THE CONCURRENT OPERATION OF FEDERAL AND
PROVINCIAL LAWS IN CANADA
W. R. Lederman*
I. Definition of Concurrent Fields
The federal distribution of legislative powers and responsibilities in Canada
is one of the facts of life when we concern ourselves with the many important
social, political, economic or cultural problems of our country. Over the whole
range of actual and potential law-making, our constitution distributes powers
and responsibilities by two lists of categories or classes – one list for the federal
parliament (primarily section 91 of the B.N.A. Act),’ the other for each of the
provincial legislatures (primarily section 92 of the B.N.A. Act). For instance,
the federal list includes regulation of trade and commerce, criminal law, and
a general power to make laws in all matters not assigned to the provinces.
Examples from the provincial list are property and civil rights in the province,
local works and undertakings, and all matters of a merely local or private
nature in the province.
These federal and provincial categories of power are expressed, and indeed
have to be expressed, in quite general terms. This permits considerable flexi-
bility in constitutional interpretation, but also it brings much overlapping
and potential conflict between the various definitions of powers and responsi-
bilities. To put the same point in another way, our community life –
social,
economic, political, and cultural –
is very complex and will not fit neatly
into any scheme of categories or classes without considerable overlap and
ambiguity occurring.2 There are inevitable difficulties arising from this that
we must live with so long as we have a federal constitution.
Accordingly the courts must continually assess the competing federal and
provincial lists of powers against one another in the judicial task of inter-
preting the constitution. In the course of judicial decisions on the B.N.A. Act,
the judges have basically done one of two things. First, they have attempted
to define mutually exclusive spheres for federal and provincial powers, with
partial success. But, where mutual exclusion did not seem feasible or proper,
the courts have implied the existence of concurrent federal and provincial
*Dean of the Faculty of Law, Queen’s University, Kingston, Ontario.
130 & 31 Victoria (U.K.), c. 3.
2″. .. It is necessary to realize the relation to each other of ss. 91 and 92 and the character of the
expressions used in them. The language of these sections and of the various heads which they con-
tain obviously cannot be construed as having been intended to embody the exact disjunctions of a
perfect logical scheme.”-Viscount Haldane in John Dcere Plow Company Ltd. v. Wharton [1915]
A.C. 330, at 338.
McGILL LAW JOURNAL
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powers in the overlapping area, with the result that either or both authorities
have been permitted to legislate provided their statutes did not in some way
conflict one with the other in the common area. It is the problems arising
from such concurrency that are the primary concern of this article.
But, before proceeding specifically to the problems that arise after concur-
rency has been found, it is necessary to examine carefully the interpretative
process whereby the courts strive first to establish mutually exclusive spheres of
federal and provincial law-making powers. The words ‘exclusive’ or ‘exclusively’
occur in section 91 of the B.N.A. Act respecting federal powers and in section
92 respecting provincial powers, hence the priority for the attempt at mutual
exclusion. Only if this attempt fails do the judges then proceed to define by
necessary implication certain spheres of common powers to regulate the same
matter.
Here we encounter important considerations that go under the name of
‘the aspect theory’. As Lord Fitzgerald said long ago in Hodge v. The Queen,
“subjects which in one aspect and for one purpose fall within Sect. 92, may in
another aspect and for another purpose fall within Sect. 91.”1 For instance,
a law providing for suspension or revocation of the right to drive a car upon
a highway because the driver was drunk has the provincial aspects of control
of highways as local works and of the right to drive as a civil right in the
province, these things reflecting the provincial responsibility for safe and effi-
cient circulation of traffic. The law mentioned has also the federal aspect of
criminal law, reflecting the federal responsibility to forbid and punish such
dangerous anti-social conduct.4 Where does the power to suspend and revoke
drivers’ licences reside, or do both parties have it? Such laws with double
aspects in the logical sense are the usual and not the exceptional case.
In other words, simply as a rational or logical matter, the challenged law
displays several features of meaning some one of which at least falls within
a federal class of laws, and another one of which falls within a provincial class
of laws. Rationally the challenged law is classified both ways – how then
do we determine whether power to pass such a law is exclusively federal or
exclusively provincial or is something both legislative authorities have? The
basic solution here comes by decisions on the relative importance of the federal
features and the provincial features respectively of the challenged law in
contrast to one another. Respecting the detailed aspects raised by the challenged
law, one must ask – when does the need for a national standard by federal law
outweigh the need for provincial autonomy and possible variety as developed
by the laws of the several provinces, or vice versa? The criteria of relative
importance here arise from the social, economic, political, and cultural condi-
tions of the country and its various regions and parts, and of course involve
the systems of value that obtain in our society. The answers must be guided
1(1883-84) 9 A.C. 117, at 130.
ISe: Provincial Secretary of P.E.L v. Egan and A.G. of P.E.I. [1941] S.C.R. 396; [1941] 3 D.L.R. 305.
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by and related to the categories and concepts of the British North America Act,
and so at this point we find that the two interpretative situations mentioned
earlier emerge.
