FEDERALISM CHECKLIST
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- Where challenge concerns a particular provision, which forms part of a larger scheme, the P&S analysis begins with the challenged provision.
- Matter of provision needs to be considered in context of larger scheme & its relationship to that scheme.
#1. What’s the “matter”?Its leading feature/true character(Morgantaler)
A. What is the purpose? (What was the legislature’s intent?)
i. Intrinsic materials: Text of the statute, look at the statute as a whole, look at the preamble.
ii. Extrinsic materials: Why have they enacted it? Look at: Legislative history, Hansard, Government reports, motivating events in society, events that occurred during drafting (not coloured like in Morg)
B. What is the effect?
Intrinsic: Legal effect – how the legislation’s terms impact the rights and liabilities of those it regulates
Extrinsic: Practical effect – actual or predicted impact of the legislation in operation, what impact law actually has, revealing the true purpose of the law (to prevent ‘colouring’ like in Morgantaler).
Purpose + effect = matter
#2A.What is the scope of the heads of power that the challenged statute fits in?
- What is entailed/excluded within each of the heads of power that the provision is claimed to be included in?(EI Reference)- “the matter must be able to fit within the scope of a head of power”
- E.g. scope of criminal law power: any law whose dominant characteristic is the prohibition of an activity, subject to penal sanctions, for a public purpose such as peace, order, security, health, or morality
#2B. Where does the matter of the challenged statute fit in the heads of power under the Constitution?
(EI Reference)- “the matter must be able to fit within the scope of a head of power”(tests that have determined scope)
Federal:Provincial:
___ 91(2) Regulation of Trade & Commerce(Parsons, GM)___ 92(7) Hospitals (Insite, AHRA)
___ 91(2A) Unemployment Insurance (EI)___ 92(13) Property & Civil Rights (MA)
___ 91(10) Navigation & Shipping___ 92(14) Maintenance of Justice
___ 91(15) Banking, Incorporation of Banks, Paper Money(CWB)___ 92(16) Matters of Local or Private Nature
___ 91(27) Criminal Law (Morg)___ 92(15) imposition of punishment through
___ 92(10) Federal undertakings (Bell) fine, penalty, imprisonment
___ POGG (COPA, MA, Anti, Old Man, Radio, Aero)
Is it intra vires or ultra vires of the enacting legislature?
YES Law appearsVALID –but if there are concerns of overlapping jurisdiction Double Aspect analysis, see if IJI applies, use jurisprudential tests to determine whether the matter can be justified under a particular head of power.
NO Law is INVALID, but it may still be applicable use ancillary doctrine
Use Tests to determine validity
- Final stage of P&S analysis
- (Hodge)- subjects which in one aspect and for one purpose fall within s. 92, may in another aspect & for another purpose fall within s. 91 and still be valid.
- Used where P&S of legislation have federal and provincial features that are of roughly equivalentimportanceso that neither should be ignored respecting the division of legislative powers.(Multiple Access)
- After determining that there is a double aspect to the legislation, move to tests to determine if the law is operable or applicable.
After the pith and substance analysis proves that the provisionis invalid, it can be saved under the ancillary powers if the provision is at least rationally-functionally connected to the purpose of the VALID Act as a whole.(GM Motors)
1) Can the impugned provision be viewed as intruding on provincial powers, and if so to what extent?
A) Serious Intrusion (SI) __ B) Minimal Intrusion (MI)__
To determine the degree of intrusion:
- 1) What head of power is being encroached upon? What is the scope of that head of power?
- 2) What is the nature of the impugned provision?
- Remedy less intrusive than substantive provision (i.e. criminalizing/penalizing actions)
- 3) Is there a history of legislation (and courts upholding legislation) on the matter in question?
C) NO ___ if impugned provision does NOT intrude, and the legislative regime is valid (step 2), analysis over.
2) Is the legislative regime AS A WHOLE valid?If not, end inquiry. If yes, continue…
(done through P&S analysis of entire Act)
3) How serious is the encroachment on powers of other jurisdictions?
- MI: Rational Functional Test: is the provision functionally related to the general objective of the legislation, and to the structure and content of the regulatory scheme?
YES ___(Legislation is sufficiently integrated & valid)
NO ___(Legislation is invalid, analysis is over)
- SI: Strict Necessity Test: can the enacting body show that the provision in question is necessarily incidental (truly necessary) to the regulatory scheme as a wholei.e. without this provision, does the rest of the act have little purpose?
