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The rule of (public) law, Canada's Constitution, Conceptions of…

- - - - constitutional protection of judicial independence
  - - - reasonable apprehension of bias and social context
- - - - make legislation
        
        You can challenge legislation on division of powers grounds in 3 ways:
        
        validity of legislation
        
        double aspect
        
        limit to the applicability of valid legislation = interjurisdictional immunity
        
        legislation not applicable in this case, but otherwise operable and valid
        
        limit to the operability of provincial statutes = federal paramountcy doctrine
        
        inoperable = legislation doesn't apply to that person
  - - - Functional Effectiveness
      - Democracy
      - Community
- - - - a law may have impact outside the enacting legislature's jurisdiction, as long as the effects are secondary features of the legislation rather than the most important feature
        
        for ex. the prov govt can intrude on fed jurisdiction, so long as the most important features of their laws remain within the prov jurisdiction.
        
        for ex. the fed govt can intrude on prov jurisdiction, so long as the most important features of their laws remain within the fed jurisdiction
    - - this means that a law might have an impact outside the enacting legislature's jurisdiction
- - - - Executive
        
        ministers
        
        ministries
        
        administrative agencies
        
        Administrative tribunals are not courts of law in the strict sense, and the doctrine of stare decisis does not apply to their decisions. These decisions can, however, be reviewed by the courts.
- - - - law is supreme over everyone
      - exercise of all public power must find its source in legal rule
      - requires the creation and maintenance of an actual order of positive laws which preserves and embodies the more general principle of normative order
    - - cannot be used to invalidate legislation
- - - - Once the law has been characterized it must be assigned to one of the two heads of power.
        
        In many circumstances, however, a law that is found to be invalid under the pith and substance analysis may still be saved by using the ancillary powers doctrine
        
        Morgentaler
      - look at purpose and effects of impugned law to characterize it
    - - Lederman: if contrast between the federal and provincial aspect is not sharp, then apply this doctrine
      - you can have legislation fall under BOTH federal and prov powers!
      - Multiple Access Ltd v McCutcheon
        
        the characteristics of either legislation are roughly equal in importance, so keep both
    - - Klassen
        
        Caloil, 1971
        
        intruding provisions of the law will only be upheld if they satisfy the "rational connection" test. The full test was articulated in General Motors v. City National Leasing by Dickson CJ
      - General Motors
  - - - in conflict, federal law is paramount
        
        operational conflict (impossibility of dual compliance)
        
        frustration of federal purpose (dual compliance possible, but provincial law incompatible with purpose of fed legislation)
      - prov legislation inoperable to extent of fed conflict
    - - concerned with the "vital part" of legislation
        
        "affecting" a vital part of another jurisdiction is bad
        
        Bell Canada v Quebec, 1988
        
        "impairing" a vital part of another jurisdiction is bad
        
        Canadian Western Bank v Alberta, 2007
        
        is the "impairment" sufficiently serious?
        
        Quebec (AG) v COPA, 2010