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RESIDUARY POWERS NATIONAL CONCERN DOCTRINE AND EMERGENCIES.

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1 RESIDUARY POWERS NATIONAL CONCERN DOCTRINE AND EMERGENCIES

2 RESIDUARY POWERS 91. It shall be lawful for [Parliament] to make Laws […] in relation to all Matters not coming within the Classes of Subjects by this Act assigned exclusively to the […] Provinces; for greater Certainty, but not so as to restrict the Generality of the foregoing […] the exclusive Legislative Authority of […] Parliament […] extends to all Matters coming within the Classes of Subjects […] enumerated […]” “There may, therefore, be matters not included in the enumeration [in s. 91], upon which the Parliament of Canada has power to legislate […].” —Lord Watson in AG Ont v AG Can [1896]

3 RESIDUARY POWERS Parliament enjoys the power to legislate in relation to all matters that come within the classes of subjects not specifically enumerated in s. 92. In other words, matters not coming within the classes of subjects enumerated in s. 92 fall within Parliament’s jurisdiction. By “matters”, we mean matters recognized as valid matters by the courts. This has a profound effect: Matters that do not fall within a class of subject enumerated in ss. 91 or 92 result in a heretofore unmentioned class of subject (i.e. head of jurisdiction) within which they come being attributed to Parliament.

4 RESIDUARY POWERS The sum of the legislative jurisdiction of Parliament and the Provincial Legislatures is total: there is no subject for which it remains outside of the competence of both orders of government to pass. To say that all subjects are theoretically distributed, however, does not mean that all laws can be passed by just one level of government. A law may be characterized as covering multiple matters, with one or more matter relating to federal subjects and the other or others relating to provincial subjects. In such cases, passage of the law would require cooperation between the two levels of government (in the passing of legislation and possible delegation). When a law is challenged, the courts will try to identify its matter(s). This will be done keeping in mind the subjects that currently exist in ss. 91 and 92. A matter that does not fall within one of these subjects will only be “discovered” in rare circumstances, as to do so, by definition, results in a new class of subjects for which Parliament can legislate.

5 NEW MATTERS Matters that do not fall within a class of subject enumerated in ss. 91 or 92 result in a heretofore unmentioned class of subject within which they come being attributed to Parliament. A number of federal laws have resulted in the identification of matters that do not fall within a subject enumerated in ss. 91 or The Incorporation of Companies with Federal Objects (John Deere [1915]) 2.National Emergencies (Re Board of Commerce [1922]) 3.Radio (Radio reference [1932]) [Fressenden 1906] 4.Aeronautics (Johannesson [1952]) [Wright Bros 1903] 5.Development, Conservation, and Improvement of the National Capital Region (Munro) [Est 1959] 6.Control and regulation of narcotics (R v Hauser [1979]). 7.Marine dumping (R v Crown Zellerbach [1988]) [UNCLOS 1950s] 8.Exploration and Exploitation of the Continental Shelf (Reference re: Seabed and subsoil of the continental shelf offshore Newfoundland [1984])

6 IT IS AS IF THESE SUBJECTS WERE ADDED TO S. 91’S ENUMERATED LIST ITSELF Legislative Authority of Parliament of Canada 91. It shall be lawful for [Parliament] to make Laws […] in relation to: 2A. The Incorporation of Companies with Federal Objects. 5A. The Regulation of Radio Broadcasting. 7A. National Emergencies. 12A. The Exploration and Exploitation of the Continental Shelf. 11A. The Development, Conservation, and Improvement of the National Capital Region 12B. The Regulation and Control of Marine Dumping. 13A. The Regulation and Control of Aeronautics.

7 THE TRUE STORE BEHIND “RESIDUARY POWER” While the Constitution technically attributes those powers not assigned in s. 92 to Parliament, the reality is that what is actually left as residuary is very limited due to the combined effect of: s. 92(10)—Local Undertakings s. 92(13)—Property and Civil Rights s. 92(16)—Merely local or private matters Thus, while formally, residuary powers are attributed to Parliament, the majority of matters, even though they may seem new, would easily fit within ss. 92(10), (13), and (16). The question then becomes: how do we determine when this is not the case and a new matter should result in a new head of power being attributed to Parliament?

