Validity
Applicability
Operability
Criminal Law Power
POGG
100

Multiple Access Ltd. v. McCutcheon

Facts: Insider trading case 🡪 Multiple Access Ltd. was a federally incorporated company (registered based on pursuit on federal object) and charged under provincial legislation

  • Ontario Securities Act: prohibits insider trading in Ontario

  • Canada Corporations Act: nearly identical provision prohibiting insider trading 

Defence: since MAL is a federal company, they claimed OSA didn’t apply to them

Issue

  • Is there federal jurisdiction under the CCA to regulate insider trading?

Holding

Insider trading has both a securities aspect (provincial) and company law aspect (federal). These aspects were considered equal; thus, both are recognized as valid. Therefore, claim can fall under either statute.

Ratio 

  • Nature of provisions deals with insider trading 

  • Provisions in isolation 🡪 trading in securities 🡪 form of property and civil rights 🡪 provincial

  • Viewing matter in context of company law for federal company 


    • SCC previously recognized that federal jurisdiction of federal companies falls under residual powers of Parliament 

  • Federal power over company law goes beyond mere incorporation


    • Can understand federal regulation of insider trading as a matter of internal ordering 

    • Affects company’s shareholders 🡪 internal management 🡪 federal 

  • Securities trading has a company aspect and a property and civil rights aspect

    • Provincial: property and civil rights; regulating internal affairs of provincial companies 

    • Federal: internal management of federal company 


100

Interjurisdictional immunity doctrine

  • law may be valid but inapplicable in its context 

  • Some undertakings of the province don’t encompass subjects that are covered by federal undertakings, and vice versa 

  • Doctrine only applies to federally regulated undertakings 🡪 seems to only benefit federal classes of subject

100

What is Paramountcy

Key idea: federal law is paramount and renders the provincial law inoperable 

  • Only occurs when there’s a conflict between the 2 legislatures and it’s impossible to follow both

  • If conflict is removed, then provincial law springs back into operation 

100

What is valid criminal law?

Valid Criminal Law 

  • Prohibition

  • Penalty

  • Criminal purpose -- suppresses an evil/wrong -- not promoting a good 

100

POGG is

 Peace, order and good government

200

Double Aspect Doctrine 

A given matter may have 2 aspects: federal and provincial jurisdiction 

  • Certain areas of regulation (environment. public safety etc.) have more than one aspect by their very nature 🡪 example: highway drivin

    • Federal: dangerous driving is a crime under CCC

    • Provincial: Highway Traffic Act 🡪 regulate activities in pursuit of road safety

Key point: nothing unique about double aspect doctrine that’s not already captured by the pith and substance doctrine

 

200

Relationship between Sections 91 and 92

  • Section 91 lists the classes of subjects under federal jurisdiction, while section 92 lists the classes of subjects under provincial jurisdiction.

  • Section 91 is more specific than section 92.

  • Many classes of subjects listed in section 91 make exceptions to the classes of subjects listed in section 92.

  • Section 91 subtracts certain matters from provincial legislative authority and awards them to the federal parliament.


200

Ross v Registrar of Motor Vehicles

Facts

Accused was found guilty of impaired driving. Conflict arose upon sentencing:

  • CCC: impose order to prohibit driving for a specific period of time 🡪 no driving for 6 months except to and from work on Monday – Friday (during specific period of time)

  • Provincial Highway Traffic Act: 3 months total driving prohibition for first offence 

Both federal and provincial legislations were deemed valid and applicable.

Issue

  • Is there a conflict that is going to be resolved in favour of the federal law?

Holding

CCC provides for making of prohibitory orders, and authorized the judge to limit the scope of prohibition to time and place. Therefore, there is no conflict between the statutes and they can operate simultaneously. 

Ratio

  • Federal order doesn’t grant a right to drive that the provincial law is removing 

  • Order is prohibitory in nature 🡪 no driving for non-work purposes

  • Person can follow both orders by not driving for non-work purposes

  • Is federal scheme granting a right or limiting the scope of a prohibition

    • Federal order only granting an indulgence, not the right to drive 🡪 demarking scope of prohibition


200

Margarine Reference

Facts

  • Challenge to s.5(a) of Dairy Industry Act which prohibited sale of margarine due to health concerns. As of 1949, this was no longer the dominant scientific opinion.