A. Mutual Modification and Exclusive Powers.
If the federal features of the challenged law are deemed clearly to be more
important than the provincial features of it, then the power to pass that law
is exclusively federal.
In other words, for this purpose the challenged law is
classified by its leading feature, by its more important characteristic, by its
pith and substance. And if, on the other hand, the provincial features are
deemed clearly more important than the federal ones, then power to pass the
law in question is exclusively provincial. 5
In some instances, the solution to this dilemma of competing classifications
may be grammatically obvious if one simply reads sections 91 and 92 together.
For example, the provincial power ‘Solemnization of Marriage’ (92(12))
is
obviously to be read as an exception to the federal power ‘Marriage and Divorce’
(91(26)). As a matter of construction the former is a particular sub-class
completely comprehended by and carved out of the latter as a more general
class or category. Only the provincial legislatures then can make law for
marriage ceremonies, but only the federal parliament can make divorce law.
Another example is afforded by ‘Patents’ and ‘Copyrights’ (91(22) and (23))
as small subdivisions of the general category of ‘Property’ (92(13)). In these
cases the B.N.A. Act seems explicit enough on the priorities between competing
classifications, and to the extent that the words of the Act are clear on such
issues they are conclusive.
Nevertheless, most of the problems of competing classifications that arise
are not so easily soluble. Take for instance the competition between ‘Trade
and Commerce’ (91(2)) and ‘Property and Civil Rights’ (92(13)) considered
in the Parsons case.6 Neither of these classes of laws is grammatically or logically
an all-inclusive general category of which the other is obviously a sub-division.
As a matter of construction it can properly be said that each is to be read sub-
ject to the other, that neither should be permitted to push the other out of the
picture completely, but the question remains: where is the line to be drawn?
There is no answer to this to be found by a simple reading of the statutory
words. The answer is not grammatically internal to the Act. These are simply
two wide or general categories that overlap a large common area –
all property
or civil rights laws that are also trading or commercial laws fall both ways
as a matter of simple logic. From the legal point of view, most trade and
commerce is the transfer of property rights by contract, or the provision of
services by contract. In the Parsons case, the judgment of relative importance
called for at this point was a compromise. The general line of distinction
5See: Union Collier’ Company of B.C. v. Bryden [1899] A.C. 580, at 587.
OCitiZens Insurance Company v. Parsons (1881-82) 7 A.C. 96.
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between section 91(2) and section 92(13) was drawn as follows: given that the
challenged law is both property or contract law and trading or commercial law,
if the trade or commerce is internal to a single province, then the property
and civil rights aspect is the more important and provincial power is exclusive.
But, if the challenged law is property or contract law about interprovincial
or international trade or commerce, then its trading or commercial aspect is
the more important and the federal power is exclusive. In this way an issue
of relative importance originally open so far as the words of the Act are con-
cerned becomes settled as a matter of judicial precedent.
Accordingly, if there is sufficient contrast in relative importance between
the competing federal and provincial features of the challenged law, then in
spite of extensive overlap the interpretative tribunal can still allot exclusive
legislative power one way or the other. Once exclusive power has been de-
termined to exist for either legislature, then the so-called doctrine of abstinence
simply expresses the implication of this negatively. If the federal parliament
does not choose to use its power of regulation in a particular exclusive federal
field, nevertheless a province cannot enter the field with provincial legislation.
The activity concerned simply remains unregulated.
But what if the federal and provincial aspects of the challenged law seem
to be of equivalent importance? What if there is no real contrast in this respect?
This leads to the second main interpretative situation.
B. The Double-Aspect Doctrine and Concurrent Powers
If reasoning (A) has been attempted, but it develops that the federal and
provincial aspects of the challenged law are of equivalent importance –
that
they are on the same level of significance –
then the allocation of exclusive
power one way or the other is not possible. For example, in the Voluntary
Assignments case, 7 the Court pointed out that the federal parliament must be
able to deal with priority among the execution creditors of an insolvent debtor
from the point of view of effective bankruptcy legislation, but that, equally,
provincial legislatures had to deal with priorities among such execution
creditors from the point of view of the provincial responsibility for civil
procedure and civil rights. Hence the provincial legislation was valid, there
being no federal bankruptcy statute at the time.
Accordingly the idea of mutual exclusion if practical, but concurrency if
necessary, explains much of Canadian constitutional law. For instance, one
may ask, if Quebec was to be denied power to pass the Padlock Law because
this invaded the exclusive federal criminal law sphere,8 how is it that other
7A.G. of Ontario v. A.G. of Canada [1894] A.C. 189.
SAct Respecting Communistic Propaganda (Province of Quebec) R.S.Q. 1941, c. 52. Generally speak-
ing, the Act provided that any house or building used by the tenant or owner as a place from which
communistic propaganda was distributed could be padlocked on order of the Attorney General for
a year and thus withdrawn from any use whatsoever for that period. It was held to be ultra vires
of the Province. See: SwitZman v. Elbling and A.G. of Quebec [1957] S.C.R. 285.
