Peace, Order and Good Government: The Laskin Court in the Anti-Inflation Act Reference

Peace, Order and Good Government: The Laskin Court in

the Anti-Inflation Act Reference

Patrick N. MacDonald*

Prior to the decision of the Supreme Court of Canada in the
Anti-Inflation Act Reference’ it could have been confidently predicted
that the emergency doctrine was “unlikely to be a factor in future
constitutional decisions”. 2 The notion that the federal general power
may be exercised only in exceptional circumstances had been severely
criticized by our present Chief Justice,3 and subsequent decisions of
the Supreme Court seemed to indicate that some criterion other
than emergency would be employed in giving content to the power. 4
However, a majority of the Supreme Court has since upheld the
Anti-Inflation Act 4a for the very reason that it may be characterized
as “crisis legislation”.5 Even the dissenting judges, Beetz and de
Grandpr6 J., employed the emergency doctrine, but found that the
legislation did not meet its exacting standard.

There was, as well, universal acceptance of the emergency
doctrine among the parties to the reference. While those who sup-
ported the legislation relied primarily on A.G. Ontario v. Canada
Temperance Federation6 (claiming that the Anti-Inflation Act was
valid because it dealt with a matter that went beyond local or
provincial concern) they nevertheless argued in the alternative that
the Act could also be supported under the general power as a
measure designed to deal with an economic crisis amounting to an
emergency. Even those opposed were inclined to concede that it
would be valid if it were crisis legislation. As a result, the lines of

* Associate Professor of Law, University of Alberta.
‘Re Anti-Inflation Act [1976] 2 S.C.R. 373, (1976) 68 D.L.R. (3d) 452.
2 Gibson, Measuring “National Dimensions” (1976) 7 Man.L.J. 15, 23.
3 “Peace Order and Good Government” Re-Examined (1947) 25 Can.Bar
Rev. 1054, 1067. Ten years later, he was hopeful that the emergency doctrine
would be displaced:

(1957) 35 Can.Bar Rev. 101, 104.

4These were Johannesson v. West St Paul [1952] 1 S.C.R. 292 and Munro

v. National Capital Commission [1966] S.C.R. 663.

4a R.S.C. 1974-75-76, c.75.
0 Concurring with Chief Justice Laskin in this opinion were Judson, Spence
and Dickson JI. Mr Justice Ritchie, with Martland and Pigeon JJ. concurring,
reached the same conclusion.

6 [1946] A.C. 193 (P.C.).

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battle were drawn around the limits of the emergency doctrine. Two
issues assumed principal importance: Did Parliament, in fact,
believe there to be a crisis, and if so, was there a rational basis for
the belief that inflation constituted a crisis.7 The Chief Justice, with
six other members of the Court, found that both conditions were
met and upheld the Act accordingly.

The absence of any suggestion that the emergency doctrine had
been superseded by any new test of the federal general power” made
it necessary for those who argued the case to deal with Munro v.
National Capital Commission9 and Johannesson v. West St Paul.1 In
Munro, the Supreme Court had allowed, under the general power,
expropriation controlling the development and use of land surround-
ing the City of Ottawa. In Johannesson, the Court had brought within
the general power the regulation of aeronautics and all matters
related to it. In neither case was there any emergency or crisis. In
both cases, the test applied was that articulated in the Canada
Temperance Federation case: they involved matters going beyond
local or provincial concern. These decisions were interpreted in a
number of ways.

The factums of the Attorneys-General of Alberta and Saskat-
chewan present a bifurcated picture of the federal general power.
It is viewed as functioning “normally”‘1 where the lines of provincial
jurisdiction are so clearly drawn as patently to exclude some area
of legislative action. It functions “abnormally” in circumstances
where the legislative provisions in question would otherwise fall
within provincial jurisdiction. Here emergency is the “criterion…
developed for the application of the general power to matters which

1 In a separate judgment, Ritchie J. looked not for a rational basis but

for “clear evidence that an emergency had not arisen”, supra, note 1, 439.

8 This is attributable perhaps to the tactical exigencies facing those who
argued the case. It would not have made sense for the Attorney-General of
Canada to forego capitalizing on the positive premise of the emergency
doctrine. For the provincial Attorneys-General, circumstances seemed to
favour a battle fought over the limits of the emergency doctrine, a battle
which, win or lose, would put traditional areas of provincial jurisdiction in
the least jeopardy. The factum of the Attorney-General of Ontario in support
of the legislation did rely exclusively on the test put forward in the Canada
Temperance Federation case, supra, note 6, but BeetzJ. reports that in
argument counsel for Ontario explained the difference between that test and
the emergency doctrine as one of semantics or form only, supra, note 1, 460.

9 Supra, note 4.
10 Supra, note 4.
111 have borrowed this description from Abel, Laskin’s Canadian Consti-

tutional Law 4th rev. ed. (1975), 191.

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were originally* or prima facie within provincial jurisdiction”. 2 Thus
the cases which applied the general power in the absence of an emer-
gency, particularly Johannesson and Munro, are distinguished by
describing them as instances of the normal, “residual” application
of the general power. In this, the provinces are supported by
Gerald LeDain who says that the two cases did not reject the test
of exceptional necessity for matters that would ordinarily fall
within provincial jurisdiction because the statutes in question did
not involve matters assumed to have been originally or prima facie
within section 92.13

In dealing with Munro and Johannesson the Canadian Labour-
Congress and the Public Employees organizations adopted a dif-
ferent tack. Apparently conceding some scope for the purely residual
application of the general power, they argued that the emergency
doctrine and the Canada Temperance Federation test can be re-
conciled on the basis of a theory originally put forward by W.R.
Lederman. 14 If, as in Johannesson and Munro, the federal power is
asserted over a topic which has “a natural unity that is quite limited
and specific”,’ 4a then the test is whether the subject- matter of the
legislation “goes beyond local or provincial concern or interests and
must from its inherent nature be the concern of the Dominion as a
whole”. 4b But where the topic is diverse and the legislation per-
vasive, the test is the more demanding one of emergency. It is the
emergency that supplies “the concern of the Dominion as a whole”.
A majority of the Supreme Court of Canada, speaking through
Mr Justice Beetz, adopted part of both explanations. They decided
that in the absence of any emergency, the general power has residual
application only, and that the effect of Munro and Johannesson
was merely to add new federal subjects to this residual area “where
a new matter was not an aggregate but had a degree of unity that
made it indivisible, an identity which made it distinct from provin-
cial matters and a sufficient consistence to retain the bounds of
form”.15 The containment and reduction of inflation did not qualify
and the emergency doctrine was applied.

2 LeDain, Sir Lyman Duff and the Constitution (1974) 12 Osgoode Hall L.J.
1

261, 277-78.
13 Ibid.
14 Unity and Diversity in Canadian Federalism: Ideals and Methods of

Moderation (1975) 53 Can.Bar Rev. 597.

14a Ibid., 610.
14b Supra, note 6, 205.
15 Supra, note 1, 458.

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The Attorney-General of Canada made no attempt to reconcile
the conflicting lines of authority, other than by presenting them as
alternative grounds for the exercise of the federal general power.
This approach appealed to Chief Justice Laskin and since he was
able to sustain the Anti-Inflation Act as crisis legislation, he found
it “unnecessary to consider the broader ground advanced in its
support”.0

The above approaches are characterized by the acceptance of the
emergency doctrine as one possible constitutional basis for the
exercise of the general power. 17 The Canada Temperance Federation
test, by giving scope to the general power beyond or apart from
conditions of emergency, is simply another proper basis. It follows
that use of the emergency doctrine to uphold federal legislation, as
in the Anti-Inflation Act Reference, does nothing to impeach the test
used in Munro and Johannesson (hereafter referred to as the “na-
tional concern” test).17a

However my argument is that there is an essential incompatibi-
lity between the emergency doctrine and the national concern test.
One cannot be invoked without denying the essential components of
the other. Consequently, the Anti-Inflation Act Reference involves
necessarily a rejection, or at least a transformation, of the national
concern test. The incompatibility is manifest in three aspects:
property and civil rights, gravity of circumstances and the notion
of a residue.

Property and civil rights

Two very different views of the property and civil rights power
have prevailed in Canadian constitutional law. One forms an essen-
tial part of the emergency doctrine, and the other seems to be
reflected in cases applying the national concern formula. The
Supreme Court could not favour either submission in support of
the Anti-Inflation Act without giving its imprimatur to an inter-
pretation of section 92(13) which would undermine the other.

16 Ibid., 419.
-7 LeDain, supra, note 12, 291, cites Co-operative Committee of Japanese
Canadians v. A.G. Canada [1947] A.C. 87 (P.C.) as an indication “[that the
notion of emergency was not to be rejected as one possible constitutional
justification for the exercise of the general power …
“. Lederman, supra,
note 14, 607, says that Viscount Haldane went too far when he said “that
national emergency of some sort was the only subject that could qualify for
status as a new subject under the federal general power”.