8 NEW MATTERS Most matters, even “new” ones, are subsumed within classes of subjects already attributed to Parliament or the Provincial Legislatures. Examples: Regulation regarding measures taken in hospitals to prevent the spread of Staphylococcus aureus, a highly contagious bacterial infection, would likely fall within s. 92(7). Safety regulation regarding bridge engineering would likely fall within ss 92(10), (13), and/or (16). Counsel arguing that a federal law is valid will be tempted to assert the existence of a matter that does not fit within a class of subjects found in ss. 91 or 92. If the court accepts this new matter as valid, it will have no choice but to create a new class of subjects of federal jurisdiction, there being no other class of subject into which the matter falls.

9 NEW MATTERS The question is then this: When will the Court recognize a new matter? The answer is: The Court will recognize a new matter where the “National Concern” Doctrine is satisfied. This will result in the creation of a new class of subject for Parliament. Laws may then be enacted under this class of subject and, by definition, may have “incidental effects” on the provincial classes of subjects. The change is significant: it fundamentally alters the distribution of powers. It is tantamount to a constitutional amendment introducing a new head of federal power.

10 NATIONAL CONCERN DOCTRINE Where counsel assert that the matter of the law is “new” and the law, therefore, does not fit within any of the enumerated classes of subjects listed in ss. 91 and 92, the court will ask itself the following questions: 1.Does the proposed matter have a “singleness, distinctiveness and indivisibility that clearly distinguishes it from matters of provincial concern?” 2.Would the impact of the proposed matter on “provincial jurisdiction [be] reconcilable with the fundamental distribution of legislative power under the Constitution?” 3.If the proposed matter is not recognized, would provincial “failure to deal effectively with the control or regulation” of it have an “effect on extra ‑ provincial interests?” LeDain J in R v Crown Zellerbach (Marine dumping case) This test tells us what, despite likely falling within ss. 92(10), (13), and (16), should qualify as a federal matter and result in a new head of jurisdiction for Parliament.

11 BACK TO THE CASES …

12 RUSSEL V R (1882) Facts: The Canada Temperance Act 1878 provided local prohibitions on the sale and consumption of liquor where the residents of a county or municipality voted to ask for the Act to come into force. Sir Montague Smith [for the Court]: Residuary powers: “[I]f the Act does not fall within any of the classes of subjects in sect. 92, no further question will remain, for it cannot be contended […] that, if the Act does not come within one of the classes of subjects assigned to the Provincial Legislatures, the Parliament of Canada had not […] full legislative authority to pass it.” There were, here, three possible provincial subjects in relation to which the Act was asserted to be passed: ss. 92(9), (13), and (16).

13 RUSSELL V R (1882) Sir Montague Smith [for the Court]: Section 92(9) does not apply. Section 92(13) does not apply: “Laws which make it a criminal office for a man to willfully set fire to his own house on the ground that such an act endangers the public safety, or to overwork his horse on the ground of cruelty to the animal, though affecting in some sense property […] cannot property be regarded as legislation in relation to property and civil rights. Nor could a law which prohibited or restricted the sale or exposure of cattle having a contagious disease be so regarded.” (cf Bédard v Dawson). Section 92(16) does not apply: The present legislation is clearly meant to apply a remedy to an evil which is assumed to exist throughout the Dominion, and the local option, as it is called, no more localizes the subject and scope of the Act than a provision in an Act for the prevention of contagious diseases in cattle [would.]” Note that Russell was decided before Hodge v R (1883), which adopted double-aspect theory (i.e. the subject matter of some laws could be passed by both Parliament and Provincial Legislatures). Thus, prior to Hodge, in theory, if the law could be passed by Parliament, it could not be passed by Provincial Legislatures, and vice versa.