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provinces were permitted their provincial offences of simple careless driving,
these not being considered to be such an invasion?9 The judicial answers take
the lines already suggested. True, the Padlock Law was in a sense property
legislation as well as treason legislation, but its treason aspect was much more
important than its property aspect, the latter being really a subterfuge. Hence,
treason was the ‘pith and substance’ and federal power was found to be ex-
clusive. But, where the offence of simple careless driving was concerned, the
provincial aspect of responsibility for safe and efficient circulation of traffic
on highways was real and was deemed equivalent in importance to the federal
aspect of responsibility to forbid and punish grave and dangerous anti-social
conduct of all kinds. Hence the finding was made that dangerous driving
offences are a concurrent matter or field.
There seems a definite increase in the number and importance of concurrent
fields being presently established by the courts. Of course, agriculture and
immigration are expressly concurrent fields by section 95 of the B.N.A. Act,
while temperance and insolvency have been with us by judicial implication
since the nineteenth century.10 Recent cases have added concurrency con-
cerning conduct on highways, sale of securities, validity of trading stamps in
retail stores, and aspects of Sunday observance.” This list is by no means
exhaustive. So, precisely what concurrency means requires and deserves careful
analysis. In 1907 in the Judicial Committee of the Privy Council, Lord Dunedin
said that two propositions were established :12
First, that there can be a domain in which provincial and Dominion legislation may overlap,
in which case neither legislation will be ultra vircs, if the field is clear; and secondly, that if
the field is not clear, and in such a domain the two legislations meet, then the Dominion
legislation must prevail.
The word ‘meet’ is used here in the sense of collision, but there may be joint
occupation of a concurrent field without collision necessarily occurring. The
different conditions of joint legislative tenancy will be discussed in Part II
under the headings conflict, supplement and duplication.
II. Conflict, Supplement and Duplication Respecting Federal and
Provincial Laws in Concurrent Fields.
Given that a concurrent sphere or field has been established, what if both
the federal parliament and a provincial legislature have entered the field with
statutes? What if ‘the two legislations meet’?
9See: The Queen v. Yolles (1959) 19 D.L.R. (2d) 19; O’Grady v. Sparling [1960] S.C.R. 804.
“See: A.G. of Ontario v. A.G. of Canada [1896] A.C. 348, and footnote 7.
“Highways-P.E.L v. Egan, supra, footnote 4; The Queen v. Yolks, supra, footnote 9; O’Grady v.
Sparling, supra, footnote 9. Securities-Smith v. The Queen [1960] S.C.R. 776. Trading stamps-The
Queen v. Fleming (1962) 35 D.L.R. (2d) 483. Sunday observance-Lord’s Day Alliance of Canala v.
A.G. of B.C. [1959] S.C.R. 497.
12G.T. Rlwy Company of Canada v. A.G. of Canada [1907] A.C. 65, at 68.
McGILL LAW JOURNAL
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If the meeting is a collision, i.e. if conflict or inconsistency or repugnancy
is the result, the federal statute prevails and the provincial one is displaced
and inoperative. But it is far from obvious what amounts to sufficient conflict
or inconsistency or repugnance to effect this result.
We start with two statutes that are somehow concerned with the same
matter, that matter being the respect in which a concurrent field has been
found to exist. The two statutes may differ in what they prescribe about the
concurrent matter, or they may be the same in what they prescribe about it.
This can soon be discovered by construing and comparing their respective
terms, remembering that the search is for substantial differences or substantial
identities. As in other constitutional matters, one must not be put off by
merely verbal differences or identities. Does the provincial statute differ from
the federal one or does it duplicate the federal one? That is the first question,
because the reasoning appropriate to difference is not the same as that appro-
priate to duplication.
And even difference has its variations. The provincial statute may differ
from the federal one in either one of two ways –
it may be inconsistent with
the federal one or it may be merely supplemental to the federal one, adding
something to what the federal statute does but not contradicting it. So, in
considering the relation of a provincial statute to a federal one in a concurrent
field, there are three basic states: (A) conflict, (B) supplement, and (C) duplica-
tion. For the sake of developing the analysis clearly, it is assumed to start
with that we have provincial statutes that are pure examples of each of these
states, i.e. first a provincial statute that is purely conflicting, second a provincial
statute that is purely supplemental and finally a provincial statute that is
purely duplicative. The problems presented by a mixed provincial statute –
one that combines any two or all three of these types of provisions –
disposed of if we know what is appropriate for the pure cases.
can be
A. Conflict
The situation envisaged here is actual conflict between the comparable
terms of the provincial statute and the federal one. One finds that the same
citizens are being told to do inconsistent things. One statute blows hot and
the other cold. For example, a provincial statute says that a certain creditor
is a secured creditor, but the federal Bankruptcy Act says he is an unsecured
creditor. There can only be one scheme for priority among creditors in the
event of bankruptcy of the debtor, hence the federal statute prevails and the
provincial one is inoperative for repugnancy.’ 3 Another example is found in
the Local Prohibition case of 1896.14 There, Lord Watson compared the details
of the Ontario statutory liquor prohibition scheme with the details of the
federal liquor prohibition scheme of the Canada Temperance Act and found that
“Royal Bank of Canada v. La Rue [1926] S.C.R. 218; [1928] A.C. 187.