Issue

  • Could margarine be prohibited under the criminal law power because Parliament said it was wrong, or does it have to be inherently wrong?

Holding

Criminal law can't be defined as whatever is prohibited or penalized by Parliament – it must have some evil or injurious effects on the public. 

Ratio 

  • Crime is an act that the law forbids, with appropriate penal sanctions 🡪 must look for some evil, injurious effects that the crime has on the public in order to bring it into scope of criminal law power


    • Goal must be to suppress evil

  • True objective of Parliament was economic to protect dairy industry and promote sale of butter by suppressing margarine


    • About civil rights 🡪 provincial jurisdiction

    • No true evil that makes it fall in the scope of the criminal law 


200

Section 91 is no longer...

  •  no longer seen as encompassing, and doctrinal reading is limited to 2 branches:

  • Emergency branch  temporary

  • National concern branch  permanent 

300

Hodge v The Queen

Facts: Toronto enacted liquor by-laws further to Ontario legislation 🡪 municipality acting under the provincial jurisdiction.

Issue: Was the regulation of liquor about trade and commerce in liquor (federal) or about regulation in municipalities and local matters (provincial)?

Holding: Liquor License Act falls within intra vires the provincial legislature.

Ratio: Liquor licenses fall within s.91 and s.92 🡪 must determine purpose legislation was enacted

  • Confined in its operation – only focus is municipalities in ON

  • Purpose: make municipal by-laws

  • Intention: preserve peace and public decency

  • No attempt to interfere with commerce

300

Bell Canada v Quebec

Facts: Telecommunications awarded to federal Parliament as an exception to provincial subjects. Pregnant woman wanted to preserve provincial right to keep job assignment.

Section 91(29): residual powers clause

Section 92(10): local works and undertakings of telecommunications, trucking, railways

  • Provincial legislations deal with health and safety regulations which apply to subjects of federal undertaking

Issue

  • Does Parliament have interjurisdictional immunity over the labour and work relations (provincial) of a telecommunication company that itself is under federal jurisdiction?

Holding

Health and Safety Regulations fall under basic and unassailable content (labour relations and working conditions) and affects what is essential and vital to federal jurisdiction. Thus it cannot be within provincial jurisdiction, and the Act must exclude matters with essential aspects of federal jurisdiction.

Ratio 

3 propositions:

  • General legislative jurisdiction over health belongs to provinces via s.92(16)

  • In principle, labour relations fall under provincial jurisdiction via s.92(13)

  • Parliament is vested with exclusive jurisdiction over labour relations and working conditions when that jurisdiction is an integral part of its primary and exclusive jurisdiction over another class of subject, as is the case with federal undertakings 


Analysis

  • If the constitution awards Parliament jurisdiction via federal undertaking, that includes jurisdiction over labour relations through federal undertakings

  • Federal jurisdiction of labour relations and working conditions an essential part of the very management and operation of undertakings 

  • If a provincial statute purports to an official undertaking and it affects a vital or essential part of that undertaking, then the provincial law is inapplicable  

  • Basic and unassailable content: essential and vital to the federal jurisdictions

    • Labour relations

    • Management of undertakings

    • Working conditions

    • Quality and availability and rates of service 

  • Provincial Health and Safety statute affects the first 3 🡪 inapplicable as federal jurisdiction applies here 


300

Rothmans, Benson & Hedges Inc. v. Saskatchewan

Facts

  • Federal Tobacco Act: prohibitions for advertisements; exceptions exist – can advertise presence and price of tobacco. 

  • Provincial Tobacco Control Act: prohibits all advertisement, display and promotion of products where those under 18 can be 

Issue

  • Is the federal act inconsistent with the provincial act, so as to render the provincial provisions inoperable under paramountcy?

Holding

The federal and provincial acts are consistent with each other, so the provincial provisions are operable. 

