Identification

Question 1

Pith and substance

Answer 1

-Whos power to legislate is it? Must look at the pith and substance and determine if it is intra or ultra vires

-Preamble to S. 91: “…it is hereby declared that…the exclusive Legislative Authority of the Parliament of Canada extends to all Matters coming within the Classes of subjects
next hereinafter enumerated…”

“Matter”
-Do its “ancillary” or incidental effects make a difference?

• What is its purpose?
• What will its effect be?

“Classes of subjects”
-The enumerated powers layed out in constitution

• Consider: Federal governments grant pipeline deals or the Canadian Industrial Gas and Oil Ltd. V. Government of Saskatchewan (1978) decision.
• are the impacts on other levels of government the goal, or a consequence? It comes down to pith and Substance

The Queen v. Crown Zellerbach Canada Ltd. (1988)

• man dumped logging waste in inland river
• federal government said he violated oceans protections act (because it lead out to the ocean)
• appeals court found that this legislation was aimed to exercise control over provinces which they did not have.
• The pith and substance was not within their jurisdiction

Question 2

Aboriginal title

Answer 2

• recognition of rights
• Inherent limit that cannot be destroyed; inalienable; communal in nature.

When Can title be Infringed?
 Three considerations:
a) extent of infringement; 
b) duty of consultation; 
c) “fair compensation.”

Honour of the Crown
-Crown, acting honourably, cannot cavalierly run roughshod over Aboriginal interests

-how to prove you rights?

Delgamuukw (1997)

• discussed the content of aboriginal title.
• dealt with aboriginal peoples as a monolith
• therefore, it makes land claims awkward and the rights different to that of other land owners(cannot sell or mortgage)
• “undermined everything but settled nothing. “

Tsilhquot’in Nation v. British Columbia (2014)
-covers a broad area where aboriginal group can show it exclusively lived or had historical control over

Pipeline:

• Tsleil-Waututh Nation et al. v. Attorney General of Canada
• “grand slam decision”
• Pipeline not approved because the government could not adequate consulted

Question 3

Paramountcy

Answer 3

-Who has the right to make specific legislation?

AG Ontario v. AG Canada (Local Prohibition case, 1896)

• Prohibition falls under both federal and provincial powers - double aspect doctrine.
• Federal paramountcy.

Citizens Insurance Co. v. Parsons (1881)

• E.g. 91(26) “Marriage and Divorce” vs. 92(12) “Solemnization of marriage in the province
• Founders cannot have wanted provincial powers to be absorbed by federal powers

-However the BNA Act clearly centralized power
in the federal gov’t

John A. Macdonald:
-“…all the great subjects of legislation” given to the federal government
-“…we have avoided all conflicts of jurisdiction and
authority”

Question 4

Gift theory

Answer 4

• Spending power
• asserts ownership of public funds gives government the right to spend these funds as it sees fit
• ignores the fact that government can only “give” money that it has already collected through compulsory taxes
• When government spends, these theorists argue, it is not exercising compulsory authority but rather it is acting as a “natural person.”
• a government’s spending function cannot be divorced from the taxing function
• “gift theory” suggests that huge areas of government activity are virtually without constitutional limits

Question 5

Emergency branch (of P.O.G.G.)

Answer 5

• Preamble to s. 91
• “It shall be lawful for the Queen (…) to make Laws for the Peace, Order, and good Government of Canada, in relation to all Matters not coming within the Classes of Subjects by this Act assigned exclusive to the Legislatures of the Provinces”

3 (or 4) Branches of POGG

1) Emergency Branch
2) Residual Powers or “Gap” Branch
3) National Concern Branch
4) Matters of Interprovincial concern (?)

Labatt v. A.G. Canada (1980)
found that POGG did not cover the debate between lite and light beer, as it did not fall under these Branches of POGG

Question 6

Provincial inability test

Answer 6

• National Concern Doctrine
• Residuary and Emergency Powers
• If it It can’t be regulated effectively by provinces, the feds can step in
• used to determine whether the subject matter sought to be regulated can be sufficiently distinguished from matters of provincial interest is to consider whether the failure of one province to enact effective regulation would have adverse effects on interests exterior to the province

Queen v. Crown Zellerbach (1988)

• man dumped logging waste in inland river
• federal government said he violated oceans protections act (because it lead out to the ocean)
• Feds: defend under POGG “national concern” doctrine
• appeals court found that this legislation was aimed to exercise control over provinces which they did not have.

Question 7

Watertight compartments

Answer 7

• Classical federalism
• “While the ship of state now sails on larger ventures and into foreign waters she still retains the watertight compartments which are an essential part of her original structure”

Economics

• the federal government should only tax to fund their necessary functions
• therefore the “gifts” they give to provinces exceed these fundamental functions

Question 8

1987 Meech Lake Accord

Answer 8

Package of 5 constitutional
amendments:

1) Recognition of Quebec as a “distinct society”;
2) Constitutional veto for all provinces on more issues;
3) Increased provincial powers with respect to immigration;
4) Ability to opt out of federal/provincial shared cost programs;
5) Provincial input on Senate and Supreme Court appointments.

Question 9

Clarity Act

Answer 9

Bill C20: The Clarity Act (1999)

Feds won’t enter into any negotiations over separation unless the House of Commons determines:

a) the referendum question is “clear”; and
b) a “clear” majority of the population has expressed their will to separate.

¾ HoC can use any “matters or circumstances it determines to be relevant” in determining if majority is “clear.”

it is seen as A reasonable interpretation of Quebec
Secession Reference.

but it is suggested that the feds should stay out of it

Question 10

7/50 formula

Answer 10

Part V of Constitution Act, 1982: Amendment Formula

-General formula where 7 provinces that make up 50% of population must agree to make constitutional amendments

Question 11

The Royal Proclamation

Answer 11

issued by King George III following Great Britain’s acquisition of French territory in North America after the end of the Seven Years’ War. It forbade all settlement west of a line drawn along the Appalachian Mountains, which was delineated as an Indian Reserve.

• french assimilation
• it refers to Nations or Tribes of Indians, recognizes the peoples as owners of the lands that there were using and occupying and sets out what today are sometimes called “special” hunting rights