14 RUSSELL V R (1882) Thus, as the matter of the law does not fall within any of the provincial subjects, it must fall within Parliament’s jurisdiction. “[Having concluded] that the Act in question does not fall within any of the classes of subjects assigned exclusively to the Provincial Legislatures, it becomes unnecessary to discuss the further question of whether its provisions also fall within any of the classes of subjects enumerated in s. 91. Observations: Given what we know about the law today, Russell v R would likely be reasoned differently. It is likely that, if enacted by Provincial Legislatures, the legislation would have been valid as dealing with matters falling within the enumerated classes of provincial legislative jurisdiction in both: s. 92(13) (see Bédard v Dawson); and s. 92(16) (see AG Ontario v AG Canada [1896]).

15 AG ONTARIO V AG CANADA [1896] Facts: In summary, this reference asked whether the Ontario Legislature had the power to do the same thing that the Parliament had done in introducing the Canada Temperance Act Section 18 of the Ontario Act empowered township councils, following approval by municipal electors, to prohibit the sale of liquor in taverns and shops. Lord Watson [for the Court]: Are there two valid laws and is there a conflict? The question is whether “[t]he provincial legislature had authority to enact s. 18. In order to determine that issue, it becomes necessary to consider, in the first place, whether the Parliament of Canada had jurisdiction to enact the Canada Temperance Act; and, if so, to consider in the second place, whether, after that Act became the law of each province of the Dominion, there yet remained power with the Legislature of Ontario to enact the s. 18.”

16 AG ONTARIO V AG CANADA [1896] Lord Watson [for the Court]: Some matters, not mentioned in s. 91, may be legislated on by Parliament: “There may, therefore, be matters not included in the enumeration, upon which the Parliament of Canada has power to legislate […].” Recognize that some issues, previously local, can become national: “[S]ome matters, in their origin local and provincial, might attain such dimensions as to affect the body politic of the Dominion, and to justify Parliament in passing laws for their regulation or abolition in the interest of the Dominion. But great caution must be observed in distinguishing between that which is local and provincial, and therefore within the jurisdiction of the provincial legislatures, and that which has ceased to be merely local and provincial, and has become a matter of national concern, in such a sense as to bring it within the jurisdiction of Parliament.”

17 AG ONTARIO V AG CANADA [1896] Lord Watson [for the Court]: In enacting legislation concerning matters that have become “national”, Parliament must not “encroach” into provincial jurisdiction: “[I]n legislating with regard to such matters, the Dominion Parliament has not the authority to encroach upon any class of subjects which is exclusively assigned to provincial legislatures by s. 92.” [T]he exercise of legislative power […] in regard to all matters not enumerated in s. 91, ought to be strictly confined to such matters as are unquestionably of Canadian interest and importance, and ought not to trench upon provincial legislation with respect to any of the classes of subjects enumerated in s. 92.

18 AG ONTARIO V AG CANADA [1896] Lord Watson [for the Court]: Failure to abide by these restrictions would “be contrary to the intendment of the [Constitution Act, 1867, and] would practically destroy the autonomy of the provinces.” Thus, Lord Watson sewed the seeds of the National Concern Doctrine. He stressed the importance of: 1.A nation-wide dimension to the proposed matter (i.e. unquestionably of Canadian interest and importance); 2.Not “trenching” on provincial powers; and 3.Preserving the distribution of powers in the Constitution (i.e. “autonomy of the provinces.”)

19 AG ONTARIO V CANADA TEMPERANCE [1946] Facts: This case arose out of a challenge, again, to the constitutional validity of the Canada Temperance Act, on the grounds that, in Toronto Electric v Snider, Viscount Haldane, in obiter, characterized Russell as decided on the grounds of emergency. Viscount Simon: Russell was not decided on the basis of an emergency: “[There is nothing] in [Russell] which suggest that [the Court] proceeded on the ground of emergency.” Furthermore, Viscount Simon points to the temporary nature of emergency legislation: “The Act of 1878 [in Russell] was a permanent, not a temporary, Act, and no objection was raised on that account.”

20 AG ONTARIO V CANADA TEMPERANCE [1946] Then, Viscount Simon lays down what appears to be a general test for new matters: [If the subject matter of the legislation] is such that it goes beyond local or provincial concern or interests and must from its inherent nature be the concern of the Dominion as a whole (as, for example, in the Aeronautics case and the Radio case), then it will fall within the competence of […] Parliament. War and pestilence, no doubt, are instances; so, too, may the drink or drug traffic, or the carrying of arms.”

