Canadian Public &

Constitutional Law

LAW 6847 Section A
Osgoode Professional Development
Canadian Common Law LLM
2023 / 2024
Nicole Chrolavicius
1
 Part 5

Federalism

2
 Federalism

 What is a “federal state”?
 Governmental power is divided between a central (or national or
federal) authority and several regional (or provincial or state)
authorities, so that every individual in the state is subject to the laws
of the two authorities, the central authority and regional authority
 Neither authority is subordinate to the other (“coordinate” = equal
in status); also “autonomous”
 That being said, it is common to speak of two “levels” of
government because the central authority extends throughout the
country (so “higher”) while the regional authority is confined to its
region
 Federal law prevails in the event of inconsistency

3
 Subsidiarity

 “Subsidiarity” = a principle of social organization that prescribes that
decisions affecting individuals should, as far as reasonably possible, be
made by the level of government closest to the individual affected
 In Canada, one of the primary goals of confederation in 1867 was to
preserve a considerable degree of autonomy for the four original
provinces (esp Quebec); the BNA Act accordingly invested the provincial
Legislatures with authority over matters such as property and civil
rights, the courts and the police, municipal institutions, hospitals and
education.
 The BNA Act invested the federal Parliament with authority over
customs and excise, trade and commerce, banking and currency,
taxation, national defence (all to the collective benefit of the uniting
provinces)
 What are some benefits of federalism?
4
 Federalism in Canada

 Two levels of independent, autonomous government – federal
and provincial
 Each with exclusive powers
 Federal and provincial governments cannot unilaterally expand
their powers because they are entrenched in the Constitution
 The BNA Act gave the provinces only enumerated powers to
make laws, giving the residue of power to the federal
Parliament
 A centralized system of government
 In violation of the principle that in a federal state, the regions
should be coordinate with the centre – How?...

5
 Constitution Act, 1867

 Centralizing features in the Constitution Act, 1867, making provinces
subordinate to the central government, including:
 Disallowance (s. 90) – federal gov could disallow provincial statutes
 Appointment of Lieutenant Governors (s. 58) – federal gov has the power to apt
the Lieutenant Governors of each province
 Appointment of judges (s. 96) – Federal gov has the power to appoint judges of
the superior, district and county courts of each province
 Educational appeals (s. 93)
 Declaratory power (s. 92(10(c)) – federal gov could bring local works within
federal legislative jurisdiction by declaring them to be “for the general
advantage of Canada”
 However, most of these elements have been rendered illegitimate by the
development of case law, convention and practice, such that the elements of
provincial subordination in the Constitution have been virtually eliminated –
see Hogg sections 5:13 to 5:18
6
 Role of the Courts

 Issue: disputes arise as to whether or not a particular legislative body has the power
to enact a particular statute so there needs to be a system for settling disputes
 The Constitution of Canada does not expressly provide a machinery for settling
such disputes
 Current basis of judicial review in Canada is s. 52(1) of the Constitution Act, 1982,
which stipulates that the Constitution of Canada is “the supreme law of Canada”
and that “any law that is inconsistent with the provisions of the Constitution is, to
the extent of the inconsistency, of no force or effect”
 The Constitution Act, 1982 also broadened the scope of judicial review by adding a
Charter of Rights to the Constitution of Canada
 The courts are the only body with the power to decide disputes as to the
distribution of legislative power
 But note that there is policy-making inevitably involved (and judges are unelected)
– What do you think?
 What are some possible alternatives to judicial review?

7
 Part 6

The Nature and Function
of Judicial Review

8
Judicial Review and Principles of
Constitutional Interpretation

 Judicial review of legislation is the power to determine
whether any particular law is valid or invalid
 Two main grounds of judicial review:

1. Federal / Distribution-of-powers grounds

 Law is valid (intra vires) if the court find that the law was
enacted within the powers allocated by the Constitution to
whichever legislative body enacted the law
 Law is invalid (ultra vires) if the court finds that the law was
enacted outside the powers allocated to the enacting body
2. Charter grounds
9
 Justification for Constitutional
Judicial Review

 Marbury v. Madison 5 US 137 (1803) = origins of the
principle of constitutional supremacy in the USA
 the original supreme will organizes the government,
and assigns to the departments their respective
powers and can (as in the USA) establish certain limits
not to be transcended by those departments
 Two possibilities: the constitution controls any
legislative act repugnant to it OR the legislature may
alter the constitution by ordinary act (there is no
middle ground!); if the former is true, a legislative act
contrary to the constitution is not law
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 Constitutional Supremacy in
Canada

