• Impugned legislation: Canada Temperance Act, 1878
-Certiorari; rule nisi
• ¼ of electors in a “county or city” may petition for a plebiscite on prohibition.
• Fredericton went dry
• Charles Russell: Fredericton pub owner, convicted
• Previous SCC decision: City of Fr. v. Queen: intra vires under T&C (91-2)
• JCPC decision: Sir Montague Smith.
• Russell’s lawyer: delegation argument – Parliament can’t delegate its powers. Legislation says GG “may” …
• “cubby hole” doctrine
• Is subject-matter of impugned legislation in s.92? If so, is it also in 91?
• If not in s. 92, it must be in s. 91
• Russell’s lawyer: argued legis. Falls in s. 92: 9, 13 or 16
• “pith and substance”
• Smith: Nearly anything could fall under 92(13); what is p&s?
• Central subject matter is public order & safety, not T&C
• Not local because of local option. (analogy: health orders)
• Therefore, not under s.92.
• No comment on SCC’s decision in Fredericton re s. 91(2), but seems to emphasize POGG
• Gap (residual) branch of POGG
Local Prohibition Case, 1896
• Impugned: Ont’s Local Prohibition Act (1890)
• Applies to Townships, towns, villages (& cities)
• Appeal from SCC reference
• Lord Watson
• Feds (under POGG) can trench on s.92 only if incidental to a legit fed purpose
• otherwise, all of s.92 falls in s. 91.
• s.94 issue (unify common law in anglophone provs)
• Ontario argued that legis. falls under 92(8): (municipalities). Watson: not a convincing argument
• Pith & sub: vice of intemperance at local level
• 92(16): (local) yes.
• 92(13): no; the law prohibits rather than regulates
• if conflict: fed. law is paramount
• conflict of laws: no conflict if strictest obeyed
• “double aspect” doctrine: a legislative subject-matter can fall under s. 91 for one purpose, and s. 92 for another.
• National dimension or national concern doctrine hinted at: a subject matter can become a matter of national concern and then feds can regulate under POGG.
Board of Commerce & Combines & Fair Practices Acts (1922)
• Impugned legislation: fed anti-profiteering & anti-hoarding
legis. after WW I (1919)
• Board stated case to SCC re Ottawa clothing stores
• Appeal from SCC: Duff (BC) vs. Anglin (judges evenly divided)
• Viscount Haldane for JCPC
• Pith & substance: combines & hoarding in peace-time
• Cubby-hole: 92(13)
• S. 91 too?:
• Crim power? No – not like incest (important decision for those writing about criminal power in writing assignment)
• T&C: no; T&C is supplemental to other federal powers
• POGG? Only in “highly exceptional circumstances” [emergency doctrine] (see p. 66)
• Ultra Vires
• 3 aspects of POGG: national concern (obiter in Local
Prohibition), emergency (B of C), residual (Russell)
TEC v Snider (1925)
• Impugned legislation: federal Industrial Disputes Investigation
• Viscount Haldane wrote for JCPC
• Haldane says labour legislation clearly falls under s. 92(13)
• In this case, the procedure is applied to a municipal transportation agency (TEC, forerunner of TTC, 1923)
• Does subject-matter also fall under POGG, fed criminal power, or 91(2) (T&C)? Haldane – no.
• POGG can be used as residual, or emergency power. Here,
can’t be residual because 92(13) applies. As well, there’s no emergency.
• Rule of interpretation: specific takes precedence over general. See Haldane’s discussion of specific words, p. 76.
• How can this decision be squared with Russell v. Queen? Haldane: there must have been an emergency in 1878:
“…evil of intemperance [was] one so great” that parliament intervened to “protect the nation from disaster”