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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

CONSTITUTIONAL LAW11 PARAMOUNTCY

Shigenori Matsui

1


Introduction
INTRODUCTION

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

The paramountcy doctrine


I the development of 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.


Constitutional law 11 paramountcy


Constitutional law 11 paramountcy


Constitutional law 11 paramountcy

6 law and provincial law are valid and both are applicable.

  • When there is a conflict?

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

    • O’Grady v. Sparling, [1960]


Constitutional law 11 paramountcy

7 law and provincial law are valid and both are applicable.

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


Constitutional law 11 paramountcy

8 law and provincial law are valid and both are applicable.

  • Multiple Access Ltd. v. McCutcheon [1982]


Constitutional law 11 paramountcy


Constitutional law 11 paramountcy

10 the provincial law.

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

    • Bank of Montreal v. Hall, [1990]


Constitutional law 11 paramountcy

11 the provincial law.

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


Ii inconsistency
II INCONSISTENCY the provincial law.

  • Paramountcy doctrine

    • Impossibility of dual compliance

    • Frustration of federal purpose


Constitutional law 11 paramountcy

  • 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]


Constitutional law 11 paramountcy


Constitutional law 11 paramountcy

  • Remaining questions: roughly the same…

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

    • Is duplicate civil liability acceptable?


Constitutional law 11 paramountcy

  • B. Express contradiction roughly the same…

    • Impossibility of dual compliance=operational conflict

    • When should the courts find express contradiction?

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


Constitutional law 11 paramountcy


Constitutional law 11 paramountcy

18 roughly the same…

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


Constitutional law 11 paramountcy


Constitutional law 11 paramountcy

20 roughly the same…

  • C. Frustration of the federal purpose

    • Hall case

    • Mangat case


Constitutional law 11 paramountcy

21 roughly the same…

  • Hudson case

  • Rothmans case


Constitutional law 11 paramountcy