17aThe only real objection to the emergency doctrine in the reference
is that it treats as necessary what is merely sufficient for a valid exercise
of the general power.

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The emergency doctrine mitigates a singularly broad conception
of the provincial property and civil rights power. In the line of
emergency cases commencing with the Board of Commerce deci-
sion” the Privy Council took the view that the characteristic feature
of property or civil rights legislation is interference with freedoms
associated with property, contract or the conduct of business. In the
Board of Commerce, Fort Frances19 and Snider” cases the legislation
in question was initially assigned to section 92(13) on the bare
finding that the statutes interfered with what Viscount Haldane
called “the property and civil rights of inhabitants of the provin-
ces”. 21 For Viscount Haldane the liberty to charge what the market
will bear, to lock-out one’s employees, or to strike, are civil rights.
Since the liberty itself was regarded as a civil right, it could make
no difference for what purpose it was restricted. Thus the purpose
of a law, which had assumed so much importance for Sir Montague
Smith in Russell v. The Queen,22 became quite irrelevant.

181n re the Board of Commerce Act, 1919, and the Combines and Fair Prices

Act, 1919 [1922] 1 A.C. 191 (P.C.).

695 (P.C.).

19Fort Frances Pulp & Power Co. v. Manitoba Free Press Co. [1923] A.C.
2oToronto Electric Commissioners v. Snider [1925] A.C. 396 (P.C.).
21The argument presented to the Court in Switzman v. Elbling and A.G.
Quebec [1957] S.C.R. 285, as repeated by RandJ., is a faithful expression of
the Haldane view: “by [s.92(13)]
the Province is vested with unlimited
legislative power over property; it may, for instance, take land without
compensation and generally may act as amply as if it were a sovereign
state, untrammeled by constitutional limitation. The power being absolute
can be used as an instrument or means to effect any purpose or object. Since
the objective accomplishment under the Statute here is an Act on property,
its validity is self-evident and the question is concluded” (at p.302).
22 (1882) 7 App.Cas. 829 (P.C.). In upholding The Canada Temperance Act,
1878, R.S.C. 1878, c.106 under the general power, Sir Montague Smith said that
legislation restricting freedom of property falls outside s.92(13) if the restric-
tion is in the interests of public order, safety or morals. What paved the way for
the eclipse of the Russell case was the decision of Lord Watson in the Local
Prohibition case, A.G. Ontario v. A.G. Canada [1896] A.C. 348. His Lordship
held that The Temperance Act of 1864, R.S.O. 1877, c.182, which was idenfical
in all material respects to The Canada Temperance Act, 1878, could be sup-
ported under s.92(13) as it concerned “property in the province which
would be the subject matter of the transactions if they were not prohibited,
and also the civil rights of persons in the province” (at pp.364-65). This was
a direct contradiction of Russell. Lord Macnaghten saw the contradiction in
A.G. Manitoba v. Manitoba Licence Holders Association [1902] A.C. 73 (P.C.)
and held that Manitoba’s prohibition statute (The Liquor Act, 63-64 Vict., c.22
(Man.)) was supportable only under s.92(16): “Indeed
is
to be regarded as dealing with matters within the class of subjects enumer-
ated in No.13, it might be questionable whether the Dominion Legislature

if

the case

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The first disarming blow to Viscount Haldane’s interpretation
of the property and civil rights power came with the recognition in
Reference re Alberta Statutes,23 Saumur v. Quebec and A.G. Que-
bec,24 and Switzman v. Elbling5 that these liberties are not rights
at all, civil or otherwise. They are residual freedoms. Property
rights and civil rights “arise from positive law”; they are created
by circumscribing the liberty of others.?0

In addition, these cases established that not every law which
circumscribes the liberty of individuals creates civil rights in others.
Regard must be had for the purpose of the restriction, and on that
basis laws were perceived to fall into two distinct classes: those
which protect the claims and interests of individuals and those
which protect the community as a whole.27

Laws of the first kind, relating as they do to the public interest
indirectly, may alone be characterized as legislation in relation to

could have authority to interfere with the exclusive jurisdiction of the pro-
vince in the matter” (at p.78). Professor Laskin, as he then was, criticized
the Manitoba case for driving a wedge between s.92(16) and the other
enumerations of s.92 and for giving the general power a “hollow para-
mountcy” over s.92(16) alone, supra, note 3, 1065. Lord Macnaghten might
rather have been congratulated for re-affirming that a statute concerned with
public order and safety is not a property and civil rights law. The acceptance
by the Chief Justice of Lord Watson’s decision would make it necessary for
him to look outside legislation at the circumstances leading to its enactment,
for the purpose of characterizing it as peace, order and good government law
or property and civil rights law. See infra, “Gravity of circumstances”, p.445.

23 [1938] S.C.R. 100.
24 [1953] 2 S.C.R. 299.
25 Supra, note 21.
26 In Saumur v. Quebec and A.G. Quebec, supra, note 24, 329, Rand J. re-
jected the argument that a law prohibiting the distribution of religious tracts
in the streets is a civil rights law: “Strictly speaking, civil rights arise from
positive law; … [it is in the circumscription of these liberties [freedom
of speech, religion and the inviolability of the person] by the creation of
civil rights in persons who may be injured by their exercise, and by the
sanctions of public law, that the positive law operates.”

t In Reference re Alberta Statutes, supra, note 23, 144, Cannon s. found
the Alberta Press Bill to be outside provincial power on the basis of a dis-
tinction drawn between public and private interests: “this bill deals with
the regulation of the press of Alberta, not from the viewpoint of private
wrongs or civil injuries resulting from any alleged infringement or privation
of civil rights which belong to individuals, considered as individuals, but
from the viewpoint of public wrongs or crimes i.e., involving a violation of
the public rights and duties to the whole community, considered as a com-
munity, in its social aggregate capacity”.

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property and civil rights.27 Section 92(13)
exercised only for the protection of private or individual interests”
This distinction between private and community interests has been
at work in defining the respective boundaries of the property and
civil rights power and the federal powers in relation to criminal
law 9 and trade and commerce30

is a power to be

27a The public interest in laws of the first kind is derivative, in laws of the

second kind it is direct and immediate.

to protect

its purpose was

28The disorderly house legislation in Bedard v. Dawson [1923] S.C.R. 681,
was sustained under s.92(13) because
the
individual property interests of neighbouring inhabitants. Though the opef-
ation of a disorderly house is a public nuisance, it may interfere with the
use and enjoyment of land and so have a private or civil aspect with which
the province may deal. “The essence of this aspect”, said Rand J. in Switzman,
supra, note 21, 304, “is its repugnant or prejudicial effect upon the neigh-
bouring inhabitants and properties”. Similarly, in Re D. & G. Barclay Buildeis
Ltd and St Jane Plaza Ltd (1973) 37 D.L.R. (3d)
the Ontario Court of
Appeal sustained under s.92(13) provincial legislation which gave a right
of re-entry to a landlord whose tenant kept premises as a disorderly house.
The legislation did not seek to punish a public wrong; it was designed for
the protection of the landlord, other tenants and indeed, the neighbourhood
in which the premises were located.

29 In the Margarine case, Reference as to the Validity of Section 5(a) of the
Dairy Industry Act [1949] S.C.R. 1, Rand J. could find no “public purpose” to
support the federal prohibition on the manufacture and sale of butter
substitutes because it was conceded that the substitutes were substantially
as free from deleterious effects as butter itself. The individual or private
interests of butter producers were the legislature’s concern. The legislation in
A.G. B.C. v. A.G. Canada (Reference re Section 498A of the Criminel Code)
[1937] A.C. 368 (P.C.), prohibiting a vendor from discriminating against com-
petitors of the purchaser, was distinguishable because its essential nature
“‘was not the equalization of civil rights between competitors or promoting
the interest of one trade as against another; it was the safe-guarding of the
public against the evil consequence of certain fetters upon free and equal
competition” ([1949] S.C.R. 1, 51). In adopting the distinction between in-
dividual and community interests for the purpose of measuring the scope
of s.91(27), Rand J. necessarily eschewed the notion of an historical “do-
main of criminal jurisprudence”, being the test put forward by Viscount
Haldane in the Board of Commerce case, supra, note 18. As the object or
purpose of legislation could not take it out of s.92(13), Viscount Haldane
had turned to history for a guide to what did not belong there.