Ratio 

2 ways of measuring paramountcy:

  • Impossibility of dual compliance

  • Where provincial scheme frustrates or displaces Parliament’s legislative purpose


Analysis:

  • Granting exceptions doesn’t give retailers positive entitlement to advertise tobacco 🡪 delimitations to prohibition by limiting scope to advertise

  • Federal grant of a right to advertise would be outside federal scope because advertising falls under property and civil rights 🡪 not what the federal scheme is doing 

  • Not impossible to comply with both schemes by 


    • Not admitting people under 18

    • Not displaying tobacco products at all

  • No conflict since federal act hasn’t granted a right prevented by provincial scheme 

  • No frustration since provincial act seems to further the purpose of Parliament, which is to protect youth from consuming tobacco products

300

RJR-MacDonald v Canada (Attorney General)

Facts

  • Prohibition of advertisement of tobacco but with exceptions: health warnings, foreign products etc. argument was that the Act was about regulating tobacco products, not prohibiting them.

Issue

  • Is the Tobacco Products Control Act intra or ultra vires the federal legislature via the criminal law power?

Holding

Majority held that TPCA was a valid control of criminal law power, as prohibitions were present with a penal sanction for each. Therefore, it’s intra vires the federal legislature.

Dissent held that legislation was regulatory as it seems like it’s regulating tobacco advertisements, not prohibiting it. Thus, it’s ultra vires the federal legislature.

Ratio 

  • Evil underlying purpose exists 🡪 detrimental effects of tobacco

  • Prohibition of social drug would be ineffective and lead to increase in smuggling and crime

  • Don’t need to outlaw toxic substance 🡪 can go about it indirectly by controlling sale and distribution 🡪 justifies health label under criminal law power 

  • There is an evil in encouraging someone to consume something that will kill them, even if the thing in question isn’t prohibited by law, as long as the lack of prohibition is justified 


    • Justification: prohibition would lead to higher crime via smuggling 

  • Dissent: advertising tobacco can't be criminal when using tobacco isn’t 🡪 scheme as a whole is a series of prohibitions against ads with exceptions, seeming like regulations 


300

Re: Anti-Inflation Act


Facts

  • AIA provides for price, profit and income controls for private sector firms with 500+ employees; applies to federal sectors and provincial sectors that choose to opt in. Argument was that Parliament could exercise POGG power to take over powers that would typically fall under, because inflation rose to a level that constituted a national emergency.

Issue

  • Can Parliament enact the AIA under the emergency branch of the POGG power? If so, what conditions must it satisfy?

Holding

Majority held that Parliament has jurisdiction to enact AIA under the emergency branch, as an emergency is present. Dissent held that Parliament can do this in principle, but failed to do so in this case. 

Ratio 

Emergency branch test:

  • Is there an emergency?

  • Is there a rational basis for the emergency?

  • Can the federal government prove that it is necessary for the Act to go beyond matters of local or provincial concern?


Analysis

  • AIA engages vital national interests (integrity of Canadian financial systems) and inflation goes beyond local and private matters 

  • Evidence showed there was double-digit inflation on Canadian dollar, thus rational basis for enacting emergency legislation 

  • Court deemed emergency was present, thus Parliament can intervene 🡪 not for court to decide whether intervention will actually be successful or not 

  • As long as there’s some evidence that there’s a rational basis (even if contradictory evidence also exists), Parliament has the jurisdiction to enforce its emergency power 

  • Absence of word “crisis” in scheme doesn’t mean that Parliament doesn’t think there’s an actual emergency 🡪 no need to include “magic words” 

  • Not fatal to scheme that they didn’t include provincial public sector, and irrelevant that scheme might be ineffectual

  • Dissent: Parliament failed to make it explicit that AIA was an emergency scheme 

400

Union Colliery Co. v Bryden

Facts: BC enacted Coal Mines Regulation Act stating no boy under 10 nor any woman/girl can be employed in mines. Added an amendment: “and no Chinaman” 

Issue : Does the amendment come within federal jurisdiction over aliens, or is it still within provincial jurisdiction over mines?

Holding: Amendment to Coal Mines Regulation Act is ultra vires of provincial legislature.