 Operation Dismantle v. The Queen, [1985] 1 SCR 441
 Originally, before s. 52(1) supremacy clause in the Constitution Act,
1982, there was s. 2 of the Colonial Laws Validity Act, which rendered
void and inoperative any act of a colonial legislature that was
repugnant to an act of the Imperial Parliament that extended to the
colony
 The BNA Act was one such imperial statute so any Canadian federal
or provincial legislation that was inconsistent with the BNA Act was
void (the Statute of Westminster, 1931 made Canada and its provinces
free from imperial legislation but s. 7 expressly exempted the BNA
Act and its amendments in order to preserve constitutional
supremacy)
 Then patriation, and s. 52(1) of the Constitution Act, 1982 which
enshrined the principle of constitutional supremacy
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 Limitations of Judicial Review
using the Constitution

 There are limitations to judicial review using the
Constitution

1. Justiciability
2. Enforcement
3. Legitimacy

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 Justiciability

 Issue: are all actions by political branches of the government
“justiciable” by the courts?

 Operation Dismantle v. The Queen, [1985] 1 SCR 441

 Can courts review the decision of the federal cabinet to permit the testing
of a cruise missile by the USA in Canadian territory under the Charter?
 Held: courts ought not to treat issues involving moral and political
considerations which are not within the province of the court to assess (in
other words, it is not that they are incapable of deciding, it is just that it is
not appropriate for the court to decide ie don’t second guess the executive
on matters of defence) (per Wilson J.)
 However, it is within the court’s jurisdiction to consider whether any
particular act of the executive violates the rights of citizens under the
Charter
13
 Enforcement

 Section 24(1) - Anyone whose rights or freedoms, as guaranteed by this
Charter, have been infringed or denied may apply to a court of competent
jurisdiction to obtain such remedy as the court considers appropriate and
just in the circumstances
 Issue: what types of remedial orders are appropriate to address breaches of
constitutional rights, particularly in cases that have foreign policy
implications?

 Canada (Prime Minister) v. Khadr [2010] 1 SCR 44 – Omar Khadr’s s. 7 Charter

rights were breached but the SCC refused to order the government to
request Khadr’s repatriation from Guantanamo Bay (just a “declaration”)
 United States v. Burns [2001] 1 SCR 283 – SCC required Canadian
government to seek assurances that death penalty would not be sought in
extradition matter
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 Enforcement, cont’d

 Doucet-Boudreau v. Nova Scotia [2003] SCR 3
 Issue: after finding a violation of s. 23 of the Charter (minority
language rights) and ordering a provincial government to use its
best efforts to build French-language school facilities by a certain
date, can a trial judge retain jurisdiction to hear reports of those
efforts?
 Held: SCC split –majority allowed structured injunction with
review by Court under s. 24(1) of Charter; the minority found
such an injunction usurped role of executive by placing judiciary
in the position of directing implementation of injunction
 See also Re Manitoba Language Rights [1985] 1 SCR 721 (Forcese
text)

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 Legitimacy

 Issue: are judges too activist?
 In other words, the Charter requires discussion of
“vague but meaningful generalities” (Professor Noel
Lyon) – such as “thought, belief, opinion and
expression”, “security of the person”, “principles of
fundamental justice” etc. etc. and judges have given
concrete shape to these ideas and invalidate laws
that do not conform to their interpretation – does this
go too far?

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 Legitimacy, cont’d

 Vriend v. Alberta [1998] 1 SCR 493
 Remedy of “reading in”
 Charter transformed Canada from a Parliamentary democracy to
a constitutional democracy; s. 52(1) makes the constitution
supreme
 “As I view the matter, the Charter has given rise to a more dynamic
interaction among the branches of governance. This interaction has
been aptly described as a “dialogue” by some (see e.g. Hogg and
Bushell, supra). In reviewing legislative enactments and executive
decisions to ensure constitutional validity, the courts speak to the
legislative and executive branches. As has been pointed out, most of
the legislation held not to pass constitutional muster has been followed
by new legislation designed to accomplish similar objectives (see Hogg
and Bushell, supra, at p. 82). By doing this, the legislature responds to
the courts; hence the dialogue among the branches.” (para. 138)
17
 Judicial Review of
Administrative Action

 The exercise of delegated authority must be
exercised within the confines of the delegation itself
 Also, administrative decision-makers are generally
required by the common law to act fairly (procedural
rather than substantive requirement)
 Expansion from previous common law distinction
between duties of fairness or natural justice owed by
quasi-judicial versus administrative entities
 Let’s look at a case regarding procedural fairness…

