Validity
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
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
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
What is valid criminal law?
Valid Criminal Law
Prohibition
Penalty
Criminal purpose -- suppresses an evil/wrong -- not promoting a good
POGG is
Peace, order and good government
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
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.
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
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
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
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
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
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
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
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
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
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
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
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
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:
Threshold test: is there a matter of national importance? Does it concern the country as a whole, or is it merely local and private?
Is there a singleness, distinctiveness and indivisibility?
Is there a specific and identifiable matter that makes it qualitatively different from provincial matters?
Is this the sort of matter that the province is unable to deal with themselves?
Can the provinces address the matter jointly or severally?
Would the failure of 1+ provinces to cooperate with enacting prevent the provinces from successfully addressing the problem?
Would the provinces failure to deal with the matter within its own borders have grave, extra-provincial consequences?
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
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
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
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
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
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.