The 1st step in evaluating the constitutionality of both pieces of legislation is to determine

the validity of the Acts, then consideration of operativity (Federal Paramountcy) will be
considered, and finally issues of Interjurisdictional Immunity (IJI (as per the process of
Canadian Western Bank).

The 1st part of the validity analysis requires a characterization of the pith and substance
of each act (purpose and effects, both legal and practical) (Morgentaler).

The Legal Purpose: Designed to ___________ by regulating ________

Legal Effects___________
Practical Effects

(Morgentaler) bring in Minister’s statements to Parliament, evidence

Step 1: Characterization of the Matter [Morgentaler]

What is the matter of the law?
What are the legal and practical effects of the law?
What head of power(s) does the provision fall under?

Step 2: Scope of a Head of Power [Employment Insurance Reference]

What is the scope of the head of power?
Does the provision fall within the scope of the head of power?

Step 3: Overlaps/Conflicts – resolution (Fed Paramountcy/IJI? Or double aspect

Purpose
Within the “4 corners” of the statute: (Internal)
Text of the statute and Looking at legislation as a whole
External to the “4 corners”: (External)
legislative history, Hansard, gov’t reports, motivating events
Effect
Within the “4 corners”:
Legal effect– how does the legislation impact the rights and liabilities of those it regulates
Specific effect of provision
External to the “4 corners”: Practical effect– actual or predicted impact of the legislation
in operation

THEN according to (Citizens v Parsons), we look to the potentially relevant Heads of

Federal Power and see which, if any, this legislation could be validly classified under. We
must examine whether the “pith and substance” of the Acts falls within Federal (s. 91)
and/or Provincial (s. 92) heads of power.

List EACH and EVERY branch to look at (Heads of Power).

TRADE AND COMMERCE: Interprovincial/International or General Trade Branch?

Interprov/Intnl: (Dominion Stores) fed govt need only justify intraprovincial res of trade
with a good “extraprovincial” rationale.

(GM v City National Leasing) on General Trade:

Necessarily Incidental Test: the provisions necessarily incidental to the valid subject of
the Act were thus valid as well. In so ruling, he listed several indicators[5]which — while
neither exhaustive nor necessarily decisive — may be used in identifying such validity:

1. the impugned legislation must be part of a general regulatory scheme

2. the scheme must be monitored by the continuing oversight of a regulatory agency
3. the legislation must be concerned with trade as a whole rather than with a
particular industry
4. the legislation should be of a nature that the provinces jointly or severally would
be constitutionally incapable of enacting
5. the failure to include one or more provinces or localities in a legislative scheme
would jeopardize the successful operation of the scheme in other parts of the
country

Analysis Const. of T&C:

1) leg intrudes on PROV power and if so to what extent?
2) whether Act is valid, and if so, if it is
3) sufficiently integrated with the scheme. Consider seriousness of encroachment on
PROV powers. GM=Regulation of Competition (anti price-fixing/anticompetitive action
leg).

POGG (emergency and national concern)

Emergency: Ref. re Anti-Inflation Act – for serious national emergencies, temporary
power allows a good deal of intrusion into provincial powers. Need rational basis.
Emergencies Act 1988 requires Parliament be explicit when it uses Emergency Powers.
Three Criteria:
i. Is the power temporary?
ii. Is there a specific reference to an emergency? Go to (B)
iii. Is the government acting rationally? Is there extrinsic evidence to support
their action (does the evidence conflict)?

B) Factors to consider:

 Preamble
 Extrinsic evidence – studies and articles about the problem
 Judicial notice – Even if Parliament doesn’t put forward extrinsic evidence, there
are some things are so well known that the court can take judicial notice of them
(ex: economic circumstances in Canada at the time)
National Concern (permanent): Crown Zellerbach – need to look at a few factors. “NEW
matter” or has evolved into a matter of national concern?
1) Singleness, distinctiveness, indivisibility; DISCINTNESS: in order to qualify as a
matter, a topic m/b “distinct”: it must have “a degree of unity that makes it indivisible, an
identity which makes it distinct from prov matters and a sufficiently consistence to retain
the bounds of form”(Anti-Inflation Ref)

2) clearly distinguished from matters of Prov concern;

3) scale of impact on Prov Jxn is reconcilable with fundamental power balance of Const.
Div Pwrs. !
Apply “provincial inability test” to determine if all three steps met, consider effect on
extra-provincial interests if a province were to fail to deal with matter appropriately.

