Division of Powers – Analysis Framework
Step 1: go through powers list in the Constitution and see what might apply (what is at stake!!)
Step 2: Is it valid?
a.) Fit in HoP (Pith & Substance)
a. Federal Criminal Law Power
b. Provincial Criminal Law Power
c. Trade and Commerce Branch 1
d. Trade and Commerce Branch 2
e. POGG
f. If not a specific HOP test we covered, then:
i. Colourability (Purpose of legislature) (Morgentaler)
1. Intrinsic evidence
2. Extrinsic evidence
ii. Legal effect of law
1. Incidental effects don’t impact constitutionality of otherwise intra vires law (Global Securities)
g. Remember
i. read powers as mutually modifying (Parsons), the powers speak to one another
1. 91(2): (trade and commerce) ßfeds
a. political arrangements in regards to trade
b. regulation of inter-provincial trade
c. possibly general regulation of trade affecting whole dominion
2. 92(13): (property and civil rights) ß province
a. can regulate private law or particular business or trade
ii. Living tree doctrine (Same Sex Marriage)
1. Prevails over originalist meaning
iii. Principle of Exhaustiveness (Same sex marriage)
1. Everything can be done by some level, the question is simply which level can do it
iv. Cooperative Federalism (Securities)
1. Even though an act might be invalid under a particular HOP – it is open for feds/prov to work together harmoniously so that within the scope of their power “each level of govt properly discharges its responsibility to the public in a coordinated fashion”
b.) If it looks like it is valid but there might be a particular aspect of the regime that goes to far (i.e. something that level of govt if only doing that would not be allowed to do it) ONLY THEN apply ANCILLARY DOCTRINE
a. **main thing to keep in mind is it really integrated or tacked on?
i. Ancillary Doctrine (GM Canada, used in Kitkatla):
1. Extent of intrusion into other level of jurisdiction (question of degree)
2. Look at whether it’s part of generally valid scheme
3. Extent of integration into that scheme
a. If major intrusion and not strongly linked then strike down
b. If minor intrusion and very linked then uphold (as long as the intrusion isn’t too serious)
**if there is another piece of legislation need to go through tests to see if it is also valid
ONCE VALIDITY SORTED then you sort out what to do with the valid law, is there a special circumstance to negate validity
- NOTE: IF only incidental effects or if fits under double aspects doctrine then both can stand
o Double aspects doctrine (CWB): some matters by very nature are impossible to categorize under a single hear of power (CWB) ß i.e. dangerous driving wrt legislation on various aspects
Step 3: IF it is valid need to check if there are any restrictions on the scope of power b/c of IJI
Interjurisdictional Immunity (Canadian Western Bank)
IJI should have limited appliciation but in Bell Canada, Beetz says “classes of subject” in 91 and 92 must be assured a “basic, minimum and unassailable content” (CWB)
“Does the provincial legislation impair the core of a federal power”
a. Triggered when core is impaired
i. Core read narrowly (“essential part of the power”)
b. Applies without any conflict existing
c. Restricted to existing areas:
i. IJI applies to federally regulated industries (interprovincial works undertaking, aeronautics, broadcasting), Indians and lands reserved for the Indians, incorporation power (we didn’t discuss this)
ii. Federally regulated undertakings
1. (CSST v Bell Canada): Occupational Health and Safety legislation will not apply to federally regulated enterprise
2. Interprovincial works or undertakings
a. Whenever part of communications or transportation undertaking extends beyond scope of province as a regular practice, the whole undertaking becomes federal (FastFreight)—look at extent of overlap
b. Communications: functionally integrated? (AGT)
i. Extent of undertaking
c. Transportation: look at actual process of carrying good across boundary (FastFreight)
i. Empress Hotel not sufficiently connected to transportation despite being owned by CPR at the time
d. ACKNOWLEDGE that this test is fact-based and relatively arbitrary!!
iii. 91(4): “Indians, or lands reserved for Indians” (WTF! DISCLAIMER?!)
1. only matters related to “Indian identity”
iv. Incorporation power (status and essential powers of)
d. Note: unlikely that new area will be recognized BUT CWB identifies as problem that it is only applied to protect federal powers
i. Concept of core creates legal vacuums since with IJI doesn’t even allow incidental effects (CWB)
ii. Core indeterminate scope, difficult to define
iii. In another situation, facts could lead to different conclusion!
Step 4: IF BOTH VALID & overlap apply PARAMOUNCY to see if Feds trump
Paramountcy
· Note: overlap itself is not enough to trigger
· Onus on party relying on doctrine to establish that the laws are incompatible by establishing that you cannot comply with both OR that prov application would frustrate purpose of fed
a. Is there a direct contradiction?
i. “one law says yes, the other says no”;
ii. cannot comply with both laws at the same time (Dickson J in Multiple Access)
iii. the citizen is required to do inconsistent things
b. Would the application of a provincial law frustrate the purpose of the federal law?
i. BMO v Hall: SK passed legislation to slow down process of seizing property. Perfectly valid legislation under 92(13) but went against purpose of Bank Act which provides certain remedies to banks.
