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Federalism Notes

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FEDERALISM CHART TOPIC 1) VALIDITY Doctrine: Pith and Substance Use to classify head of power p. 26-27

-National concern doctrine
-National emergency doctrine

-to determine, identify: 1) dominant feature and purpose (legal effect, values, can rely on past jurisprudence, extrinsic materials) 2) practical effects (especially relevant when there are issues of colourability) 3) scope- what part is prov/fed? then assign that characterization to head of power
-doctrine looks beyond 4 corners and determine its true nature
-p+s is context contingent, often made on policy grounds (not always logical)
>Morgentaler: relied on extrinsic evidence to determine p+s, looked beyond colourability
>Ref re Employment Insurance Act: relied on policy analysis to determine p+s, living tree approach, P/CR are NI
-largely judicially created, although enumerated broadly in s. 91 Early/ general POGG:
>Toronto Electric: POGG initially narrowed and cannot be relied on if not in relation to enumerated power (subsequently broadened)
Russell- POGG as utilized for public morality, general, prov inability
>Local Prohib Ref- affects body politic of the dominion; contrast to Russell- national concern
> used to uphold Temperance Act- national concern
>Ref Re Board of Commerce- acting on a general scale; not a war power, acknowledges POGG relevance in time of peace
>Montreal v. Montreal St. Rwy: began to curb broad nature of POGG, anything local = prov
>Insurance Ref: POGG narrowed in terms of fed reg of insurance
>Fort Frances: POGG justified under prov inability, emergency, temporary nature, extended post-war National emergency doctrine (Ref re Anti-Inflation Act): 1) temporary; 2) not ordinary; 3) unambiguous; 4) unmistakable emergency signal National concern/dimension/prov inability doctrine (Ref re Anti-Inflation Act): 1) newness (did not exist in 1867), 2) indivisibility, unity; 3) prov inability; 4) scale: cannot affect balance of federalism
-if feds fail part of the framework, then cannot use concern doctrine Laskin: saw POGG as a general, fed power, enumerated powers not binding


REG OF TRADE S. 91(2) p. 9-13

CRIMINAL LAW S. 91(27) p. 21-24

Beetz: more protective of prov rights, distrustful of POGG
>Ref re Anti-Inflation Act: upheld under nat'l emergency; significant for use of extrinsic evidence; subsequent cases rely on Beetz's (dissent) view of emergency doctrine
-Environmental regulation and POGG:
>R. v. Hydro-Que: upheld Act as crim law in terms of enviro reg and not POGG
>Zellerbach: fed reg of enviro as under national concern, emphasized prov inability
>Oldman River: POGG restrained, not successful in feds reg of enviro, dual compliance (shared prov/fed reg)
-reg of interprov, int'l trade and agricultural marketing, general trade
-historically constrained (Eastern Terminal Elevator, Natural Products)
>PATA: shift from strict interpretation of trade + commerce
-opened up in the 1960's: application of NI doctrine to allow reg of intra prov if main purpose is reg of int'l and interprov trade(Klassen, Caloil)
- emergence of gen trade reg: first used in Parsons, Dominion Trade & Industry Act; then in Labatt
> GM: framework: 5 factors: i) gen reg scheme, ii) monitored by reg agency, iii) trade as a whole rather than 1 industry, iv) prov inability to enact legis, v) failure to incl a prov would jeopardize operation of legis (do not all need to be met; indica not exhaustive)
>Kirkbi: upheld under gen reg of trade using GM framework
>Dominion Stores: fed reg of gen trade limited, dbl aspect inapplicable
-historic devt of crim power: fed power was broadened over time, despite POGG and econ reg narrowed
>Board of Commerce- roots of looking for crim purpose; can only exercise fed crim law power if nature of Act concerns criminality (inherent form, essence)
-historic constraint of form- regulations, licensing, civil remedies, etc. rejected as not being crim law
-three Ps: purpose (scope), prohibition (distinguished from reg), penalty (+ cannot be colourable)
-provs cannot have purpose but can have penalty and prohibition (civil remedy)
-fed jurisdiction includes policing, prisons, higher level cts
-fed jurisdiction over crim law gives rise to 2 issues: 1) scope of fed power 2) extent to which it has constrained prov attempts to control local conditions of public order and morality
>PATA: crim law construed in its widest sense, intro of requirement of prohibition and penal

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