30 In MacDonald v. Vapour Canada Ltd (1976) 66 D.L.R. (3d) 1, the Supreme
Court was asked to sustain under s.91(2) the provisions of subs.7(e) of the
Trade Marks Act, R.S.C. 1970, c.T-10. That subsection provides that “no person
shall … do any other act or adopt any other business practice contrary to
honest industrial or commercial usage in Canada”. Laskin C.J. might have
upheld the legislation were it not for the fact that the only means of enforce-
ment provided for was by civil suit at the instance of persons injured by
breach of the subsection. This made patent the federal intrusion upon pro-

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There is another important aspect of this limited view of
section 92(13). When asserted in relation to contractual relation-
ships, the property and civil fights power will support only laws of
an adjectival nature that are directed to security, certainty or fair
play and within the bounds of which persons are free to conduct
business on such substantive terms as they choose. Thus substantive
trade regulation is outside section 92(13).

This distinction between the contractual and trade aspect of
transactions first appeared at the Supreme Court level in the
Parsons case3’ and has re-emerged in the form of a basis for pro-
vincial jurisdiction over local transactions in commodities bound
for export from the province 2 The contractual aspect of trans-
actions falls properly within section 92(13) and has been re-
cognized as including laws concerned with equality of bargaining
position 3 and the entire residual area of commercial law.3 4 The

vincial legislative power. When forbidden predatory practices “are left to
merely private enforcement as a private matter of business
injury” (at
p.20), there is lost the support in s.91(2)
that might have been present
“if the legislation had established the same prescriptions to be monitored
by a public authority irrespective of any immediate private grievance as to
existing or apprehended injury” (at p.20).

3’Citizens Insurance Co. v. Parsons (1881)

4 S.C.R. 215; aff’d (1881) 7
App.Cas. 96 (P.C.). The Court upheld The Fire Insurance Policy Act, R.S.O.
1877, c.162 which required that any policy departures from prescribed sta-
tutory terms be printed in red ink. The object of the Act was “to protect
parties from being imposed upon” (at p.245 per Ritchie C.J.). This was a
matter of fairness in the contractual dealings between parties, and it formed
no part of trade and commerce legislation. Such legislation would fall nicely
within Professor Abel’s description of property and civil rights law as in-
cluding rules “aimed at keeping conduct while contracting within the bounds
of decency”, The Neglected Logic of 91 and 92 (1969) 19 U.of T.L.J. 487, 519.

3 2 1n Reference re the Farm Products Marketing Act

[1957] S.C.R. 198,
three judges of the Court broke new ground in holding that Parliament may
regulate certain aspects of local transactions in commodities bound for export.
They distinguished from trade regulation and preserved for exclusive pro-
vincial jurisdiction the contractual aspect of such local transactions.

33The provincial legislation involved in Carnation Company Ltd v. Quebec
Agricultural Marketing Board [1968] S.C.R. 238, was upheld, notwithstanding
the extra-provincial destination of the commodity, because the concern of
the legislation was not the price of milk but rather fairness in the contractual
dealings between the producers and Carnation. The legislature was prepared
to accept any price so long as it was arrived at fairly. For this prupose it
was necessary, as LaskinJ. said in A.G. Manitoba v. Manitoba Egg and
Poultry Association [1971] S.C.R. 689, 710, to “improve the bargaining posi-
tion” of the local producers in their dealings with the processor.
34This was recognized from the beginning. Fournier J. said in the Parsons
case, supra, note 31, 276-77: “In our constitutional Act I cannot find any-
where that commercial law is under the juridiction of the Dominion; it

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most definitive statement in this respect is that of Rand J. in the
Ontario Farm Products Reference.3a Trade, he said, does not take
place by virtue of positive law or civil right, and is accordingly not
within section 92(13). The language of the section is directed to

… laws relating to civil status and capacity, contracts, torts and real
and personal property in the common law provinces, jural constructs
springing from the same roots, already more or less uniform, and lending
themselves to more or less permanence 3 5
These, then, were the competing views of the property and civil
rights power. In the Anti-Inflation Act Reference the judges of the
Supreme Court chose between them while making it appear that no
choice was necessary. They applied Viscount Haldane’s broad emer-
gency view and found that the Act was in relation to property and
civil rights. The judgment of the Chief Justice, with whom three
others concurred, simply states that the Act “embraces sectors of
industry and of services, including employers and employees therein,
which are admittedly subject in respect of their intra-provincial
operations to provincial regulator authority”, in which sectors “it
would have been open to each province to impose price and wage
restraints” 06 Mr Justice Beetz, apparently speaking for the five re-

seems to me, on the contrary, that the Act, by assigning specifically to the
Dominion legislative control over a part of the commercial law, such as
any law on navigation, banking, bills of exchange, promissory notes and
insolvency, has left the residue to the jurisdiction of the several provinces as
coming under the head ‘civil law’ “. While the province may not apply subs-
tantive trade regulation to commodities bound for export, those commodi-
ties are clearly subject to such provincial statutes as the Sale of Goods Act.
This example was given by KerwinC.J. in the Ontario Farm Products Re-
ference, supra, note 32. With this “commercial significance” maintained, the
property and civil rights clause is accorded that “very broad significance”
which a reference to neglected history is said to demand, see Lederman,
supra, note 14, 601-604.

4a Supra, note 32. In this case Rand J. assigned laws concerned with local

trade regulation to s.92(16).

35Ibid., 211-12. The distinction being drawn here was used by Laskin C.J. in
his Vapour Canada judgment, supra, note 30. He found subs.7(e) of the
Trade Marks Act unsupportable under s.91(2), not only because it provides
for private enforcement by civil action, but also because “the provision is
not directed to trade but to the ethical conduct of persons engaged in trade
or in business” (at 26). Subs.7(e) established an adjectival rule of fairness
not unlike that involved in the Parsons case, supra, note 31.

-3 Supra, note 1, 392. Although Laskin CJ. did not expressly assign the
legislation to s.92(13), his acceptance of the emergency doctrine in its
positive aspect left no room for the kind of close analysis that is involved
in the narrow view of that power. This is all the more remarkable in view
of Laskin CJ.’s early recognition of the substantial error in Viscount Haldane’s
approach: “Viscount Haldane does not treat the phrase ‘property and civil

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maining members of the Court,’7 cited, inter alia, the emergency
cases, along with the Carnation case a7 and MacDonald v. Vapour
Canada Ltd3 b as authority for the proposition that the regulation
of prices, profits and wages
is a matter falling within section
92(13). There was no mention of the fact that the latter cases in-
volved legislation prescribing how bargains should be made and
not what their terms should be. It seems that since the legislation
interfered with freedoms associated with property and contract,
it was irrelevant that its admitted purpose was to combat inflation.
Unfortunately, in opting for the emergency doctrine’s concep-
tion of property and civil rights, the Supreme Court gave no in-
dication that this view was exceptional. Rather, the judges suggested
that there was but one assessment to section 92(13) and that it
was common to both the emergency doctrine and the national con-
cern formula. Chief Justice Laskin implied that the emergency cases
involved statutes that were property and civil rights legislation by
any standard. He perceived differences more of degree than of kind
emerging from the line of cases that includes both Russell, and
Board of Commerce and Fort Frances.”‘ What separated Sir Mon-
tague Smith and Viscount Haldane, he said, was the difference, if
any, between “an evil of nation-wide proportions” 39 and “exceptional
circumstances”. 40

rights in the province’ … as a class of subject for the exertion of pro-
vincial legislative power, but rather as relating to attributes of the citizenry
of the Dominion which are beyond the reach of provincial legislation. It is
this unusual conception of section 92(13) which has produced the paralysis
in the Dominion power to legislate for the peace, order and good government
of Canada …

“, supra, note 3, 1078.

37I say “apparently” because Ritchie ., who wrote for himself and three
others, said only that the Anti-Inflation Act could be supported on no basis
other than emergency, and his expressed agreement with BeetzJ. went no
further than his assessment of the national concern doctrine.

WaSupra, note 33.
37b Supra, note 30.
28See supra, note 1, 392. Russell was presented to the Supreme Court in
the Anti-Inflation Act Reference not as authority for a narrow construction
of s.92(13), but as an instance in which no emergency was required
to
support federal legislation because the legislative subject-matter (liquor)
“has an identity and a unity that is quite limited and particular in its
extent”, see Factum of the Canadian Labour Congress, relying on Lederman,
supra, note 14.

39 Supra, note 1, 397.
401bid., 406. Implicit in the opinion of BeetzJ. is the converse proposition
that the Munro and Johannesson cases involved statutes that were not property
and civil rights laws even by emergency standards.

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This notion of compatibility in these cases is quite remarkable.
It is my opinion that the statutes involved in the emergency cases,
the Anti-Inflation Act included, would not be classified as pro-
perty and civil rights legislation under any interpretation of section
92(13) other than that which sustains the emergency doctrine.

