#9094 - Federalism - Constitutional Law

Doctrine: Pith and Substance

Use to classify head of power

p. 26-27

-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

POGG

-National concern doctrine

-National emergency doctrine

-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)

<Ref re Radio Communications

>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

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)

CRIMINAL LAW S. 91(27)

p. 21-24

-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 consequences, fed power to define new crimes (“living tree”)

>Margarine Ref: attempted to limit reg power in terms of purpose but did not take hold

>RJR McDonald: challenge to form (prohibition v. regulation), broadening of fed power

>R. v. Hydro Que: affirmed fed power to reg enviro under crim law (broadening of def of prohibition)

>Firearms Ref: reg nature does not impede crim prohibition (as in HQ), effects on P/CR are incidental to fed reg of safety

>Ref re Asst Human Repro Act: distinguished from Firearms as primarily reg, health instead of crim law purpose= prov

PROV CRIM LAW (ADJUDICATION OF JUSTICE IN PROV) S. 92(14, 15)

p. 25-27

-3 ways in which prov legislate crim law:

1) 92(14)- gives prov legis jurisd over prov power for policing, prosecution of crimes

2) conditional legislation- instrument of flexibility that allows provs to interp fed laws to correspond w/ local conditions

3) judicial recog of concurrent prov jurisdiction in matters that may also be under crim law, e.g. 92(15) recognizes prov power to enact penal provisions but it is ancillary- cases turn on dbl aspect (generally cts have allowed fair amount of overlap but was ltd in Westendorp and Morgentaler, issues of colourability)

-provs can apply P/CR to reg morals thru using dbl aspect (NS Board, Dupond, Rio Hotel)

-conflict can also rise where provs are perceived to be encroaching on procedural protections for accused under fed crim law power (e.g. prov inquiry)> cts gen find a dbl aspect and that impact on fed law is incidental

Doctrine: Necessarily Incidental/ Ancillary

p. 29-30

-used in cases where provision is challenged as part of larger piece of legislation- is found valid in relation to broader scheme (infringing affects are incidental to broader goal)

-depends on how provision is incorporated - if not closely related will likely be invalid; if closely related they are “necessarily incidental”

-attempt to use doctrine unsuccessfully- Terminal Elevator Co.

>GM: framework for use of doctrine:

1) determine to what extent provision intrudes (if it does not intrude, only issue is the validity of the

Act)

2. determine if act as a whole is valid

3. determine if impugned provision is sufficiently integrated and if it can be upheld by virtue of that relationship

>Klassen, Caloil: fed infringement on intra prov is incidental, used to uphold fed reg of int’l and interprov trade

>Carnation: affirms prov reg, effect on fed reg of trade is incidental

>Firearms Ref: effects on P/CR are incidental to fed reg of public safety

>Ref re Employment Insurance Act: p+s fed, P/CR are NI

-opposite to dbl aspect,...