21 REFERENCE RE ANTI-INFLATION ACT [1976] Facts: “The Act [and Regulations] establish supervision, control and regulation of prices, profits, wages, salaries, fees and dividends by way of monitoring and limiting increases in order to combat inflation.” The AG Canada argued the regulations were valid as: “a matter which went beyond local or private or provincial concern and was of a nature which engaged vital national interests;” (NCD) or “[a matter in relation to] an economic crisis amounting to an emergency.” (Emergency)

22 REFERENCE RE ANTI-INFLATION ACT [1976] Laskin CJ [Spence, Dickson and Judson JJ]: The Act could have been validly enacted by the provinces: “I take it as undeniable that it would have been open to each Province to impose the price and wage restraints in these sectors, to the extent to which there was no invasion of federal power such as that in relation to the regulation of trade and commerce.” While Laskin CJ did not consider the NCD, as he determined the matter on the basis of National Emergency, he confirmed that legislation that would otherwise be validly enacted by the provinces may become, in its subject matter, of national concern, resulting in a new class of subject for which Parliament can legislate.

23 REFERENCE RE ANTI-INFLATION ACT [1976] Ritchie J [Pigeon and Martland JJ concurring]: National concern must rise to an extremely high level to justify invocation: “[U]nless [the national] concern is made manifest by circumstances amounting to a national emergency, Parliament is not [empowered] to legislate in relation to matters [otherwise] reserved to the Provinces [...].”

24 REFERENCE RE ANTI-INFLATION ACT [1976] Beetz J (dissenting on Question No. 1): Beetz J did not think the law could be upheld on the grounds that its subject matter was in relation to an emergency (why he is the dissentient). As such, he had to consider whether the national concern doctrine provided a basis for the validity of the law. The impact on the distribution of powers would be significant: “[S]ince practically any activity or lack of activity affects the gross national product, the value of the Canadian dollar and, therefore, inflation, it is difficult to see what would be beyond the reach of Parliament. […] [A] fundamental feature of the Constitution, its federal nature, the distribution of powers […] would disappear not gradually but rapidly.”

25 REFERENCE RE ANTI-INFLATION ACT [1976] Beetz J: Here “inflation” is not a valid matter. The law in question consists of a number of matters—some within provincial others within federal jurisdiction. Parliament may flight inflation by drawing on the powers that it has—over banking, the issue of currency, and so on. However, in combatting inflation Parliament cannot draw on “powers exclusively reserved to the Provinces, such as the power to make laws in relation to property and civil rights.” New classes of subjects have been added in cases where the proposed matter has “a degree of unity that made it indivisible, an identity which made it distinct from provincial matters and a sufficient consistence to retain the bounds of form.”

26 REFERENCE RE ANTI-INFLATION ACT [1976] Beetz J: The impact on the distribution of powers must also be considered: “The scale upon which these new matters enabled Parliament to touch on provincial matters had also to be taken into consideration before they were recognized as federal matters: if an enumerated federal power [would] smother provincial powers and destroy the equilibrium of the Constitution, the Courts must be all the more careful not to add hitherto unnamed powers of a diffuse nature to the list of federal powers.” Conclusion: “The ‘containment and reduction of inflation’ does not pass muster as a new subject matter. It is an aggregate of several subjects some of which form a substantial part of provincial jurisdiction. 1.It is totally lacking in specificity. 2.It is so pervasive that it knows no bounds. 3.Its recognition as a federal head of power would render most provincial powers nugatory.”

27 R V CROWN ZELLERBACH [1988] Facts: The Ocean Dumping Control Act (Can) prohibited the dumping of any substance into the sea except in accordance with the terms and conditions of a permit. Le Dain J’s four points: 1.“[NCD] is separate and distinct from the national emergency doctrine […] which is chiefly distinguishable by the fact that it provides a constitutional basis for what is necessarily legislation of a temporary nature; 2.[NCD] applies to both new matters which did not exist at Confederation and to matters, although originally matters of a local or private nature in the province, have since, in the absence of national emergency, become matters of national concern; 3.For a matter to qualify as a matter of NC […] it must have a singleness, distinctiveness and indivisibility that clearly distinguishes it from matters of provincial concern and a scale of impact on provincial jurisdiction that is reconcilable with the fundamental distribution of legislative power under the Constitution; 4.[In answering 3,] it is relevant to consider what would be the effect on extra-provincial interests of a provincial failure to deal effectively with the control or regulation of the intra-provincial aspect of the matter.”