It is clear that the purpose of the Board of Commerce legislation
was to offset an imbalance in the economic order and not simply to
establish some equity in the relationship of vendors and purchasers.
Profiteering and hoarding were manifestations of a larger economic
disorder, to which they in turn contributed. They constituted a
public or community evil, not a private, interpersonal evil. As
Professor Abel said in his analysis of the case:

[T]he legislation did clearly address itself to contracts, specifying that and
on what terms persons must in certain circumstances contract … . Unlike
the unconscionable transaction Acts aimed at keeping conduct while con-
tracting within the bounds of decency, the challenged acts involved a
substantive contract term and one, the price term, which lies at the very
heart of marketing theory and practice. Designed to tilt the workings of
supply and demand, they were out-and-out economic controls. Hence,
the class of subjects they came within was plainly ‘The Regulation of
Trade and Commerce’ (economics) rather than ‘Property and Civil Rights’
(personal conduct) ……
An even clearer case is Snider, which, incidentally, like the Anti-
Inflation Act Reference, involved federal legislation applicable only
to industries of major consequence. Here, it was Mr Justice Fer-
guson of the Ontario Court of Appeal who defined the essential
character of the legislation:

Industrial disputes are not now regarded as matters concerning only a
disputing employer and his employees. It is common knowledge that such
disputes are matters of public interest and concern, and frequently of na-
tional and international importance. 42

He found in the Russell decision direct support for the legislation
because the Act4s was not intended to control or regulate contrac-
tual or civil rights but rather to authorize an inquiry into conditions
or disputes. The prevention of crime, the protection of public safety,
peace and order, and the protection of trade and commerce were
of its “pith and substance” and “paramount purpose”.

The emergency doctrine may have been given credibility in the
Fort Frances case because it provided a basis for wartime controls
on the price of newsprint. What appears to have escaped notice,
however, is that the controls, whenever enacted, were not of a pro-

41Supra, note 31, 519.
42[ 1924] 2 D.L.R. 761, 786.
42a The Industrial Disputes Investigation Act, 1907, S.C. 1907, c.20.

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perty and civil rights character, and this is so even apart from the
fact that they involved substantive trade regulation. In this instance
Parliament was not concerned with protecting the interests of news-
paper publishers against gouging by paper manufacturers, or con-
versely with subsidizing the manufacturers. Rather, the purpose of
the legislation, as Viscount Haldane remarked, was to protect the
public against “want of uninterrupted information in newspapers”.43
Price controls were simply a vehicle to ensure for the community a
continued discussion of public affairs in the press. 44

The Anti-Inflation Act Reference also involved legislation which
applied substantive trade regulation, not in the interests of either
of the parties to the transactions regulated, but in the interests of
the public generally. In fact, Chief Justice Laskin mentioned that
the Act might have been sustained as a “general regulation of trade
affecting the whole dominion” under section 91(2) 41 and this
indicates that for him the legislation truly did not have the charac-
teristic features of property and civil rights legislation; it is clear
that section 91(2) will not sustain legislation that is designed
to safeguard private or individual interests or that imposes standards
of ethical conduct as opposed to substantive trade controls.40 In
both the Fort Frances and Anti-Inflation Act cases, it was only the
exceptional view of property and civil rights embodied in the emer-
gency doctrine that made it necessary to rely on emergency to
uphold the legislation.

There was no inquiry into the real nature of the property and
civil rights power in the Anti-Inflation Act Reference, possibly

4 3 Supra, note 19, 706.
44 Surely Parliament is competent to adopt such measures if, as Cannon J.
said in Re Alberta Statutes, supra, note 23, 146, “[t]he federal Parliament is
the sole authority to curtail, if deemed expedient and in the public interest,
the freedom of the press in discussing public affairs … “. Rand s. said as
much in Switzman v. Elbling, supra, note 21, 306: “[P]ublic opinion … de-
mands the condition of a virtually unobstrticted access to and diffusion of
ideas …
. The freedom of discussion in Canada, as a subject matter of
legislation, has a unity of interest and significance extending equally to every
part of the Dominion”. See also Kirsh, Film Censorship: The Ontario Ex-
perience (1970-71) 4 Ottawa L.R. 312, 314-15. The Supreme Court of Canada
recently affirmed the Alberta Statutes philosophy by denying leave to appeal
from the decision of the Ontario Court of Appeal in Re C.F.R.B. and A.G.
Canada (1974) 38 D.L.R. (3d) 335, holding that “the exclusive legislative
authority of Parliament with respect to radio communication extends to
the control and regulation of the intellectual content of radio communic-
ation” (at p.340).

45 Supra, note 1, 426.
46MacDonald v. Vapour Canada Ltd, supra, note 30, 26.

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because the Court did not view the principal submission in support
of the Act, that is, the national concern test, as itself an expression
of the narrow view of the property and civil rights power. My thesis
is, of course, that the national concern test does involve a narrow
incomp-
view of section 92(13);
atible with the interpretation of section 92(13) which forms
the basis of the emergency doctrine.

the national concern

test is

In Munro, Justice Cartwright was not disturbed by the circums-
tance that the National Capital Act 4 – would “affect the civil rights
of residents of … the National Capital Region”,4 b for the object or
purpose of the legislation was a public one: to give to the national
capital a physical setting befitting its status. This is quite unlike
the purpose of typical provincial planning legislation, which merely
seeks to ensure the compatibility of neighbouring land uses with the
interests of the respective users. For Viscount Haldane, the imme-
diate effect of the legislation, its impact upon property, would
have been determinative against validity.47 The legislation in Munro
involved a matter ordinarily or prima facie within provincial juris-
diction, but the narrow view of the property and civil rights power
left the legislation outside section 92(13).

Although I agree with Professor Abel that there was little pre-
tence of analysis in the Johannesson case,48 it is clear that it too in-
volved a significant departure from the Haldane view of provincial
power. This departure becomes obvious when one compares the
Johannesson judgment with the views expressed by the Supreme
Court in the Aeronautics case.’ 9 It is evident that in the latter case the
Court laboured under the influence of the emergency doctrine. Mr
Justice Duff, with Rinfret and Lamont JJ. concurring, said:

The provincial jurisdiction under heads 10 to 16 extends through the air
space above … and the control of the Province over its own property is
as extensive in the case of aerodromes and aircraft as in the case of
garages and automobiles … . Primarily the matters embraced within the
subject of aerial navigation fall within s.92.f0

4Oa S.C. 1958, c.37.
46b Munro v. National Capital Commission, supra, note 4, 671.
47See supra, note 21. Lyon and Atkey, Canadian Constitutional Law in a
Modern Perspective 2d ed. (1970), 698-99, agree that Viscount Haldane would
have decided the Munro case differently.

48 What Peace, Order and Good Government? (1968) 7 West.Ont.L.Rev. 1, 5.

Save in the judgment of Locke I.

49 Re Aerial Navigation [1931] 1 D.L.R. 13.
60 Ibid., 22.

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Newcombe J. said:

[T]he right of way exercised within a Province by a flying machine must,
in some manner be derived from or against the owners of the property
traversed; and the power legislatively to sanction such a right of way
appertains prima facie to property and civil rights in the Province … .5
Perceptions such as these formed no part of the national concern
test applied in Johannesson. How, in light of them, can LeDain
suggest, with a view to reconciling the emergency doctrine and the
national concern test, that,

the decision in respect of aeronautics did not involve the application of the
general power to a matter assumed to have been originally under provincial
jurisdiction but claimed to have changed in relative importance and con-
cern so as to take it out of such jurisdiction and place it under the general
power.52
The national concern test applied a narrow view of the property
and civil rights power and, in so doing, it denied the very foundation
of the emergency doctrine. Statutes such as those involved in the
Munro and Johannesson cases, which are not property and civil
rights legislation by national concern standards, must, for the pur-
poses of the emergency doctrine, meet the test of exceptional ne-
cessity because they involve matters ordinarily or prima facie within
provincial jurisdiction.

The dissenting judgment of Mr Justice Beetz disguises this essen-
tial incompatibility. For reasons noted earlier, 3 he held that the
Anti-Inflation Act did not satisfy the national concern test. This was
preceded by the conclusion that the restraint of profits, prices and
wages is a matter of property and civil rights, a conclusion drawn
from nothing other than a series of cases that includes Board of
Commerce and Snider. Thus, the national concern test is seen as
working from basically the same assessment of section 92(13)
as does the emergency doctrine. Mr Justice Beetz is prepared to
embrace the notion of national concern, but only on terms making
it indistinguishable in a critical respect from the emergency doctri-
ne. “National concern” merely describes that area of legislative
action in which under the emergency doctrine, the test of exceptional
necessity need not be applied.

51 Ibid., 37.
52 LeDain, supra, note 12, 292. In fairness, LeDain may be saying that aero-
nautics was recognized as never having been otherwise than of concern to
the Dominion as a whole, and not that no elements of jurisdiction over
property could be discerned in its regulation. The fact remains, however,
that the Haldane analysis of aeronautics regulation was in terms of its
impact upon property rights.

