CA — Constitutional Law & Federalism (AI set 1)

All cards in this deck

Pith and substance — what is the core test and why does it matter?

Courts identify the dominant purpose and legal effect of a law to assign it to a head of power under ss. 91–92 of the Constitution Act, 1867; incidental effects on the other level's jurisdiction do not render the law invalid. This was confirmed in Reference re Firearms Act, [2000] 1 SCR 783, where the gun registry scheme was upheld as criminal law despite affecting property.

Federal paramountcy — what triggers it and what is the effect?

Federal paramountcy renders provincial law inoperative (not invalid) where: (1) there is an operational conflict making compliance with both laws impossible, or (2) the provincial law frustrates the federal legislative purpose. The SCC applied this framework in Alberta (Attorney General) v. Moloney, 2015 SCC 51, holding provincial debt-collection rules inoperative to the extent they conflicted with a federal discharge of bankruptcy.

POGG — what did the Greenhouse Gas reference decide about 'national concern'?

The SCC in References re Greenhouse Gas Pollution Pricing Act, [2021] 1 SCR 175, held that establishing minimum national standards for GHG pricing qualifies as a matter of national concern under the peace, order, and good government clause, because GHG emissions are a single, distinct, and indivisible matter with a scale of impact beyond any one province's capacity to address.

Interjurisdictional immunity — what is the 'core' limit after Lacombe?

Interjurisdictional immunity protects only the 'basic, minimum and unassailable content' of a federal head of power from provincial laws that impair that core; it is a narrow doctrine applied with restraint. In Quebec (Attorney General) v. Lacombe, 2010 SCC 38, the Court declined to extend the doctrine to protect a federally licensed aerodrome from a provincial zoning by-law because impairment of the core of federal aeronautics power was not established.

Constitutional amendment — what did the Patriation Reference decide about the convention of substantial provincial consent?

In Reference re Resolution to Amend the Constitution, [1981] 1 SCR 753 (the Patriation Reference), the SCC held by majority that a constitutional convention requiring substantial provincial consent to amendments affecting provincial powers existed, but that convention was not legally enforceable by courts — only politically binding.

Unwritten constitutional principles — can they invalidate legislation?

Unwritten principles such as democracy, federalism, and the rule of law underlie the Constitution and inform its interpretation but do not, on their own, render legislation unconstitutional. The SCC in Reference re Secession of Quebec, [1998] 2 SCR 217, identified four foundational principles and used them interpretively, while emphasizing that they must be balanced against the written constitutional text.

Trade and commerce power — why did the securities reference reject a national securities scheme?

In Reference re Securities Act, [2011] 3 SCR 837, the SCC held that a comprehensive federal scheme regulating day-to-day securities trading could not be justified under the general trade and commerce branch of s. 91(2) because it failed to target genuinely national trade concerns distinct from local transactions, which remain provincial property and civil rights matters under s. 92(13).

Rule of law & Crown immunity — what did Canada (AG) v. Power (2024) establish?

In Canada (Attorney General) v. Power, 2024 SCC 26, the SCC held that the rule of law, as an unwritten constitutional principle, can ground a private law damages remedy against the Crown for legislation that is clearly unconstitutional and enacted in bad faith or with flagrant disregard for Charter rights, marking a significant development in state liability.

POGG 'national concern' — what are the criteria for a matter to qualify?

A matter qualifies under the national concern branch of POGG if it has a singleness, distinctness, and indivisibility that clearly distinguishes it from matters of provincial concern, and a scale of impact on provincial jurisdiction that is reconcilable with the division of powers. The Supreme Court confirmed these criteria (derived from Crown Zellerbach) and applied them to uphold the federal carbon pricing backstop in References re Greenhouse Gas Pollution Pricing Act, [2021] 1 SCR 175.

Secession of Quebec (1998) — what unwritten principles govern a secession referendum result?

The Supreme Court held in Reference re Secession of Quebec, [1998] 2 SCR 217, that a clear majority vote on a clear question in favour of secession would give rise to a reciprocal duty on all parties — federal and provincial — to negotiate in good faith, grounded in the unwritten constitutional principles of democracy, federalism, constitutionalism/rule of law, and protection of minorities. Unilateral secession outside this negotiated framework would be unconstitutional.