18
 Baker v. Canada

 Baker v. Canada [1999] 2 SCR 817
 B = Jamaican citizen, lived in Canada for 11 yrs but never became permanent
resident and was subject of deportation order under federal Immigration Act
 While living in Canada, she gave birth to 4 children, and also had mental
health issues – unsuccessfully sought exemption to applying for permanent
residency status from outside of Canada on “humanitarian and
compassionate” grounds
 Issues: whether or not participatory rights include oral hearing; whether there is
a duty to provide reasons; there was a reasonable apprehension of bias.
 Held: The fact that a decision is administrative and affects “the rights, privileges or
interests of an individual” is sufficient to trigger the application of the duty of
fairness (para. 20)
 Issue: what is the content of the duty of fairness if the statute is silent?
 Held: depends on nature of decision made; nature of statutory scheme; importance of
the decision to the individual… (list is not exhaustive)
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 Dunsmuir v. New Brunswick

 Dunsmuir v. New Brunswick [2008] 1 SCR 190
 Case involving substantive judicial review – what is the role of judicial
review?
 “As a matter of constitutional law, judicial review is intimately connected
with the preservation of the rule of law. It is essentially that constitutional
foundation which explains the purpose of judicial review and guides its
function and operation. Judicial review seeks to address an underlying
tension between the rule of law and the foundational democratic principle,
which finds an expression in the initiatives of Parliament and legislatures
to create various administrative bodies and endow them with broad
powers. Courts, while exercising their constitutional functions of judicial
review, must be sensitive not only to the need to uphold the rule of law,
but also to the necessity of avoiding undue interference with the discharge
of administrative functions in respect of the matters delegated to
administrative bodies by Parliament and legislatures” (para. 27)

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 Dunsmuir, cont’d

 “In addition to the role judicial review plays in
upholding the rule of law, it also performs an
important constitutional function in maintaining
legislative supremacy. …In essence, the rule of law is
maintained because the courts have the last word on
jurisdiction, and legislative supremacy is assured
because determining the applicable standard of
review is accomplished by establishing legislative
intent.” (para. 30)

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 Part 7

Judicial Review and Principles
of Constitutional
Interpretation

22
 Procedure of Judicial Review on
Federal Grounds

 ss. 91 and 92 of the Constitution Act, 1867 set out the
distribution of legislative power between the federal
Parliament and the provincial Legislatures; in
particular, legislative authority arises in relation to
“matters” coming within “classes of subjects”

 Section 91 lists the kinds of laws that are competent to

the federal Parliament
 Section 92 lists the kinds of laws that are competent to
the provincial Legislatures
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 Sections 91 & 92 Examples
Section 91 - Federal
2. Regulation of Trade and
Commerce
3. The raising of Money by any
Mode or System of Taxation
7. Militia, Military and Naval
Service, and Defence
25. Naturalization and Aliens
26. Marriage and Divorce
27. The Criminal Law

Section 92 - Provincial
7. The Establishment, Maintenance, and
Management of Hospitals, Asylums…
10. Local Works and Undertakings other
than . . . [i.e. not ships, railways…]
11. The Incorporation of Companies
with Provincial Objects
13. Property and Civil Rights in the
Province
14. The Administration of Justice in the
Province…
16. Generally all Matters of a merely
local or private Nature in the Province 24
 Judicial Review Steps

1. Identify the “matter” of the challenged law
 In other words, the law in question needs to be
characterized
 What is the “pith and substance” of the law?

2. Based on the law’s “matter”, determine which level

of government (federal or provincial) has legislative
power over it by looking at ss. 91 and 92

25
 Pith and Substance

 Step one: Identify the “matter” of the challenged law
 Ask the question: What is the “pith and substance” of the law?
 Need to identify the dominant feature / most important
characteristic of the law
 Characterizing the law is not a formal, technical exercise
 Look at the effects of the law i.e. how a statute changes the
rights and liabilities of those who are subject to it
 The court will also look beyond the direct legal effects to
inquire into the social or economic purposes which the statute
was enacted to achieve (see R. v. Big M Drug Mart (1985) and R.
v. Edward Books and Art (1996))
 Note that the court is not meant to look at efficacy of the law
26
 Pith and Substance –
Incidental Effects Doctrine

 Problems arise where one feature of a law comes within a provincial head of power and
another feature comes within a federal head of power

 Bank of Toronto v. Lambe (1887) - a provincial statute that imposes a direct tax on banks –
need to look at what is the most important feature; direct taxation = provincial but
banking = federal; dominant feature was to raise revenue so the “matter” of the law was
taxation, not banking (so within provincial jurisdiction)
 Alberta Bank Taxation Reference (1938) – Alberta law imposed a special tax solely on banks;
the pith and substance was to discourage the operation of banks in Alberta so the matter
was “banking” and the taxing quality of the law was incidental (so the matter was within
federal jurisdiction and so the province could not enact the law and it was struck down)