Ratio : Scope of s.92 powers must be read in light of s.91 concluding clause 🡪 must exclude any powers listed in s.91 

Property and civil rights clauses for provincial legislature has silent exclusion for aliens 

Purpose of amendment: any adult from China who isn’t yet naturalized, and thus an alien, can’t work in mine 

Pith and substance: aliens 🡪 exclusive authority of federal government 

400

Canada Western Bank v. Alberta

Facts: Provincial law exists with purpose of regulating insurance and providing for peace of mind insurance. Bank challenged applicability of statute on basis that peace of mind insurance isn’t applicable to a bank, and that banks benefit from interjurisdictional immunity.

  • Insurance contracts 🡪 civil rights s.92(13)

  • Banks under s.91 🡪 federal jurisdiction

Issue

  • Would provincial insurance providing peace of mind insurance, when applied to banks, impair what is absolutely indispensable and necessary to banking?

Holding

Provincial peace of mind insurance doesn’t impact necessary aspects of banking. IID fails here and provincial statute applies to banks. 

Ratio

  • Determine what’s basic + minimum to class of subject by reducing scope 🡪 core to jurisdiction

  • IID triggered whenever provincial law impairs what’s core to federal undertaking  

  • Going forward, IID should be restricted to things already set in precedent 🡪 shouldn’t ask court to invent new subjects for IID to apply to


400

Bank of Montreal v Hall

Facts

Hall took out a loan from BMO via the Federal Bank Act, and was later unable to pay his debt.

  • Federal Bank Act: bank can seek security interest if debtor can't pay debt

  • Limitation of Civil Rights Act: any creditor has to provide notice of seizure of property; if no notice, seizure is void and debtor cleared of interest 

Issue

  • Is the operation of the provincial scheme compatible with the federal purpose?

Holding

Following the provincial scheme displaces the federal statute, which is inconsistent with Parliament’s purpose. Therefore, the operation of the provincial scheme isn’t consistent with the purpose of the federal scheme. 

Ratio 

  • Court claimed that it was possible to follow both schemes by having banks provide notice

  • Second test: does the provincial scheme frustrate the federal purpose? Does the provincial right deny a federal right?

  • Parliament’s purpose: provide for uniform national security for loans to give banks necessary security

  • Essence: assigns bank right to seize security immediately if debtor doesn’t pay

  • Provincial act prevents bank from exercising federal right 🡪 no right to do this  


400

R v Hydro-Québec

Facts

  • Federal Environmental Protection Act regulates toxic substances. Criminal prohibitions come about through the list of regulated substances and moves from priority list to prohibited list if Governor in Council deems it so. Toxic substances become prohibited because of Cabinet decision, not because of Parliament. 

Issue

  • Is FEPA in the realm of regulation or prohibition? 

Holding

Majority held that protection of the environment is sufficient to bring about criminal law power as wronging the environment is an evil to be prevented. 

Dissent held that protecting environment is a valid purpose for criminal law, but should be done through act of Parliament; thus, it is regulatory and not criminal. 

Ratio 

  • Majority: FEPA demarcates scope of prohibition; doesn’t mean it’s not inherently prohibitory in nature

  • The prohibition is supported by a penal sanction, making it criminal in nature 

  • Dissent: odd that something criminal would be up to Cabinet decision and not through an act of Parliament


    • Awkward that scheme allows an exception of a province from that scheme

    • Makes no sense in a criminal sense that something is not a crime only in one part of the country 

  • Goal: moving away from the idea of the Margarine Reference and expanding the scope of the criminal law power to include some regulation, and allows prohibition to be imposed by a body other than Parliament 


400

References re Greenhouse Gas Pollution Pricing Act,

Facts

  • Statement in preamble of concern: “an international concern which can't be contained within geographic boundaries”.

Issue

  • Can Parliament enact the Act using the national concern branch of the POGG power?

Holding

Ratio 

Parliament can enact this Act under the national concern branch of the POGG power, as it satisfies the national concern branch test. 

National concern branch test:

  1. Threshold test: is there a matter of national importance? Does it concern the country as a whole, or is it merely local and private?

  2. Is there a singleness, distinctiveness and indivisibility?


    1. Is there a specific and identifiable matter that makes it qualitatively different from provincial matters?

    2. Is this the sort of matter that the province is unable to deal with themselves?


      1. Can the provinces address the matter jointly or severally?

      2. Would the failure of 1+ provinces to cooperate with enacting prevent the provinces from successfully addressing the problem?