ii. Mangat: Immigration act stipulates that immigrants can be represented by lawyer or non-lawyer at tribunals. Prov leg stated that power to appear is restricted to lawyers. No direct confrontation (can follow both by having lawyer represent) but frustrated purpose for federal leg. because provincial prohibition applied ti would frustrate Parliament’s intention
iii. Rothmans: Prov leg that prohibits advertising in any shop which u18s have access to. Fed regulation limits advertising but not complete ban like prov leg. Can comply with both. Decided that it does NOT frustrate federal legislation purpose b/c even though stricter can comply with both—actually furthers purpose of restricting tobacco advertising
· If conflict, federal legislation prevails to the extent of conflict and prov law is rendered inoperative to extent of conflict (CWB)
o If federal legislation is repealed, provincial law can resume operation
Step 5: If it is a law that deals with aboriginal ppl
S 88 Indian Act – Effect of referentially incorporating provincial law
· Exceptions:
o Treaties
o Other provisions of Indian Act or laws/regs made re: IA
c. Is the provincial law a law “in relation to Indians”?
iv. Yes: ULTRA VIRES
v. Law of General Application: in theory it applies to everyone in province (disproportionate effects not necessary to look at)
vi. No: doesn’t apply to “Indians qua Indians”. àB
d. Does Act apply of its own power?
e. IJI: does it “touch Indianness”? (IMPAIRS)
vii. Familial relations do go to core of Indianness (Natural Parents)
viii. Hunting and fishing applies according to Lambert CA (Dick) but we do not know what SCC would rule. Core MAY include this.
ix. CMTs do not go to core (though potentially could—proof of who created trees, how culturally important, etc.)
f. Is it incorporated via s 88 of Indian Act? If so, what is the affect?
x. S 88 can apply EVEN IF law impacts core of “Indianness” (Dick)
Step 1: go through powers list in the Constitution and see what might apply (what is at stake!!
Federal (s91) / Provincial (s92) / SharedLaws for Peace, Order and good government
1A. Public Debt and Property
2. Regulation of Trade and Commerce
2A. Unemployment Insurance
3. The raising of Money by any Mode or System of Taxation
4. The Borrowing of Money on 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 Govt of Canada
9. Beacons, Buoys, Lighthouses and Sable Island
10. Navigation and Shipping
11. Quarantine and Establishment and Maintenance of Marine Hospitals
12. Sea Coast and Inland Fisheries
13. Ferries btwn 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. Criminal Law, except the Consitution 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
94A. Old Age Pension ß but these laws shall not affect the operation of any law present or in the future of provincial legislature in relation to any such matter
132. Parliament and Govt of Canada shall have all Powers necessary or proper for performing the Obligations of Canada or of any Province thereof, as Part of the British Empire, towards Foreign Countries, arising under Treaties between the Empire and such Foreign Countries / 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
11. The Incorporation of Companies with Provincial Objects
12. The Solemnization of Marriage in the Province
13. Property and Civil Rights in the Province (in class this includes private law aka K’s, torts, property & bulk of business reg. industry exceptions are those that are federal)
14. The Administration of Justice in the Province, incl. the Constitution, Maintenance and Organization of Prov. Courts, both of Civil and of Criminal Jurisdiction, and incl. 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
92A(1) Non-Renewable Natural Resources and Electrical Energy
93 Education / 95 Agriculture and Immigration ß Province may make laws and parliament may make laws from time to time since parliament makes laws, provincial laws only have effect to extent not repugnant to federal laws
Criminal Law Power
Federal:
s. 91(27): basic authority for criminal law, includes criminal procedure.
s. 91 (28): establishment, maintenance and management of penitentiaries
Provincial:
s. 92(14): administration of justice, maintenance and organization of courts, control over civil procedure
s. 92(15): ability to impose punishments (fine, penalty, imprisonment) for infringing any valid Provincial law. Ability to create regulatory offences
s. 92(6): establishment, maintenance and management of prisons
s. 92 (13): property and civil rights
CRIMINAL LAW – FEDERAL (justified under 91(27)?)
***not rigid, guideline for complex weighing – court will relax form requirement if strong purpose & vice versa; problem wrt vagueness – think about it as an all things considered evaluation, test serves to direct you to two different aspects of situation – must consider the entire circumstances
Requirements:
1. Form - prohibition & penalty (PATA- stomp out monopoly practices)
a. When legislation is so complex, nuanced hard to see that it looks like criminal law – very detailed “minute regulation” (Cromwell in AR)
b. RJR: could also have a penalty with complex exemptions as long as central purpose within criminal law
c. McLachlin (4 judges in a 4/4/1 Assisted Reproduction decision – minority):
i. Says Ottawa can prohibit conduct & provinces promote beneficial BUT this might be a mischaracterization (Jeremy) – better to say difference btwn dominant purpose is prohibiting (stopping, feds) reprehensible conduct & more detailed set of rules (regulations focus on how to stop rather than stopping
2. Substance – criminal purpose (Margarine – colour of butter)
a. Criminal purpose: “public wrong” should be proportional to ‘moral stigma’ of crim law (Margarine)
i. Public purpose in relation to: public, peace, order, security, health, morality
ii. **criminal law = moral stigma; wrongs must carry moral blameworthiness
b. Le Bel & Deschamps (4 in Assisted Reproduction)
i. Criminal law = “stamping out evils” therefore this is about licensing NOT criminal law
ii. Buttresses argument by principle of subsidiarity (everything else being equal, better for govt closest to ppl/ local govt to regulate a matter)
c. YES: strong criminal purpose allows for weak form (i.e. partial prohibition) (RJR – tobacco adverts)