4A.G. of Ontario v. A.G. of Canada [1896] A.C. 343.
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the two differed sufficiently and that it would be impossible for both to be in
force in the same county or town at the same time. Had it not been for its
local option voting provisions, the Canada Temperance Act would automatically
have displaced the provincial statutory scheme.
It thus appears that, in their local application within the province of Ontario, there would
be considerable difference between the two laws; but it is obvious that their provisions could
not be in force within the same district or province at one and the same time. 15
Thus, Lord Watson made it clear that if any district voted the Canada Temperance
Act into force, the provincial statutory scheme would be precluded or super-
seded in that district.
that this is all it means.
Thus the pure case of express conflict is clear on the authorities –
the
federal statute prevails. At least the doctrine of Dominion paramountcy must
go this far, but there has been some suggestion recently that it goes no
further –
In the recent case of Smith v. The Queen
(1960),16 which concerned federal and provincial offences of knowingly issuing
a false prospectus to induce the sale of company shares, Mr. Justice Martland
of the Supreme Court of Canada said that, unless the federal and provincial
provisions in question conflict “in the sense that compliance with one law involves
breach of the other,” they can operate concurrently. 17 If only such patent and
positive conflict of comparable terms can invoke the doctrine of Dominion
paramountcy, then that doctrine is indeed confined to the narrowest significance
it could possibly be given. On this view, any supplemental or duplicative
provincial legislation could operate concurrently with the federal legislation
it supplemented or duplicated, and our enquiry into the scope of the doctrine
of Dominion paramountcy could end right here. But, as we shall see, this does
not seem to be the state of the authorities.
In addition to the patent and positive conflict of terms just considered, there
is another type of conflict or inconsistency to be examined. The federal legisla-
tion in a concurrent field may carry the express or tacit implication that there
shall not be any other legislation on the concurrent subject by a province.
If this negative implication is present, any supplemental provincial statute
would be in conflict with it, though there is no conflict between comparable
terms of the two statutes. It would be normal to find this implication in a
federal statute that could properly be construed as a complete code for the con-
current subject. To revert to the matter of priority among various kinds of
creditors in a bankruptcy, the federal code of priorities would clearly have
this negative implication, even if there were gaps in it here or there where
something might be added or even if there were room for further refinements.
15[1896] A.C. 343, at 368; see also 369-70.
16Supra, footnote 11.
“7[1960] S.C.R. 776, at 800; (italics added). In the context of the Smith case it may not be right to
fix Mr. Justice Martland with the full implications of these words. Nevertheless, their full implica-
tions do mark out the narrowest possible meaning of Dominion paramountcy, and perhaps this is
what Mr. Justice Martland intended.
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It should be noted at this point that Mr. Justice Cartwright of the Supreme
Court of Canada has carried this idea of conflict by negative implication to its
ultimate limit. In O’Grady v. Sparling (1960),8 the Supreme Court was con-
sidering the relation of two different dangerous driving offences. The Criminal
Code of Canada at this time made it an offence to drive a car with “wanton or
reckless disregard for the lives or safety of other persons.” 19 The Highway
Traffic Act of Manitoba made it an offence to drive a car on a highway “without
due care and attention or without reasonable consideration for other persons
using the highway.” 2 The provincial offence is much wider than the federal
one, but overlaps and includes it. Mr. Justice Cartwright (dissenting) said :21
In my opinion when Parliament has expressed in an Act its decision that a certain kind or
degree of negligence in the operation of a motor vehicle shall be punishable as a crime against
the state it follows that it has decided that no less culpable kind or degree of negligence in
such operation shall be so punishable. By necessary implication the Act says not only what
kinds or degrees of negligence shall be punishable but also what kinds or degrees shall not.
In other words, he is saying that if there is a federal statute of any kind in a
concurrent field, this alone necessarily and invariably implies that there shall
be no other legal regulation by a province of the concurrent subject. To carry
negative implication this far would ban all supplemental or duplicative pro-
vincial legislation. To use the metaphor of the ‘field’, the effect of this view
is that any federal statute touching a concurrent field constitutes total excluding
occupation of that field by the federal parliament. This is the opposite extreme
from the view of Wai. Justice Martland and thus represents the broadest sweep
that could possibly be given the doctrine of Dominion paramountcy. Mr.
Justice Cartwright’s view is not the law, but, as stated, it does mark out one
of the two extreme positions possible and so aids this attempt at analysis.
As suggested earlier, the negative implication discussed here is legitimate
and realistic in some circumstances, and when it is present, the rule of Dominion
paramountcy operates to cause the exclusion or suspension of any provincial
legislation on the subject in hand. But this is by no means automatically the
case for every federal statute in a concurrent field.
