Question 1
Both the by-law and the EAAA(1) regulate conduct traditionally considered criminal, i.e. prostitution, sale of firearms, drugs. They are therefore both open to a challenge that they are ultra vires the province (or its delegate, the municipality) as being in relation to criminal law, a federal power. Michael's charge under the bylaw may also invoke the paramountcy doctrine. The situation of John B. may be further protect Glebe High School from an application of the EAAA by virtue of the interjurisdictional immunity doctrine, since John is a federal person. I will consider each of these matters in turn.
The By-Law
In order to determine the constitutionality of impugned legislation, the court will first characterize the matter the law is "in relation to" or the "pith and substance" of the law. This step of identifying the matter has been variously described. Mr. Justice La Forest reviewed the various phrases in Whitbread v. Whalley and concluded:
There is, of course, no magic in the phrase. It simply signifies what has long been recognized as the first step in division of power analysis, that the "matter" of the impugned law must be identified. [...] Whatever the phrase used, the idea remains the same: division of powers analysis commences with an identification of the "dominant or most important characteristic of the impugned law" [...].
The City will argue that the by-law deals with licensing of businesses in the vicinity of schools, a matter in relation to its delegated powers under the Civil Rights and Property power (s. 92(13)), or a local matter (s. 92(16)) or education (s. 93 ). When characterizing the matter of a law, the courts will look at both the intended "legal effect" of the legislation (Munro v. NCC) and the actual or predicted "practical effect" of the legislation (Morgentaler 1993). In order to determine the legal effect, courts will consider the preamble or purpose statement (Munro) as well as external aids such as the legislative history (Reference Re Anti-Inflation Act) and other related legislation (Morgentaler). Evidence of the debates in City Council are therefore admissible. It will be useful to show that the debate had strong moral overtones, regarding matters that can hardly be considered aspects of a local or community standard of morality, but rather standards uniformly applicable throughout Canada. The school administration and Michael should argue that the matter of the law is the prohibition of criminal or socially unacceptable behaviour, a matter in relation to the criminal law power of the federal Parliament. This is so because of the severe penalty attached to the by-law, the conduct regulated and the limited scope of the scheme. Provincial legislation (and by-laws enacted pursuant to it) may, of course, impose penalties (s. 92(15)). However, the penalty has to be imposed to enforce a valid scheme. The relationship between the regulatory scheme and the penalty has to have a sufficient nexus with the scheme (Edwards Books). A tenuous or weak link will not suffice. The issue here is whether such a valid scheme exists and whether the prohibition is sufficiently linked. The by-law is cloaked in licensing language. However, there are no conditions attached to licences - as would be typical for a licensing scheme, such as the one upheld in Rio Hotel. Rather, a whole range of activities are simply not capable of being licensed. The fact that the activities incapable of being licenced are historically considered within the ambit of the criminal law makes the scheme immediately suspect (Morgentaler, 1993). Together with the moralistic language used at Council Meeting, this points to a colourable attempt to intrude into the criminal law power, rather than to validly regulate business standards, or education. The latter power base is further made unlikely by the territorial separation. The by-law is not aimed at school grounds, but is aimed at streets surrounding schools. (Rio Hotel) It may have been valid to enact such a by-law temporarily, if a local crisis is being perceived, but there is no such indication in the by-law. (Dupond) I would therefore argue that the situation here is closer to the Westendorp, where Laskin C.J. outlined the limits of the provincial power to impose quasi-criminal sanctions:
If a Province or municipality may translate a direct attack on prostitution into street control through reliance of public nuisance, it may do the same with respect to trafficking in drugs. And, may it not, on the same view, seek to punish assaults that take place on city streets as an aspect of street control! However desirable it may be for the municipality to control or prohibit prostitution, there has been an over-reaching in the present case which offends the division of legislative powers.
Like in Westendorp, the by-law may have a desirable goal. However, this fact does not make it constitutional. The scheme is hardly comprehensive. It does not deal with protection of school children in general, which is apparent from the fact that there is no response to the environmental hazard complaint. The penalty is disproportional to a licensing scheme. I would compare this to other licensing scheme violations in the City, but I am certain that this is extreme. For purposes of enforcing the licensing requirement, the penalty is so excessive that it cannot be considered to have a sufficient nexus. The language of the provision further supports that the by-law is in relation to criminal law (Westendorp). The wording in s. 4 mirrors the phrasing of Criminal code provisions.
Michael was charged under the by-law with an offence that duplicates a Criminal Code offence. While duplication alone does not invoke the paramountcy doctrine (Multiple Access), it could be argued that the duplication in this case weakens or confuses the enforcement of the Criminal Code offence (Chiasson), because Parliament intends to attach a certain stigma to a criminal conviction which is hardly compatible with a charge under a by-law, which makes the offence appear comparable to a parking ticket. If the court found that the by-law weakened the enforcement of the criminal offence sufficiently to create an operative conflict between the by-law and the Criminal Code, the by-law would be rendered inoperative by virtue of the paramountcy doctrine. However, this is not a very strong argument, as duplication is not likely to be found to have such an effect.
