Federal

 s52 Constitution Act 1982 states any law contrary to provision of the “Constitution of Canada” is “of no force effect”
 During a JR, procedural and evidentiary rules are the same for federal grounds and Charter grounds.
 Judicial review has occurred often in interpreting s91 which lists enumerated heads of power that are competent to the federal Parliament
and s92 lists out laws that are competent to provincial Legislatures

 Federal vs. Charter

If a law is challenged on federal and Charter grounds, Hogg argues that presence of s33 override and the support given in s31(1) with the
phrase “in respect of all matters within the authority of” federal grounds take priority.

Judicial Review

 During a judicial review the courts will apply two steps to determine whether a law falls within a legislative competence of the legislature
that enacted it. First, identify the matter (pith and substance or “characterization”) of the challenged law; second, assign the matter to one of
the “classes of subjects” in the Constitutional Act 1867.

It is important to note that:

 When a law is challenged for lack of legislative competence there is a legal presumption of constitutionality. When faced with two
plausible characterizations of law we should normally choose that which supports the law’s constitutional validity. Siemen’s v Manitoba
[2003]
 A law can be valid under more than one provincial power (AG Que v Kellogs Co of Canada 1978)

Stage One
 The courts identify the most dominant feature (“pith and substance”) of a challenged law to understand its character. The pith and
substance doctrine enables one level of government to enact laws with substantial impact on matters outside its jurisdiction. The phrase “in
relation to” in s91 and s92 supports the doctrine.

a. Effect- a court will always consider the effect of the statute when determining the “pith and substance”. The courts are always concerned
about the rights and liabilities of those who are affected. Alberta Tax Reference Lord Maugham- “the court must take into account any
public general knowledge of which the Court would take judicial notice, and may in proper case require to be informed evidence as to what
the effect of the legislation will be”.

b. Presumption of Constitutionality- When a law is challenged for lack of legislative competence, there is a legal presumption of
constitutionality. When faced with two plausible characterizations of a law, we should choose that which supports constitutional validity.
Siemens v Manitoba [2003] The presumption of constitutionality carries 3 legal consequences.
i. in choosing between competing, plausible characterization of a law, the court should normally choose between competing, plausible
characterization of a law Re: Firearms Act [2000]
ii. where the validity of a law requires a finding of fact (finding of emergency) the finding of fact need not be proved strictly by the
government. It is enough that there be a “rational basis” for the finding.
iii. if a wide interpretation would extend beyond powers of the enacting legislative body, the court should read down the law so as to confine it
those applications that are within the power of the enacting legislative body.
 These 3 functions have the effect of reducing interference by unelected judges with the affairs of elected legislative. Only “reading down”
with exist in Charter cases

c. Singling Out- Alberta Tax Reference is read as prohibiting provincial legislatures from “singling out” banks or other federal undertakings
for special treatment. Normally, if a provincial law of general application, in relation to a provincial matter may validly affect federal
matters. If a provincial law impairs a vital part of a federally regulated enterprise, then the provincial law-although valid in the generality of
its applications, will not apply to the federally-incorporated company or federally regulated enterprise.
d. Double aspect doctrine acknowledges that some laws have both a federal/provincial “matter”. ( ie-Laws prescribing rules of conduct on
the roads have a ‘double aspect” and therefore competent to both Parliament and a Legislature.) Hodge v The Queen (1883) held” subjects
which in one aspect and for one purpose fall within s92 may in another aspect fall within ss91.”
e. Purpose- What is the purpose of a statue or the mischief that needs correcting? A statue can have a purpose in its function and sometimes
a preamble (“intention”) In R v Big M Drug Mart (1985)- The Court acknowledged that if the purpose of the statue had not been
“religious” but rather the secular goal of enforcing a day of rest from labour” then the Act would have fallen under provincial rather than
federal competence. Note: legislative history is helpful. Reports of royal commissions, law reform commissions, government policy papers
and parliamentary debates are admissible.
f. efficacy- reviewing judges may pass judgment on the likely efficiency of the statue but leave the wisdom or policy with legislation . Re
Firearms Act [2000]- Parliament is the judge of whether a measure is likely to achieve its intended purpose; efficaciousness is not relevant
to the Court’s division of powers analysis.
 g. colourability- The colourability doctrine is invoked when a statue bears the formal trappings of a matter within a jurisdiction but in reality
is addressed to a matter outside jurisdiction. The doctrine applies the maxim that a legislative body cannot do indirectly what it cannot do
directly. Alberta Bank Taxation Reference- although ostensibly designed as a taxation measure, was in reality directed at banking.
Colourability cases, there is a very fine line between adjudication on policy and adjudication on validity. The colourability
h. criteria of choice- The choice between competing characteristics of the statue, in order to identify the most important one as matter may be
nothing less than a choice between validity or invalidity. The hardest cases the choice is not compelled by either nature of the statue or the
prior judicial decisions. The choice is inevitably one of policy. The choice must be guided by a concept of federalism. Ask is this the kind
of law that should be made by a province or federal government? Simeon- suggests the 3 values of community, efficiency and democracy
as criteria that are helpful on appraisal of the allocation of power in a federal system. Room to argue the weight to each one of the values.
Where the case is not clear, a choice supporting the legislation is preferred.

