 2000 SCC 87 |1) Said that the law in pith and substance is directed to enhancing public safety by | |
|- challenge made on basis that the scheme was |controlling access to firearms through prohibitions and penalties – this brings it | |
|regulatory rather than criminal legislation b/c of|under CLP | |
|complexity and discretion given to Firearms Off. |- regulatory aspects secondary to its primary CL purpose: the intrusion of the law into| |
| |provincial jurisdiction over property and civil rights is not so excessive as to upset | |
| |balance of federalism | |
| |2) CLP: gun control traditionally considered valid CL b/c guns are dangerous and pose| |
| |a risk to public safety – law limited to restrictions which are directed at safety | |
| |purpose | |
| |3) Req’t of Criminal form: focused on CC prohibition of firearms w/o license and | |
| |registration cert: no need to resort to necessarily incidental doctrine to uphold the | |
| |licensing and registration provisions as sufficiently integral to larger scheme of | |
| |criminal prohibition | |
| |- Complex regulatory nature of legislation found not to preclude a finding of criminal | |
| |prohibition | |
| |- Offences not defined by administrative body (problem ID’d in Quebec-Hydro): clearly | |
| |stated in Act and CC | |
|II. P Power to Regulate Morality, Public Ord. | | |
|AG Ont. v. Hamilton Street Railway (88) |Sunday observance law F matter in AG Ont. v. Hamilton Street Railway, but federal | |
|Example of conditional legislation: mech for |Lord’s Day Act responded to recog of local values by following general prohibition to | |
|giving recog to local interest in CL matters |work on Sunday with exculpatory clause: “except as provided in any P Act or law” | |
|Morgentaler, Wetendorp (88) |Judicial recognition of concurrent provincial jurisdiction in matters that may also be | |
| |the subject of criminal law (although theses cases, P intruded into F CLP) | |
|Re. Nova Scotia Board of Censors v. McNeil [1978] |- issue is whether province has authority under s. 92 to regulate the exhibition and |Intra vires |
|SCC (88) |distribution of films w/in its own boundaries which are considered unsuitable for local|P |
|NS Theatres and Amusements Act and regs |viewing by a local band on grounds of morality or whether this is matter of criminal | |
|established system for licensing and regulating |law reserved to Parliament under 91(27 | |
|showing of films; req’d that all films be |- impugned legislation constitutes nothing more than exercise of provincial authority | |
|submitted to provincial censor board prior to |over transactions taking place wholly w/in provinces and applies to the “regulating, | |
|their exhibition, the censor board having full |exhibition, sale and exchange or films” whether those films have been imported form | |
|control; sanction for breach of regs was monetary |another country or not | |
|penalty and revocation of theatre owner’s licence |- find this Act not concerned with creating criminal offence or providing for its | |
| |punishment, but rather in so regulating a business w/in the province as to prevent the | |
| |exhibition in its theatres of performances which don’t comply with standards of | |
| |propriety established by Board | |
| |- is preventative rather than penal and authority of P to pass legislation directed | |
| |towards prevention of crime illustrated by Bedard v. Dawson | |
|Bedard v. Dawson (89) |- some held was in relation to property use and drew analogy to control of nuisance |Intra vries |
|challenge to Quebec legislation providing for |- Others relied on broader ground of provincial power to suppress conditions favouring |P |
|closure of premises being used as ‘disorderly |dev’t of crime – gave arguments in MacNeil that were preventative rather than penal | |
|house’; concerned with premises in respect of |- Also established that provinces can legislate with respect to civil consequences of | |
|which there has been CC convictions |crime (Ex. P ban on use of P driver’s licence after conviction for certain CC offences)| |
|AG Canada v. Dupond: (89) |SCC found bylaw were intra vires municipal public domain, a pre-eminently local matter;|Intra vires |
|Mont. bylaw prohibiting parades or other |emphasis on the preventative character of the regs |Municip |
|gatherings that “endanger tranquility, safety, | | |
|peace or public order” ; fines and imprisonment |- Laskin (dissent): viewed bylaw as ultra vires attempt to reinforce criminal law | |
|Westendorp v. The Queen [1983] SCC (89) |- this s. not dealing with control of streets: is clearly targeting specific behaviour |Ultra vires |
|W charged with being on street for purpose of |- activated only by what is said by a person, referable to the offer of sexual |Municip |
|prostitution (by law in Calgary); dealt with reg |services: triggered only by offer of sexual services or solicitation to that end | |
|of use of city streets and included provisions |- This is an attempt to control or punish prostitution: no property question here, no | |
|controlling soliciting or carrying on businesses, |question of interference with enjoyment of public property let alone private property | |
|trades, or occupations on any street; penalties |- can’t use public nuisance as an excuse: would be used for everything, like drug | |
|were fines and imprisonment; later amended bylaw |trafficking | |
|to explicitly target prostitutes (s. 6.1) | | |
|Goldwax v. City of Montreal [1984] Que. CA |- general pattern of upholding provincial laws dealing with public order and morality | |
| |through generous use of doctrine of double aspect rather than finding them to be | |
|Similar bylaw: enacted out of dissatisfaction w/ |intrusion on federal criminal law power | |
|CC provision |- Every so often, however, no valid provincial purpose found and instead, provincial | |
| |law is found to constituted invalid attempt to duplicate, stiffen, or undermine the | |
| |operation of the CL | |
|Rio Hotel Ltd. v. New Brunswick (Liquor Licensing |- while the CL addresses nudity and obscenity, the licence condition is simply directed|Intra vires |
|Board) [1987] SCC |toward the types of entertainment available as a marketing device for the sale of |P |
|Provisions of NB Liquor Control Act which gave the|liquor within the P – double aspect doctrine | |
|Liquor Board the power to attach conditions to |- is related to property and civil rights w/in province & to matters of purely local | |
|liquor licenses regulating and restricting the |nature | |
|nature and conduct of live entertainment in |- Legislature only wants to regulate the forms of entertainment that may be used as | |
|licensed premises |marketing tools by the owners of licensed premises to boost sales of alcohol | |
|- also found no penal consequences |- no direct conflict b/w licence condition and CC: perfectly possible to comply with | |
| |both P and F legislation - concurrency | |
|Starr v. Holden [1990] SCC: |- departed from pattern of finding double aspect or concurrency |Ultra vires |
|Provincial commission set up to investigate |- Emphasis on narrow focus of commission of inquiry on only 2 named individuals and |P |
|allegations of improper financial dealings b/w |incorp in terms of reference of language of parallel CC provisions dealing with | |
|provincial gov’t officials and private |conferring of benefits on public officials, majority of SCC characterized inquiry as | |
|individuals; term of reference of commission of |being “in substance a substituted police investigation and preliminary inquiry with | |
|inquiry were narrow, naming only Starr (head of |compellable accused in respect of a specific criminal offence under s. 121 of CC | |
|charitable organization) and Tridel (real estate |- Inquiry therefore ultra vires as related to criminal law and procedure | |
|company); criminal investigations being conducted | | |
|concurrently | | |
|CHAPTER 14: ABORIGINAL RIGHTS (102) | | |
|Van der Peet [1996] SCC (102) | | |
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