Canadian Constitutional Law October 29 Supplemental. Ian Greene. Monahan Ch 7. -reason why JCPC had difficulty with interpreting division of powers was that the notion of government activities in 1867 was very limited.
Impugned: Ontario Fire Insurance Policy Act.
Fire in Parsons’ warehouse. Parsons wanted insurance payment
Ins Co: you didn’t observe the fine print.
Parsons: the fine print didn’t conform to the Ontario Act.
Ins Co: The act is ultra vires Ontario.
Sir Montague Smith discusses how s. 91 & 92 overlap. JCPC will interpret the BNA Act as an ordinary statute, applying similar rules of interpretation.
-Smith Invokes presumption that specific takes precedence over general. “Property & Civil Rights” more specific than “Trade & Commerce”.
“cubby hole” doctrine. S. 92(13)? Yes. Also S. 91(2)-T&C? No. Feds can incorporate Co’s with national objective, but this doesn’t prevent provinces from regulating intraprovincial transactions
Three aspects of T&C: international, interprovincial and general.
He doesn’t define these categories. Left for later cases.
What is holding;? What is obiter?Citizens Insurance Co. v. Parsons, 1881
Certiorari; rule nisi
¼ of electors in a “county or city” may petition for a plebiscite on prohibition.
Fredericton went dry
Charles Russell: Fredericton pub owner, sold anyway; convicted
Previous SCC decision: City of Fr. v. Queen: Can Temp Act intra vires under T&C (91-2)
JCPC decision: Sir Montague Smith.
Russell’s lawyer: delegation argument – Parliament can’t delegate its powers. Legislation says GG “may,” not “shall.”
“cubby hole” doctrine
Is subject-matter of impugned legislation in s.92? If so, is it also in 91?
If not in s. 92, it must be in s. 91
Russell’s lawyer: argued legis. Falls in s. 92: 9, 13 or 16
“pith and substance”
Smith: Nearly anything could fall under 92(13); what is p&s?
Central subject matter is public order & safety, not T&C
Not local because of local option. (eg. contageous disease orders with greater impact in some areas)
Therefore, not under s.92.
No comment on SCC’s decision in Fredericton re s. 91(2), but seems to emphasize POGG
Eg of Gap (residual) branch of POGGRussell v. The Queen, 1882
Impugned: Ont’s Local Prohibition Act (1890)
Townships, towns, villages (& cities)
Appeal from SCC reference re validity of Ont Local Proh. Act
Feds (under POGG) can trench on s.92 only if incidental to a legitimate fed purpose; otherwise, all of s.92 would fall under s. 91.
s.94 issue (power to unify common law in anglophone provs): meaningless if POGG interpreted broadly.
Ontario argued that legis. falls under 92(8): (municipalities). Watson: not a convincing argument
Pith & substance: vice of intemperance at local level
92(16): (local) yes.
92(13): no; the law prohibits rather than regulates
if conflict: fed. law is paramount
conflict of laws: no conflict if strictest obeyed
“aspect” (or double aspect) doctrine: a legislative subject-matter can fall under s. 91 for one purpose, and s. 92 for another.
National dimension or national concern doctrine of POGG hinted at: a subject matter can become a matter of national concern and then feds can regulate under POGG.Local Prohibition Case, 1896
Impugned legislation: federal Industrial Disputes Investigation Act
Viscount Haldane wrote for JCPC
Haldane says labour legislation clearly falls under s. 92(13)
In this case, the procedure is applied to a municipal transportation agency (TEC, forerunner of TTC, 1923)
Does subject-matter also fall under POGG, fed criminal power, or 91(2) (T&C)? Haldane – no.
POGG can be used as residual, or emergency power. Here, can’t be residual because 92(13) applies. As well, there’s no emergency.
Rule of interpretation: specific takes precedence over general. See Haldane’s discussion of specific words, p. 76.
How can this decision be squared with Russell v. Queen? Haldane: there must have been an emergency in 1878:
“…evil of intemperance [was] one so great” that parliament intervened to “protect the nation from disaster”TEC v Snider (1925)
Treaty-signing Investigation Act power, and treaty-implementation power, are two different powers. The feds had them both until 1926, under S. 132 of the BNA Act. In 1926, Canada became equal to Great Britain in handling foreign affairs (Balfour Declaration, later confirmed by Statute of Westminster, 1931), and so S. 132 became obsolete.
Aeronautics Case (1932) Canada was implementing a British Empire Treaty, but federal gov't has the power to implement a treaty on aeronautics under several heads of S. 91, such as defence, post office.
Radio Case (1932) Section 132 is now obsolete. Therefore, the treaty-making and treaty-implementation powers are new, and fall under POGG.Treaty-Making Cases
Lord Atkin - wrote decision Investigation Act
Distinguished Aeronautics and Radio cases. He said that the Radio case decided that power to regulate radio transmissions is new, and therefore falls under POGG. (Is that what you think was decided?) The treaty-signing power falls to the feds under POGG, but the treaty-implementation power depends on the subject-matter of the treaty. Matters that fall under S. 92 can only be implemented by the provinces.
Head of states
Exchange of notesLabour Conventions Case (1937)
Trudeau Investigation Act campaigned against wage & price controls during 1974 election. After his election victory, he reversed his position.
1975: federal Anti-Inflation Act enacted. All prov's cooperated. Ont public employee unions challenged in court, so the feds sent a ref question to the SCC to settle the issue.
AG of Canada defended Act under nat concern branch of POGG, and also argued that an economic crisis equals an emergency.
There were two decisions for the majority, by Laskin and Ritchie. However, the dissenters agreed with Ritchie’s interpretation of POGG, leaving the Court’s interpretation of POGG unclear.
Laskin (+3 judges): Laskin had been a law prof, and wrote the leading text (before Hogg) on Can. const. law.
Reviewed history of POGG
Const must adapt to change.
If judges can defend as crisis, not nec to look at national concern argument.
Evidence shows there is a rational basis for believing a crisis exists (Stats Can)
Lipsey & 39 economists in an affidavit argued that 1975 inflation is not a crisis. Laskin: there is disagreement amongst economists, and it’s not up to SCC to decide. (Beginning of use of soc sci evidence in court.)
Fed power supported by 91 (14‑21 except 17), & T&C, so it’s intra vires.
Ont. order-in-council is ultra vires; needs primary legislation.Ref re Anti‑Inflation Act (1976)
Ritchie Investigation Act (+2 judges), separate concurring decision:
Rejects Laskin's crisis doctrine.
There is evidence of an emergency (white paper).
An emergency can occur in peace time.
Therefore, impugned anti‑inflation act intra vires.
Beetz (+1 judge), dissenting:
Anti‑inflation act invades 92(13).
Parliament has not declared an emergency, so there's no emergency. Stick with Haldane’s emergency doctrine.
Inflation is not a matter of national concern.
Legislation is ultra vires.Anti-Inflation Reference continued