5 See text, supra, p.433.

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Gravity of circumstances

It should be recalled that the Supreme Court was offered two
ways in which to reconcile the national concern and emergency
doctrines. The first said that “national concern” describes what is
excluded prima facie from provincial jurisdiction while emergency
operates as a companion principle in relation to matters not so ex-
cluded?54 The second said that national concern and emergency
operate in the same area of legislative action as different expres-
sions of the same principle, emergency being an instance of national
concern. 5 In my view, neither reconciliation is acceptable.

aside, will not accommodate

The national concern test, its foundation in a particular view of
the emergency
section 92(13)
doctrine, either as a companion principle or as a narrower expres-
sion of the same principle. The test originated in the judgment of
Viscount Simon in the Canada Temperance Federation case. He
rejected the emergency doctrine, not because it treated as necessary
what is merely sufficient for a valid exercise of the general power,,;
but because it sought the character of legislation in the wrong place.
He said:

[T]he British North America Act nowhere gives power to the Dominion
Parliament to legislate in matters which are properly to be regarded as
exclusively within the competence of the provincial legislatures merely
because of the existence of an emergency ….
True it is that an emergency may be the occasion which calls for the
legislation, but it is the nature of the legislation itself, and not the exis-
tence of emergency, that must determine whether it is valid or not. 7

These, I think, are the key words in the opinion. The gravity of cir-
cumstances leading to the enactment of legislation cannot alter its
constitutional character.

In the very manner of its expression the emergency doctrine
had distracted attention from its critical flaw. Surely, the doctrine
said, Parliament may enact property and civil rights legislation
only in exceptional circumstances. Viscount Simon was the first
to say that under no circumstances may Parliament enact property
and civil rights legislation. As has been demonstrated, this brought
attention back to the real question: what is property and civil rights
legislation. It also established the national concern test as one quite
incompatible with any notion of power arising in extraordinary cir-
cumstances.

-4 See text, supra, p.432.
55 See text, supra, p.433.
60 See supra, note 17.
7 Supra, note 6, 205-206.

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Thus the national concern test had positive and negative implic-
ations for federal power. It offered a limited view of the provincial
power in section 92(13) and, in an aspect of the test to be
examined below, provided a new understanding of what is otherwise
local or private in nature. But the price exacted was abandonment
of the idea that extreme circumstances alone could give a federal
character to legislation. Generally, there has been a refusal to accept
the Simon formula on those terms. The price apparently was too
high.

Professor Laskin, as he then was, indicated in 1947 that he would
prefer not to have Viscount Simon taken at his word a Emergency,
he thought, should continue to function as “not only the occasion
but also the justification for the legislation” 09 Professors Lederman
and LeDain were also unwilling to accept the negative implications
of Viscount Simon’s formula. “[S]urely”, Professor LeDain said,
“‘where emergency exists, it is the emergency which gives the matter
its dimension of national concern or interest”. 0

The Anti-Inflation Act Reference supports these ‘academic opin-
ions. Emergency was permitted. to function as the justification for
the legislation; seven members of the Supreme Court found the
legislation valid because there was nothing to contradict Parliament’s
assessment of the circumstances as exceptional. In this, there is ne-
cessarily a rejection of the Canada Temperance Federation formula.
Having reached that particular conclusion about legislation which
under the emergency doctrine calls for exceptional circumstances,
namely, that the legislation relates to property and civil rights,
Viscount Simon would insist that Parliament has no authority to
enact it.

Of course, Viscount Simon’s formula might have been given full
application without sacrificing the Anti-Inflation Act. As in the
Fort Frances case, the Court missed an opportunity to hold that
the legislation did not relate to property and civil rights. If the
Court is unwilling to accept the negative implications of Viscount
Simon’s formula, it is unable to profit fully from its positive aspects.
However, while the Supreme Court was prepared to say that
federal power may arise in extraordinary circumstances it was not
prepared to deny that federal power may exist in the absence of

58 Supra, note 3, 1082-83.
59 Ibid., 1082. Earlier on, at 1074, there is criticism of the Board of Com-
merce case for its failure to consider “the actual circumstances and condi-
tions which induced the legislation”.
‘0 Supra, note 12, 291.

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ANTI-INFLATION ACT REFERENCE

such circumstances. The Court wanted something of what it con-
sidered Viscount Simon to be offering. The Canada Temperance
Federation case, as Professor Laskin pointed out in 1947, allowed
scope for the general power “beyond conditions of emergency”. 61
And although reliance on “crisis” as a constitutional support for the
Anti-Inflation Act is not compatible with the strict terms of Vis-
count Simon’s formula, he nonetheless left that formula open as
a possible alternative basis for the decision, as a “broader ground
advanced in its support”.”1″ This suggests that for the Chief Justice
the formula has a definite role to play but it must be a role con-
sistent with the acceptance of emergency circumstances as justi-
fication for legislation. It must also be a role which would allow
federal power to arise where the legislation relates to property and
civil rights, for that was the conclusion which preceded Chief
Justice Laskin’s analysis of the two arguments advanced in support
of the Anti-Inflation Act. What could that role be?

It seems that for Laskin the Simon formula would allow federal
power to arise in a range of circumstances which includes, but is not
limited to, emergency situations. In his 1947 article, Professor Laskin
criticized the emergency doctrine, but only in terms which called
for an examination of “the actual circumstances and conditions
which induced …
legislation”62 and of “facts and circumstances
which give rise to some social pressure for legislation”.6 He saw
the Canada Temperance Federation formula as a vehicule for that
kind of analysis, and his only concern was that the Supreme Court
‘inherent nature’ abstractly or
might try “to assess the term
In writing his Anti-Inflation
artificially instead of functionally”
Act judgment,65 the feature of the Russell case that troubled him
was the absence of any extrinsic evidence that could establish
the circumstances which prompted the enactment of The Cana-
da Temperance Act, 1878.60 Nonetheless he was able to say that
the case did not establish that “Parliament’s assessment of cir-
cumstances calling for the exercise of its general power” 67 was
immune from judicial review. Indeed, he had earlier seen some con-
nection between the language in the Russell case and “data which

ID’Supra, note 3, 1083.
Gla Supra, note 1, 493.
W2Supra, note 3, 1074.
0Ibid., 1069.
6

(1957) 35 Can.Bar Rev. 101, 105.
5Supra, note 1, 396.
060R.S.C. 1878, c.106.
O7Supra, note 1, 398.

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would support the existence of a temperance problem on a national
scale”,.8
language which would permit the aspect doctrine to
“reflect the social facts of Canadian life”.”

Once one concludes that the national concern formula calls for
an examination of social and economic circumstances which attend
the enactment of legislation, that formula is readily reconciled with
the emergency doctrine. It may be said that “where emergency
exists, it is the emergency which gives the matter its dimension
of national concern or interest”:”‘ It remains to be seen whether
Chief Justice Laskin will adopt the refinement suggested by Pro-
fessor Lederman and presented in the factum of the Canadian La-
bour Congress, namely, that the standard of exigency lower than
emergency is to be applied only where the legislation is not sweeping
or pervasive in its impact.

The lack of any extrinsic evidence in the Russell case demonstra-
tes that for Sir Montague Smith, as for Viscount Simon, the gravity
of circumstances is immaterial for constitutional purposes. It made
no difference whether intemperance was an emergency “putting
the national life of Canada in unanticipated peril”, 1’ as Viscount
Haldane later said it must have been, or merely a garden variety
disruption of public order and safety. One needs to know only the
meaning of the word “intoxicating” in order to characterize the
legislation. Viscount Simon called for no evidence of mass murder
or widespread carnage to support the enactment by Parliament of
legislation prohibiting the carrying of arms. Nor was there any
evidence in Munro that the City of Ottawa suffered from a lack of
concerted effort at beautification. This aspect of the case might
well evoke from Chief Justice Laskin the same criticism as has been
directed at it by Whyte and Lederman, namely, that the federal
general power should have come into play “only in cases where
provincial regulatory enactments were failing to meet a social or
economic problem which threatened to undermine peace, order or
good government in Canada”. 72

If the inherent nature of legislation is determinative there is no
cause for examination of circumstances and conditions except for
the purpose of discovering the object of the statute. The suggestion
that the court ought to apply a constitutional standard of exigency

08 Supra, note 3, 1058-59.
69 Ibid., 1059.
70 LeDain, supra, note 12, 291.
71 Supra, note 1, 411.
12 Canadian Constitutional Law (1975), 336.

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to circumstances and conditions necessarily involves a compromise
of the notion that “judges are not the most competent people to
determine high matters of State”.7 3 If, in its enabling aspect, the
emergency doctrine involves an abdication of judicial function,7 4
in its restrictive aspect it involves an appropriation of legislative
function.

