CONSTITUTIONAL LAW 09 NECESSARILY INCIDENTAL AND DOUBLE ASPECT DOCTRINE

1. CONSTITUTIONAL LAW09 NECESSARILY INCIDENTAL AND DOUBLE ASPECT DOCTRINE Shigenori Matsui 1

2. INTRODUCTION If the law was found to be within the power of the federal parliament, the incidental effect on the provincial power will be accepted. The same can be said as to the power of provincial legislatures. Necessarily incidental doctrine (ancillary doctrine)

3. Even when the federal parliament and provincial legislature are regulating the same subject, federal parliament and provincial legislature can regulate different aspects of the same subject. • Double aspect doctrine

4. I NECESSARILY INCIDENTAL 4 When the pith and substance of the law was found to be within the power of federal parliament under s. 91, then incidental effect will be accepted. When the statute as a whole is found to be within the power of the federal parliament, then provision, which might intrude upon the power of provincial legislature can be accepted if it is necessarily incidental.

5. General Motors of Canada Ltd v. City of National Leasing [1989]

6. The court must first decide what test of fit is appropriate. The court considers the degree of intrusion into the provincial power.

7. Three-steps analysis • (1) whether the impugned provision intrudes on provincial power • (2)whether the act as a whole is valid, and • (3)whether the impugned provision is sufficiently integrated with the scheme

8. Three factors to be considered in order to assess the seriousness of the intrusion: • (1)remedial legislation • (2)limited scope of the legislation, • (3)power of the federal parliament to create rights of civil action.

9. What was the outcome of these principles in this case?

10. The same doctrine will allow provincial legislature to exercise necessarily incident power. • Global Securities Corp v. British Columbia [2000]

11. 11 • Reference re Goods and Services Tax [1992] • The GST Act has significant effects upon matters within provincial jurisdiction, but it is impossible to say that the purpose of the Act is to produce these effects. The purpose of the Act is to raise revenue for the federal government, and the effects produced by the scheme on matters within provincial jurisdiction are incidental to this purpose.

12. The test is clearly a strict one. However, in General Motors of Canada Ltd. v. City National Leasing, supra, at p. 669, Dickson C.J. indicated that a degree of judicial moderation was appropriate, for the reason that a federal system requires both levels of government to be accorded a degree of latitude in the pursuit of valid objectives.

13. The first step is to decide whether the impugned scheme in fact touches matters within provincial jurisdiction. If it does not, the inquiry ends, but if it does, then it is necessary to ask whether the legislation in question is enacted pursuant to some valid federal head of power. If the legislation is not enacted pursuant to a valid purpose, then of course it must be struck down.

14. However, if it is enacted pursuant to a valid federal purpose, then it is necessary to determine whether the impugned provisions are "sufficiently integrated with the scheme that [they] can be upheld by virtue of that relationship." If the impugned provisions are not sufficiently integrated into the scheme as a whole, then they cannot be sustained as a valid exercise of federal power. However, if the test of integration is passed, then the provisions are supportable as an exercise of federal jurisdiction notwithstanding that they affect matters falling within the jurisdiction of the provinces.

15. The framework • “The fundamental corollary to this approach to constitutional analysis is that legislation whose pith and substance falls within the jurisdiction of the legislature that enacted it may, at least to a certain extent, affect matters beyond the legislature’s jurisdiction without necessarily being unconstitutional. At this stage of the analysis of constitutionality, the “dominant purpose” of the legislation is still decisive.”

16. Its secondary objectives and effects have no impact on its constitutionality: “merely incidental effects will not disturb the constitutionality of an otherwise intra vires law. By “incidental” is meant effects that may be of significant practical importance but are collateral and secondary to the mandate of the enacting legislature.. Such incidental intrusions into matters subject to the other level of government’s authority are proper and to be expected…” • Canadian Western Bank v. Alberta

17. Should the court inquire whether the incidental effect will be accepted when it decides that the pith and substance of the law is within the power of the federal parliament?

18. Compare with U.S. Constitution • Article 1, section 8, clause 18 • “To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof” • McCulloch v. Maryland (1819)

19. To what extent the court should apply rigorous test to judge the fitness?

20. II DOUBLE ASPECT DOCTRINE Even when the federal Parliament and provincial legislature is regulating the same subject, the federal parliament and provincial legislature can regulate different aspects of the same subject. Double aspect doctrine

21. 21 • Hodge v. The Queen [1883] • “subjects which in one aspect and for one purpose fall within s. 92, may in another aspect and for another purpose fall within s. 91”

22. 22 • Multiple Access Ltd. v. McCutcheon, [1982] • “Viewed in isolation it can no doubt be argued that their matter is the trading in securities. But in context, however, they are company law.”

23. Law Society of British Columbia v. Mangat [2001] • Both the federal and provincial features of the challenged provisions are of equivalent importance, and so neither should be ignored in the analysis of the division of powers. Parliament must be allowed to determine who may appear before tribunals it has created, and the provinces must be allowed to regulate the practice of law as they have always done. Having determined that there are both federal and provincial constitutional aspects to the subject matter in ss. 30 and 69(1) of the Immigration Act, the sections are validly enacted by Parliament under the double aspect doctrine.

24. O’Grady v. Sparling[1960]

25. 25 • The current framework • Also, some matters are by their very nature impossible to categorize under a single head of power: they may have both provincial and federal aspects. Thus the fact that a matter may for one purpose and in one aspect fall within federal jurisdiction does not mean that it cannot, for another purpose and in another aspect, fall within provincial competence…

26. The double aspect doctrine, as it is known, which applies in the course of a pith and substance analysis, ensures that the policies of the elected legislators of both levels of government are respected. …The double aspect doctrine recognizes that both Parliament and the provincial legislatures can adopt valid legislation on a single subject depending on the perspective from which the legislation is considered, that is, depending on the various “aspects” of the “matter” in question. • Canadian Western Bank v. Alberta [2007]

27. In what circumstances, the court is willing to apply the double aspect doctrine? • The court has been unwilling to apply the double aspect doctrine in regulation of trade and commerce or labor relations. Why?

28. The double aspect doctrine will allow concurrent regulation by the federal Parliament and provincial legislatures. Yet, the paramountcy doctrine will mandate the dominance of federal law. Is the expanded use of the double aspect doctrine desirable?