See if under GM (Ancillary powers Test) He summarized and outlined the analysis to be
used in that regard in future cases:
The court must determine whether the impugned provision can be viewed as intruding
on provincial powers, and if so to what extent.
It must establish whether the act (or a severable part of it) in which the impugned
provision is found is valid.
In cases under the second branch of s. 91(2) this will normally involve finding the
presence of a regulatory scheme and then ascertaining whether the hallmarks articulated
by the Court have been met by the scheme. If the scheme is not valid, that is the end of
the inquiry.
If the regulatory scheme is declared valid, the court must then determine whether the
impugned provision is sufficiently integrated with the scheme that it can be upheld by
virtue of that relationship. This requires considering the seriousness of the encroachment
on provincial powers, in order to decide on the proper standard for such a relationship. If
the provision passes this integration test, it is intra vires Parliament as an exercise of the
general trade and commerce power. If the provision is not sufficiently integrated into the
scheme of regulation, it cannot be sustained under the second branch of s. 91(2).

CRIMINAL LAW
Criminal Law purpose (Margarine) and form (PATA). Aimed at “public evil” (Ref Re
Firearms Act), prohibition with penalty (PATA) Food and drug (Margarine Ref).
Health. Depending on purpose and effect of health measure. There are criminal law
aspects of health (fed under 91(27) to punish conduct that is dangerous to health. Ref
re Human Reproduction – regulatory laws cant be sustained with crimlaw powers). A
law may still be under 91(27) if principally regulatory if the purpose is sufficiently
complex to require such regulations.

1. Environmental Protection: R. V Hydro-Quebec (1997), Sct. Protection of

environment was a public purpose that would support fed law under criminal law
power.

2. Abortion: Morgentaler v the Queen 1975 overturned on R. v Morgentaler (1988)

 struck down as contrary to s. 7 of Charter.

3. Assisted Human Reproduction: Regulation of assisted human reproduction w/I

provincial powers over hospitals, the medical profession, property and civil rights
and local matters. Re Assisted Human Reproduction Act (2010) outrights
prohibition of “reprehensible practices” – sale or purchase of human embryos,
valid exercise of crimlaw powers.

4. Competition Law: Encouragement of Competition is policy of Fed govt.

Combines and Fair Prices Act. HELD unConstitutional in Board of Commerce
(1921) case. Combines Investigation Act 1923 upheld in P.A.T.A. (1931) case as
a valid criminal law. Criminal Law can expand into world of commerce. TWO
PHASE amendments. 1975 Combines Investigation Act expanded to apply to
service industries. Changed to Competition Act, Competition Tribunal (civil
sanctions only). General Motors v City National Leasing (1989). SCt upheld
civil remedy under TRADE AND COMMERCE power (arose 1986).

5. Sunday Observance Law

BUT after Charter of Rights, R. v Big Drug Mart 85 valid exercise of crimlaw
power, pursued religious purpose of preserving sanctity of Christian Sabbath. (within
typ crim purpose from Margarine Reference as it was intended to “safeguard
morality”. Big M SCt offended freedom of religion, as its purpose was to compel
observance of Christian sabbath.

6. Gun Control Reference Re Firearms Act (Can) (2000) 1 SCR 783. Required all
guns to be registered and all gun owners to be licensed. Focus on public safety
distinguished Act from provincial property registration schemes. Effect on
property was incidental to main public safety purpose. Not merely regulatory,
enforced by criminal law means of prohibition and penalty. The unanimous Court
held that the pith and substance of the Act was in relation to "public safety" which
was a matter within the criminal law power of the federal Govt. Alright to attack
public evils indirectly.

AFTER IDENTIFYING OVERLAP/CONFLICT, list where the legislation may infringe

on the OTHER (FedProv) jxn’s heads of power.

Resolution of conflict: (See NCA tutor notes).

DOUBLE ASPECT DOCTRINE

Recognizes that there are a large amount of laws that overlap, despite the fact that s.91
and s. 92 are supposed to be exclusive
The double aspect doctrine is applicable when the contrast between the relative
importance of the two features is not so sharp. [Multiple Access]
It is an example of judicial restraint
If legislation at both levels is valid and is of equal importance, then the court may find
them both applicable. [Multiple Access]
Overlap is permissible so long as there is no conflict. [Multiple Access]
If there is no conflict then the effects are cumulative and the laws can coexist
If there is conflict, we would go to the Paramountcy Doctrine
Health is a double aspect doctrine (Rothmans). Health administration usually Provincial
but see Eldridge, where government health care system involved Fed.

Double Aspect Test: [Multiple Access]

Determine validity of each legislation w/o heed to the other.
If both valid, compare importance.
If equal strength, and no conflict, then Double Aspect Doctrine applies.