Fixing the Law/Options

Severance- The leading feature of that plan or scheme will be the pith and substance. It is possible that only part of the statue is invalid and the
balance of it would be valid if it stood alone. Rule- severance is inappropriate when the remaining good part A-G Alta v A-G Can [1947] “is so
inextricably bound up with the part declared invalid that what remains cannot independently survive.” Toronto v York [1938] If two parts can exist
independently then it is plausible to regard them as two different laws. There does appear to be a presumption against severance.
Charter- severance is more common in Charter cases. The same test is applied but it is unlikely that the entire statue is struck down on Charter
rights. Only one case where entire statue was struck down- R v Big M Drug Mart (1985)

Reading Down- This doctrine when possible a statue is interpreted as being within the power of the enacting legislative body. This means that
general language of the statue which is literally extending beyond provincial or legislative power will be construed more narrowly so as to keep it
within the permissible scope of power.

Attacking Laws

Interjurisdictional Immunity-absent conflict, the validity of enacted laws of each level government will have its normal operation. There are a line
of cases which have applied to render inapplicable a provincial law if it would have an effect on federal matter-federal incorporated companies,
federally regulated undertakings-that is inconsistent with the scope of powers assigned to federal government.

A law that purports to apply to a matter outside the jurisdiction of the enacting legislative body may be attacked in 3 ways
1. the validity of the law or
2. the applicability of the law
3. the operability of the law.

First, it could be argued that the law is invalid because the “pith and substance” comes with a class of subjects that is outside the jurisdiction of the
enacting body. Alberta Bank taxation Reference (1938)

Second, way of attacking is to acknowledge that the law is valid in most of its applications but argue that the law should be interpreted so as not to
apply to the matter that is outside the jurisdiction of the enacting body. If this argument succeeds, the law is not held to be invalid, but simply
inapplicable to extra-jurisdictional matter. –The technique is “reading down” the law.

Third, way of attacking a law that applies outside the matter outside the jurisdiction of the enacting body is to argue that the law is inoperative
through the doctrine of paramountcy. The doctrine states that where there is inconsistency between federal and provincial laws the federal law should
prevail. Paramountncy render provincial law inoperative to the extent of the inconsistency.