In conclusion, the school administration and Michael should argue that the by-law was a colourable attempt to intrude into the criminal law field, it was not supported by a valid scheme and the penalty did not possess a sufficient nexus to the scheme , even if the latter was valid. Michael may further want to argue that the by-law weakens the enforcement of the Criminal Code offence and should therefore be found inoperative.
The Provincial Law
Some of the above considerations also apply to the EAAA. The province will likely argue that the law is a valid exercise of its powers under s. 92(13), (16) and s. 93, i.e. that it is in relation to property (school grounds), regulating a local matter and the proper functioning of schools (education). The school administration and Michael should argue that it is in relation to criminal matters, as it seeks to prevent criminal activities on school grounds (EAAA s. 2). The scheme set out in ss. 2-4 is arguably a valid exercise of the mentioned heads of power, despite its mention of criminal activities. However, the enforcement provision in s. 5 has only a very tenuous connection to the scheme. This analysis can be considered as an application of the ancillary doctrine in the area of property and civil rights. The need for a nexus between the provision and the overall scheme should therefore be measured on a sliding scale of fit and intrusion into the federal field. It is essential to a well-functioning federal system that not every effect outside the jurisdiction of the enacting body will render laws ultra vires. The courts will balance the need of a federal system to keep the spheres of power separate with the need of a functioning state to enact laws with ancillary effects through a calculus of how deeply the law or provision intrudes into the other field on one hand, and, on the other hand, how necessary the provision or law is for the overall scheme. The more necessary the provision, i.e. the better the "fit" , the deeper the law can intrude. (General Motors v. CN. Leasing). Conversely, the more tenuous the connection, the less tolerance for intrusion. Here, the connection between s. 5 and the overall scheme is very tenuous. It targets behaviour completely divorced from the rest of the scheme. The overall scheme confers powers to and imposes obligations on the school administration, the enforcement does not target the same goals as the scheme. It expands to statutes, regulations and by-laws, where the rest of the scheme is limited to internal school administration. Many of the behaviours targeted are completely outside the control of the school administration. Nevertheless, the administration loses a school if these behaviours occur. The enforcement reaches outside the school grounds, which is indicative of an insufficient nexus, as Estey J. explained in Rio Hotel:
In the second category the problem is rendered more difficult by the fact that the provincial regulation reaches outside the premises owned or controlled by a provincial licensee. In that circumstance, the province again must find a valid provincial regulatory program and must confine the offences created in support of that program to those which are reasonably necessary for that purpose.
There is no indication on the facts that the province will be able to support this provision on the basis of another regulatory program. While it is true that a regulatory program does not have to be found in a single act (Homebuilders), the scheme nevertheless has to be entirely provincial. Here, reference is made to statute, which surely will include the Criminal Code, not a provincial law. The same factors also lead to the conclusion that the prohibition seems to stand alone in its purpose, another indicator of an insufficient nexus (Henry Birks). Lastly, s. 5 aims at matters traditionally considered criminal, drugs and prostitution, another indicator that the provision is in relation to criminal matters. Given the lack of nexus or functional connection of s. 5 with the overall scheme of the EAAA, the tolerance for intrusion into the criminal field will be very small. The scheme does not intrude deeply into the criminal field, but it targets criminal behaviour. I would argue that even this minor intrusion should not be tolerated given the lack of fit of the provision.
The Interjurisdictional Immunity Doctrine
John is a status Indian. As such he is a federal person and subject to federal legislation made pursuant to s. 91(24). Where provincial legislation of general application attempts to regulate a federal person (or thing or undertaking) in their federal aspect, the interjurisdictional immunity doctrine renders an otherwise valid provincial law inapplicable to that person. The issue here is whether the EAAA interferes with John's federal identity sufficiently to render the law inapplicable. In Irwin Toy, Dickson J. explained that the provincial law does not have to paralyze or impair the federal person in order to make the interjurisdictional immunity doctrine relevant. It only required that the legislation "affects a vital or essential part" of the federal person. In other words, does the law intrude into the zone of the federal person protected by the federal power? The scheme under which John was able to attend Glebe High School does not foresee him being transferred to another school. The school closure would therefore affect John differently than his classmates. Unlike them, he would not be able to go to a different school. The grant and his assignation to the Glebe were made under the Indian Act and would therefore aim at something directly linked to his "Indianness". Mr. Justice Beetz considered this problem in Dick.
