C. The jcpc and pogg

• Author: Patrick J. Monahan - Byron Shaw
• Pages: 245-253

Contenidos

• 1) A Promising Beginning: The Russell Case and the Pith and Substance Doctrine.
• 2) The Hodge Case and the Aspect Doctrine.
• 3) pogg as a Residual Power.
• 4) pogg as an Emergency Power.

Page 245

1) A Promising Beginning: The Russell Case and the Pith and Substance Doctrine

Given the extremely restrictive approach that the Jcpc eventually adopted in relation to federal heads of power, it is somewhat ironic that the initial Canadian cases decided by the Board favoured a broad reading of federal powers. The Privy Council’s first opinion on the scope of the pogg power reflects this early but short-lived trend. In the Russell case,⁹the issue before the Board was the validity of the Canada Temperance Act, a federal statute permitting local areas to prohibit the sale of intoxicating liquor. An individual charged with violating the Act argued that the statute was constitutionally invalid because it dealt with property and civil rights, a matter reserved to the provinces. The Privy Council rejected this argument, noting that the legislation was valid because it dealt with "an evil which is assumed to exist throughout the Dominion." The fact that liquor could be held as property did not prevent Parliament from restricting its use when this was deemed dangerous to public health or safety. According to Sir Montague Smith, Parliament could enact laws under the pogg power that incidentally affected property and civil rights as long as it did so for a valid purpose:

Few, if any, laws could be made by Parliament for the peace, order and good government of Canada which did not in some incidental way affect property and civil rights; and it could not have been intended, when assuring to the provinces exclusive legislative authority on the subjects of property and civil rights, to exclude the Parliament from the exercise of this general power whenever any such incidental interference would result from it. The true nature and character of the legislation in the particular instance under dis-

Page 246

cussion must always be determined, in order to ascertain the class of subject to which it really belongs.¹⁰Thus, according to Montague Smith, in assessing the validity of legislation, it is necessary to determine the statute’s "true nature and character." This true nature or character can only be ascertained by considering the underlying purpose or objective of the legislation. Because the object of the Canada Temperance Act was to preserve public health and safety, the law was valid, notwithstanding the fact that it might incidentally touch on or deal with matters of property or civil rights. The decision in Russell seemed to open the door to considerable overlapping of jurisdiction between Parliament and the provinces.

Russell was significant because it represented the first attempt to articulate what came to be known as the pith and substance doctrine, discussed in Chapter 4. Under this doctrine, the court determines the pith and substance of a law by ascertaining its main or dominant feature. If a federal law is, in pith and substance, in relation to a federal head of power, then the law may have incidental effects on a provincial head of power without being rendered invalid (and vice versa). In other words, the pith and substance doctrine focuses on the purposes of the legislation, rather than its incidental effects.

The pith and substance doctrine opens the door to substantial overlap in jurisdiction precisely because it ignores the incidental effects of legislation in determining constitutional validity. In Russell, for example, the fact that the federal legislation also affected property rights was constitutionally irrelevant. As Montague Smith noted, if such incidental effects were to be regarded as the primary focus of the analysis, the federal pogg power would be rendered virtually nugatory since "[f]ew, if any, laws could be made by Parliament for the peace, order and good government of Canada which did not in some incidental way affect property and civil rights."¹¹Montague Smith held that it could not have been intended that the pogg power should be stripped of all its significance or effect. The preferred approach was to permit Parliament to legislate on matters of national importance, even though such laws would also inevitably have incidental effects on property rights in the provinces.

Page 247

2) The Hodge Case and the Aspect Doctrine

The Russell case did not decide or suggest that Parliament alone could regulate liquor. In fact, a close reading of the judgment indicates that the validity of the Canada Temperance Act as federal legislation did not exclude provincial laws on the same subject. In the 1883 Hodge case,¹² the Privy Council upheld an Ontario statute regulating the sale of liquor. According to Sir Barnes Peacock, "subjects which in one aspect and for one purpose fall within sect. 92, may in another aspect and for another purpose fall within sect. 91."¹³Thus, while it was true that Parliament could enact temperance legislation to deal with federal aspects of the problem, the provinces could enact legislation dealing with its local aspects. According to the Board, the provincial legislation in the Hodge case was "confined in its operation to municipalities in the province of Ontario, and is entirely local in its character and operation."¹⁴

Moreover, the provincial regulations did not in any way interfere with federal legislation on the same subject. It was therefore valid legislation in relation to the powers conferred on the provinces under sections 92(8), (13), and (16) of the BNA Act.

The aspect doctrine, like the related pith and substance doctrine, represents a powerful tool for upholding the validity of legislation passed by both levels of government. The aspect doctrine essentially asks whether Parliament or the provinces have a sufficient interest in a particular social or economic problem such that they should be permitted to regulate it. As the Russell and Hodge cases demonstrate, it may be possible that both the federal and the provincial governments have sufficiently important interests at stake for each of them to legislate. Most significant social and economic problems are multifaceted and have both local and national impact. Moreover, by framing the problem in this manner, the judiciary will most...