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Division of Legislative Powers Analysis and Doctrine

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Larry Chartrand

on 16 November 2016

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Transcript of Division of Legislative Powers Analysis and Doctrine

Pith and Substance Analysis
Ancillary Powers

Division of Powers
In relation to Matters
Incidental or Consequential Effects
Extrinsic Evidence of Purpose
Ancillary Powers
Walter (1969)
(The Hutterite land prohibition case)
Classification of Laws
1. Determine the purpose of the legislation

Relying on intrinsic evidence (such as preambles and legislative objective clauses) and/or extrinsic evidence such as relevant parliamentary reports and debates. (Kitkatla, p. 314 @ para. 53)

2. Consider the legal effect of the legislation (What effect flows directly from the provisions of the statute itself?)

3. Where appropriate or possible, consider the practical effects (What side effects flow from the application of the statute which are not direct effects of the provisions themselves ?) (@ para. 54) (@286/7)
Balance is really the whole point
What is an appropriate balance of power between the provinces and the federal (central) government?
"A law is in relation to a matter when its dominant or most important characteristics, its leading features, its
pith and substance
are really all about that matter" (@ 286)
"merely incidental effects will not disturb the constitutionality of a law otherwise in relation to a matter that comes within the classes of subjects assigned to the enacting legislature" (@ 287) (GM @ 308/9)
How did the court characterize the legislation at issue in this case? (@ 289)
Once you have identified the pith and substance of the legislation at issue, you then determine which class of subjects under s.91 or s.92 the matter falls within.
In this case, the matter was in relation to the ownership of land, particularly the control and restriction of communal ownership of real property.

Therefore, it would fall within s.92(13) "property and civil rights in the province".
There was no suggestion that the legislation intruded on a s.91 power ... (@ 289). The impact on religious beliefs did not render the legislation's primary focus as other than matters dealing with communal property ownership.
Munro v. Nat. Capital Comm. (1966)
How did the court characterize the Act? What is its pith and substance about? (@ 293)

What federal subject matter power does it fall within?
The "National Concern" branch of the P.O.G.G. (peace, order and good government) power.
Although the law affected civil rights respecting expropriation procedures, and thus would be a matter pertaining to property and civil rights in the province, this effect is considered incidental of an otherwise valid federal Act. The Act was not "in relation to property or civil rights" but in relation to the establishment of a national capital region. (@ 293)
The analysis of pith and substance is not , however, restricted to the four corners of the legislation. The court will look at the direct legal effects to inquire into the social or economic purposes which the statute was enacted to achieve. (@ 296)
Morgentaler v. Nova Scotia (1993)
On its surface, the
Medical Services Act
appears to fall within the provinces legislative authority over hospitals and the practice of medicine under s.92(7), (13) and (16).

The Act, however, was challenged as being in pith and substance criminal law under s.91(27).
Given the history of the criminalization of abortion in Canada and that the Nova Scotia legislature as evidenced by its reported debates was more concerned with the prohibition of Dr. Morgentaler's clinic than with the cost and quality of health care services, the court found that the "primary objective of the legislation was to prohibit abortions outside hospitals as socially undesirable conduct, and any concern with the safety and security of pregnant women or with health care policy ... was merely ancillary." (@ 299)
What did the court conclude?
The province made a colourable attempt to cloak the law so as to appear valid what was in fact a purpose that was ultra vires the jurisdiction of the province.
Why was the practical effect of legislation not relied on by the court to assist in characterizing the nature of the law?
A Contextual Analysis
Ward v. Canada (2002)
Ward brought a challenge against s. 27 of the Marine Mammal Regulations issued under the authority of the Federal government's Fisheries Act.
The provision prohibits the sale, trade or barter of whitecoat and blueback seals.

As such, it appears "in isolation" to be in relation to "trade and industry with the province" which is within the provinces jurisdiction over property and civil rights under s. 92(13).