Under the second argument -

a) Federally-incorporated companies- a valid provincial law may not impair the status or essential powers of a federally incorporated
company. John Deere Plow Co v Wharton [1915]
b) Federally regulated undertakings-undertakings engaged in interprovincial or international transportation or communication , which
come under federal jurisdiction under the exception to s92(10) are immune from otherwise valid provincial laws which would have
“sterilizing” the undertakings
c) other federal matters- the doctrine of interjurisdictional immunity also applies outside to fields of transportation and communication.
d) rationale of interjurisidictional immunity- the pith and substance doctrine , which allows a provincial law to “affect” a federal matter is
applied more often the interjurisidcitional immunity. Provincial laws may validly extend to federal subjects unless laws “bear upon the
those subjects in what makes them specifically of federal jurisdiction.” The rule which emerged is- Ordon Estate v Grail [1998] if the
provincial law would affect the “basic, minimum and unassailable” core of the federal subject, then the interjurisdictional immunity
doctrine stipulated that the provincial law must be restricted in the applications (read down) to exclude the federal subject. Canadian
Western Bank v. Alberta,[2007] 2 S.C.R. 3 If, the provincial law did not affect the core of the federal subject, the pith and substance
doctrine stipulated that the provincial law validity applied to the federal subject.
e) provincial entities- there is no case applying the doctrine of interjurisdictional immunity to federal laws to protect provincially
incorporated companies or provincially regulated undertakings. The doctrine should be reciprocated but the weight of the authority seems
to be given to a federal head of power
Stage Two
 Once the pith and substance (matter) of the challenged law has been identified, the court will then assign it to one of the “classes of head”.

(a)- relevance- once the pith and substance (matter) of the challenged law has been identified the second stage of the judicial review is to assign it to
one of the “classes of head”.
(b)- exclusiveness- each class of subjects are listened in ss91 and ss92 of the Constitution Act 1867. double aspect - Papp v Papp -the pith and
substance doctrine occasionally has the same effect.
(c)- ancillary doctrine- The Constitution of Canada does not include an ancillary doctrine (like the US or Australia) in the enumerated heads of
power of either Federal Parliament or provincial Legislatures. No such power is needed in Canada. The pith and substance doctrine enables a law
that is classified as “in relation to”. The “rational connection test” allows each enumerated head of power to embrace laws that have some impact
on matters entrusted to the other level of government and it provides a flexible standard which gives the enacting body considerable leeway to choose
the legislative techniques it deems appropriate which was applied in R v Zelensky(1978) & Multiple Acces. The impugned provision be “essential’ to
the legislative scheme is stricter then the rational connection test found in Pappv Papp.
 For a major encroachment it deserves a stricter test- the impugned provision must be essential to the legislative scheme
 Dickson CJ “as serious of the encroachment on provincial powers varies, so does the test required to ensure that an appropriate
constitutional balance maintained.”
(d)-Concurrency- 3 provisions that confer concurrent powers. First s92A (2) –confers on the provincial Legislatures the power to make laws in
relation to the export of natural resources. and s92A(3)- is explicit the power to make laws in relation to the export of natural resources, trade and
commerce power. Secondly, s94A confers on the federal Parliament the power to make laws in relation to old age pensions and supplementary
benefits and the sections acknowledge the existence on concurrent provincial power. Thirdly, s95- confers power on both the federal Parliament and
the provincial legislature’s concurrent powers over agriculture and immigration. Two doctrines allows substantial area of concurrency in Canada. The
double aspect doctrine and the second judge made doctrine that leads to concurrency is the “pith and substance” doctrine.

(e) exhaustiveness- the distribution of power between the federal Parliament and the provincial Legislature is exhaustive. exceptions to this
doctrine- the framers knew created s92(16)- is generally all matters of a merely local or private nature of the province. The opening words of s91
give the federal Parliament the residuary power to “make laws for the peace, order and good government of Canada...” Any matter which does not
come within any of the specific classes of subjects will be provincial if it is merely local or private (s92 (16) and will be federal if it has a national
dimension (s91, opening words)

(f) progressive interpretation- this doctrine is one of the means by which the Constitution Act 1867 has been able to adapt to the changes in
Canadian society. It stipulates that the language used to describe the classes of subjects is not frozen in time in 1867 so Undertakings connecting the
provinces could be telephone service.
Some critics argue against it (“orignalism”) stating that the courts are forever bound by the “original understanding” This was seen in Same Sex
Marriage reference (2004). The SCC emphasized the “living tree” quality of the Constitution. A good example can be seen in Re: Employment
Insurance Act [2005]- where the evolution of role of women in the labour market and the role of fathers in child care was highlighted. The
constitutional language must be “placed in the proper linguistic, philosophical and historical context of the provision.”