Constitutional amendment — what did the Patriation Reference say about legal vs. conventional rules?

In Reference re Resolution to Amend the Constitution, [1981] 1 SCR 753, the Supreme Court distinguished between legal rules (enforceable by courts) and constitutional conventions (not enforceable by courts but nonetheless binding as a matter of constitutional practice). The Court found that while a resolution requesting patriation without substantial provincial consent was legally valid, it breached the constitutional convention requiring a substantial degree of provincial agreement.

Firearms Act reference — what did it establish about criminal law power (s. 91(27))?

In Reference re Firearms Act, [2000] 1 SCR 783, the Supreme Court held that the federal Firearms Act was valid criminal law under s. 91(27) because its pith and substance was public safety — a classic criminal law purpose — supported by a prohibition backed by a penalty. The Court rejected Alberta's argument that the Act was in pith and substance a regulation of property and civil rights under s. 92(13).

Internal trade — what did R v Comeau (2018) hold about s. 121 of the Constitution Act, 1867?

In R v Comeau, [2018] 1 SCR 342, the Supreme Court held that s. 121 of the Constitution Act, 1867 does not prohibit all trade barriers between provinces; it only prohibits laws whose primary purpose is to restrict the passage of goods across provincial borders. Laws with incidental trade-restricting effects (such as New Brunswick's liquor control regime) remain constitutionally valid.

Rule of law and parliamentary sovereignty — what limits exist on legislating retroactively?

In British Columbia v. Imperial Tobacco Canada Ltd., 2005 SCC 49, the Supreme Court upheld retroactive provincial tobacco-cost-recovery legislation, affirming that parliamentary sovereignty permits retroactive laws and that courts cannot strike down legislation merely because it seems unfair or retroactive, provided it falls within the enacting legislature's jurisdiction. The rule of law does not, in itself, prohibit retroactive legislation duly enacted within constitutional authority.

POGG — how did the Greenhouse Gas reference treat provincial inability to justify 'national concern'?

The Supreme Court held that a matter qualifies under POGG's national concern branch partly where provinces are constitutionally unable to enact cooperative legislation to address it — the 'provincial inability' criterion first articulated in R v Crown Zellerbach. In References re Greenhouse Gas Pollution Pricing Act, [2021] 1 SCR 175, establishing minimum national carbon pricing standards met this test because unilateral provincial action cannot prevent carbon leakage across borders.

Federal paramountcy — what is the 'frustration of federal purpose' branch?

Even without direct operational conflict, a provincial law is inoperative to the extent it frustrates the dominant federal purpose behind valid federal legislation. The SCC in Alberta (Attorney General) v. Moloney, 2015 SCC 51 applied this branch, holding that Alberta's traffic safety scheme was rendered inoperative insofar as it frustrated the federal scheme for orderly discharge of debts under the Bankruptcy and Insolvency Act.

Unwritten constitutional principles — what is their recognised source in Canadian law?

Unwritten principles such as democracy, federalism, constitutionalism and the rule of law, judicial independence, and protection of minorities are recognised as part of the Constitution's legal fabric, not merely political aspirations. The Supreme Court in Reference re Secession of Quebec (1998) held they are derived from the preamble and the overall structure of the Constitution Act, 1867 and can impose enforceable obligations, though they cannot override express constitutional text.

Constitutional amendment — what did the 1982 Patriation Reference hold about the legal rule for provincial consent?

In Reference re Resolution to Amend the Constitution (Patriation Reference), [1981] 1 SCR 753, the majority held that as a matter of strict law Parliament could request the UK to amend the Constitution without any provincial consent — there was no legal requirement of unanimous or substantial provincial agreement. The requirement of substantial provincial consent existed only as a constitutional convention, which courts recognise but do not enforce as law.

Trade and commerce power — what does the Pan-Canadian Securities reference add to the national concern analysis?

In Reference re Pan-Canadian Securities Regulation, 2018 SCC 48, the SCC held that a cooperative federal-provincial securities scheme could be valid under Parliament's general trade and commerce power (s. 91(2)) where the scheme addresses genuinely national dimensions of capital markets regulation that exceed provincial competence. Unlike the earlier Reference re Securities Act, [2011] 3 SCR 837, the cooperative model respected provincial jurisdiction and satisfied the criteria for the general branch of trade and commerce.