Division of powers

Question 1

Section 91 of the Constitution Act 1867 authorizes Parliament to

Answer 1

make laws for the peace, order and good government of Canada, in relation to all matters within subjects assigned exclusively to the legislature of the provinces (known as POGG power)

Question 2

POGG power authorizes federal legislation in 3 circumstances:

Answer 2

• a national emergency
• a “gap” in the division of powers
• national concern

Question 3

What is the three step analysis of determining whether a matter is one of national concern?

Answer 3

• threshold question, where feds must establish that the issue is of sufficient concern to the country as a whole to warrant consideration
• the matter must have a singleness, distinctiveness and indivisibility
• the feds myt show that the proposed matter has a scale of impact on provincial jurisdiction that is reconcilable with the division of powers.

Question 4

Section 91(2) of the Constitution Act empowers Parliament to

Answer 4

make laws in regulating trade and commerce, subject to extremely restrictive interpretation.

authorizes two kinds of federal laws:
- laws relating to interprovincial and international trade
- laws relating to general regulation of trade affecting the whole dominion

Question 5

What five indicia will a court consider when determining whether a law falls within the power of section 91(2)?

Answer 5

Per the SCC in General Motors v City National Leasing:
- whether the law is part of a general regulatory scheme
- whether the scheme is under the oversight of a regulatory agency
- whether the legislation is of such a nature that provinces would be constitutionally incapable of enacting it
- whether the legislative scheme is such that the failure to include one or more provinces/localities in the scheme would jeopardize its successful operation in other parts of the country.

Question 6

Section 91(24) gives Parliament exclusive power to legislate for

Answer 6

Indians, and the lands reserved for Indians

Question 7

Provincial power over property and civil rights is subject to two limitations:

Answer 7

• the federal list of exclusive powers under s91 of the Constitution Act 1867 (banking, bankruptcy, patents, copyright)
• territoriality, s92(13) authorizes laws respecting property and civil rights in provincesc, therefore not regulating extra-provincial activities

Question 8

Section 92(14) of the Constitution Act 1967 gives provinces the jurisdiction over

Answer 8

the administration of justice in the province

Question 9

What are the three doctrines developed by the courts to use in analyzing disputes concerning federal division of powers?

Answer 9

• pith and substance, to analyze the validity of fed or prov legislation
• interjurisdictional immunity, used to determine the applicability of otherwise valid provincial legislation to certain federal persons/entities
• federal paramountcy, to determine the operability of provincial legislation in the event of conflict with federal law

Question 10

What is the pith and substance/validity requirement?

Answer 10

A law will be valid under the constititional division of powers if it is, in pith and substance, a law in relation to one of the subject matters assigned by the Constitution to the enacting level of government

Question 11

What are the two steps of the pith and substance/ validity analysis?

Answer 11

• the pith and substance of the challenged law must be identified, ie the main thrust/true subject matter of the thing, as discussed by Binnie J in Chatterjee v Ontario (AG)
• once characterized, step two is to determine if the law falls under the head of power assigned to the enacting level of government: classification

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Question 12

When is a substantial intrusion of a government’s jurisdiction justified?

Answer 12

In cases where the ancillary powers doctrine may be available to justify the validity of the law

Question 13

What is the ancillary powers doctrine?

Answer 13

allows one level of government to enact provisions that, despite intruding into the exclusive powers of the other level of gov, are nonetheless valid BECAUSE they form an important part of a broader legislative scheme within the competence of the enacting body

Question 14

What is the test for whether an ancillary provision is valid?

Answer 14

The degree of intrision into the other jurisdiction.

Question 15

If an intrusion is serious, the question is

Answer 15

whether the ancillary provision is NECESSARY to the effective operation of its valid legislative scheme

Question 16

If an intrusion is less serious, the question is

Answer 16

Whether the ancillary provision is RATIONALLY and FUNCTIONALLY connected to the purpose of the legislative scheme

Question 17

What is an example of the ancillary powers doctrine?

Answer 17

Kirkbi AG v Ritvik Holdings Inc, where the SCC upheld a federal statutory civil remedy because it was sufficiently integrated into a valid federal law regulating trademarks

Question 18

The SCC has held that interjurisdictional immunity is

Answer 18

of limited application and should in general be reserved for situations already covered by precedent/

Question 19

where there is conflict bw a valid federal law and a valid provincial law, the doctrine of federal paramountcy holds that

Answer 19

the federal law prevails and the provincial law is inoperative to the extent of the conflict

Question 20

When is a conflict found?

Answer 20

• where it is impossible to comply with both the federal and provincial law; or
• where compliance with the provincial law would frustrate the purpose of the federal law