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S. 92 Of Constitution Act 1867
Provincial Powers
Two most important sub-sections of S.92
92 (13) Property and civil rights within the province AND 92 (16) Generally all matters of a merely local or private nature in the province.
Provincial Act regulating “disorderly houses” (houses for gambling and prostitution) - Prov said it will not permit these houses. Pith and substance says its a criminal act but case was allowed to proceed under provincial.
BEDard v Dawson
CASE - Quebec wished to ban advertising aimed at children that included cartoons. Defense argued it was a federal matter because it would affect the whole of Canada. Quebec won under section 92 (13) prov powers.
AG Quebec v. Kelloggs (WTF QUEBEC IS RETARDED!!!!!!!!!!!!!)
Provincial law that linked liquor licenses with a “limited nudity” certification. A hotel that had nudity (strippers) argued that the province was stepping into federal criminal law. It was saw as a legitimate law and allowed.
Rio Hotel v NB Liquor Licensing Board
When addressing cases for Prov or Fed - what is the first thing we should consider?
Pith and Substance
There is a geographic limit with Section 92 (13) (16), limited to IN the province and WITHIN the province. When outside of boudaries it is:
Extraterritorial
CASE- Manitoba Law dealing with pollution of rivers. If I dump waste in NL waterway and it makes its way to NS.I cannot prosocute because its extraterritorial!!!
INTER-Provincial Cooperative v. R.
Provincial Role in Criminal Law - These look like criminal laws, but are generally known as
Regulatory or Quasi Criminal Laws
A Criminal law is
Some evil effect on the public, must have prohibtion with a penalty and a public purpose!
CASE - It was once upon a time a FEDERAL crime to produce, posess or sell MARGARINE. The purpose was to protect the dairy industry.
Magarine Reference - it was an old law that was overturned but set a precedent for criminal laws to need to have real meaning. Commonly referenced when deciding if a law should be deemed criminal or not.
CASE - Food and Drug Act (Federal Law) - Beer called ‘light’ if between 1.2 and 2.5 per cent alcohol. Labatt created 4% beer called LITE. Labatt Charged with breaking Law - and subsequently challenged the criminalization of Light Beer!!!
Labatts Breweries v A G Canada
CASE- Criminal code section on Abortion (FED - protecting the foetus’ life) Pith and substance of the law is protection of the foetus and therefore federal law. Name of case?
Morgantaler v. R
CASE - A province tried to enact a law titled “Provincial Medical Services Act” stating the abortion is a protected act and must occur in a hospital. Law was struck down and called _____________( Division of Powers doctrine) & Case name
COLORABILITY!!! Nova Scotia v. Morgantaler
CASE - Detention of those guilty by reason of insanity. Court had to choose between public protection (fed) and not treating patient (Prov - hospitals act - Not criminally responsible). Chose public protection.
R . v. Swain (Remember - this Swan did not go free!!)
Clearly Criminal Acts can be found under:
Section 91 (27) - Federal
Quasi Criminal Acts can be found under
Section 92 (15)(13)(16)
CASE- Law appeared to be dealing with public decency, indecent acts (federal), etc but it was deemed a regulatory law (provincial)
Rio Hotel v NB Liquor Board
CASE - Prohibited being in the streets for prostitution. Challanged as unconstitutional (division of powers). Pith and Substance test - this law is about controlling prostitution not the streets. Federal jurisdiction.
Westendorp v. R
CASE - Register guns and obtain a license to possess. Alberta tried to argue that it was a personal property law and was provincial. Pith and Substance said the reason was public safety (controlling access to guns) The fact that they are property is minor compared to the need for public safety.
Reference re: Firearms Act (Reference: meaning this was brought before the court to assure it was constitutional when making the law)
CASE - Federal law prohibited advertising and promotion of tobacco. Health warnings necessary. Freedom of Expression infringement? No they did not ban sale just presentation. Criminal law? Yes because of the effects on Public Health.
RJR MacDonald v A.G. Canada
A.G and R in a case name stands for?
Attorney General!!! and R = Queen!
CASE - Manitoba enacted a provincial law allowing each town to decide if they wanted VLT’s in their town. A town voted against and Seimens couldnt operate a VLT. He argued pith and substance was outside of division of powers (prov.). SCC Decided Dominant purpose was regulate VLT, and it was property matter and not a Fed. Criminal gambling law.
Siemans v A.G Manitoba (Remember - Siemans would have blown a load if he could have his VLT’s back) L0L