YES ___(Legislation is sufficiently integrated & valid)
NO ___(Legislation is invalid, analysis is over)
If the power has not been defined through jurisprudence yet, can the const. issue be resolved on some other basis?
- Should IJI apply as a matter of precedent & nature of the power that parties wish to immunize? Ask . . .
A. Is it specific or general head of power?
Specific ___(Proceed to step #2)(CWB- banking) (Bell #2- federal undertaking) (COPA- aero/pogg)
General ___(Analysis over) (Insite)
B. Can you define a core of the head of power?Core: Basic and unassailable minimum content, the minimum necessary to make the power effective for the purpose for which it was conferred
YES ___(Proceed to step #2)
NO ___(Analysis over)(Insite)
- Does the (provincial) law … trench on the protected “core” of a (federal) competence.(COPA/Bell #2)
- Courts will use jurisprudence that has defined what is entailed in the “core” of a federal competence, or define it themselves if it hasn't been already
YES ___(Proceed to step #3)
NO ___(Analysis over)
- Is the provincial law’s effect on the exercise of the protected federal power sufficiently serious to invoke IJI?
- Sufficiently serious: causes impairmentto the federal law
- Adverse consequences that place the “core” competence in jeopardy(Canadian Western Bank).
YES ___(The provincial legislation CANNOT apply to federal head of power).
NO ___(The provincial legislation CAN apply to federal head of power).
- Bell #1 –Enlarged the scope of immunity, introduced the idea of a “core” jurisdiction.
- Bell #2 – Law should be read down. Provincial labour laws do not affect a federal undertaking. IJI applied.
- Canadian Western Bank (provincial law doesn't cause “impairment of the core” of federal power, provincial law may be valid IJI does not apply.
- COPA –Prov. law trenches on core of aeronautics (when/where aerodromes should be built IJI applies
- InSite (PHS)- IJI doctrine does not extend to provincial health power (too amorphous/large to define core)
IS THE FEDERAL HEAD OF POWER IMMUNE FROM VALID PROVINCIAL LEGISLATION?
YES ___NO___
If YES, “Read down” provincial or federal statutes to protect the core of the impugned jurisdiction
1. Provisions have been found valid (through P&S or Ancillary)
2. Is there a conflictbetween fed. & prov. laws through a double aspect, incidental effect, or ancillary power?
3. Should the federal law prevail over the provincial law and render it inoperative? UseRothmans TEST
- Can a person comply with both pieces of legislation simultaneously? (Impossibility of Dual Compliance Test)
YES ___
NO ___(Continue to step #2)(Moloney)
- Does the provincial legislation frustrate Parliament’s purpose in enacting the legislation? (Frustration of Purpose Test)
YES ___(Analysis over, the doctrine of paramountcy applies)
NO ___(The doctrine does NOT apply, both laws may co-exist)
“Clear proof of purpose” required to successfully invoke federal paramountcy on the basis of frustration of federal purpose (COPA/Lemere)
“care must be taken to not give too broad a scope to paramountcy on the basis of frustration of federal purpose (Marcotte)
Ross v. Registrar of Motor Vehicles
Provincial restrictions were stricter and by following it, he followed both pieces of legislation
If compliance with both is possible and legislative purpose is NOT frustrated, paramountcy does NOT apply, and operability is not limited
Multiple Access Ltd v. McCutcheon
Both statutes are valid and are not in conflict with each other so there is no need to enact the federal paramountcy doctrine
BMO v. Hall:
Federal Bank Act – seize equipment immediately vs. Provincial Limitation of Civil Right Act: need notice, process required before secured creditor can seize property
Dual compliancefrustrates Parliament’s legislative purpose
Rothmans v. Saskatchewan
If compliance of both pieces of legislation is possible and the legislative purpose is NOT frustrated then the paramountcy doctrine is NOT triggered.
Current Test for Paramountcy
NOTE: If the federal law that renders the provincial one inoperable is repealed, the provincial one becomes operable again
Gap Branch
- Is the subject of the impugned federal legislation mentioned in either s. 91 or s. 92?
YES ___(Gap branch cannot apply, consider Emergency or National Concern branches)
NO ___(The gap branch of POGG may apply)
Aeronautics:Aviation was NOT anticipated at time of Confederation, does NOT fall under enumerated head of power, so any gaps are accounted for under POGG.
