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Property and Civil Rights in the Province
Introduction
The provincial
competence to regulate local trades flows primarily from provincial
jurisdiction over property and civil rights in s. 92(13). Provincial
jurisdiction over property and civil rights embraces all private law
transactions. These include virtually all commercial transactions. The
Courts established boundaries on provincial regulatory authority over local
trades. Property and civil rights as so delimited include rights arising
from contract; certain powers to prevent crime; powers to control
transactions taking place wholly within the province, even if the products
themselves are imported; and generally, the power to regulate
provincially-incorporated businesses.
What follows is a
consideration of some additional issues that arise within the general topic
of Property and Civil Rights in the province.
Section 92(16) – The Provincial Residuary Clause
Learned scholars have
expressed the view that s.92(16) was intended to function as a provincial
counterpart to the “peace, order and good government” clause of section 91,
which constitutes a residual category of federal law-making power.
According to this view,
the Constitution contains two parallel legislative residua which compete
for jurisdiction over matters which are not specifically enumerated in
sections 91 and 92. The parallel function of these provisions, however, is
not reflected in the format of the Constitutional text: whereas the federal
residuum is located in the introductory clause of section 91, the
provincial residuum takes the form of an enumerated class of subjects
assigned to the provinces by section 92.
For more information see:
“Constitutional Reform and the Introductory Clause of Section 91” (1979) 57
Can. Bar. Rev. 531.
Rio Hotel Ltd. v. N.B. (Liquor Licensing Bd.) and
Local Morality
In Rio Hotel Ltd. v. N.B. (Liquor Licensing Bd.), [1987] 2 S.C.R.
59, the Supreme Court of Canada upheld as a valid exercise of provincial
jurisdiction over property and civil rights a provincial liquor licensing
board’s prohibition of nude dancing as a condition on entertainment
licenses.
In the principle
judgment of the Court, Dickson C.J.C (McIntyre, Wilson and Le Dain JJ.
Concurring stated at p.65:
The
legislation is, as I have stated, prima facie related to property and civil
rights within the Province and to matters of a purely local nature. The
Legislature seeks only to regulate the forms of entertainment that may be
used as marketing tools by the owners of licensed premises to boost sales
of alcohol. Although there is some overlap between the licence condition
precluding nude entertainment and various provisions of the [Criminal Code], there is no direct
conflict.
As
the provincial regulations could easily operate concurrently with the
federal Criminal Code provisions,
Dickson C.J.C. held that the federal paramountcy doctrine did not operate
to render the provincial regulations invalid.
In a
separate judgment, Estey J. (Lamer J. concurring) did not find it necessary
to reply on the doctrine of paramountcy to uphold the provincial
regulations. He held that the licensing system did not purport to establish
an offence criminal in character, but was instead related entirely to the
local operations of premises engaged in the business of selling alcohol.
At
p. 75 Estey J. considered the case of McNeil
v. N.S. Bd. Of Censors, [1978] 2. S.C.R. 662, and raised some doubt as
to the ability of the provinces to regulate with respect to local morality
under the authority of s.92(16):
The five
member majority of the Court [in McNeil]
held the legislation (except for one regulation) to be intra vires the
province on the basis that the impugned legislation addressed the
regulation of a trade or business within the province, properly falling
within the scope of s. 92(13) of the Constitution Act, 1867. The Court also
found the legislation valid on the grounds that it was regulatory and
preventative rather than penal; the legislation was not concerned with
creating a criminal offence or providing for its punishment (as in Bédard
v. Dawson, [1923] S.C.R. 681). Finally, the Court upheld the
legislation as addressing the determination of "what is and what is
not acceptable for public exhibition on moral grounds", this being a
matter of a "local and private nature in the Province" within the
meaning of s. 92(16) of the Constitution Act, 1867, (at p. 699). The most
persuasive ground upon which to uphold this legislation is that the
regulation relates to the valid regulation of a trade or business within
the province. It is possible that the reference to the provincial
jurisdiction over the morality of the public exhibition in question, as
being a matter of a "local and private nature", could be
distinguished. It may well be (although it is not necessary, in my view, to
decide so now) that this point in McNeil will be confined by the courts to
the precise facts of that case.
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