28 R V CROWN ZELLERBACH [1988] Le Dain J: 1.The proposed matter must be singular, distinct, and indivisible; 2.The scale of impact of the proposed matter on provincial powers must be reconcilable with the distribution of powers; and 3.Failure of one province to regulate must carry grave consequences for the other provinces (“[P]rovincial failure to deal effectively with the intra-provincial aspects of the matter could have an adverse effect on extra-provincial interests.”).

29 R V CROWN ZELLERBACH [1988] Le Dain J (Applying the law to the facts): “Dumping in marine waters” is sufficiently singular, distinct, and indivisible: It is possible to ascertain what are marine waters, despite the fact that such a definition does not exist in international law. “[M]arine pollution, because of the differences in the composition and action of marine waters and fresh waters, has its own characteristics and scientific considerations that distinguish it from fresh water pollution.” The scale of impact of “dumping in marine waters” on provincial powers is reconcilable with the distribution of powers: “[T]he distinction between salt and fresh water [means that the class of subject would have] ascertainable and reasonable limits, insofar as its impact on provincial jurisdiction is concerned.”

30 R V CROWN ZELLERBACH [1988] LaForest (dissenting) [Beetz and Lamer JJ concurring]: The subject matter is the dumping of any matter, polluting or not, into marine and salt waters. “[The proposed matter is] the dumping of any substance in the sea, from the coasts of the provinces and the mouths of provincial rivers […]” Parliament already has the power to control dumping of substances in all waters that pollute or have the potential to pollute waters outside the province: Interprovincial [1976].

31 R V CROWN ZELLERBACH [1988] In this case, the NCD must not result in the new matter “dumping in marine waters” to be admitted as a new class within the federal subjects: 1. The proposed matter is not singular, distinct, and indivisible.  What is and what are not “marine waters” or “salt water” is unclear:  “[M]arine waters are not wholly bounded by the coast; in many areas, they extend upstream into rivers many miles. The application of the Act appears to be restricted to waters beyond the mouths of rivers (and so intrude less on the provincial powers), but this is not entirely clear, and if it is so restricted, it is not clear whether this distinction is based on convenience or constitutional imperative. Apart from this, the line between salt and fresh water cannot be demarcated clearly; it is different at different depths of water, changes with the season and shifts constantly […]”

32 R V CROWN ZELLERBACH [1988] 2.The scale of impact of the proposed matter on provincial powers is irreconcilable with the distribution of powers.  The impact on provincial powers would be deep and far reaching:  “[T]he provision virtually prevents a province from dealing with certain of its own public property without federal consent. A wide variety of activities along the coast or in the adjoining sea involves the deposit of some substances in the sea. In fact, where large cities like Vancouver are situated by the sea, this has substantial relevance to recreational, industrial and municipal controls of all kinds. […] These are matters of immediate concern to the province. They necessarily affect activities over which the provinces have exercised some kind of jurisdiction over the years.”

33 R V CROWN ZELLERBACH [1988] 3.Failure of one province to regulate would not carry grave consequences to residents of the other provinces.  As Parliament already has a broad power to control interprovincial and international pollution (Interprovincial), it is only the dumping of harmful substances that would not leave the province or innocuous or harmless substances that could leave the province that would be added to Federal power.  As such, dumping would, by definition, have little effect on other provinces, the failure of giving this power to Parliament would not result in grave consequences to other provinces.

