CONSTITUTIONAL LAW 12 POGG POWER: EMERGENCY POWER

1. CONSTITUTIONAL LAW12 POGG POWER: EMERGENCY POWER Shigenori Matsui

2. INTRODUCTION The power “to make laws for the peace, order, and good government of Canada” (p.o.g.g. power) What is the scope of the p.o.g.g. power? The scope of the emergency power

3. I HISTORICAL DEVELOPMENT Russell v. The Queen, [1882]

4. If the subject of the Act does not fall within any of the classes of subjects in s. 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 legislature, the Parliament of Canada had by its general power to make laws for the peace, order and good government of Canada full legislative authority to pass it.

5. The Privy Council held that the subject did not fall within property and civil rights in the province in s. 92(13) or local matters in s. 92(16). • They are of a nature which fall within the general authority of Parliament to make laws for the order and good government of Canada and have direct relation to criminal law. • Parliament was dealing with the subject as one of general concern to the dominion, upon which uniformity of legislation is desirable and the Parliament alone can so deal with it.

6. A.G. Ontario v. A.G. Canada [1896] A.C. 348

7. The Privy Council held that the exercise of legislative power by the Parliament in regard to all mattes not enumerated in s.91 ought to be strictly confined to such matter 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.

8. The Privy Council admitted that some matters in their origin local and provincial, might attain such dimension as to affect the body politics of the dominion, and to justify the Canadian Parliament in passing laws for their regulation or abolition in the interest of the dominion. Yet it warned that great caution must be observed in distinguishing between that which is local and provincial and that which has ceased to be merely local or provincial, and has become matter of national concern.

9. Re the Board of Commerce Act, [1922] 1 A.C. 191

10. 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. The decision in Russell appears to recognize this as constitutionally possible, even in time of peace; but it is quite another matter to say that under normal circumstances general Canadian policy can justify interference … with the property and civil rights of the inhabitants of the provinces…

11. It can, therefore, be only under necessity in highly exceptional circumstances, …that the liberty of the inhabitants of the provinces may be restricted by the Parliament of Canada, and that the dominion can intervene in the interests of Canada as a whole…

12. Toronto Electric Commissioners v. Snider [1925]

13. It appears to their Lordships that it is not now open to them to treat Russell as having established the general principle that the mere fact that Dominion legislation is for the general advantage of Canada, or is such that it will meet a mere want which is felt throughout the Dominion, renders it competent if it cannot be brought within the heads enumerated specifically in s. 91.

14. No doubt there may be cases arising out of some extraordinary peril to the national life of Canada, as a whole, such as the cases arising out of a war, where legislation is required of an order that passes beyond the heads of exclusive Provincial competency. Such cases may be dealt with under the words at the commencement of s. 91…But instances of this…are highly exceptional.

15. Their Lordships think that the decision in Russell can only be supported to-day… on the assumption …that the evil of intemperance at that time amounted in Canada to one so great and so general that at least for the period it was a menace to the national life of Canada so serious and pressing that the National Parliament was called on to intervene to protect the nation from disaster.

16. A.G. Ontario v. Canada Temperance Federation, [1946]

17. The Privy Council can find nothing in the judgment in the Russell in 1882 which suggests that it proceeded on the ground of emergency; there was certainly no evidence before that Board that one existed. The Act of 1878 was a permanent, not a temporary, Act, and no objection was raised to it on that account.

18. In their Lordships' opinion, the true test must be found in the real subject matter of the legislation: if it 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, then it will fall within the competence of the Dominion Parliament as a matter affecting the peace, order and good government of Canada.

19. Two sources of p.o.g.g. power • Emergency power • The concern in the Dominion as a whole

20. II EMERGENCY POWER • Fort Frances Pulp and Paper Co. v. Manitoba Free Press [1923]

21. Their Lordships entertain no doubt that … 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.

22. Reference re Anti-Inflation Act, [1976]

23. Is it necessary for the Parliament to declare explicitly that the law is for the emergency?

24. What kind of evidence can be examined by the courts to find whether there is a reasonable ground for the Parliament to enact law based on emergency?

25. Is it possible to sustain the current Emergencies Act of 1985?