Federalism Redux

Those of us who went to law school before the Canadian Charter of Rights and Freedom was the only game in academia will remember that Canadian constitutional law has two distinct components: federalism and the Charter.

Federalism is somewhat passe now and, in truth, it isn't argued very often in Court. But an argument that provincial legislation trenches on the federal criminal power can still be made. Indeed, in some cases (especially where the punitive aspect of the provincial regulation is strong) such argument might have legs.

That said, today's Court of Appeal decision in Club Pro Adult Entertainment Inc. v. Ontario (Attorney General),  2008 ONCA 158 suggests that the Court will not lightly strike down, or even consider striking down, provincial legislation as being ultra vires.

Club Pro involved an argument that provincial anti-smoking legislation was, in fact, a criminal law measure. Candidly such an argument seems a stretch (and this author is no stranger to "Gumby and Pokey" pleadings). That said, the Court made very short work of the argument finding that the pith and substance of the legislation could be seen as being health related and no evidentiary basis was required for such finding -- the argument was dismissed on pleadings alone. The Court noted that a criminal aspect to a provincial statute, provided it was merely a part of an otherwise valid statute under a provincial power, did not vitiate the legislation.

Some of the reasons follow:

[10]          To determine whether a provincial law is validly enacted, the court must (i) determine the "pith and substance" or essential character of the law, and (ii) classify the essential character with reference to the heads of power under ss. 91 and 92 the Constitution Act, 1867.  When considering the law's "pith and substance", the court examines the purpose and effects of the legislation.  See Reference re: Firearms Act ( Can. ), [2000] 1 S.C.R. 783 at para. 15. 

[11]          In our view, looking at the Act, it is plain and obvious that the pith and substance of the legislation is to promote the health of Ontarians.   No extrinsic evidence is required to arrive at this conclusion.  As a result, the Act is valid pursuant to the provincial government's jurisdiction over health.

[12]          Furthermore, the fact that the Act could be interpreted as an attempt by Ontario to suppress the "socially undesirable conduct of smoking" does not detract from the constitutional validity of the Act.  As this court recently stated, "it is not enough for the appellants to show that the provisions they attack have a criminal law aspect. In order to succeed, they must establish that the provisions do not fall within provincial competence or are repugnant to federal legislation."  See R. v. Banks (2007), 84 O.R. (3d) 1 at para. 31

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James Morton
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Toronto, Ontario
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