Finally, if one has a provincial statute that mixes repugnant provisions
with supplemental or duplicative ones, it may be that the repugnant provisions
can be severed. This depends on the normal tests for severance in a constitutional
case – does the provincial statute still constitute a viable and sensible legisla-
tive scheme without the obnoxious section or sections?2 2 If severance is not
proper, then the whole provincial statute becomes inoperative.
If severance
is possible, then one goes on to the question whether the supplemental or
“SSupra, footnote 11.
“Criminal Code, 2-3 Eliz. II, S.C. 1953-54 c. 51, ss. 191(1), 221(1).
25R.S.M. 1954, c. 112, s. 55(1).
21[1960] S.C.R. 804, at 820-21.
22Sec: Toronto Corporation v. York Corporation [1938] A.C. 415, at 427; A.G. for B.C. v. A.G. for Canada
[1937] A.C. 377, at 388-89.
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duplicative provisions are respectively valid in their own right. The case of
pure supplement is then next.
B. Supplement.
The situation envisaged here is that of a provincial statute which simply
adds something to regulation of the concurrent matter without contradicting
the federal statute in the field in either the positive or the negative sense ex-
plained in (A). A. H. F. Lefroy gives a good example of this. 23
Thus, where the Dominion Companies Act provided a method for serving summonses, notices,
and other documents on a company incorporated under that Act, this was held not to prevent
provincial, or rather North-West Territorial, legislation, providing that such companies
must file a power of attorney to some person in the Territories upon whom process might be
served, before they could be registered and enabled to carry on their business in the Territories,
thus providing another and more convenient method for the service of process upon such
company.
Accordingly, provincial supplemental legislation in these circumstances is
valid and operates concurrently with the relevant federal legislation. A
refinement of this position was approved by the Supreme Court of Canada in
the case of Lord’s Day Alliance of Canada v. Attorney-General of British Columbia.24
The federal statute in question was the Lord’s Day Act, 25 section 6(1) of which
is as follows:
6(1)
It is not lawful for any person, on the Lord’s Day, except as provided in any provincial
Act or law now or hereafter in force, to engage in any public game or contest for gain, or for
any prize or reward, or to be present thereat, or to provide, engage in, or be present at any
performance or public meeting, elsewhere than in a church, at which any fee is charged, directly
or indirectly, either for admission to such performance or meeting, or to any place within
which the same is provided, or for any service or privilege thereat.
If it were not for the words except as provided in any provincial law now or hereafter
in force, the field of regulation of Sunday commercial sports and movies would
be completely occupied by the federal prohibition by virtue of the federal
criminal law power. The Supreme Court considered that permissive Sunday
observance legislation would also be proper for a province as a matter of civil
rights in the province or as a matter of merely a local nature in the province,
and that the federal parliament had deliberately and effectively made room
for such permissive provincial legislation by the statutory words just quoted.
Here then we have the federal parliament explicitly drawing back from full
occupation of the concurrent field to allow a different provincial provision on
the subject to operate without conflict. It is the strongest possible case
for the validity of non-repugnant and supplemental provincial legislation
because, on the facts, a prohibition was withdrawn to make room for a per-
mission to operate. The extreme view of the scope of negative implication
explained earlier under (A), is inconsistent with the Lord’s Day Alliance case
of 1959.
23A. H. F. Lefroy, Canada’s Federal System (Toronto, 1913), p. 126.
24Supra, footnote 11.
25R.S.C. 1952, c. 171.
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The Saskatchewan Breathalyser case of 195728 is also a decision of the Supreme
Court of Canada upholding the validity of a non-repugnant supplemental
provincial statute. The matter involved was the legal status and effect of the
result of tests by the breathalyser machine to determine whether a driver on
the highway was drunk. The federal Criminal Code, addressing itself to the
evidentiary problem only, stated that
No person is required to give a sample of blood, urine, breach or other bodily substance or
chemical analysis for the purpose of this scction. 27
but also provided in effect that, if such sample was in fact given, the result of
the chemical analysis was admissible evidence in the trial of a relevant charge
under the Criminal Code.
The Saskatchewan statute provided that a driver suspected of being drunk
who refused to take the breathalyser test at the request of a policeman was
liable to have his licence to drive suspended or revoked. The Supreme Court
of Canada held that the provincial legislation was not inconsistent with the
federal legislation and was therefore fully operative, and moreover that breath-
alyser evidence obtained in Saskatchewan was admissible in the trial of the
relevant federal offence.
The writer agrees with Mr. Justice Cartwright in this case that the finding
of ‘no conflict’ here is wrong. As the learned judge put it:2s
. * . I am of opinion that a statute declaring that a person who refuses to do an act shall be
liable to suffer a serious and permanent economic disadvantage does ‘require’ the doing of the
act. With deference to those who hold a contrary view, it appears to me to be playing with
words to say that a person who is made liable to a penalty (whether economic, Fecuniary,
corporal or, I suppose, capital) if he fails to do an act is not required to do the act because he
is ree to choose to suffer the penalty instead.