Yet, the court found that the provision was in pith and substance a matter dealing with protecting the economic viability of the resource (indeed the entire commercial fishery). As such it is in pith and substance a matter dealing with the management of the Canadian fishery. (@ para. 28)

How did the court reach such a conclusion?
What evidence did it look to?
In its context
, s. 27 supports the view that it is neither directed at property or trade, but at curtailing the commercial hunting of bluebacks and whitecoats in response to protecting the economic viability of the resource from retaliatory boycotts. (para. 23, 33)
Once the pith and substance is identified, the next step is to determine if it falls within the scope of the federal fisheries power? (@ 305/6)
GM v. City National Leasing (1989)
Price discrimination is contrary to the
Combines Investigation Act
. However, instead of enforcing the prohibition with a criminal penal provision, Parliament enacted s. 31.1 creating a civil cause of action notwithstanding the fact that the creation of civil causes of action lies within the domain of the provinces.
Inclusion of an invalid provision does not necessarily stamp the provision with validity. Its justification will depend on the nature of its relationship with the valid legislation.
The court noted that as the "seriousness of the encroachment on provincial powers varies, so does the test required to ensure that an appropriate constitutional balance is maintained" (@ 309)
The steps:

1. Do the impugned provisions intrude into a federal/provincial head of power, and to what extent? (@ Kitkatla, para. 57)
2. If the impugned provisions intrude into a federal/provincial head of power, are they nevertheless part of a valid federal/provincial legislative scheme?
3. If the impugned provisions are part of a valid federal/provincial scheme, are they sufficiently integrated with the scheme? (@ 309/10)
Kitkatla Band v. BC (2002)
In this case, was it necessary for the court to establish a rational or sufficient connection between the impugned provisions and the legislation as a whole?

Why not?

Since the "matter" of the provisions deals with the protection of heritage property even if they largely deal with "Indian" heritage, the matter falls within the scope of provincial power under s. 92(13) "property and civil rights in the province" provided the provisions do not single out for special treatment a federal subject matter (i.e. legal effect applies equally to Indians and non-Indians alike (@ para. 69)) or infringe on the core of s. 91(24) power, it will be in pith and substance valid provincial law.

Singling out must not be confused with a disproportionate effect as long as the legislation is otherwise in pith and substance valid (i.e. not a colourable attempt to legislate in an
ultra vires
The legislation deals with heritage conservation. In doing so, it expressly protected Aboriginal artifacts but allowed such items to be removed or destroyed under permission by the Minister.
Laws on assisted suicide

Suicide is not a crime in Canada and hasn't been since 1972, but physician-assisted suicide is illegal.

The Criminal Code of Canada states in section 241(b) that
“Every one who ….(b) aids or abets a person to commit suicide, whether suicide ensues or not, is guilty of an indictable offence and is liable to imprisonment for a term not exceeding fourteen years”

However, on Friday, June 15, 2012, the Supreme Court of British Columbia struck down these sections on constitutional grounds as they apply to severely disabled patients capable of giving assent: "the impugned provisions unjustifiably infringe s. 7 [and s. 15 ] of the Charter, and are of no force and effect to the extent that they prohibit physician-assisted suicide by a medical practitioner in the context of a physician-patient relationship". Moreover, the court found that the relevant sections were legislatively overbroad, had a disproportionate effect on people with disabilities, and were "grossly disproportionate to the objectives it is meant to accomplish." Carter v. Canada (Attorney General), 2012 BCSC 886 (CanLII)

The Minister of Justice and Attorney General has appealed the last decision considering that laws that prohibit and punish euthanasia and assisted suicide are constitutionally valid and exist to protect all Canadian people, "including those who are most vulnerable, such as people who are sick or elderly or people with disabilities." He also added: "The Supreme Court of Canada acknowledged the state interest in protecting human life and upheld the constitutionality of the existing legislation in Rodriguez (1993). In April 2010, a large majority of Parliamentarians voted not to change these laws, which is an expression of democratic will on this topic."

Will the Bill, in particular provisions 25 - 28, allowing for the provision of "medical aid in dying" withstand a Constitutional division of powers challenge that the impugned provisions are ultra vires the authority of the province?

Quebec's Bill 52 "An Act Respecting End-of-Life Care"
Bill 52
How is the case different from Saumur? (@ 287)

If there was evidence that the act disproporionately and negatively applied to Hutterites (i..e. Prov. Cabinet consistently withholding consent only to Hutterites) then Saumur may have been more controlling
Ancillary Powers Doctrine
Where provisions exist within a statute which are not considered in pith and substance invalid, they can nonetheless be saved if they are sufficiently connected to otherwise valid legislation/provisions. (AHR, @ para 127)
Assisted Human Reproduction Reference (2010)
As a matter of policy, the federal government decided to address the issue of assisted human reproduction issues as a result of the findings of the Baird Report (Royal Commission study)
Absolute Prohibitions (s. 5-7)
Controlled Activities (s. 8 -13)
Administrative Provisions (s. 14-68)
Both the McLachlin and LeBel agreed that these provisions validly fell within the federal power over criminal law because they were immoral and harmful activities (McLachlin) or an evil that needs to be suppressed (LeBel) (satisfying the substantive criteria for criminal law) and the provisions were prohibited with a penalty
Application of Ancillary Powers Doctrine
Factors identified by the court to determine whether an intrusion is minor or serious:

1. Broad heads of power lend themselves to jurisdictional overlap and are therefore less likely to give rise to highly intrusive provisions (@ para 129)

2. Consider the nature of the impugned provisions. Is it remedial or substantive? Limited in scope or broad?

3. Is there a history of legislating on the matter in question?
Based on the above factors, the court will make an assessment as to whether the incursion is minor or serious.
Apply the rational and functional test
Apply the relationship of necessity test
@ paras 124-150
@ paras 274-280
Can the valid provisions function without the ancillary provisions? (@ para 276)
Do the ancillary provisions perform a function that complements the valid provisions in the scheme? (@ para 138)
The "why" of the provision? (@ para. 19)
s. 91 (1) ... "Sea Coast and Inland Fisheries" ?
What is the expanse of this subject matter of jurisdiction?
Management of fishery resources in its natural state to the point of sale
Includes economic goals and policies associated with the fisheries as a resource
What is the basis of the court's reasoning for deciding the issue?
When the attack is focused on a particular provision (@ 309)...
Had there been evidence that the Minister was using its discretion in a disproportionately negative way only to Aboriginal peoples, it would look like a colourable attempt to single out Aboriginal people negatively... (A para 64, 67)
But, if, however, the bulk of the Act is being challenged, then you determine the pith and substance of the Act as a whole, before considering individual provisions. Per MacLachlin in Ref ART (para. 18)
His sole decision becomes the determinative judgment.

But LeBel and Deschamps say the procedure is the same (para. 189)
Valid Exercise of Criminal Power
Valid exercise of criminal power in the sense that they involve a limitation on what is considered absolutely prohibited. In other words, they "carve out" from what is absolutely prohibited some activities that can be undertaken under certain defined exceptions (including compliance with a licensing scheme).
They are therefore, in pith and substance matters dealing with morality, protection against a health evil and promoting security ...

Any effects on medical research or medical practice are incidental to the dominate purpose of delimiting the boundaries of morality as it pertains to matters for creating life artificially.
These provisions relate to beneficial technologies that meet a need in society for assisting in provision of reproductive health and other scientifically useful work.

Based on the legislative history and debates, the purpose of these provisions was to set up a national scheme for regulating assisted human reproductive technologies and to set up national standards of care.

Moreover, when one considers the legal effects of the provisions, they have a significant impact on the practice of medicine (@ para. 226)

There dominate purpose is not concerned with suppressing an evil or safeguarding a public interest. Rather, the regulation of assisted human reproduction as a health service are matters closely connected to hospitals and medicine. (@ para 260)
Cromwell agrees with LeBel and Deschamps by beginning with an assessment of the impugned provisions as a whole and then looks at each individual provision. (@ para 288)
LeBel and Deschamps

All the impugned provisions standing on there own would need to relate to the absolutely prohibited provisions of s. 5-7.

Thus, because of their characterization of the impugned provisions, and the extent of them, they found that the overflow was extensive.

The matter of legislation must be construed as narrowly as possible yet be an accurate account of what the law is about.
Otherwise the appropriate balance of federalism may be threatened.
Values that inform federalism cases ...
Where there is no clear judicial precedent, the process of deciding the
of legislation regarding certain matters (i.e heroin addiction) "requires decisions about the relative values represented by the competing federal and provincial aspects of the challenged statute. The decision will necessarily be based on value judgments that are in the end decisive. (Lederman, @ 277)

Values that are relevant include:

Conceptions of community,
Functional governance efficiency,
Democratic perspectives,
(Simeon, @ 280)
S. 91 - S. 94, S. 35?
Passed June, 2014
How else could the legislation at issue in
have been found vires?
LeBel and Deschamps cautioned against a mechanical application of theses factors and questioned the "history" factor in particular. (@ para. 196
No person shall knowingly

(a) create a human clone by using any technique, or transplant a human clone into a human being or into any non-human life form or artificial device;
10. (1) No person shall, except in accordance with the regulations and a licence, alter, manipulate or treat any human reproductive material for the purpose of creating an embryo.
40. (1) The Agency may, in accordance with the regulations, issue a licence to any person having the qualifications provided under the regulations, authorizing the person to undertake any controlled activity specified in the licence.
(2) A licence authorizing the use of an in vitro embryo for the purpose of research may be issued only if the Agency is satisfied that the use is necessary for the purpose of the proposed research.
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