(g) unwritten principles- democracy, constitutionalism, the rule of law, the independence of the judiciary, the protection of civil liberties and
federalism, are some of the principles. There are a number of cases where the SCC has found an unwritten principle in the Constitution. that is
enforceable in precisely the same way as if it were an express term . Manitoba Language Reference(1985)- rule of law Re: Remuneration of Judges
(1997)-judicial independence Succession Reference (1998)-democracy, federalism, constitutionalism, and the protection of minorities.

Canadian Western Bank v. Alberta, [2007] 2 S.C.R. 3

15.5(a)- This case is an example of laws which have been upheld despite their incidental impact on matters outside the enacting body’s jurisdiction.
A provincial law in relation to insurance and banking.
15.8(c)- A majority of the court confirmed that it had indeed changed its mind about the test for interjurisdictional immunity. Binnie and LeBel JJ
who wrote the majority opinion, announced that the court was completing the “ the reassessment begun in Irwin Toy
15.8(e)-

Criminal Law Power

 Constitution Act, 1867, s.91(27)- confers on the federal Parliament power to make criminal laws. Reference re validity of Section 5(a) of
the Dairy Industry Act 1948 The scope is of the power has been defined broadly. A criminal law must have a valid criminal law purpose
backed by a prohibition and a penalty.
 Criminal Purposes - a purpose will qualify as criminal law- does not necessarily involve the prevention of harm to other human beings.
Protection of the environment, protection to the cruelty of animals, various forms of economic regulation has been upheld criminal law.
 Food and Drug Standards- Margarine Reference was struck down on the basis that the purpose of legislation was an economic one
protecting the dairy industry.
 Labatt Breweries v A.G. Can (1971) If “injurious to health” then no doubt would be a criminal public purpose. The “prevention of
consumer deception” Illicit drugs- non medical use of drugs such as marihuana, cocaine and heroin is proscribed by the NCA. This act
has been upheld as a criminal law.
  Schineider v The Queen (1982)-the SCC upheld the BC Heroin Treatment Act- compressive apprehension , assessment and treatment of
drugs addicts. was provincial s92(16). Not criminal because detention was not for punishment.
 Tobacco- RJR-MacDonald v Canada ( 1995)- power to prohibit the use of tobacco on account of its harmful effects on health also
encompassed the power to take the lesser step of prohibiting the advertising of tobacco products.
 Health- is an “amorphous topic” and can fall under provincial or federal. Depends on the purpose and effect of the legislatures.
 Environmental protection – R v Hydro-Quebec (1997)- the protection of the environment was a public purpose that would support a
federal law under the criminal law power and the Environmental Protection Act was covered.
 Abortion –The CCC used to prohibit abortions. In Morgentaler v The Queen- the validity of the prohibition was challenged on the basis
that the safety of modern techniques of abortion made prohibition inappropriate as a protection for the health of the pregnant women. –
therefore prohibition was not authorized by the criminal law power.
 Hogg 18.7 - Competition Act- Since economic competition is important and its difficult for provinces to regulate anti-competitive
practices it has been agreed it has to be federal to be effective.

 US and Australia- criminal law is a state responsibility

18.8 Sunday Observance Law

Federal power- In R v Big M Drug Mart (1985)- the SCC confirmed that the Lord’s Day act was a valid exercise of the criminal law power,
because it pursued the religious purpose of preserving the sanctity of the Christian Sabbith because it was intended to safe guard morality.
Provincial power- Lieberman v The Queen (1963)- it was held that provincial authority also extends to the imposition of limits on the business
hours of commercial establishments

 Gun Control - In 1995, the federal parliament amended the CC provisions by enacting the Firearms Act which expanded the existing
rules by requiring all guns to be registered and all gun owners to be licensed. Alberta appealed this act and the SCC held that this was a
valid exercise of criminal law power. The purpose was to restrict access to inherently dangerous things. History had revealed violent
crimes, domestic violence, suicides, and accidents. The court held it was not merely regulatory because if provisions were enforced by the
criminal law means of a prohibition and penalty, because the Act prohibited possession of a gun without a license and a registration
certificate, imposed penalties for breach of the prohibition.