34 PERMANENCY? Can a class of subjects, created by virtue of the NCD, be subsequently removed from the catalogue of classes of subjects in relation to which Parliament can legislate? While theoretically, the answer may seem to be “yes”, the courts have been reluctant: In AG Ontario v Canada Temperance, the Privy Council was not willing to revisit the question of whether or not the NCD was made out in relation to the Temperance Act. “In the present case the decision now sought to be overruled has stood for over sixty years; the Act has been put into operation for varying periods in many places in the Dominion; under its provisions businesses must have been closed, fines and imprisonments for breaches of the Act have been imposed and suffered. Time and again the occasion has arisen when the Board could have overruled the decision had it thought it wrong. Accordingly, in the opinion of their Lordships, the decision must be regarded as firmly embedded in the constitutional law of Canada, and it is impossible now to depart from it.” In Ref Re Anti-Inflation Act [1976], Beetz J stated “[A]ll those powers [given under the NCD] would belong to Parliament permanently ; only a constitutional amendment could reduce them.”

35 RECAP: NATIONAL CONCERN DOCTRINE New matters will be admitted to the federal catalogue of powers when: 1.The matter has a singleness, distinctiveness and indivisibility that clearly distinguishes it from matters of provincial concern. 2.The matter has a scale of impact on provincial jurisdiction that is reconcilable with the fundamental distribution of legislative power under the Constitution; and 3.The effect on extra-provincial interests of a provincial failure to deal effectively with the control or regulation of the intra-provincial aspect of the matter would be serious. While the test seems simple enough, we see that great minds differ on its application (i.e. R v Crown Zellerbach [1988])

36 EMERGENCIES PARLIAMENT CAN MAKE LAWS IN RELATION TO EMERGENCIES

37 EMERGENCIES Unlike the National Concern doctrine, the Emergency power is a matter over which Parliament has jurisdiction. That is, it is not a doctrine that helps us identify new classes of subjects, but rather, it is a class of subject or matter itself. Thus, a federal law, the matter of which is in relation to a national emergency, will be valid. Or, in other words, where the federal law, in pith and substance, is in relation to a national emergency, it will be valid (providing the reqs below are satisfied). For the matter of the law to be in relation to Parliament’s emergency power, however, at the very least: 1.there must be an emergency; and 2.the law must be temporary.

38 AN EMERGENCY While it is clear that an emergency must exist, the requisite level or proof and level to which the national emergency must rise are not clear: War (Ref Re Board of Commerce [1922]; Fort Francis Pulp [1923]) Economic emergencies (Ref Re Anti-Inflation Act [1978]) … but the question of how serious they must be is debatable. There is also disagreement as to how explicit the pronouncement of an emergency needs to be (i.e. Beetz J in Ref Re Anti-Inflation Act [1978]).

39 TEMPORARY Almost all judicial decisions agree that the measures must be temporary: In AG Ontario v Canada Temperance [1946], Viscount Simon dispensed with the argument that the matter of the Canadian Temperance Act 1878 was in relation to an emergency (despite Viscount Haldane’s view expressed in Toronto Electric v Snider) because “[t]he Act of 1878 was a permanent, not a temporary, Act.” In Re Board of Commerce [1922], Viscount Haldane dismissed the argument that the law was in relation to an emergency as “it is not confined to any temporary purpose, but is to continue without limit in time […].” In Ref Re Anti-Inflation Act [1978], Laskin CJ alluded to temporarily: “The authority of Parliament in this regard […] must perforce be confined to legislation of a temporary character.”

40 RE BOARD OF COMMERCE [1922] Facts: After the cessation of hostilities of WWI, in 1919, Parliament established the Board of Commerce that was empowered to: Prohibit the operation of combines (i.e. a group of companies acting together for a commercial purpose—usually to extract unnaturally high levels or profit by distorting the market). Control the sale and distribution of necessities of life. Determine the amount of commodities withheld from sale. Deem profits unfair and order compensation.

41 RE BOARD OF COMMERCE [1922] Viscount Haldane [for the Court]: Parliament does, in theory, have the power to enact laws in relation to an emergency: “In special circumstances, such as those of a great war, such an interest might conceivably become of such paramount and overriding importance as to amount to what lies outside the heads in s. 92, and is not covered by them.” Such measures, however, would need to respond to a real national emergency and also be of a temporary nature: “It was passed in 1919, after peace had been declared, and it is not confined to any temporary purposes, but is to continue without limit in time, and to apply throughout Canada.”