The state of the law appears to be that what is otherwise pro-
perty and civil rights legislation may take on a different and federal
character if regard is had to the circumstances and conditions
attending its enactment. The irony of the situation is that this con-
clusion is supported by a case which says categorically that even
the most exceptioral circumstances do not give a federal character
to legislation which relates to property and civil rights!”5

The Notion of a Residue

There is a third element of discordance between the emergency
doctrine and the national concern formula. This element is really
a product of the differences already examined, and it is exposed by
the efforts made to reconcile the two notions. If the emergency
doctrine is accepted as valid, the effect is either to bury the national
concern formula or to give it a role quite unlike the one it is intended
to perform. Mr Justice Beetz chose to bury it, and Chief Justice
Laskin to transform it.

73 Jennings, Constitutional Interpretation –

The Experience of Canada

(1937) 51 Harv.L.Rev. 1, 39, quoted in Laskin, supra, note 3, 1087.

74 The abdication was expressed in these words in the Japanese Canadians
case, supra, note 17, 101: “[T]he Parliament of the Dominion in a sufficiently
great emergency, such as that arising out 6f war, has power to deal ade-
quately with that emergency for the safety of the Dominion as a whole. The
interests of the Dominion are to be protected and it rests with the Parlia-
ment of the Dominion to protect them. What those interests are the Parlia-
ment of the Dominion must be left with considerable freedom to judge”.

75 What Lyon in The Anti-Inflation Act Reference: Two Models of Cana-
dian Federalism (1977) Ottawa L.Rev. 176, 178-82 described as the fundamental
difference between the judgments of Laskin C.J. and Beetz J., may be viewed
as a product of Viscount Simon’s influence. Beetz J. held that the existence
of an emergency may justify federal legislation, not because an emergency
alters the character of legislation, but because in an emergency the distri-
bution of powers is itself altered. He is in complete accord with Viscount
Simon in saying that “the control of property and civil rights for purposes
other than normal purposes … remains a control of property and civil
rights in the Provinces”, supra, note 1, 462. Parliament, however, acquires a
concurrent and paramount jurisdiction over property and civil rights for all
purposes necessary to deal with the emergency. Because Beetz J. does not
agree with the Chief Justice that the character of laws tends “to take its

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The emergency doctrine is a criterion for the application of the
general power beyond or outside what is called its purely residual
application. The doctrine recognizes what Laskin has called a
“closely confined scope of normal operation”:”‘ It recognizes, for
example, that exceptional circumstances are not required to sustain
federal legislation which provides for the incorporation of compa-
nies with other than provincial objects. This residual area is closely
confined for the very reason that an essential part of the emergency
doctrine is a very broad conception of the property and civil rights
power. If the Supreme Court was to accept the emergency doctrine,
it also had to accept that broad interpretation of section 92(13).
Faced then with cases such as Johannesson and Munro that had, in
the absence of any crisis, described matters as federal because of
national concern, Mr Justice Beetz could preserve the emergency
doctrine intact only by describing the two cases as instances of
the purely residual application of the general power. “National
concern” is merely a new name for an area of residual federal power
that is recognized in any event by the emergency doctrine. Thus
we are left with the anomalous situation that the decisions in
Munro and Johannesson still stand but their interpretation of section
92(13) does not.

Chief Justice Laskin was also attracted to the emergency doctrine
but what appealed to him was its enabling aspect only. He saw the
national concern formula as a vehicle for extending the scope of
the general power but since he had embraced the emergency doctrine
in its positive aspect, he was also bound by its assessment of
section 92(13). He was thus forced to say that the national concern
cases were based on the ame interpretation of section 92(13)
as that which sustains the emergency doctrine. This in turn required
him to say that the statutes involved in Munro and Johannesson were
prima facie within provincial jurisdiction. If he had described them
as instances of the residual application of the general power it would
have to have been on the basis that the emergency cases would
characterize them in a similar fashion, in which event national con-
cern would add nothing to the emergency doctrine. As a result,
Chief Justice Laskin would say that the same characterization
of legislation that under the emergency doctrine calls for crisis may

colour from the circumstances of the day” (Lyon, supra, 179) he has, of
course, quite a different perception of the national concern doctrine. Tied as
it is, however, to the same assessment of s.92(13) that sustains the emergency
doctrine, it adds nothing to federal power.

TsSupra, note 11, 191.

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invoke the more liberal standard of the national concern formula.
That formula applies, if -at all, to laws which do not fall within
the residue recognized by the emergency doctrine.

This conclusion also made it possible to give some credibility
to the positive aspect of the emergency doctrine. National concern,
no less than emergency, will sustain legislation that on an analysis
divorced from attendant social and economic circumstances,
is
properly characterized as being in relation to property and civil
rights. The two doctrines work in harmony outside the area of
purely residual application; the only difference between them is
that national concern does not “limit the possibility of matters
attaining national dimensions …

to the emergency of war”.17

His opinion in Jones v. Attorney General of Canadad8 confirms,
I think, that Laskin C.J. considers the general power to have a
residuary application beyond what is provided for by either of the
tests. In Jones, he upheld the Official Languages Act1 a (“limited
as it is to the purposes of the Parliament and Government of Canada
and to the institutions of that Parliament and Government”)7 9 “on
the basis of the purely residuary character of the legislative power”
conferred by the peace, order and good government clause.80 He did
not apply the formula articulated in the Canada Temperance Federa-
tion case. It would seem that the Chief Justice considers this formula
to be something other than a description of residuary power.

It cannot escape notice that there is no common ground what-
ever between Laskin C.J. and Beetz J. in their understanding of the
national concern formula. For Beetz it describes the area of purely
residual application that is recognized by.the emergency doctrine.
For Laskin it includes only those laws that fall outside the residue
and to which some standard of national exigency must be applied.
In my view, the national concern test is not one to be applied
‘in conjunction with any residual notion of the general power for
the test is itself the measure of the residuary scope of the power.
It is true that the test put forward in the Canada Temperance Fe-
deration case makes no reference to “property and civil rights” or,
indeed, to any other words used in section 92. In what way then is
it residuary in nature?

77 Supra, note 1, 407-408.
78 [1975] 2 S.C.R. 182, (1974) 45 D.L.R. (3d) 583.
78a S.C. 1968-69, c.54.
79 Supra, note 78, 189.
80 Ibid. (emphasis added).

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The answer is that the words “local or provincial concern or
interest”, beyond which the real subject-matter of legislation must
go, are intended to describe collectively everything that is included
in section 92. Viscount Simon expressed in his own words what
Clement has called “the cardinal principle of allotment””‘ applied
in the British North America Act, 1867.82 The jurisdiction of the
provinces extends over all matters of merely local or private con-
cern and that of the Dominion over all matters of common con-
cern to the provinces. Each of the first fifteen heads of section
92 describes a specific kind of local or private legislation, and the
sixteenth brings within provincial jurisdiction all matters which are
local or private in nature but not covered by the preceding specific
language. 2 The definition of federal power in terms of matters going
beyond local or provincial concern calls for an assessment of the
scope of each of the heads of legislative power in section 92.84 To
assert, for example, that the incorporation of companies with other
than provincial objects is outside section 92, is to say that it is
not of local or provincial concern.

In the Munro case, the Supreme Court of Canada certainly
treated the national concern formula as an expression of residuary
power. The Court determined that the real subject-matter of the
legislation was not “property and civil rights” but rather the con-
servation and improvement of the seat of the Government of Canada.
As this was a matter going beyond local or provincial interests, the
legislation “[did] not come within any of the classes of subjects
enumerated in section 92”.85 The question whether legislation is of
local or provincial concern is asked when legislation is found not
to be within any of the fifteen specific heads of section 92.
If legislation is found to be within one of those heads, for
example, the property and civil rights power, then by definition
the legislation is of local or provincial concern and no further

81 Clement, The Law of the Canadian Constitution 3d ed. (1916), 448.
82 30-31 Vict., c3 (U.K.).
83 See Lord Watson in A.G. Ontario v. A.G. Canada, supra, note 22; Anglin J.
in the Board of Commerce case (1920) 60 S.C.R. 456; Rand J. in the Ontario
Reference, supra, note 32, 212.

84 Professor Gibson suggests, supra, note 2, that the method of inquiry is
to begin with the general question whether legislation deals with a problem
having “national dimensions”. I agree with Professor Abel, supra, note 48,
that one first assesses the legislation in terms of the specific heads of power
in s.92, and failing characterization in terms of any such power, the legisla-
tion is then assessed in terms of its relation to a national matter or a local
matter.

85 Munro v. National Capital Commission, supra, note 4, 672.

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question remains. To this extent, the factums of the Attorneys-
General for Saskatchewan and Alberta seem to me to be correct. The
cases which have involved an application of the test formulated in
Canada Temperance Federation are instances of “residuary matters
of national concern”. The statutes involved fall within federal power
on precisely the same basis as does legislation for the incorporation
of companies with objects other than provincial.