Emergency Powers Branch(Anti-Inflation)(birth of the concept was in Reference Re: Board of Commerce Act)
- Extrinsic Evidence (consider)
- Preamble:______
- Government reports: ______
- Events in society: ______
- Is the federal legislation NECESSARY?YES ___NO ___ (If NO, analysis over)
- Is the federal legislation TEMPORARY?YES ___NO ___ (If NO, analysis over)
Reference re Anti-Inflation Act [1976](Test for Emergency Powers branch)
- There need NOT be an ACTUAL emergency, only the perception of apprehension of a crisis. Emergency powers may be invoked to prevent an emergency and may be used in peacetime as well as wartime.
- Anti-Inflation Act fulfilled requirements for exercise of emergency powers (it was temporary and necessary).
National Concern Branch
National Concern – Test(Crown Zellerbach)
(1)APPLIED TO…(a) New matters which did not exist at Confederation OR(b) Mattersoriginally of a local and private nature in a province that have (w/o national emergency) become matters of national concern.
When a law is broader/has components that lie in multiple heads of power, it tends to make it more divisible
(2) To be a matter of national concern, must have (a)Singleness(b)Distinctiveness, and (c) Indivisibility that clearly distinguishes it from matters of provincial concern
YES __ NO __(if YES, move to step #3)
(3) Scale of Impact:
Must have a Scale of impact on provincial jurisdiction that is reconcilable with the fundamental distribution of legislative power under the Constitution
YES ___NO ___(If YES, move to step #4)
(4)Determining 2ABC:
- Most important element (provincial inability): Is there a need for one national law which cannot realistically be satisfied by cooperative provincial action because the failure of one to cooperate would carry with it adverse consequences for the residents of other provinces
- The matter of national concern should not risk absorbing the entire catalogue of provincial powers(creatingplenary jurisdiction over the legislative problem)
YES ___NO ___(If YES, the National Concern branch applies)
R. v. Crown Zellerbach Canada Ltd
Test for the National Concern branch.
The federal legislation regarding marine pollution is valid under national concern
Majority (Le Dain) Functional Argument
Dissent (La Forest): Conceptual argument: what is being regulated, more effective for regulator to do their job, it must be marked by a singleness, distinctiveness and indivisibility
Friends of the Oldman River Society v. Canada
The federal government can intervene in provincial projects if they impinge in federal residual POGG power but NOT necessarily for all environmental issues.
No international concern like Crown Zellerbach
DOES THE “MATTER” FALL WITHIN POGG? YES ___ NO ___BRANCH ______
MAIN QUESTION: What falls within the scope of s. 92(13) “Property & Civil Rights in the Province”?
- Provinces can regulate control of all goods within province including inter-provincial imports if all are treated the same (Shannon)
- Provinces can regulate production, prima facie within its own provincial borders(MB EGG)
- Provinces can regulate intra-provincial marketing(Carnation, Agricultural Products)
Parsons: Business and contractual issues that take place wholly within the provinces fall under s. 92(13), while (1) international (2) interprovincial and (3) general trade and commerce issues fall under s. 91(2). Federal Parliament does not have the right to regulate businesses solely within a province, not often one single nation-wide industry.
Carnation Co Ltd. v. Quebec Agricultural Marketing Board[1968](Yes in this case, intra vires)
Are the effects of provincial economic regulation on trade and commerce outside the province only INCIDENTAL?
YES ___NO ___(If NO, the provincial legislation is ultra vires)
Manitoba (AG) v. Manitoba Egg & Poultry Association [1971](yes in this case, ultra vires)
Is the provincial economic regulation aimed at regulating INTERPROVINCIAL (province to province) trade and commerce?
YES ___NO ___(If YES, the provincial legislation is ultra vires)
Agricultural Products Marketing Act [1978]
Is the provincial economic regulationpart of a federal schemeaimed at interprovincial trade and commerce?
YES ___NO ___(If YES, the provincial legislation may be valid)
DOES THE “MATTER” FALL WITHIN THE SCOPE OF S. 92(13)?YES ___NO ___
MAIN QUESTION:What falls within the scope of s. 91(2) “Regulation of Trade and Commerce”?
The King v. Eastern Terminal Elevator Co. [1925]
Does the federal economic regulation, involvingproduct used primarily for export which the province cannot regulate still infringe on matters of a merely local nature within the province?
YES ___NO ___(If YES, the federal legislation is ultra vires)
The Queen v. Klassen[1960]
If the federal economic regulation infringes on intra-provincial property and civil rights, validity depends on if
1) Scheme is of national importance (marketing internationally) or;
2) It is necessarily incidental? (Requires analysis of whether failure to regulate would jeopardize entire federal scheme).