 Incidental Effects Doctrine

 the “pith and substance” doctrine enables one level of government to enact laws with a
substantial impact on matters outside its jurisdiction; the law is “in relation to” a matter but can
“affect” other matters
 Note that “singling out” a person or class of persons is not conclusive of pith and substance (see
Hogg section 15:6)

27
Pith and Substance, continued

 Quebec v. Lacombe (2010) – municipal by-law in Quebec prohibited the use of lakes as
aerodromes; land use zoning = provincial (provinces usually delegate to
municipalities) but aeronautics = federal; the court found that the pith and substance
of the law was aeronautics, not zoning, and so the bylaw was struck down because it
was outside (ultra vires) provincial competence

 Quebec v. Canadian Owners and Pilots Association (2010) – a provincial law prohibited
non-agricultural uses of land zoned by the province as an “agricultural zone”; here,
Court found it was a valid provincial law because it was in relation to land use or
agriculture; but the effect was that the provincial law could not impair the essential
core of the federal power over aeronautics so could the provincial law could not apply
to the use of land for the landing or taking off of aircraft; so the law was mostly valid,
but not for aircraft - Note: this was due to the doctrine of interjurisdictional immunity
(An exception to the general rule that a valid law can have effects on matters within
the jurisdiction of the other level of government (to be discussed later today…))

28
 Pith and Substance –
Double Aspect Doctrine

 The “double aspect” doctrine
 Subjects in which one aspect and for one purpose fall
within s. 92 may in another aspect and for another purpose
fall within s. 91
 The double aspect doctrine acknowledges that some kinds
of laws have both a federal and a provincial “matter” and
there therefore competent to both the federal Parliament
and the provinces
 So when will a court allow the double aspect doctrine and
when will the court find it necessary to make a choice
between the federal and provincial features of a challenged
law?
29
 Pith and Substance –
Colourability

 The “colourability” doctrine is invoked when a statute bears the
formal trappings of a matter within jurisdiction, but in reality is
addressed to a matter outside jurisdiction
 A legislature cannot do indirectly what it is not permitted to do
directly
 Alberta Bank Taxation Reference (1938) – the legislation was ostensibly
designed as a taxation measure but was in reality directed at
banking (special tax solely on banks)
 R. v. Morgentaler (No. 3) (1993) – the court struck down a Nova
Scotia statute that required “designated” medical procedures (of
which one was abortion) to be performed in a hospital – this was a
provincial attempt to restrict access to abortion and were really
invalid criminal laws (not health)
30
 Pith and Substance –
Presumption of Constitutionality

 The “presumption of constitutionality” means that the burden of
demonstration lie upon those who would challenge the validity of a statute
which has emerged from the democratic process

 Three legal consequences:

1. In choosing between competing, plausible characterizations of the law, the
court should normally choose that one that would support the validity of the
law
2. Where the validity of a law requires a finding of fact, that finding of fact
need not be strictly proved by the government; it is enough that there is a
rational basis for the finding
3. Where a law is open to both a narrow and a wide interpretation, and under
the wide interpretation the law’s application would be ultra vires, the court
should “read down” the law so as to confine it to those applications that are
within the power of the enacting legislative body
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 Severance

 Issue: can a court “sever” the bad part of a statute, thereby
preserving the good part, or should the court declare the entire
statute to be bad (invalid)?
 Severance is a remedy where only one part of a statute is
invalid and the balance of the statute would be valid if it stood
alone
 Severance is inappropriate where the remaining good part is
so inextricably bound up with the part declared invalid that
what remains cannot independently survive; in that event, it
may be assumed that the legislative body would not have
enacted the remaining part by itself
 Is severance rare or common?
32
 Reading Down

 The “reading down” doctrine requires that,
wherever possible, a statute is to be interpreted as
being within the power of the enacting legislative
body
 Reading down is all about interpretation
 Appears to depend on a presumption of
constitutionality
 Effect is to constrain the role of the courts

33
 Interjurisdictional Immunity

 A law that purports to apply to a matter outside the jurisdiction of
the enacting legislative body may be attacked in three different ways;
the attack may go to:
1. The validity of the law (where the matter or “pith and substance” is
outside the jurisdiction);
2. The applicability of the law (where the law is valid in most of its
applications, but can be interpreted so as not to apply to the matter
that is outside the jurisdiction – this means that the law is
inapplicable to the extra-jurisdictional matter, such as by reading
down, and this is known as interjurisdictional immunity);
3. The operability of the law (where the law that applies to a matter
outside the jurisdiction of the enacting body is inoperative through
the doctrine of paramountcy (stay tuned))
34
 Interjurisdictional Immunity,
continued

 Issue: when it is appropriate to read down a law so
that it should be interpreted so as not to apply to a
matter that it outside the jurisdiction of the enacting
body?