A new approach

To express federal power in terms of matters going beyond
local or provincial concern poses an obvious threat to the mainten-
ance of a reasonable area of provincial jurisdiction; it can result
in a problem being conceived of in terms of prevalence or public
importance. Mr Justice Duff was the first to set himself against an
easy expansion of the federal general power in this way. The
dissenting judges in the Insurance Referencem had invoked the
general power on the basis that the insurance business was one of
“enormous if not colossal”
dimensions. Duff J. said: “I do not
think that the fact that the business of insurance has grown to,
great proportions affects the question in the least”,s8 Similarly, in
the Board of Commerce case the fact that “[t]he scarcity of neces-
saries of life, the high cost of them, the evils of excessive profit
taking, are matters affecting nearly every individual in the com-
munity and affecting the inhabitants of every locality and every
province collectively as well as the Dominion as a whole”8’ 9 failed
to persuade Duff J. that this was a matter going beyond local or
provincial concern.

In the Privy Council, refuge was taken in the emergency doctrine
which perpetuated the “mistaken preoccupation with the importance
of the subject in question” 90 and effectively eliminated any residuary
by exaggerating section 92(13). The national concern test has
also been affected by this preoccupation; Professor Lederman now
asserts that legislation may satisfy the less demanding test of
national concern only where the topic is relatively unimportant, or
at least “quite limited and specific”.9 ‘

86 A.G. Canada v. A.G. Alberta (1913) 48 S.C.R. 260.
8s Ibid., 274.
88 Ibid., 304.
89 Supra, note 83, 512.
90 Gibson, supra, note 2, 31.
91 Supra, note 14, 610.

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All this need not have happened. There is a workable formula
for distinguishing local from national matters, and it does not
involve either the criteria rejected by Mr Justice Duff as irrelevant
or the severity of conditions prompting the enactment of legislation.
This formula recognizes, first, that legislation is of local or
provincial concern by definition if it falls within any of the specific
heads of power in section 92. It accepts what Duff C.J. said in the
Natural Products Marketing Act Reference;92 if legislation relates,
for example, to amendment of the provincial constitution or to
local works and undertakings or to solemnization of marriage, there
can be no suggestion that it is not of local and provincial concern.
The same logic applies to what is properly characterized as property
and civil rights legislation. The general question, whether a statute
is of national or local concern, arises only when it has been deter-
mined that the legislation does not fall within any of the specific
heads of power in section 92.91 However, the scope of this general
question becomes considerable when combined with the narrow
view of section 92(13) expressed in the Canada Temperance Federa-
tion formula. If prevalence or public importance is still the criterion
applied to statutes falling outside the specific heads of power this
aspect of the new approach will offer little solace to the provinces.
Therefore, a new conception of “local or provincial” is required.

In my view, a matter is local in nature if it does not relate to or
jeopardize what may be called a “national institution”. To indicate
the meaning and scope of this term, reference may be made to the
opinions of Mr Justice Rand who felt that the fundamental freedoms
are institutions or conditions of national life. In Switzman v. Elbling
he described the freedom to discuss public affairs as a matter
having “a unity of interest and significance extending equally to
every part of the Dominion”.94 In the Saumur case,95 he thought it
self-evident that legislation in relation to religion and its profession
is not a local or private matter. He said:

[t]he dimensions of this interest are nation-wide; it is even today embodied
in the highest level of the constitutionalism of Great Britain; it appertains
to a boundless field of ideas, beliefs and faiths with the deepest roots and
loyalties; a religious incident reverberates from one end of the country to
the other, and there is nothing to which the “body politic of the Domi-
nion” is more sensitive.98

92Reference re The Natural Products Marketing Act, 1934, and its Amending

Act, 1935 [1936] S.C.R. 398.

93 See supra, note 84.
9 4 Supra, note 21, 306.
95 Supra, note 24.
96Ibid., 329.

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For Mr Justice Rand a fundamental freedom, such as freedom of
speech, is embodied in the status of citizenship 7 In the Winner
case98 he generalized to the extent of saying that all constituent
elements of citizenship status are beyond provincial jurisdiction and
within the federal general power.

Under this formula it is not the generality or public importance
of a matter that determines whether or not it is local in nature. In
the Margarine case, Mr Justice Rand acknowledged the size and im-
portance of the dairy industry, but claimed that there was nothing
“from which it can be inferred that the industry has attained a
national interest as distinguished from the aggregate of local in-
terests” 9 A matter may be local in nature though it prevails in
every province. Conversely, the mere lack of a broad geographic
dimension does not deprive a matter of national character if it
threatens a national institution. Mr Justice Rand’s “religious in-
cident 99a is an example, as is the October crisis in Quebec. No
one would deny that the democratic system of government, involving
the right of representative institutions to govern, is a condition of
national life, a matter going beyond local or provincial concern. 100
No evidence of the prevalence or intensity of the menace to a national
institution is required.

Chief Justice Laskin’s understanding of the words “local or pro-
vincial concern” is quite different. In 1947, while criticizing the
emergency doctrine reflected in the Board of Commerce case, he
had this to say:

[I]f the necessity for restrictive legislation rests on the existence of a
condition which is not local or provincial but general, and the legislation
enacted to cope with it is predicated on the generality of the evil to be
struck at, a federal “aspect” may well be found in such legislation.’ 0 ‘

‘t Supra, note 21. See also Cannon J. in Reference re Alberta Statutes,
supra, note 23, 146: “Every inhabitant in Alberta is also a citizen of the
Dominion. The province may deal with his property and civil rights of a
local and private nature within the province; but the province cannot inter-
fere with his status as a Canadian citizen and his fundamental right to express
freely his untrammelled opinion about government policies and discuss
matters of public concern.”

98 Winner v. S.M.T. (Eastern) Ltd and A.G. Canada [1951] S.C.R. 887.
99 Supra, note 29, 52.
O9aSupra, note 24, 329.
‘ 0 0 See the C.F.R.B. case, supra, note 44. See also Re North Perth, Hessin
v. Lloyd (1891) 21 O.R. 538, 542 (Ch.Div.), quoted in Abel, supra, note 11, 407
and 900.15.

Io’ Supra, note 3, 1070.

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In my opinion, there is a national interest in those “general” evils
only if they jeopardize a national institution.

Support for this view can be found in the Canada Temperance
Federation case. The presence of the words “from its inherent
nature” in the test employed in that case reflects a similar approach
to the problem of how one decides whether a statute is of national
or local concern. The seat of the government of Canada, provided for
in section 16 of the British North America Act, 1867102 is, by its
inherent nature, a national institution and it is beside the point
that the legislation considered in Munro extended the National
Capital Region beyond the limits of a single province, embracing
both Ottawa and Hull.10 3 Similarly, the fact that a federally incor-
porated company confines its activities to a single province does
not undermine the validity of its incorporation under the general
power.4 A company with objects other than provincial has a
national presence by its inherent nature.

If the seat of the government of Canada is a national institution
by law, aeronautics is, I think, a national institution in fact. Like
other means of transportation, aerial navigation may function both
locally and interprovincially but as Professor Lederman observes,
“technologically and industrially aviation has a factual unity as a
transportation system”. 10 5 It is impossible to separate intraprovin-
cial flying from interprovincial flying. 0 6 Considered as a single
institution, aeronautics must be either local or national in nature.
Its national character, like its factual unity, derives from its inherent
nature. It is essentially an instrument of long-distance transporta-
tion. Mr Justice Locke described it as “essential to the opening
up of the country and the development of the resources of the
nation”.0 7 It serves a national purpose and not an aggregation of
local purposes.

The limitation of the federal general power to subjects which,
“from their inherent nature”, go beyond local or provincial concern
leaves no room for the suggestion that matters local or provincial
may with changes in time and circumstance assume national dimen-

302 30-31 Vict., c.3 (U.K.).
103 It is upon this basis that Professor Gibson considers the case to be a
proper application of the “national dimensions” formula, supra, note 2, 27, 35.
104 Colonial Building Investment Association v. A.G. Quebec (1883) 9 App.
Cas.157 (P.C.), cited in Laskin’s Canadian Constitutional Law, supra, note.
11, 552.