I believe that a distinction should be drawn between two categories of provincial laws. There are, on the one hand, provincial laws which can be applied to Indians without touching their Indianness, like traffic legislation; there are on the other hand, provincial laws which cannot apply to Indians without regulating them qua Indians.
Provincial laws of general application of the first kind apply to Indians, those of the second kind do not. Since the Glebe School is designated pursuant to the Indian Act to be John's school and a possible school closure following Michael's conviction would affect John in his "Indianness", the school administration and Michael should argue that the EAAA should not apply to Glebe High School, or, in the alternative, that the by-law should not apply to the Glebe school. The latter is not as convincing both in effect and in theory. In effect, it may only postpone the closure of the school until other convictions reach 25. It is also doctrinally doubtful, because it was not John who was charged under the by-law. The effect of the by-law on him is therefore quite indirect.
In conclusion, the school administration and Michael should argue that both the by-law and the EAAA are ultra vires the province since they are in relation to or intrude too deeply into the federal criminal law power. Failing that, they could also argue that the EAAA should not apply to the Glebe High School because it affects John in his Indianness and should therefore be sheltered by the interjurisdictional immunity doctrine.
Question 2
Canada will seek to uphold the TMCRFA(2) as being in relation to health, criminal law, and the general trade and commerce power. It may also seek to uphold the legislation under the POGG power as relating to a national concern. There is no question that Parliament can impose criminal sanctions for offences created by Parliament under the criminal law power. The criminal law power is wide. Parliament can create new crimes, decriminalize previously criminal conduct and impose sanctions (Morgentaler, 1976). It is equally clear that within the criminal law it can enact laws in relation to health, (RJR) as long as the legislation does not intrude into the provincial powers under s. 92(7). There is no indication of such an intrusion in this Act. The first issue in this case is whether the pith and substance of the law is criminal (as was found regarding the law in RJR) or whether its matter is the regulation of the tobacco industry (as was found regarding the law in the Margarine Reference) and therefore in relation to the provincial civil rights and property power. The mere imposition of criminal sanctions does not automatically bring a law into the ambit of the criminal. power. A constitutional challenge of a law including a penal sanction can succeed if
it is made plain to the Court that the use of penal sanctions was a colourable or evasive means of drawing into the orbit of the federal criminal law measures that did not belong there, either because they were essentially regulatory of matters within exclusive provincial competence or where otherwise within such exclusive competence. (per Laskin in Morgentaler, 1976)
In order to properly characterize the law, it is necessary to look at the legislative purpose. The purposes stated in s. 3(1) do not indicate an intention of Parliament to legislate pursuant to its criminal law power. Rather, the stated purpose is to enable and assist the tobacco industry in its efforts to reduce smoking in young people. There is a reference to the fact that this needs national co-ordination (3(1)(f)), which points to an exercise of the POGG power and, more specifically, the national concern doctrine. Part II can partly be characterized as an exercise of the tax power (s. 91(3)) and partly a criminal law exercise. The bulk of the Act, however, is concerned with compensation schemes for stakeholders related to the industry, i.e. recipients of sponsorships and farmers. QPC should therefore argue that the Act in pith and substance seeks to regulate the tobacco industry, or, in the alternative that it seeks to compensate stakeholders and is therefore in both cases in relation to the provincial property and civil rights power. If the court finds that the Act is in relation to the criminal law power, QPC could still argue that it ancillarily affects the civil rights and property power more than is tolerable given that it does intrude deeply into the civil rights and property field. The Crown in right of Canada will likely argue this is truly necessary to achieve the criminal law objective or, alternatively, that even if the matter of the Act is regulating the tobacco industry, it is still a valid exercise of the second branch of the trade and commerce power, i.e. general trade and commerce affecting the dominion. However, singling out an industry is constitutionally doubtful, as Dickson J. pointed out in C.N.Transport:
The reason why the regulation of a single trade or business in the province cannot be a question of general interest throughout the Dominion, is that it lies at the very heart of the local autonomy envisaged in the Constitution Act, 1867.[...] The line of demarcation is clear between measures validly directed at a general regulation of the national economy and those merely aimed at a centralized control over a large number of local economic entities.