 “Vital part” test – a provincial law may not impair

the basic, minimum and unassailable content (the
core) of a federal legislative power or a vital or
essential part of a federal undertaking

35
 Interjurisdictional Immunity,
continued

 See Quebec v. Canadian Owners and Pilots Association (2010) – provincial
law which designated areas of the province agricultural zones from
which all non-agricultural uses were prohibited; the provincial law was
inapplicable to the extent that it prohibits aerodromes in agricultural
zones because the location of aerodromes was essential to the federal
power over aeronautics and was therefore within the core of the power
– i.e. doctrine of interjurisdictional immunity applied because there was
an “impairment”

 What about Canadian Western Bank v. Alberta (2007)? – The issue was
whether Alberta’s Insurance Act could constitutionally apply to banks
(Act required banks to obtain a licence from the province to promote
insurance to its customers)….
36
 Canadian Western Bank v. Alberta
(2007)

 Alberta enacted changes to its Insurance Act. The Act
required “deposit-taking institutions” (including
banks) to obtain a licence from the province in order
to promote insurance to its customers
 What is pith and substance of the law? Banking
(federal) or insurance (provincial)? (Look at incidental
effects, double aspect, colourability)
 If the law is intra vires the province, should IJI apply
so that the federal banks are immune from the
requirement of a licence?

37
 Application of Federalism
Analysis

1. Pith and Substance - is it banking (federal)? or
insurance (provincial)?
 Pith and substance is insurance and the fact that the
banks now participate in the promotion of insurance
does not change the essential nature of the insurance
activity, which falls under provincial jurisdiction

38
 Application of Federalism
Analysis, continued

2. Interjurisdictional immunity – should the law be read
down so as not to apply to the federal banks? this
doctrine applies where the core competence or a vital
or essential part of federal power would be impaired
by a provincial law
 Is the bank engaging in an activity that is vital to
banking in promoting insurance?
 No, because insurance is not at the core of federal
banking power
 This meant that the doctrine of interjurisdictional
immunity did not apply
39
 Pith and substance or
interjurisdictional immunity?

 Pith and substance doctrine stipulates that a law in relation to a provincial matter
may validly affect a federal matter
 Interjurisdictional immunity doctrine, by contrast, reads down the provincial law
to exclude the federal matter

 Pith and substance doctrine is applied more frequently; but which one to apply?
 Rule: if the provincial law would impair the basic, minimum and unassailable core
of the federal subject, then the interjurisidictional immunity doctrine stipulated that
the provincial law must be restricted in its application (read down) to exclude the
federal subject
 If, on the other hand, the provincial law did not impair the core of the federal
subject, then the pith and substance doctrine stipulated that the provincial law
validly applied to the federal subject

 Issue: Is the interjurisidictional immunity doctrine reciprocal?

40
 Recall Judicial Review steps…

1. Identify the “matter” of the challenged law
 In other words, the law in question needs to be
characterized
 What is the “pith and substance” of the law?

2. Based on the law’s “matter”, determine which level of

government (federal or provincial) has legislative power
over it by looking at ss. 91 and 92

We have examined step one so now let’s examine step two…

41
 Interpretation of the
Constitution

 Once the matter (or pith and substance) of a challenged law has been identified, the
second stage in judicial review is to assign the matter to one of the “classes of subjects”
(or heads of legislative power) specified in the Constitution in ss. 91 and 92; a few
principles at work:
 Exclusiveness – each of the classes of subjects in ss. 91 and 92 is exclusive to the
Parliament or Legislature to which it is assigned; despite appearances, there is no overlap
(or is there?... See below re “concurrency” and recall the “double aspect” doctrine and the
“incidental effects” doctrine)
 Ancillary power – no such power in Canada, which is a power to make all laws necessary
and proper for carrying out all other powers (such as in the USA)
 Concurrency – there are three provisions that confer concurrent powers: those dealing
with natural resources, old age pensions and agriculture and immigration
 Exhaustiveness – all powers are distributed
 Progressive interpretation – general language describing classes of subjects (or heads of
power) is not frozen in time in 1867; constitution as a “living tree”
 Unwritten constitutional principles – i.e. democracy, constitutionalism, the rule of law,
the independence of the judiciary, the protection of civil liberties

42