42 RE BOARD OF COMMERCE [1922] Viscount Haldane [for the Court]: In this case, the basis was not made out: [T]heir Lordships do not find any evidence that the standard of necessity referred to has been reached, or that the attainment of the end sought is practicable, in view of the destruction of legislative powers enacted by the Constitution Act, without the cooperation of the Provincial legislatures.”

43 FORT FRANCIS PULP [1923] Facts: Under the War Measures Act, the Minister could fix the quantity and price of newsprint. According to this power, prices and quantities were fixed throughout the war. In 1918, prices were no longer to be supervised by the Minister but by the Paper Control Tribunal (“the Tribunal”). WWI ended on Nov 11, 1918 with the Treaty of Versailles. On July 7, 1919, a new act was passed that allowed the Tribunal to deal with any outstanding appeals of orders made before this date in relation to the fixing of quantities or prices. On July 8, 1920, the Tribunal made an order fixing the price of paper for a period ending on December 31, 1919 (NB: the fixed price was given retroactive effect). The appellants were ordered to refund all sums received in excess of this fixed price.

44 FORT FRANCIS PULP [1923] Viscount Haldane [for the Court]: Parliament does enjoy an emergency power: “[In situations of] sudden danger to social order arising from the outbreak of a great war, Parliament [can] act under other powers which may well be implied in the Constitution.” In a “sufficiently great emergency such as that arising out of war, there is implied the power to deal adequately with that emergency for the safety of the Dominion as a whole.” Parliament will have significant latitude in tailoring laws to achieve this objective: “[T]he Dominion Government, which in its Parliament represents the people as a whole, must be deemed to be left with considerable freedom to judge.”

45 FORT FRANCIS PULP [1923] Viscount Haldane [for the Court]: The power does not evaporate immediately after the emergency is declared over: “[T]he effect of the economic and other disturbance occasioned originally by the war may thus continue for some time after it is terminated.” In determining whether the conditions have subsided such that the law can no longer be sustained on the basis of Parliament’s emergency power, the courts will give great deference to Parliament: “The question of the extent to which provision for circumstances such as these may have to be maintained is one of which a Court of law is loathe to enter. No authority other than the central Government is in a position to deal with a problem which is essentially one of statesmanship.” “[V]ery clear evidence that the crisis had wholly passed away would be required to justify the judiciary […] in overruling the decision of the Government that exceptional measures were still requisite.”

46 FORT FRANCIS PULP [1923] Viscount Haldane [for the Court]: Burden of proof on those asserting the power was improperly exercised. Here, this burden was not discharged. “It is enough to say that there is no clear and unmistakable evidence that the Government was in error in thinking that the necessity was still in existence at the dates on which the action in question was taken by the Paper Control Tribunal.” “Their Lordships find themselves unable to say that the Dominion Government had no good reason for thus temporarily continuing the paper control after war had ceased, but while the effects of war conditions might still be operative. They are, therefore, unable to accept the propositions submitted to them in the powerful arguments for the appellants.”

47 REFERENCE RE ANTI-INFLATION ACT [1976] Facts: “The Act [and Regulations] establishes supervision, control and regulation of prices, profits, wages, salaries, fees and dividends by way of monitoring and limiting increases in order to combat inflation.” The AG Canada argued the regulations were valid as: “a matter which went beyond local or private or provincial concern and was of a nature which engaged vital national interests;” (NCD) or “[a matter in relation to] an economic crisis amounting to an emergency.” (Emergency)

48 REFERENCE RE ANTI-INFLATION ACT [1976] Laskin CJ [Spence, Dickson, and Judson JJ concurring]: The question then arises, can the Act be sustained on the emergency power? The Preamble of the Act read: “that the containment and reduction of inflation has become a matter of serious national concern.” The fact that the term “emergency” was not used in the Preamble is not dispositive of the issue. “The preamble in the present case is sufficiently indicative that Parliament was introducing a far-reaching programme prompted by what in its view was a serious national condition. The validity of the [Act] does not, however, stand or fall on that preamble, but the preamble does provide a base for assessing the gravity of the circumstance which called forth the legislation.”