ANCILLARY DOCTRINE

P&S Doctrine enables a law that is classified in relation to a matter within the
competence of the enacting body to have incidental or ancillary effects on matters outside
the competence of the enacting body. That is, when it is not the dominant characteristic.
The Ancillary Doctrine applies when the particular provision, in isolation, appears to be
outside its jurisdiction (fails general P&S test). Here, you must look at how well it fits
with the larger scheme. If the larger scheme is valid, then the provision may be valid if
necessarily incidental to the larger scheme.
Necessity Test [GM Motors]:
What is the infringement of the impugned provision, and to what extent?
Determine whether the Act is valid. (P&S)
If Act is valid, then is the provision sufficiently integrated?
Incidental effects are permissible [GM Motors, Canadian Western Bank]
If the infringement level is high, we’ll need to see strict necessity; if infringement
level is low, functional necessity is enough [GM Motors]
Remedial provisions are deemed less serious [GM Motors]

PARAMOUNTCY

Rothmans, Benson & Hedges Inc v Saskatchewan [2005] 1 S.C.R. 188

once it is determined that a fed law is inconsistent with a prov law, the effect on the prov
law is that it is rendered inoperative to the extent of the inconsistency
• notice that the doctrine only applies to the extent of the inconsistency
• it will not affect those parts that are not inconsistent
• if a fed law that was inconsistent with a prov law is repealed, the prov law will revive
itself
• it is not accurate to describe the effect of paramountcy as a repeal of prov law
• The fed Parliament cannot repeal prov law & repealed law cannot revive on the repeal
of the repealing law
• nor is it accurate to describe the prov law as ultra vires, invalid or unconstitutional –
such descriptions confuse validity with consistency

Interjurisdictional Immunity
(Canadian Western Bank- CWB) Only apply if Core Competence of Parliament or Vital
and Essential Part of an undertaking would be impaired.

COPA
The first step is to determine whether the provincial law ... trenches on the protected
“core” of a federal competence.
If it does, the second step is to determine whether the provincial law’s effect on the
exercise of the protected federal power is sufficiently serious to invoke the doctrine of
interjurisdictional immunity. Legislation found to be inapplicable via IJI (Deschamps &
LeBel – paramountcy not applied). Cited in Canada v PHS.

Definition of Interjurisdictional Immunity

• It does not have a precise meaning
• A law that purports to apply to a matter outside the jurisdiction of the enacting
legislative body may be attacked in 3 ways
1) the validity of the law, or
2) the applicability of the law
3) the operability of the law
• 1st, it could be argued that the law is invalid b/c the “pith and substance” comes with a
class of subjects that is outside the jurisdiction of the enacting body - Alberta Bank Tax
Ref (1938)
• A second way of attacking is to acknowledge that the law is valid in most of its
applications but, to argue that the law s/b interpreted so as not to apply to the matter that
is outside the jurisdiction of the enacting body
o If this argument succeeds, the law is not held to be invalid, but simply inapplicable to
extra-jurisdictional matter –The technique is “reading down” the law
• Third, way of attacking a law that applies to a matter outside the jurisdiction of the
enacting body is to argue that the law is inoperative through the doctrine of Paramountcy
o The doctrine states that where there is inconsistency b/t fed and prov laws the fed law
should prevail
o Paramountcy renders the prov law inoperative to the extent of the inconsistency
Federally-Incorporated Companies
• A valid provincial law may not impair the status or essential powers of a federally
incorporated company
• thus a law preventing all extra-provincial companies from operating w/in the prov and a
provincial law imposing a licensing scheme for the raising of corporate capital have been
“read down” to exempt federally-incorporated companies
Federally-Regulated Undertakings
• This is similar idea from the companies related cases • undertakings engaged in
interprovincial or international transportation or communication, which come under fed
jurisdiction under the exception to
effect of “sterilizing” the undertakings
• a new “vital part” test carved out a much broader field of immunity than the old
sterilization test, b/c the new test precluded the application of prov laws that could not
possibly paralyze or even impair the operation of the fed-regulated undertaking
• Canadian Western Bank v Alberta (2007)
o SCC said it was completing the reassessment of the vital test started in Irwin Toy
o Interjurisdictional immunity would apply only if a “core competence” of Parliament or
a “vital or essential part of an undertaking it duly constitutes” would be impaired by a
provincial law, no immunity
applied
there is no longer a distinction if the law is direct or indirect
o impairment would involve an “adverse consequence” that placed the core or vital part
“in jeopardy”, although “w/o necessarily ‘sterilizing’ or ‘paralyzing’ it
Other Federal Matters
• The doctrine of interjurisdictional immunity also applies outside to fields of
transportation and communication
• ie. prov labour laws have been held inapplicable to postal workers
• ie. prov driving licence req’ts held inapplicable to members of the armed forces
Rationale of Interjurisdictional Immunity
• the interjurisdictional immunity cases do not concern prov laws that target fed
undertakings
• on the contrary, in every case that the prov law was held inapplicable was a law of
general application that was valid in most of its applications
• the decisions were also not based on the paramountcy doctrine
• The theory behind the results is that each head of fed power not only grants power to the
fed Parliament, being exclusive, denies power to the prov Legislature
• the difficulty is to distinguish the occasions when the interjurisdictional immunity
doctrine applies from the occasions when the pith and substance doctrine applies
• the pith and substance doctrine stipulates that a law “in relation to” a provincial matter
may validly “affect” a fed matter
• the leading case is Bank of Toronto v Lambe (1887) which decided that a provincial tax
could validly apply to a bank, although a bank is a fed undertaking