Division of Powers Flashcards
When trying to determine who has power, must read all doctrines and one will modify language of others.
Mutual Modification Doctrine
Division of Powers Doctrines are (5)
1 - Pith and Substance, 2- Colourability, 3- Ancillary Doctrine, 4- Exlcusiveness, 5- Concurrency
Identify the true nature of the law, and check section 91/92 to see the scope the law lies within)
Pithand Substance - St Johns tries to pass an act about drugs but it is not in their jurisdiction.
Two Cases dealing with banking on a provincial level. Must ask whether the law is about Banking (Federal) or Taxation (provincial)
Bank of Toronto v Lambe OR Alberta Bank Tax Reference
Used to be called Ancillary Doctrine and means that a law (normally out of jurisdiction) is upheld when it is a part of a larger set of laws within power. Needs rational functioning connection .
Necessarily Incidental
Case Dealing with ‘Necessarily Incidental’ - Federal Divorce case where the parents were disputing the custody of Children (provincial)
Papp v. Papp
General rule - Power is either PROVINCIAL or FEDERAL but NOT BOTH!!!!
Exclusiveness
In some cases - both PROV and FED have power to make laws dealing with the same SUBJECT - ie - Federal Criminal Code and Provincial Highway Traffic Act
Concurrency
Two Types of Concurrency
1 - Concurrency in Constitution OR 2- Judge Made Concurrency
When two valid laws operate concurrently and are in conflict - what does it mean? Duplication is NOT a conflict.
Paramouncy - FEDERAL LAW ALWAYS TRUMPS PROVINCIAL when there is a conflict.
Case on insider trading - Federal Corporation Act and Provincial Securities Act
Multiple Access v McCutcheon
Court may conclude that gov. has passed a law which it has no power to pass , and has attempted to hide the true intent of the law.
Colourability Doctrine
Important Case regarding Churchill Falls, after signing into a bad deal - NL Gov tried to pass an act to regain rights to the water way called Churchill Falls. It was deemed colourable- as the true reason for the act was to try and override the contract NL had signed into.
Churchill Falls Labrador Corp (CFLCO) v. Newfoundland - colored into - Reference Re Upper Churchill WATER RIGHTS REVERSION ACT - It was not allowed
S.91 of The Constitution Act 1867 is
Federal Powers
POGG Power is
Peace order and Good Governance - Opening words to preamble.
Where there is a gap (power not prov. or fed.) federal gets the power.
Gap Branch.
If Subject - goes beyond local or provincial concerns or interests so as to concern as a whole, the power to make law on that subject is federal.
National Concerns Branch
When is something of National Concern?
Signifigant in all of Canada - better to have 1 law than 10. Provinces can mostly agree.
CASE - A company dumped waste into a Prov. river and it ran int the Fed. ocean and was a national concern –
R. v Crown Zellerbach
CASE - The Gov wished to expropriate land around the Capital of Ottowa to create a green belt. They decided it was not regular provincial power of zoning etc as it was the capital city, and used the POGG clause.
Munro v National Capital Comission
Federal power to make laws where ther is an actual or potentional national emergency // Allows federal encroachment into provincial areas
Emergency Branch
Three Branchs of POGG (Peace, Order and Good Governance Clause)
1- Gap Branch, 2- National Concerns Branch, 3- Emergency Branch
WAR MEASURES ACT is now called
Emergencies Act
War Measures Act was used in
FLQ Crisis and Japanese Internment