There is at least partial repugnance here, and the better decision would have
been that the Saskatchewan requirement could not operate to create evidence
admissible in the trial of the relevant federal offences but could operate as the
evidentiary basis for a decision by the Saskatchewan Motor Vehicle Board to
suspend or revoke a driver’s licence. Nevertheless, given the majority finding
that there was no conflict between the provincial and federal statutory pro-
visions concerned, the case is authority, as stated earlier, for the proposition
that supplemental provincial legislation remains operative. Now, only the
final case of pure duplication remains to be examined.
C. Duplication.
The situation envisaged here is that of a provincial statute that literally
or in substance duplicates the provisions of the federal statute in the field.
(It does not matter which statute was passed first once both are in the field.)
21Reference Re Section 92(4) of The Vehicles Act, 1957 (Sask.), c. 93 [1958] S.C.R. 608.
27Supra, footnote 19, section 224(4).
28[1958] S.C.R. 608, at 622.
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The authorities establish one of the implications of Dominion paramountcy
to be that provincial duplicative legislation is suspended and inoperative.
Simple duplication by a province is not permitted .2 But, given that this is
the state of the precedents, why should it be so? My submission is that there
are proper reasons for this result, but they are not explained in the opinions of
the judges in Canadian constitutional cases.
Where the provincial statute differs from the federal one, we have seen that
the provincial provisions are suspended if they are directly or indirectly
repugnant to the federal ones (A), but the provincial provisions are operative
if they merely supplement the federal ones (B). Necessity born of repugnance
accounts for the former result (A) and the logic of being different for the
latter (B). But in the case of simple duplication we have neither repugnance
nor difference. In fact what one now finds by comparing the provincial and federal
statutes in question is the ultimate in harmony. Obviously this is what sub-
stantial duplication means. Yet at times the judges persist in saying that
there is ‘conflict’ here, and that such ‘conflict’ somehow calls for the suspension
of the provincial duplicative legislation. For instance, in Smith v. The Queen,
Mr. Justice Ritchie (dissenting), after concluding that the provincial and
federal offences there in question were the same, said: “I am of opinion . .
.
that there is a direct conflict between the impugned provisions of the provincial
statute and those of the Criminal Code and that it is not within the competence
of the Legislature of Ontario to create the offences here in question.” 3 Like-
wise, Chief Justice Kerwin, giving one of the majority judgments in the same
case, said there was “‘no repugnancy” between the provincial and federal offences
because it was not the same conduct that was being dealt with by the two
legislative bodies. 3 Obviously he implies that there would be repugnancy if
the offences had been exactly the same.
Nevertheless, though it is not proper at all to speak of conflict or repugnance
of terms when a provincial statute simply duplicates a federal one, is there a
conflict in some other sense when this happens? Is it somehow an affront to
the federal parliament that a provincial legislature should repeat the terms of
a federal statute? No doubt the doctrine of Dominion paramountcy means
that in a concurrent field the federal parliament is the senior partner, but what
is repugnant about the junior partner merely repeating the senior one? In
25Sec: Home Insurance Co. v. Lindal &’ Beattie [1934] S.C.R. 33, per Lamont, J. at p. 40; L)ymburn v.
Mayland [1932] A.C. 318, per Lord Atkin, at p. 326-27. Also, in the Yolles, O’Grady and Smith cases
most of the judges (whether of the majority or dissenting) assumed that if the federal and provincial
offences being compared were substantially the same, the provincial offence was suspended and
inoperative.
In an excellent note on this subject, Professor Bora Laskin points out that simple duplication
of federal legislation by a state is forbidden in both the United States and Australia. See Bora
Laskin, Canadian Constitutional Law (Toronto, 1960), p. 98.
30[1960] S.C.R. 776, at 804.
31[1960] S.C.R. 776, at 780-81. Italics added.
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truth there is no conflict or repugnance of any kind in this situation. As seen
in Part I, the provincial legislature and the federal parliament are properly
making laws in the concurrent field in pursuance of legislative responsibilities
and powers conferred by their respective aspects of interest. These aspects are
equivalent as a matter of authority stemming from the constitution, so there
is no clash of authority in the absence of actual inconsistency of statutory
terms as explained earlier. Why then is duplicative provincial legislation
suspended? The reason seems a very simple one –
economy. It is wasteful of
legislative and administrative resources to allow simple duplication, besides
being confusing for all concerned. Since the province in effect admits that
the federal legislation is in exactly the terms it wants, the federal legislation
is serving the provincial interest just as the provincial legislature wishes it to
be served. But still the provincial spokesman may ask, why not suspend the
federal legislation then and avoid duplication that way? The answer in favour
of the federal legislation would seem to be twofold: (a) the federal parliament
is in the better position to effect economy and avoid confusion because of its
wider territorial jurisdiction, hence the provincial duplicative legislation
should be suspended, and, anyway, (b) the nation is greater than its parts,
hence when the scales are evenly balanced, as here, the national parliament
should be preferred over the provincial legislatures. So, the normal rule is
that a provincial statutory provision is suspended and inoperative if it simply
duplicates a federal one.
