not necessary or conclusive. National Dimension Crown Zellerbach Permanent and acts as if it were an addition to the s.91 powers. It is not acceptable to merely re-label an existing power as national dimension. Applies to new matters, or matters which existed at time of confederation but have sufficiently grown to become a matter of national being an emergency. Aeronautics, national capital commission, atomic energy (Anti-Inflation) TEST: must have all three Singleness, Clearly it from matters of provincial concern Scale of impact on provincial jurisdiction is with the power balance of the division of powers. Chemical properties of salt water/pollution, impossible to tell where inaldn waters start so unacceptable level of uncertainty of which regulatory scheme applies, therefore marine pollution is a federal power under POGG national dimension. Apply “provincial inability” test to determine if the above three steps are met: consider Only matters that fall beyond the provinces ability would be assigned to the
an ‘evil’, which is an reasonable apprehension of harm. The more regulation that is required, the less it seems as if Parliament is truly trying to suppress an evil. McLachlin: A valid criminal law purpose can support a very extensive regulatory scheme (short of a complete code). Very low threshold for satisfying the ‘form’ test. McLachlin: Feds can prohibit things in the realm of health under crim power. Provinces and Criminal Law Is it targeting a specific crime (evidence of colourability)? Westendorp Concerned with punishment (not ok) or rather effects of crime (ok)? Chatterjee Is a new offence created? Is it against a person and their conduct or is it against property? chatterjee Is it connected with the sentencing process or not? Chatterjee Is it part of a general, complete regulatory scheme? Rio Hotel How serious is the penalty? Westendorp Can Do NS board of Censors Morality and criminality are not co-extensive. Just b/c legislation enforces morals, doesn’t automatically make it criminal law. Look to see if there is a penalty, and if the law can be validly enacted under a provincial head of power. Censors who prohibit the showing of certain films, with monetary penalty and revocation of licence if not complied with is NOT criminal law. Rather s.92(13) reg. of industry. Rio Hotel Provs can include morals as part of legislation if it is part of a legit regulatory scheme, anchored in a prov head of power and not designed simply to punish the morally “no nudity” regulation when selling alcohol is vires. Note: this is a way lighter penalty than Westendorp and is part of a valid scheme.
reprehensible activity. Chatterjee Provinces may legislate civil consequences for criminal activity as long as the dominant thrust of the legislation is within a matter of provincial jurisdiction such as property and civil rights. Look for something not designed to punish, but rather another goal i.e. here it was compensatory, not against the person or their conduct but rather compensate society for $ of crime. Double aspect doctrine: existence of a law at one level does not automatically invalidate a similar law at the other level. Feds have property seizure as part of sentencing, but OK for province to add their own property seizure scheme as well. Can’t Do Westendorp Provinces do not have the authority to create offences aimed at stamping out morally reprehensible activity on the grounds that this is in pith and substance criminal law. Calgary by-law prohibiting prostitutes from being on the streets… not really about safe streets, ultra vires. s.91(2) Regulation of Trade and Commerce Issue Case Ratio Examples Trade Man Egg If the buyer and seller are separated by a provincial or federal boundary, ONLY Ottawa can regulate that trade. If the buyer and seller are within a province, ONLY the province can regulate. Evidence that legislation is designed to control or limit interprovincial trade is in pith and substance trade and commerce as it indirectly controls interprovincial trade. Provinces cannot regulate the sale of goods where the seller is out of province and the buyer is within the province.
application and not in relation to any of the exceptions under s.88, such as treaty rights or matters provided for under the Indian Act. 2. federally regulated 91(29) 92(10)(c) Bell Anything that is vital part of management and operations, labour relations, working conditions, health and safety. s.92(10)(a) AGT s.92(16) Health Care PHS Declined to recognize IJI for province in the area of health. s.91(15) Banking Western B “insurance” is NOT part of the core of banking. POGG national Anti Infla Aeronautics, broadcasting 3. Residual POGG: federal corporations ‘Core’ is anything that would potentially unincorporate the company. Issue Case Ratio Examples Doctrine of Paramountcy Canada Western Bank In the event of a conflict between a validly enacted provincial law and a validly enacted federal law, the federal law shall be supreme and the provincial law ineffective to the extent of the conflict. There are two ways in which a conflict can arise. Direct contradiction A conflict may arise if the laws are directly contradictory which means that it would be impossible to comply with both laws. This is often referred to as “one law says yes, the other says no”. Laws are not contradictory if it is