FavoriteLoadingSave to briefcase | Rating: | By in Nov 2012

  • PrintEmail Link
  • Viewed 21,953 times | Saved to 596 briefcases

Case References

Style of causeRatio

R v Morgentaler, [1993] 3 SCR 463

Federalism/Pith & Substance test:
** 1. What’s the matter or the mischief that the legislation is intended to respond to (pith and substance)?
** 2. What is the purpose and effect of the legislation?
** 3. What is the scope of the applicable heads of power (ss. 91 and 92 of the Constitution Act 1867)?

Reference re Anti-Inflation Act, [1976] 2 SCR 373

There is a difference between the emergency doctrine and the national concern doctrine:
*National concern – when applied effect is permanent, but limited by the identity of the subject newly recognized to be of national dimension
*Crisis/Emergency – power to make laws knows no limit other than those dictated by the nature of the crisis, but the limits are temporary
**To invoke this the legislation must be explicit in indicating that it is an emergency situation

Russell v The Queen (New Brunswick) [1882] UKPC 33

Law regarding control of the sale of alcohol does not fit under any of the provincial head of jurisdiction – we are not told which specific head this falls under for the feds. However, prohibition likely falls under the federal residual power under Peace. Order and Good Governance (POGG).

R v Crown Zellerbach Canada Ltd, [1988] 1 SCR 401

National Concern doctrine is separate and distinct from Emergency doctrine of POGG
*Emergency Branch provides a basis for what is necessarily legislation of a temporary nature
*National concern doctrine applies to both new matters and to which matters, although originally of a local or private nature in a province, have since, in the absence of a national emergency, become matters of a national concern

Test for a matter to qualify as a matter of national concern: matter of national concern that has singleness, distinctiveness or indivisibility that distinguishes it from matter s of a prov nature
**In determining above it is relevant to consider what would be the effect on extra-provincial interests of a prov failure to deal effectively w/ the control or reg of the intra-prov aspects of the matter – Provincial Inability Test

General Motors of Canada v City National Leasing, [1989] 1 SCR 641

Test when challenging a provision of an act (not the entire act):
1. Court must determine whether the impugned provision can be viewed as intruding on provincial powers, and if so to what extent (if no intrusion inquiry ends):
**a. Do a pith and substance analysis of the provision – what does it do, why, etc.
2. Court must establish whether the act is valid (go through analysis of classification of the act – do pith and substance of entire act):
**a.If not valid, end of inquiry;
**b.If valid move on to 3.
3. Court must determine whether the impugned provision is sufficiently integrated w/ the scheme that it can be upheld by virtue of that relationship (this step is quite subjective):
**a. Requires considering the seriousness of the encroachment on prov powers, in order to decide proper standard for such relationship:
***i. If deeply instructive provisions only saved if it is necessarily incidental (act cannot function w/o that provision);
***ii.If it is a lower level of intrusion the provision can be saved it is has a rational, functional connection – further the operation of the act in some way (ensuring the provision is not just tacked on or colourable)

Test for General Trade and Commerce Power aka Parsons 2 (if provision is challenged, this corresponds to step 2 of necessarily incidental doctrine):
**1. Impugned legislation must be part of a general regulatory scheme (reqmt of form)
**2. The scheme must be monitored by continuing oversight of a regulatory agency (reqmt of form)
**3. Legislation must be concerned with trade as a whole rather than with a particular industry
**4. Legislation should be of a nature that the provinces jointly or severally would be constitutionally incapable of enacting (like Crown Zellerbach)
**5. 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
*List is NOT exhaustive – absence of one of these aspects is not fatal (apparently)
*The overriding consideration is whether what is being addressed in a federal enactment is genuinely a national economic concern and not just a collection of local ones

Hodge v The Queen (Canada) [1883] UKPC 59

Subjects which in one aspect and for one purpose fall w/in s.92, may in another aspect and for another purpose fall w/n s.91 – this is called Double Aspect Doctrine

Multiple Access Ltd v McCutcheon, [1982] 2 SCR 161

Double aspect doctrine: Laws with substantially similar purpose regulating the same matter can both be valid.
** There is double aspect to insider trading (the federal aspect deals with company law; the provincial aspect deals with securities regulation)

If there is no repugnancy (express contradiction), then the provincial legislation remains operable
** Mere duplication without actual conflict or contradiction is not sufficient to invoke the doctrine of paramountcy and render otherwise valid provincial legislation invalid
** Mere duplication in itself does not equal conflict

Ontario (Attorney General) v Canada Temperance Federation, [1946] AC 193, 2 DLR 1 (JCPC)

Foundation for the national concern branch of POGG: Need for national law that "[c]annot realistically be satisfied by cooperation of provinces because failure of one province would carry with it adverse consequences for residents in other provinces."

This decision tree outlines a Canadian constitutional law "validity" analysis to determine the validity of a particular piece of legislation. The legal test begins with a Federalism/Pith & Substance analysis (including POGG), followed by the Necessarily Incidental/Ancillary Doctrine and the Double Aspect Doctrine.

The cases referred to include: R v Morgentaler, the Anti-Inflation reference, R v Crown Zellerbach, Russell v The Queen, General Motors v City National Leasing, Hodge v The Queen and Multiple Access Ltd v McCutcheon.


  1. Fiat Justitia Ruat Caelum 32

    Amazing summary

Leave a Comment

You must be logged in to participate.

This document is a general discussion of certain legal and related issues and must not be relied upon as legal advice. This document may not have been written or reviewed by a legal practitioner. For more information, please see the website Terms of Service.