Constitutional law 11 paramountcy
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CONSTITUTIONAL LAW 11 PARAMOUNTCY. Shigenori Matsui. 1. INTRODUCTION. What happens when a federal law and a provincial law are in conflict? The paramountcy doctrine. I THE DEVELOPMENT OF THE PARAMOUNTCY DOCTRINE.

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CONSTITUTIONAL LAW 11 PARAMOUNTCY

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CONSTITUTIONAL LAW11 PARAMOUNTCY

Shigenori Matsui

1


INTRODUCTION

What happens when a federal law and a provincial law are in conflict?

The paramountcy doctrine


I THE DEVELOPMENT OF THE PARAMOUNTCY DOCTRINE

  • How should the courts decide the case if both federal law and provincial law are valid and are applicable but are in conflict?

  • The U.S. Constitution has an explicit provision:

    • This Constitution, and the Laws of the United States which shall be made in Pursuance thereof…shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.


  • The courts have developed the paramountcy doctrine to give priority to federal law over provincial law.


  • The paramountcy doctrine is applied only when both federal law and provincial law are valid and both are applicable.

  • The doctrine denies only operability.

  • The doctrine precludes operability of the provincial law only when there is a conflict with federal law.


6

  • When there is a conflict?

    • Provincial Secretary of Prince Edward Island v. Egan, [1941]

    • O’Grady v. Sparling, [1960]


7

  • Ross v. Registrar of Motor Vehicle, [1975]


8

  • Multiple Access Ltd. v. McCutcheon [1982]


  • Only the express contradiction will denies operability of the provincial law.

  • Impossibility of dual compliance

  • No conflict when there is roughly the same laws.


10

  • The Supreme Court came to admit inconsistency also when the provincial law frustrates the federal purpose.

    • Bank of Montreal v. Hall, [1990]


11

  • Law Society of British Columbia v. Mangat, [2001]


II INCONSISTENCY

  • Paramountcy doctrine

    • Impossibility of dual compliance

    • Frustration of federal purpose


  • The doctrine of paramountcy is triggered when there is “conflict” between a provincial law and a federal law, and this only after they have both been found valid and the provincial law found to be applicable.

  • Conflict should be considered equivalent to “inconsistency” between the statutes, and inconsistency is generally present when Parliament’s legislative purpose has been frustrated or displaced, either by making it impossible to comply with both statutes or through some other means notwithstanding the theoretical possibility of complying with both statutes.

  • Canadian Western Bank v. Alberta [2007]


  • A. when both the federal law and the provincial law is roughly the same…

    • Multiple Access case


  • Remaining questions:

    • What would happen if the accused is charged with violation of both laws based on the same conduct?

    • Is duplicate civil liability acceptable?


  • B. Express contradiction

    • Impossibility of dual compliance=operational conflict

    • When should the courts find express contradiction?

    • M & D Farm Ltd v. Manitoba Agricultural Credit Corp [1999]


  • Saskatchewan Breathalyzer case [1958]

  • 114957 Canada Ltee v. Hudson, [2001]


18

  • Rothmans, Benson & Hedges Inc. v. Saskatchewan [2005]


  • Canadian Western Bank v. Alberta [2007]

  • British Columbia v. Lafarge Canada [2007]


20

  • C. Frustration of the federal purpose

    • Hall case

    • Mangat case


21

  • Hudson case

  • Rothmans case


  • Canadian Western Bank case

  • Lafarge case


  • D. what would happen if there is an express paramountcy clause in the federal statute?


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