But what if the provincial provision in question is a mixed one in the sense
that it both duplicates and supplements the corresponding federal one? This
was the position in both Yolles v. The Queen and O’Grady v. Sparling.32 In both
these cases, the provincial offence was to drive a car on a highway “without
due care and attention or without reasonable consideration for other persons
using the highway”, while the corresponding federal law made it an offence
to drive a car with “wanton or reckless disregard for the lives or safety of
other persons.” Mr. Justice Roach pointed out in the Yolles case that the pro-
vincial offence as expressed cannot really be severed into its duplicative and
its supplemental parts so as to suspend the former and save the latter. “Section
29(1) does not confine the lack of ‘due care and attention’ or the absence of
‘reasonable consideration for others’ to an attitude that is less than wanton
or reckless. The Court cannot unscramble s. 29(1) or rewrite it. The Legislature
alone can do that.” 33 Mr. Justice Roach was right to consider this not a proper
case for severence, but was he right to conclude that therefore the whole pro-
vincial section was suspended? In the latter conclusion he was dissenting,
the majority decisions in both the Yolles and O’Grady cases being to the contrary.
The majority decisions seem correct and justifiable. A provincial section
that combines inseverably duplicative and supplemental elements does not
22Supra, footnote 11.
3(1959) 19 D.L.R. (2d) 19, at 44.
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necessarily require the same treatment as one that combines inseverably
repugnant and supplemental elements. Logically, economy permits exceptions
that inconsistency must deny, and in the cases mentioned the majority judges
took advantage of this. Here is the importance of elucidating the different
reasons for susperseding duplicative provisions on the one hand and repugnant
ones on the other. The normal rule is that duplicative provincial provisions
are inoperative, but, by way of exception, when a provincial provision is an
inseverable combination of duplicative and supplemental elements, the whole
provincial provision stands and operates concurrently with the federal provision
it both duplicates and supplements. This is the proper rationale of the Yolles,
O’Grady, Stephens and Smith cases.34 This exception to the general rule is im-
portant but quite limited, and it contrasts of course sharply with the position
that obtains when a provincial provision inseverably combines repugnant and
supplemental elements –
the whole of such a provision is necessarily super-
seded by the federal one. In other words, when the duplicative is in combina-
tion with the supplemental, the former is operative because of its combination
with the latter, but when the repugnant is combined with the supplemental,
the latter goes into suspension with the former.3″
Unfortunately the reasons for the exception just explained and the limited
nature of the exception do not come out too clearly in the majority opinions
of the four leading cases just mentioned. There is a tendency among some of
the learned judges to deny the existence of the duplicative or overlapping
element, and to say that because there is some difference between the provincial
and federal offences as to the mental state required, this makes them totally
different, so that the provincial offence is merely supplemental after all. But
it does not really make sense to deny the genuine though partial duplicative
element in these cases. Also, in the same cases, there is a tendency among some
of the learned judges to argue that, because the concurrent matter in issue has
a provincial aspect and a different federal aspect, partially overlapping pro-
vincial and federal laws enacted respectively under these aspects of authority
are themselves entirely different laws because the two aspects of authority
involved are different. This does not stand up either. As we saw in Part I,
it is the existence of two equivalent but different aspects of authority that
establishes a concurrent field in the first place. The double-aspect theory
opens two gates to the same field, but there it leaves us. It does not resolve
any of the subsequent difficulties of conflict, duplication, or supplement being
analyzed here.
3 4Supra, footnote 11. Stephens v. The Queen [1960] S.C.R. 823.
3Of course, a provincial statute may combine provisions exclusively within provincial powers
with others in a concurrent field of one or more of the three types discussed here –
conflicting,
supplemental or duplicative. This was true of both the Ontario and Manitoba Higbway Traffic
Acts. The argument made here is not affected by this circumstance, though the application of the
rules for severance might become rather complex in some situations.
MCGILL LAW JOURNAL
(Vol. 9
There has been a new development since the decision of O’Grady v. Sparling,
the implications of which serve to illustrate the effect of this group of cases.
In the session of 1960-61, the Parliament of Canada added to the Criminal Code
a new provision making it an offence to drive a motor vehicle “in a manner that
is dangerous to the public, having regard to all the circumstances.” 36 This is in
addition to the federal offence of driving with “wanton or reckless disregard”
that was the sole federal provision at the time of the Yolles and O’Grady deci-
sions. There is really no difference between driving in a manner dangerous to
the public, and driving with lack of due care and attention (simple negligence).