105 Supra, note 14, 607.
06 Johannesson v. West St Paul. supra, note 4, 314 per Kellock J.
‘o0 Ibid., 326.

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sions, unless the change is such as to alter the essential character
of an institution. Indeed, this is a necessary consequence of refus-
ing to characterize legislation by reference to the urgency of the
circumstances which prompted its enactment. This is not generally
understood. Often the national concern test is associated with the
statement put forward by Lord Watson in the Local Prohibition
case:

[S]ome matters, in their origin local and provincial, might attain such
dimensions as to affect the body politic of the Dominion, and to justify
the Canadian Parliament in passing laws for their regulation or abolition
in the interest of the Dominion. But great caution must be observed in
distinguishing between that which is local and provincial, and therefore
within the jurisdiction of the provincial legislatures, and that which has
ceased to be merely local or provincial, and has become matter of national
concern, in such sense as to bring it within the jurisdiction of the Parlia-
ment of Canada. 08

It is true that these words, taken alone and ex facie, “make allow-
ance for a social and economic development of Canada which might
transform local problems into national ones, so that they might
require federal rather than provincial solutions”. 0 9 On this un-
derstanding of the words, Viscount Haldane’s only mistake was to
“limit the possibility of matters attaining national dimensions …
to the emergency of war”.” 0 It is my opinion, however, that Lord
Watson did not mean to suggest that legislation may “take its
colour from the circumstances of the day”.”‘ He meant only that
from a particular point of view a matter may become of national
concern. This is clear from the examples given immediately follow-
ing the words quoted above:

An act restricting the right to carry weapons of offence, or their sale to
young persons, within the province would be within the authority of the
provincial legislature. But traffic in arms, or the possession of them under
such circumstances as to raise a suspicion that they were to be used for
seditious purposes, or against a foreign State, are matters which, their
Lordships conceive, might be competently dealt with by the Parliament
of the Dominion.”12

These were examples of matters “originally” local or provincial only
in the sense that they may be viewed as such from one perspective

108 Supra, note 22, 361.
109 Laskin, supra, note 3, 1068.
“10 Supra, note 1, 407-408 per Laskin CJ.C. Thus, for Laskin C.J., the positive
application of the emergency doctrine in the Fort Frances case was merely
“a particular application of what Lord Watson said in the Local Prohibition
case” (at p.407).

111 Lyon, supra, note 75, 179.
“12 Supra, note 22, 361-62.

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or for certain limited legislative purposes. Possession for seditious
purposes is a matter which, from its inherent nature, must be the
concern of the Dominion as a whole. It may well be that at any
given point in time circumstances are not such as to signal the need
for legislative action from the federal point of view. But this does
not mean that at such a time possession for seditious purposes is
a local or provincial matter.

As a result, I cannot agree with Professor LeDain who, after
noting that Viscount Simon’s formula is reminiscent of the test
articulated by Lord Watson, goes on to say that the formula may
“involve the application of the general power to a matter assumed
to have been orginally under provincial jurisdiction but claimed
to have changed in relative importance and concern so as to take
it out of such jurisdiction and place it under the general power”.”13
If the word “orginally” has temporal connotations, he is right,
of course, in saying that neither Munro nor Johannesson involved
such an application. 11 4

1

This “national institution” approach to the federal general power
was not taken in the Anti-Inflation Act Reference. Unfortunately, the
factum of the Attorney-General of Canada sought to characterize
inflation as a matter of national concern from two distinct points
of view. Reference was made to the fact that it “touches all Ca-
nadians”, 114a that it exists in Canada as a whole, that it is an “evil
4b With this.as its foundation, the national
of national proportions”.1
concern argument was an easy target. For Mr Justice Beetz it was
essentially identical to the argument that federal jurisdiction should
arise in respect of such things as the insurance business or labour
relations whenever they have become national in scope. He had
only to refer to the various opinions of Duff J. to show that the
prevalence of an evil is not a constitutional touchstone. Nothing in
the argument suggested any affinity with the subject matters in-
volved in Johannesson and Munro, each of which had “a degree of
unity that made it indivisible, an identity which made it distinct from
provincial matters and a sufficient consistence to retain the bounds
of form”.” 5 Indeed, the more prevalent and pervasive a legislative

13 Supra, note 12, 292.
114 Aeronautics may have become a national institution over the course
of time, but having become such, the immediate circumstances attending the
enactment of aeronautics legislation are not pertinent.

114a See the Factum of the Attorney-General of Canada, 9.
114b Ibid., 12.
115 Supra, note 1, 458.

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subject matter, the less likely it is to possess those characteristics
of unity, identity and consistency.

Since attention was focused on the generality and intensity of
the evil, the second and proper basis for invoking the general power
in terms of the Canada Temperance Federation formula escaped
proper judicial attention. Nevertheless, it was contained in the fac-
tum’s description of inflation as a matter of inherent national con-
cern because of its effect on the Canadian economic system “in-
cluding the erosion of the purchasing power of the national mo-
netary unit”.115 a Characterized in this way, there is a strong simi-
larity between inflation and problems associated with the national
capital or aeronautics, which, like the dollar, are national institu-
tions having, if you like, a unity, an identity and a consistency.

That legislation with the object of protecting the national mone-
tary unit is not local or provincial in nature would seem to follow
from the decision of the Supreme Court of Canada in Reference
re Alberta Statutes,”” which, however, was not cited. There the
Supreme Court stated that the object of The Alberta Social Credit
Act”1 was “to provide increased purchasing power” by “the subs-
titution generally in internal commerce of Alberta credit for bank
….18 The legis-
credit and legal tender as the circulating medium
lation was found ultra vires, there being nothing in section 92 to
support “the introduction, maintenance and regulation of this novel
apparatus for all commercial, industrial and trading operations”. 119
Equally, I think, there is nothing in section 92 to support legislation
which seeks to maintain the purchasing power of the dollar. This
is not to say that enactments such as provincial rent controls are
necessarily invalid. If these are designed to protect particular in-
terests from the ravages of inflation, they are clearly distinguish-
able from legislation such as the Anti-Inflation Act which seeks to
control inflation itself. 20

iiMa Supra, note 114a.
“I’ Supra, note 23.
117 S.A. 1937, c.10.
118Supra, note 23, 113.
119 Ibid., 115.
12o Viscount Simon recognized in the Canada Temperance Federation case,
supra note 6, 206, that “the validity of legislation, when due to its inherent
nature, [is not] affected because there may still be room for enactments by
a provincial legislature dealing with an aspect of the same subject in so
far as it specially affects that province”.

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It is unfortunate that the Chief Justice did not fully address
himself to the principal submission, for it is clear from his descrip-
tion of the submission that he did, at least, see in it this proper basis
for invoking the general power:

[The Attorney-General of Canada] relied, primarily, on the Canada Temper-
ance Federation case, contending that the Act, directed to containment
and reduction of inflation, concerned a matter which went beyond local or
private or provincial concern and was of a nature which engaged vital
national interests, among them the integrity of the Canadian monetary
system which was unchallengeably within exclusive federal protection and
control.121

Canadian constitutional law is the poorer for the absence of any
consideration of that argument.

Conclusion

What is remarkable about the Anti-Inflation Act Reference is the
disposition of the Supreme Court to effect a reconciliation of pre-
vious decisions. This may be nothing more than strict adherence
to precedent, a refusal to depart from prior cases either by choosing
one of two conflicting lines of authority or by rejecting both in
favour of some new doctrine. A more provocative conclusion, how-
ever, would be that reconciliation of mutually incompatible doctrines
allowed the Court to fashion a new departure without being labelled
revolutionary.

The previous cases are made compatible, but at the expense of
any consensus among the members of the Supreme Court. Justice
Beetz achieves harmony by making the national concern formula
include, to the exclusion of anything else, those matters that fall
within the residue recognized by the emergency doctrine, and Chief
Justice Laskin by making it include, to the exclusion of anything
else, those matters that do not fall within that residue. The absence
of any common ground emphasizes for me how recondite is each
interpretation. The task of reconciliation was difficult and divisive
because it was not meant to be performed. The previous cases
contained two totally divergent conceptions of the distribution of
powers. These have been replaced by new doctrines which borrow
from their predecessors but are true to neither.

The consequence, in terms of both doctrine and outcome, was a
clear victory for the provinces. Doctrinally, the provinces have
secured from all nine judges a wide interpretation of their property

121 Supra, note 1, 417 (emphasis added).

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and civil rights power, and from a majority of five judges (Ritchie,
Martland, Pigeon, Beetz and de Grandpr6,JJ.) an interpretation of
the national concern formula that looks for a legislative subject-
matter having dimensions that are narrow and specific. In terms of
outcome, the Anti-Inflation Act was sustained on a basis that
numbers its days; sustained as it was on the basis of a crisis it was
designed to dispatch, the Act is self-destructive. Success will un-
dermine its constitutional validity, and failure its political accept-
ability.

As different as they are in point of view, Laskin CJ. and Beetz J.
do share this philosophy: measured against federal power, freedorf
of contract is the general rule and regulation the exception. The
contractual terms upon which business is conducted are matters
falling prima facie within the property and civil rights power. The
exceptional case is to be recognized either by application of a
standard of exigency which looks at the generality and severity of
the problem being tackled, or by gauging the extent and scope of the
interference with freedom of contract. One is almost reminded of the
substantive due process limitation on the police power of the Ame-
rican states.