      3. Would the provinces failure to deal with the matter within its own borders have grave, extra-provincial consequences?

  3. Scale of impact test: if the effect of making a permanent act part of the federal jurisdiction is to upset the balance of federalism, then it shouldn’t be done 🡪 must minimally impair provinces’ ability to legislate



Analysis

:

  • Pith and substance analysis: purpose is to establish minimum national standards to reduce GHG emissions, by imposing a price on pollution 

  • Question 1: yes 🡪 climate change is a threat as a whole, not just locally; dealing with carbon prices is essential to dealing with GHG emissions, which are a matter of national concern

  • Question 2: yes 🡪 specific and identifiable matter: price stringency of GHG by setting minimum national standard


    • Provinces acting alone or together are constitutionally incapable of meeting a minimum national standard 🡪 constitutionally allowed to opt out

    • Provinces opting out undermines scheme in a way that has grave consequences to extra-provincial interests 

  • Question 3: scale of impact doesn’t upset federalism as impact on provinces’ ability to legislate is minimal, and impact on provincial life is also limited 🡪 reconcilable with provincial powers since they're still able to legislate  


500

R v Morgentaler


Facts: Nova Scotia passed Medical Services Act in 1989 which made it illegal to perform an abortion

  • Context: 1988 decision ruled CCC provisions relating to abortion unconstitutional 🡪 Charter

  • MSA prohibited privatization of certain medical procedures 🡪 no abortions outside of hospitals 

Issue

  • Is the Nova Scotia Medical Services Act intra vires the province, or does it fall under the criminal law power (federal)?

Holding

Dominant purpose of legislation was to regulate abortion because it considered certain acts to be public wrongs, therefore ultra vires to province because criminal law is under federal jurisdiction.

Ratio 

  • Purpose and effect are both relevant in pith and substance analysis

  • 2 purposes can be found in legislation


    • Prohibit moral wrong 🡪 criminal law 🡪 ultra vires

    • Regulate place of delivery of medical service 🡪 healthcare 🡪 intra vires

  • Effect: studies legislation’s dominant purpose by seeing what it’s achieved


    • Practical effect 🡪 reduced # of abortions in province; not enacted long enough to have this effect

    • Legal effect 🡪 provides punishment by denying a service 🡪 criminal law

  • No evidence that Act was motivated by concerns about quality assurance or that abortions were a health risk

  • No government studies done on regulation of abortion and effects of regulation 

  • When means employed by legislature to meet its stated purpose do not advance that stated purpose, court may conclude that stated purpose masks true purpose 


500

Québec (Attorney General) v. Canadian Owners and Pilots Association


Facts

  • 2 people decided to build private landing strip under Federal Aeronautics Act, and didn’t need permission to build since it was for private use. Chose to register with federal board and thus subject to federal jurisdiction 🡪 people would be allowed to land there and strip no longer private. 

  • Province claimed it was agricultural 🡪 provincial legislation stated that any non-agricultural use of land required permit. Since no permit sought or granted, province sought for destruction of airfield on basis that it was a violation of provincial statute.  

Issue

  • Is the valid provincial statute applicable to the federal airfield?

Holding

The provincial statute sufficiently impairs a core aspect of the federal power of aeronautics, thus is inapplicable. 

Ratio

  • IID limited to federal jurisdiction over which there is already precedent 

  • Precedent supports conclusion that provincial law sufficiently impairs federal core and competence 

  • Core: location of airport is under core jurisdiction of aeronautics as it must be part of federal jurisdiction to figure out where planes can land 

  • Provincial law would affect location of landing strips and could lead to no places for planes to land, since provinces can deny permits to landing strips in agricultural zones

  • Impairs federal power to determine where airports can be built


500

Alberta (Attorney General) v. Moloney

Uninsured driver got into an accident – later filed for bankruptcy:

  • Alberta Traffic Safety Act: in the case of an uninsured driver, province will compensate injured party and seek to recover cost from uninsured driver

  • Federal Bankruptcy Act: bankruptcy protection relieves one of their debts 

Alberta said driver couldn’t re-apply for driver’s license until he fully cleared debts owed to province.