49 REFERENCE RE ANTI-INFLATION ACT [1976] Laskin CJ [Spence, Dicson, and Judson JJ concurring]: Here, the evidence suggested the existence of an emergency (or at least, did not permit the court to find that there was not an emergency): [T]he court would be unjustified in concluding […] that Parliament did not have a rational basis for regarding the Anti-Inflation Act as a measure which, in its judgment, was temporarily necessary to meet a situation of economic crisis imperilling the well-being of the people of Canada as a whole and requiring Parliament’s stern intervention in the interests of the country as a whole.”

50 REFERENCE RE ANTI-INFLATION ACT [1976] Ritchie J [Pigeon and Martland JJ concurring]: Definition of emergency: Emergencies exist “where there can be said to be an urgent and critical situation adversely affecting all Canadians and being of such proportions as to transcend the authority vested in the Legislatures of the Provinces and thus presenting an emergency which can only be effectively dealt with by Parliament.” The measure must be temporary: “The authority of Parliament in this regard is, in my opinion, limited to dealing with critical conditions and the necessity to which they give rise and must perforce be confined to legislation of a temporary character.”

51 REFERENCE RE ANTI-INFLATION ACT [1976] Ritchie J [Pigeon and Martland JJ concurring]: In Ritchie J’s view, there was here an emergency: “I am accordingly satisfied that the record discloses that in enacting the Anti- Inflation Act Parliament was motivated by a sense of urgent necessity created by highly exceptional circumstances […]” Only in exceptional circumstances would the court second guess Parliament: “[A] judgment declaring the Act to be ultra vires could only be justified by reliance on very clear evidence that the emergency had not arisen when the statute was enacted.”

52 REFERENCE RE ANTI-INFLATION ACT [1976] Beetz J: The emergency power operates as a “partial and temporary alteration of the distribution of powers between Parliament and the provincial legislatures.” It provides Parliament with extraordinary legislative powers: [I]t operates so as to give to Parliament for all purposes necessary to deal with the emergency, concurrent and paramount jurisdiction over matters which would normally fall within exclusive provincial jurisdiction.” Because of this, the government must provide in “explicit terms that it is acting on the basis of [the emergency] power.” “Parliament cannot enter the normally forbidden area of provincial jurisdiction unless it gives and unmistakeable signal that it is acting pursuant to its extraordinary power. Such a signal is not conclusive to support the legitimacy of the action of Parliament but its absence is fatal.”

53 REFERENCE RE ANTI-INFLATION ACT [1976] Beetz J: Parliament must use clear words: “The use of the national emergency power enables Parliament to override provincial laws in potentially every field: it must be explicit.” The preamble in the Anti-Inflation Act did not accomplish this objective: “The Anti-Inflation Act fails in my opinion to pass the test of explicitness required to signal that it has been enacted pursuant to the national emergency power of Parliament. […] The words ‘a matter of serious national concern’ have been emphasized. I remain unimpressed. The death penalty is a matter of national concern. So is abortion. So is the killing or maiming of innumerable people by impaired drivers.”

54 REFERENCE RE ANTI-INFLATION ACT [1976] Beetz J: While we may question whether the act is temporary (and in this case, it could be extended by Order in Council), the mere fact that an act is temporary does not mean it is valid: “[W]hile it would be essential to the validity of a measure enacted under the national emergency power of Parliament that it not be permanent, the temporary character of an Act is hardly indicative and in no way conclusive that it constitutes a measure passed to deal with a national emergency: Parliament can and often does enact temporary measures relating to matters coming within its normal jurisdiction.”

55 RECAP: EMERGENCY POWER For a law to be validly enacted under Parliament’s emergency power: 1.There must be a national emergency and the law’s enactment must have been motivated by Parliament’s view of the national emergency (query whether Parliament needs to be explicit, as per Beetz J in Ref Re Anti-Inflation Act [1976]); 2.The measures must be temporary. If these two requirements are made out, Parliament will be given significant latitude (perhaps unlimited) to pass laws that seriously disturb the balance of powers, encroaching deeply into areas of provincial jurisdiction.


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