-----more work ended on 499

Re Firearms Act, [2000] 1 S.C.R. 783
Hogg 18.9(a)- SCC held act was a valid exercise of the criminal law power. Purpose of the act was to restrict access to inherently dangerous things.
They looked at legislative history-concerns with violent crimes, domestic violence, suicide , and accidents- all which could be facilitated or worsened
by ready access to guns.
All requirements of the act pointed to public safety. Registration provision not concerned with priority between competing property interests in
guns, like a provincial property registry. Acts focus on public safety distinguished the act from provincial property registration schemes. The effect
on property was “incidental” to the main purpose to public safety.
The Act was not merely regulatory- it’s provisions were enforced by the criminal –law means of a prohibition and penalty.

Trade and Commerce

 s91(2) Constitution Act, 1867, s Federal Power over trade over regulation of trade and Commerce
 s92(13) Constitution Act, 1867, s “Provincial power over “property and civil rights in the province”
 the interpretive problem for Canada lay in accommodation of the federal power over the regulation of trade and commerce s91(2) with the
provincial power over “property and civil rights in the province”s92(13
 despite board language in this clause, it has turned out to be much more limited power then its American cousin due to judicial
interpretation.
 the courts by process of mutual modification have narrowed the two classes of subjects so as to eliminate the overlapping and make each
power exclusive.
 Parsons Case- it has been accepted that intra-provincial trade and commerce is a matter within provincial power, under “property and civil
rights in the province”(s92(13)
 Federal trade and commerce power is confined to 1) interprovincial trade or international trade and 2) commerce and “general” commerce
in 91(2)

Hogg 20.2(b) Interprovincial Provincial or International Trade and Commerce

There is a strong argument that whenever a market for a product is national (or international) in size as opposed to local, there is a strong argument
that effective regulation of the market can only be national says Hogg see Caloil v AG Can (1971) Canadian decisions have not gone that far yet like
the US.

Cases supporting Hoggs Statement :

 egg market in Re Agricultural Products Marketing Act (1978)- federal marketing was upheld.
 chicken market in Federation des producteurs v Pelleand (2005) the court upheld a federally imposed quota on each of the provinces
without the regard for the destination of the product.
Struck Down:

 Hogg disagrees with this decision in Dominion Stores v The Queen (1979) which struck down the Canada Agricultural Products
Standards Act.
Labatt Breweries v AG Can(1979)- another case where the federal trade and commerce power was rejected as a support for federal legislation.
General Trade and Commerce

- until General Motors- the general category of trade and commerce had been rather consistently rejected as a support for federal policies of
economic regulation.

- In Vapor Laskin CJ suggested that circumstances where the general category would be available if the law had been part of a “ regulatory
scheme administered” by a “federally appointed agency.”

- General Motors- Dickson CJ held that the combines Investigation Act ( now the competition Act) was a valid exercise of the general
trade and commerce power . He applied the Vapor Test- consists of 3 elements
1. the presence of a regulatory scheme
2. the oversight of a regulatory agency” and
3. a concern “with trade as a whole rather than with a particular industry. Dickson added a fourth and fifth for 5 elements
4. ”the legislation should be of a nature the provinces jointly or severally would be constitutionally incapable of enacting’
5. “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 competition.
note: The General Motors Case had all five elements present.