  • Is there a conflict between the provincial and federal schemes so as to trigger the paramountcy doctrine?

Provincial scheme frustrates the federal purpose; thus, it is inoperable.

  • Conflict between debt-free vs. satisfying debt

  • FBA allows defaulting debtors to begin again with no debt

  • Provincial scheme causes one debt to survive 🡪 conflicts with purpose of FBA

  • Majority ruled there was a conflict at level of operation via an impossibility of dual compliance 🡪 federal law granted a right (relief of debts) that provincial law was preventing by allowing 1 debt to remain

  • Dissent ruled there was no impossibility if driver doesn’t ever apply for another license 🡪 if so, province doesn’t have a claim against driver 🡪 only a frustration of federal purpose


500

Reference re Assisted Human Reproduction Act

Facts

AHRA has 3 sections: prohibited activities, controlled activities, administrative agency 

  • Prohibited activities were within criminal law power 

  • Administrative agency outlined regulation of certain activities 

Issue

  • Is it in the power of the Parliament exercising its criminal law jurisdiction to set up an administrative agency that will collect information and administer the act, and does that fall in the criminal law power?

Holding

Court split, and tie-breaking vote slightly sided with McLachlin J. Act is prohibitory in nature and thus controlled activities do come into the scope of the criminal law power. 

Dissent: controlled activities fall outside scope of criminal law power since they’re healthcare services, and their purpose is to regulate healthcare.  

Ratio 

McLachlin (4 votes):

  • When looking at scheme as a whole, purpose is to prohibit, not promote, certain practices

  • Prohibited and controlled activities have same purpose 🡪 prohibiting certain types of conduct 🡪 emphasis on mala in se 

  • Controlled activities come into scope of criminal law power 🡪 demarcate scope of prohibited activities 

  • Criminal law purpose: prohibiting immoral acts and playing God; injurious consequences on human health and thus supported by health purpose 

  • Creation of administrative agencies justified under APD 🡪 satisfies rational functional test 

Lebel (4 votes):

  • Pith and substance of Act is regulation of human reproduction as a health service 

  • Controlled activities are health services and regulate how to promote a good 🡪 not worthy of prohibition 

  • Purpose: regulate healthcare

  • APD fails because it directly encroaches on provincial powers of healthcare

Cromwell: prohibit negative practices and fall within traditional ambit of criminal law power


500

Proclamation declaring a public order emergency and Emergency Measures Regulation


Facts

  •  The Governor in Council believes a public order emergency exists in Canada, requiring special temporary measures under the Emergencies Act.

  • Before declaring the emergency, consultations were made with provincial authorities and territorial commissioners.

  • The emergency is specified as involving continuing blockades, threats of violence, adverse economic effects from COVID-19 recovery, impacts on international relations and trade, breakdown of the distribution chain, and potential for increased unrest and violence.

Legal Issue

  •  Are the specified special temporary measures, as outlined in the Proclamation, justified to deal with the declared public order emergency?


Reasoning/ Analysis

  • The specified emergency encompasses various elements, including blockades, economic threats, international relations impact, distribution chain breakdown, and potential for increased unrest and violence.

  • The special temporary measures outlined in the Proclamation include:

  • Regulation or prohibition of public assemblies that may lead to a breach of the peace.

  • Regulation or prohibition of travel in specified areas.

  • Regulation or prohibition of the use of specified property, including goods related to blockades.

  • Designation and securing of protected places, including critical infrastructure.

  • Authorization or direction for the provision of essential services, with compensation for those rendering such services.

  • Authorization or direction to regulate property funding or supporting the blockade.

  • Empowering the Royal Canadian Mounted Police to enforce municipal and provincial laws.

  • Imposition of fines or imprisonment for contravention of orders or regulations under the Emergencies Act.

  • Authorization for other temporary measures under section 19 of the Emergencies Act.

  • Conclusion:

  • The Proclamation declares a public order emergency and outlines special temporary measures justified under the Emergencies Act to address the specified emergency conditions. The measures encompass a range of regulatory and enforcement actions aimed at mitigating the identified threats and challenges.

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