Paramountcy (Canada)

See also: pith and substance, double aspect and interjurisdictional immunity

In Canadian constitutional law, the doctrine of paramountcy establishes that where there is a conflict between valid provincial and federal laws, the federal law will prevail and the provincial law will be inoperative to the extent that it conflicts with the federal law. Unlike interjurisdictional immunity, which is concerned with the scope of the federal power, paramountcy deals with the way in which that power is exercised.

Nature of the doctrine

Paramountcy is relevant where there is conflicting federal and provincial legislation. As Major J explained in Rothmans:

“

11. The doctrine of federal legislative paramountcy dictates that where there is an inconsistency between validly enacted but overlapping provincial and federal legislation, the provincial legislation is inoperative to the extent of the inconsistency....

”

Claims in paramountcy may arise from two different forms of conflict:

• Operational conflict between federal and provincial laws, such that dual compliance is impossible.
• Where dual compliance is possible, but the provincial law is incompatible with the purpose of federal legislation, thus frustrating a federal purpose. To determine whether the impugned legislation frustrates a federal purpose, it is necessary to consider the regulatory framework that governs the matter in question. The party seeking to invoke the doctrine of federal paramountcy bears the burden of proof.

History

The doctrine was first expressed in the Local Prohibition Case, and was subsequently described by Lord Dunedin in Grand Trunk v. Attorney General of Canada thus:

First, ... there can be a domain in which provincial and Dominion legislation may overlap, in which case neither legislation will be ultra vires, if the field is clear; and, secondly, ... if the field is not clear, and in such a domain the two legislations meet, then the Dominion must prevail.

Historically, the doctrine was interpreted very strictly. When there was any overlap between federal or provincial laws the federal law would always render the provincial law inoperative even where there was no conflict. It was over time that courts and academics began to interpret the power as only applying where conformity to one law would necessarily violate the other. The Supreme Court of Canada adopted the latter interpretation in the decision of Smith v. The Queen. The Court held that there must be an "operational incompatibility" between the laws in order to invoke paramountcy.

The modern use of the paramountcy doctrine was articulated in Multiple Access v. McCutcheon. In that case, both the provincial and federal governments had enacted virtually identical insider trading legislation. The Court found that statutory duplication does not invoke paramountcy as the court had the discretion to prevent double penalties. Instead, paramountcy can only be invoked when then compliance with one means the breach of the other.

A later example of this doctrine was in the decision of Law Society of British Columbia v. Mangat, where the Court found an operational conflict between the provincial Law Society Act prohibiting non-lawyers from appearing in front of a judge and the federal Immigration Act which allowed non-lawyers to appear before the immigation tribunal.

See also

• Federal preemption and the Supremacy clause for the US context
• Section 109 of the Constitution of Australia

Significant cases

• The Attorney General for Ontario v The Attorney General for the Dominion of Canada, and the Distillers and Brewers’ Association of Ontario [1896] UKPC 20, [1896] AC 348 (9 May 1896), P.C. (on appeal from Canada)
• The Grand Trunk Railway Company of Canada v The Attorney General for the Dominion of Canada [1906] UKPC 72, [1907] AC 65 (5 November 1906) (on appeal from Canada)
• Smith v. The Queen 1960 CanLII 12, [1960] SCR 776 (4 October 1960)
• O'Grady v. Sparling 1960 CanLII 70, [1960] S.C.R. 804 (4 October 1960)
• Multiple Access Ltd. v. McCutcheon 1982 CanLII 1705, [1982] 2 SCR 161 (9 August 1982)
• Law Society of British Columbia v. Mangat 2001 SCC 67, [2001] 3 SCR 113 (18 October 2001)
• Rothmans, Benson & Hedges Inc. v. Saskatchewan 2005 SCC 13, [2005] 1 SCR 188 (18 March 2005)
• Quebec (Attorney General) v. Canadian Owners and Pilots Association 2010 SCC 39, [2010] 2 SCR 536 (15 October 2010)

Further reading

• = Centre for Constitutional Studies "Doctrine of Paramountcy" . Retrieved 4 February 2014. 
• Eric Colvin (1979). "Legal Theory and the Paramountcy Rule" (PDF). McGill Law Journal (McGill Law School) 25 (1): 82–98. Retrieved 13 January 2013. 
• Peter W. Hogg (2006). "Paramountcy and Tobacco". Supreme Court Law Review (Osgoode Hall Law School) 34: 335–344. Retrieved 13 January 2013.