The test for a valid exercise of the general trade and commerce power as set out by Laskin C.J. in Vapour Canada lists the following indicia: a national regulatory scheme, the oversight of a regulatory agency and a concern with trade in general . The Act can be seen as a regulatory scheme, but it is questionable whether the foundation can be seen as a regulatory agency, since it has very limited supervisory powers and no independent complaints or enforcement mechanisms. Furthermore, the Act is not concerned with trade in general, rather it concentrates on one industry. The list of criteria was extended by Dickson J. in C.N.Transport. He would also consider criteria similar to those considered in Crown Zellerbach under the national concern doctrine, i.e. an singleness or indivisibility expressed by the fact that the provinces jointly or severally would not be able to enact legislation that would achieve the same goals or that the failure of one province to enact such a scheme would jeopardize the effectiveness of the scheme. In this case, the objectives of the Act could arguably be achieved by the provinces, but the effectiveness of the scheme might suffer, if not all provinces supported it. In the context of the tax and spending power, the courts have also considered the idea of a regulatory scheme. Criteria in this context included that the party (here: the industry) being regulated has caused the need for the regulation. (Shannon) This idea is addressed in the Act in s. 3(1)(c). Sanctions are also indicators of a regulatory scheme (see Part II of the Act and C.N.Leasing). The scheme is entirely statutory, in compliance with a condition set out in Homebuilders. There is little doubt that the Act is a regulatory scheme, it is less clear that it is a scheme that can be validly enacted under the general trade and commerce power as a national regulatory scheme, because it singles out an industry and it does not seem to meet the singleness test completely. The compensation schemes equally intrude into provincial powers. Farmers of all kinds, including tobacco farmers, surely have to be considered a local concern and Parliament cannot easily interfere collaterally. (Eastern Terminal Elevator). Neither can support for such a scheme be independently gleaned from the federal spending power. (Unemployment Insurance Reference). Similarly, funding for arts, culture and sports may well be predominantly of a local nature and would have to be supported by a valid federal scheme.
If the Crown fails to persuade the court that the Act is a valid exercise of either the criminal or the general trade and commerce power, it will likely argue that the Act addresses a national concern. Parliament may legislate for peace, order and good government. This power has been held to include the power to make emergency laws and the power to legislate in new areas or areas that were once local in nature but have since achieved a national level of concern. In this case, there is clearly no emergency power being asserted (even considering the temporary nature of the transitional schemes), therefore the Crown will rely on the national concern branch of the POGG power. This power enables Parliament to intrude into provincial fields to some degree. The test for the national concern doctrine was set out in Crown Zellerbach. As stated above, the matter must possess singleness or indivisibility; the exercise of the power must also be reconcilable with the fundamental distribution of legislative power under the Constitution. The courts have generally taken a pragmatic approach . If the federation is to work, legislative power cannot be shown to be hampered by legalistic approaches to the distribution of powers. On the other hand, the federation cannot afford to be eaten up by ever increasing federal powers without causing serious discontent in the provinces. QPC should argue that this matter could be regulated by each province, that no province would likely remain inactive and that there is therefore no need for an expansion of federal powers in this area. Regulating individual industries goes to the heart of the provincial power and federal action in this area therefore upsets the distribution of powers in a fundamental way.
In conclusion, it remains uncertain that the Act as a whole will be declared ultra vires. In favour of QPC''s position, there are some serious concerns regarding a colourable use of criminal sanctions to bring into the criminal realm what should be seen as regulatory. There is also a clear intrusion into the provincial civil rights and property power and into the provincial power to regulate local matters. However, on the Crown's side, the scope of the general trade and commerce power has not yet been fully delineated. If the Labatt case demarcated the divide between a local and a national trade matter, then the more local nature of the beer business compared to the cigarette market may well be a deciding feature. in the Government's favour. Furthermore, there is sufficient concern in the Canadian population regarding smoking that courts will be reluctant to yet again defeat the intentions of the federal Government to tackle the problem. It should not be forgotten that RJR was won on different grounds, mostly to do with incompetent handling of evidence on the part of the Crown. And there can be little doubt that court approval of the overall objectives of a law will influence the way in which a law is characterized to begin with, as Professor Hogg has pointed out:
What are the criteria of importance that will control or at least guide this crucial choice [of characterizing the matter of a law]? No doubt, full understanding of the legislative scheme [...]. No doubt, too, judicial decisions on similar kinds of statutes will often provide some guide. But in the hardest cases the choice is not compelled by either the nature of the statute or the prior judicial decisions. The choice is inevitably one of policy.(3)
It would seem that this is one of those "hardest cases", where policy will play a major role. For this reason, it will be imperative to address policy concerns when challenging this law. Any evidence to suggest that the industry itself or the provinces would be able to achieve the same goals would be helpful. For this reason, it may well be worthwhile to come up with some studies/statistics showing that the industry is already engaging in the kinds of activities aimed at by the foundation. (If QPC has not started on those, now is the time to start). This may diffuse the argument in s. 3(1)(c) that the industry is not capable of addressing the problem. There is also mention of a lack of credibility. Any trust-building actions would therefore also be helpful. Nevertheless, the case is far from clear and the chances of succeeding in the challenge may be less than 50/50.
1. Education Act Amendment Act
2. Tobacco Manufacturers Community Responsibility Foundation Act
3. P. Hogg, Constitutional Law of Canada (Scarborough: Carswell 4th ed. 1996) at 341.