YES ___NO ___(If YES, the federal legislation may be valid)
The Test for General Regulation (General Motors)Preliminary checklist, all 5 not needed for validity
- Is the impugned legislation is part of a general regulatory scheme?
YES ___
NO ___
- The scheme is overseen by a regulatory agency?
YES ___
NO ___
- Concerned withtrade as a whole, not just particular industry(Labatt)?
YES ___
NO ___
- Legislation of a nature that the provinces, jointly or severally, would be constitutionally incapable of enacting?
YES ___
NO ___
- The failure to include one or more provinces or localities in a legislative scheme would jeopardize the successful operation of the scheme in other parts of the country(General Motors)?
YES ___
NO ___
Labatt[1980]
Parliament cannot regulate a specific industry and can only regulate trade and commerce as a whole.
Regulation of a single trade/industry is not of great national concern and national ownership of a trade or undertaking or national advertising of products are not sufficient to authorize the imposition of federal trade and commerce legislation
General Motors[1989]
- Infringement on provincial heads of power may be justified if it satisfies the test for the general branch of federal trade and commerce power.
Reference RE: Securities Act
Passes stage 1 and 2 of GM test. Fails from 3 – 5:
- 3) It effects a particular industry Canada’s argument needs a factual metric to support that there is a significant constitutional transformation in regulating securities. The court doesn’t believe this because the new scheme largely replicates existing provincial schemes; this suggests that the securities market hasn’t transformed
- 4) The provinces are able to legislate in concert
- 5) The “opt in” scheme
DOES THE “MATTER” FALL WITHIN THE SCOPE OF S. 91(2)?
YES ___ NO ___ BRANCH ______
MAIN QUESTION: What falls within the scope of federal s. 91(27) “Criminal Law”?
The Test for Criminal Law (Margarine Reference):
- Does provision have a valid criminal lawPURPOSE? Addressing a public evil (Public peace, order, security, health(RJR, AHRA), morality, safety(Firearm Ref), env. protection (Hydro)? List not exhuastive
YES ___(Move to step #2, possibly consider 1A)
NO ___(The provision cannot fall under criminal law)
1A. Is the provision regulatory in nature? (RJR, AHRA)
YES __ (permissible if there is a clear criminal purpose)
- Does provision have the proper form? Prohibition +penalty)?
YES ___(The provision falls under criminal law)
NO ___(The provision cannot fall under criminal law and is ultra vires if provincial)
Margarine Reference[1949] – Ultra Vires
Prohibitions on manufacture/sale invalid, importation valid under general T&C
RJR MacDonald v. Canada (AG) [1995] – Intra Vires
P&S public health evil. Undisputed power to regulate unsafe food & products
Exemptions may be present in valid criminal laws, don't need absolute prohibitions
Parliament can criminalize something that is regulatory in nature if there is a clear criminal purpose.
R. v. Hydro-Quebec[1997] – Intra Vires
Environmental protection can fall under the criminal law power of s. 91(27) (La Forest)
Contains purpose, prohibition, penalty
Schemes that allow for changes to be made, for instance by the minister, as to the subject matter of the regulation/prohibition are OK.
Broad wording is inevitable in env. protection legislation b/c of complexity of the isssue
Reference re Firearms Act(SCC, 2000) – Intra Vires
Parliament can do indirectly what it can do directly (greater power includes the lesser power). If it can prohibit guns, then it can regulate guns. Reaffirmed“safety” as an element from the Margarine Reference.
3 elements are satisfied: Prohibition, Penalty and valid criminal law purpose.
AHRA(SCC, 2010) – Lots of Both
Criminal law doesn't require absence of a regulatory scheme so long as it has a valid criminal law purpose
Main contentions here arise from the order in which the P&S analyses are done.
DOES THE “MATTER” FALL WITHIN THE SCOPE OF S. 91(27) “CRIMINAL LAW”?
YES ___ NO ___
92(14):The administration of justice in the province...including...Provincial courts, both of Civil and of Criminal jurisdiction, and including procedure in civil matters in those courts
92(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 – regulations(anchoring)
92(16): Matters of a merely local or private nature in the province – local interests of public order & morality(McNeil; Rio Hotel)
Guiding Principle (Morgentaler):
Provinces may NOT invade the criminal field by attempting to stiffen, supplement or replace the criminal law . . . or to fill perceived defects or gaps therein.”