Negligence is defined by whether a reasonable man would foresee the likelihood
of causing harm to others by his conduct, i.e. by whether his conduct was
dangerous to the public. In O’Grady v. Sparling the Supreme Court of Canada
expressly adopted the twofold distinction of these offences into advertent negli-
gence and inadvertent negligence, pointing out that inadvertent negligence
was the respect in which the provincial offence was wider than the federal one
of showing wanton and reckless disregard. It follows that the provincial
‘lack of due care’ offence now merely duplicates the new federal offence of
simple dangerous driving. Hence provincial careless driving offences like those
of Ontario and Manitoba are now suspended and inoperative, and any charge
laid under such a provincial section should be quashed.3″ This is the effect
of the general rule that a provincial provision that is severable and merely
duplicative is to be severed and superseded by the federal provisions duplicated.
Authority for this proposition has already been quoted.
Subject then to the limited exception explained, the general rule requiring
the suspension of provincial duplicative legislation is a salutary one. If the
possibility of effective provincial duplicative legislation was wide open, then,
for example, a provincial legislature could duplicate the whole of the federal
law of theft as legislation to protect property rights in the province. Crown
attorneys could take their choice of whether to prosecute under the federal
theft sections or the provincial onces, and the provincial Attorneys General
could control this choice. Awkward questions about double jeopardy or the
right to trial by jury could arise. Fortunately, under the present rules, there
are two reasons why a province could not duplicate the federal law of theft
in the Criminal Code. In the first place the federal theft sections are by their
369-10 Eliz. II, S.C. 1960-61, c. 43, s. 3.
“It is true that some authorities consider there are three grades of negligence for these purposes.
See the judgment of LeBel, J. A. in the Yolks case, (1959) 19 D.L.R. (2d), 19, at 49-50. Mr. Justice
LeBel referred to McLean v. Pettigrew [1945] S.C.R. 62, as supporting this view. McLean v. Pettigrew
is a conflict of laws case in tort and such a threefold distinction was unnecessary to the decision.
In any event, the Supreme Court of Canada in the O’Grady case has adopted two grades of negligence
as the governing distinction for purposes of the issues touching Dominion paramountcy –
the
distinction being that between advertent negligence and inadvertent negligence.
There has also been some suggestion that Lord Atkin sanctioned a threefold distinction in the
case of Andrews v. Director of Public Prosecutions [1937] A.C. 576, when discussing parallel sections in
the English Road Traffic Act of 1930. I cannot find any such threefold distinction in Lord Atkin’s
judgment. See [1937] A.C. at 576, at 584.
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nature comprehensive, constituting what purports to be a complete code on
the subject of theft. Hence the negative implication discussed under (A)
earlier is genuinely present and precludes any provincial theft legislation
operating. Even if this were not so, simple duplication is not allowed anyway,
as we have seen in the analysis just concluded under (C).
The position of provincial legislation in a concurrent field then may be
summarized as follows. Provincial legislation may operate if there is no
federal legislation in the field or if the provincial legislation is merely supple-
mental to federal legislation that is in the field. Duplicative provincial legisla-
tion may operate concurrently only when inseverably connected with supple-
mental provincial legislation, otherwise duplicative provincial legislation is
suspended and inoperative. Repugnant provincial legislation is always sus-
pended and inoperative. These are the implications of the doctrine of Dominion
paramountcy developed by the courts.38
In conclusion, it should be noted that the existence of a concurrent field
means that there is room for political agreement between provincial and federal
governments about whether the federal parliament or a provincial legislature
undertakes the regulation of this or that phase of a concurrent matter. The
precise equilibrium point in practice then would become a matter for political
and administrative decision. As governmental activities continue to expand
in our modern urban and industrial society, we can expect much more con-
current operation of federal and provincial laws in the old areas of joint occupa-
tion and in new areas as well. The adjustments involved will continue to
call for both judicial and political decisions of a high order.39
3sit should be noted that in onc respect, old age pensions, we have a doctrine of provincial para-
mountcy, by virtue of section 94A of the B.N.A. Act, added in 1951 by 14-15 Geo. VI (U.K.), c. 32:
94A.
It is hereby declared that the Parliament of Canada may from time to time make laws
in relation to old age pensions in Canada, but no law made by the Parliament of Canada in
relation to old age pensions shall affect the operation of any law present or future of a Pro-
vincial Legislature in relation to old age pensions.
39As Dr. J. A. Corry has pointed out, our country is increasingly moving away from the older
classical federalism of ‘watertight compartments’ with provincial legislatures and federal parlia-
ment carefully keeping clear of one another. We seem to be moving towards a co-operative federalism.
“The co-ordinate governments no longer work in splendid isolation from one another but are in-
creasingly engaged in cooperative ventures in which each relies heavily on the other.” See J. A.
Corry, “Constitutional Trends and Federalism,” in the volume of essays Evolving Canalian Federalism
(Durham, N.C., U.S.A., 1958), p. 96. The multiplication of concurrent fields is one of the facets
of this trend. Even if the precise equilibrium point in a concurrent field is reached by political
decision or agreement, nevertheless the bargaining position of federal and prox incial governments
is defined by the judicial decisions about concurrency and the doctrine of Dominion paramountcy.
