Paramountcy
Paramountcy Problems Part II – Narrowing “Federal Purpose” in Saskatchewan (Attorney General) v Lemare Lake Logging
In a series of recent decisions, the Supreme Court of Canada (“SCC”) sought to clarify the proper application of the constitutional paramountcy doctrine. Part I of this two-part series looked at the implications of Alberta (Attorney General) v Moloney, 2015 SCC 51 [Moloney]. This analysis will focus on the Saskatchewan (Attorney General) v Lemare Lake Logging, […]
In a Battle of the Doctrines, Division of Powers Trumps Cooperative Federalism: Quebec (AG) v Canada
The federal government has the right to destroy data collected for the highly contentious long-form gun registry, the Supreme Court of Canada ("SCC") ruled late March. In a 5-4 decision, the majority in Quebec (AG) v Canada (AG), 2015 SCC 14, found that the federal government’s right to destroy data it collected is based on […]
Banks Forced to Repay Added Charges Plus Punitive Damages: Bank of Montreal v Marcotte
On September 19, 2014, the Supreme Court of Canada ("SCC") released its decision in Bank of Montreal v Marcotte, 2014 SCC 55 [BMO v Marcotte], and its two companion cases, Amex Bank of Canada v Adams, 2014 SCC 56, and Marcotte v Fédération des caisses Desjardins du Québec, 2014 SCC 57. The case in BMO v Marcotte was based […]
The "Return to Unanimity" in Insite and Division of Powers Jurisprudence: Chief Justice McLachlin's "Oversight"
Between 2000 and 2008, under Chief Justice McLachlin's oversight, the Supreme Court of Canada ("SCC"), was unanimous in its disposition of division of powers issues in 25 rulings or reference opinions. Then, after the 2009 division in Consolidated Fastfrate Inc v Western Canada Council of Teamsters, [2009] 3 SCR 407, the SCC divided sharply in […]
Calling for Consistency after Quebec v COPA and Quebec v Lacombe
In 2007, the Supreme Court of Canada ("SCC") seemed to suggest that the utility of interjurisdictional immunity had been nearly exhausted. Justices Binnie and LeBel, in Canadian Western Bank v Alberta, [2007] 2 SCR 3, made reference to the doctrine’s asymmetrical application, propensity to create legal vacuums, and general superfluity. These are not trivial concerns. The court […]
Revisiting the federal trade and commerce power: Will the federal Securities Act be held constitutional at the SCC?
Editor’s Note: This is the first of a two-post series on the proposed Canadian Securities Act. The federal government recently referred the proposed legislation to the SCC. The first post focuses on the constitutionality of the proposed legislation, while the second post will compare the merits of federal and provincial regulation, and discuss the effect […]
The Division of Powers, Before and After Consolidated Fastfrate v Western Canada Council
(Editor's Note: The author, Richard Butler, is a constitutional lawyer with the B.C. Ministry of Attorney General. The views expressed are those of the author, and not his employer.) Introduction A profound change of thinking on constitutional design is evident in the Supreme Court’s recent jurisprudence - a change made manifest in the Court’s evolving approach […]
Reshaping the “Living Tree”: Recent Developments in the Division of Powers under Canada’s Constitution
Mighty oaks from little acorns grow. In the early days of Confederation, the constitutional seedling needed protection from winds and rains (centripetal forces drawing Canadian attention back across the seas or immediately to the south) which might have stunted or bent its growth. Next, the sapling needed protection from provincial governments with many of the […]
Supervised Injection Sites: Threat to Canadian Federalism?
Health care undertakings by a province are potentially immune from criminal law. That is the conclusion reached by a 2-1 majority in PHS Community Services Society v Canada (Attorney General), 2010 BCCA 15 [PHS]. The case concerned Insite, a Vancouver clinic which provides a safe place for addicts to use drugs, and the applicability of […]