POGG Powers

Peace, Order and Good Government

Constitution Act, 1867, s.91 (opening words)
Hogg, chapter 17, “Peace, Order, and Good Government”
 The POGG clause in s91 is a residual power in its relationship with the provincial heads of power.
 The residual nature of the federal power ensures that every possible subject of legislation belongs to one or other of the federal Parliament
or the provincial legislatures.
 Thesis- the enumerated head of federal powers are merely examples of peace, order and good government of Canada; they are not heads of
power which exist independently of the opening words. This finds support in the opening language of s91.
 2 reasons why Hogg rejects the “general theory” and supports the “residual theory” of the POGG power:
1. The federal list was not just superfluous grammatical prudence; it was compelled by historical necessity and has independent
standing.
2. the second reason it does not accord with the practice of the courts in applying the power distributing provisions of the
Constitution.

ways in which legislative power has grown from the POGG power

1. The “gap” Branch- one office of the POGG power is to fill the gaps in the scheme of distribution of power. (ie- incorporation of
companies s92(11) gives the provinces the power to incorporate companies with provincial objects). Since there is no equivalent
enumerated federal power the courts have held it falls under POGG power because it is residual in nature.
2. The “national concern branch”- The “provincial inability test” is used to describe national concerns. The most important element of
national concern is a need for one national law which cannot be realistically be satisfied by cooperative provincial action because failure of
one province to cooperate would carry with it adverse consequences for the residents of others provinces. Hogg 17.3(b) Le Dain J upheld
federal jurisdiction over marine pollution in R v Crown Zellerbach Canada 1988 - He set out 5 requirements for a matter to qualify as a
matter of national concern. It must have:
1) singleness
2) distinctiveness
3) indivisibility clearly distinguishing it from matters of provincial concern
4) the failure of one province to enact effective regulation would have adverse effects of interests exterior to the province
5) the scale of the impact on the provincial jurisdictions is reconcilable with the fundamental distribution of legislative power under
the Constitution.

Reference re Anti-Inflation Act, [1976] 2 S.C.R. 373

Hogg
17.2
17.3(c)
(d)-Beetz J had referred several times to a “new matter” or a “new subject”-Hogg suggest he meant an issue arising for consideration for the first
time”, and “not under an enumerated power”
17.4(b)
17.4(d)-the most recent application of the emergency doctrine is to be found in the Reference Anti-Inflation Act [1976]- in which the federal anti
inflation Act was upheld as an emergency measure. Their was a period of double digit inflation and high rates of unemployment. Problem was the
preamble of the Act itself did not recite reasons for the legislation or assert the existence of an emergency. Thier was factual material (economic
study) which was agreed to by professionals and not serious challenged.

note about facts- In a constitutional case where the validity of legislation depends upon findings of fact concerning social or economic condition of
the country it’s obviously impossible for the Court to make definitive findings.
17.4(e)
17.5
Important note about temporary charter of law- the anti-inflation reference the legislation was temporary. No permanent measure has ever been
upheld under the emergency power.
  Relationship between “national concern” and “emergency branch”-thesis by Lederman (adopted by Beetz J) is that POGG power performs
2 separate functions in the Constitution. First, it gives to the federal Parliament permanent jurisdiction over “distinct subject matters which
do not fall within any of the enumerated heads of s 92 and which by nature are of national concern. Secondly, the POGG power gives the
federal Parlaliment temporary jurisdiction over all subject matters needed to deal with an emergency. On this dual function theory- it is not
helpful to regard an emergency as simply being an example of a matter of national concern

R. v. Crown Zellerbach Canada Ltd., [1988] 1 S.C.R. 401

Hogg
17.11.
17.3(a)-(d)

(c) the issue of distinctness was the issue that divided the SCC in this case. Majority upheld the federal Ocean Dumping Control Act which
prohibited dumping at sea on the basis of marine pollution was a matter of national concern. LaForest dissented-he felt the power to regulate marine
pollution thus intruded too deeply into industrial and municipal activity, resource development and other matters in provincial jurisdiction.

(d) Le Dain – For a matter to qualify as a matter of national concern ...it must have a singleness, distinctiveness and indivisibility that clearly
distinguishes it from matters of provincial concern and a scale of impact on provincial jurisdiction that is reconcilable with the fundamental
distribution of legislative power under the Constitution.

17.4(e)
17.5
POGG Power CANNOT- be used to regulate a particular industry merely because the industry is nation-wide and important to the national
economy. (Insurance Reference)