R. v. Hydro-Quebec (1997)
-Impugned: Canadian Environmental Protection Act, SC 1988, ss 34-35,
and regulations issued by Lucien Bouchard in 1989 (when he was still a
federalist cabinet minister under Brian Mulroney).
-Hydro Quebec (HQ) was charged in 1990 with releasing PCBs contrary
to Bouchard's regulations. HQ claimed Act and regs ultra vires.
Claim: reg's don’t fall under any heads in s. 91. HQ won at trial
and Q Ap Ct. Fed gov't granted leave to appeal to SCC in 1995.
-5-4 decision: leg and regulations are intra vires.
(Hydro Quebec lost the appeal.)
-Majority: La Forest, L’Heureux-Dube, Gonthier, Cory,
McLachlin. “Environment” is not a distinct subject-matter that falls
under ss. 91 or 92. If “pith and substance” of leg falls under s.
91 or 92, legislation is valid. (Do you see the application of the
“double aspect” doctrine from the Local Prohibition case here?)
-Does leg fall under 91(27) [crim law]?
-Feds can decide what “evils” they want to supress, with penal sanction.
-Fed criminal power subject to “fundamental justice” safeguards in
Charter; higher level of “mens rea” required for “true” (serious) crimes.
-Criminal power may not be employed “colourably” (used as an excuse
to invade provincial powers.) Test: does a “legitimate public
purpose” underlie the prohibition?
-Protection of environment is a legitimate public purpose for criminal
-Prot of Environ is an “international problem,” requiring action by
-Provinces are not precluded from acting as well.
-Hydro Quebec argued that the legislation is regulatory, not criminal.
Crim. Leg. simply prohibits.
-Majority: the prohibition is limited and targeted and “avoids
resort to unnecessarily broad prohibitions.”
-Impugned sections of Act do not deal with prot of environment generally,
but control of toxic substances. This requires precision because
of complexity of subject.
-Act targets only subjects dangerous to the environment.
-Therefore, individual assessment of dangers is needed.
-Regulations are appropriate because of complexity, and need for ongoing
assessment and fine-tuning.
-Because impugned legislation is intra vires under 91(27), the
majority wrote that it's not necessary to consider the POGG argument.
Dissent: (Lamer, Sopinka, Iacobucci, Major)
-Criminal power argument: prot of environment is a legit public
purpose under crim law under prot of human health, but this leg goes well
beyond the goal of protecting health.
-Regs are not really intended merely to protect health, but to regulate
-A valid criminal law must establish a prohibition. Ss 34-35
don’t; they regulate.
-Ministers of Health & Envirnoment can, through reg (OC), place
specific substances on a list, and regulate their use.
-It’s an “odd crime” where a Minister has discretion to prohibit certain
conduct from time to time.
-Provinces can be exempted from leg if they have the same regulations.
Prov. Legislation cannot be criminal.
-Giving feds the power to define “toxic” and thus regulate allows feds
to invade prov jurisdiction unfairly.
-POGG national concern?
-Must be a “new” matter with “singleness, distinctiveness and indivisibility.”
Dn of “toxic substance” is too broad to meet this test.
The dn includes substances that cross prov boundaries, but also includes
substances that don’t. Provincial control is possible. Therefore,
“Prov inability” test (Cr Zellerbach) not met.
-T&C: no, subject-matter does not fall under 91(2) either.
O’Hara v. British Columbia (1987)
-Impugned: a prov cabinet order under the B.C. Inquiry Act appointing
a prov commission to inquire into injuries sustained by a man while in
custody at a police station.
-Issue: does the inquiry invade federal jurisdiction over criminal
-Police officers thought it did, and petitioned B.C. Sup Ct to declare
order ultra vires. Police lost in BC Sup Ct, BC CA, and appealed
-Dickson +7: inquiry does not invade federal
-Inquiry’s purpose to “get to the bottom”of alleged police misconduct
for disciplinary purposes.
-If inquiry had been to determine criminal liability, or to inquire
into a federal institution, or had violated rights, it would be ultra vires.
-Estey (dissenting): real purpose of inquiry is
to identify wrongdoers preliminary to prosecution. Therefore, order
is ultra vires.
-This decision is a precedent for the Westray decision of 1995.
CN v. Courtois (1988)
-Impugned: Quebec Occupational Health and Safety Act, as it applies
to an investigation of an accident involving two CN trains.
-Issue: Can a province investigate an industry under federal
jurisdiction, and make recommendations for changes to ensure safety?
-Quebec CA: an investigation by a provincial body might be OK
if recommendations not binding on fed. Undertakings.
-SCC (Beetz + 6, unanimous): the real issue is whether the province
has the constitutional authority to investigate a federal undertaking.
Provinces do not have this power. The federal Occupational Health
and Safety Act applies, not the provincial one.
-(summons duces tecum – a summons to attend with particular documents.
This is not an important point, but mentioned here in case you're confused
when reading the case.)
AGT v. Canada (CRTC) (1989)
-Impugned: authority of CRTC over Alberta Government Telephones (AGT)
-AGT (which later became privatized and is now Telus) was at the time
a provincial crown corp, provincially regulated. CNCP telecommunications
wanted an order from CRTC in 1982 to facilitate interchange of communications.
AGT objected, claiming crown immunity.
-Questions: a) is AGT an interprovincial undertaking under 92(10)(a)?
B) If so, is AGT subject to CRTC regulations?
-Dickson + 4: AGT falls under federal jurisdiction under
92(10)(a). Although AGT does not have services outside Alberta, its
customers can all make long-distance calls, and so the services it sells
are really interprovincial in nature. AGT can claim crown immunity,
but CRTC regulations can be changed to include it.
-This decision astounded many lawyers, according to Hogg.
Wilson (dissenting): AGT cannot claim crown immunity.
Ontario Hydro v. Ontario (Labour Relations Board) (1993)
-A society of employees of Ont Hydro applied for certification to represent
employees to Ont Lab Rels Bd; opposed by a coalition of employees.
Coalition argued that because nuclear power plants are federal undertakings
under 92(10)(c), they must be certified under Canada Labour Code.
Ont LRB agreed. Decision challenged by Society (supported by unions),
and Ont Hydro.
-La Forest + 2, & Lamer (separate concurring): an
industry under 92(10)(c) is under federal jurisdiction for labour relations.
-Sopkina +2 (dissenting): Parliament’s jurisdiction over
a “declared” work extends only to what is integral to the federal interest
in the work. Parliament is interested in regulating nuclear power,
not labour relations. (La Forest, however, argues that the two subjects
are intricately connected.)