Present: Lamer C.J.
and La Forest, L'Heureux‑Dubé, Sopinka, Gonthier, Cory, McLachlin,
Iacobucci and Major JJ.
on appeal from the nova scotia supreme
court, appeal division
Constitutional law ‑‑
Distribution of powers ‑‑ Abortion ‑‑ Provincial
legislation prohibiting abortions outside hospitals ‑‑ Whether
legislation ultra vires province as being in pith and substance criminal law ‑‑
Constitution Act, 1867, s. 91(27) ‑‑ Medical Services Act,
R.S.N.S. 1989, c. 281 ‑‑ Medical Services Designation
Regulation, N.S. Reg. 152/89.
In March 1989, in
order to prevent the establishment of free‑standing abortion clinics in
Halifax, the Nova Scotia government approved regulations prohibiting the
performance of an abortion anywhere other than in a place approved as a
hospital as well as a regulation denying medical services insurance coverage
for abortions performed outside a hospital (the "March
regulations"). The government later revoked these regulations and adopted
the Medical Services Act and the Medical Services Designation
Regulation, which continued the prohibition of the performance of abortions
outside hospitals and the denial of health insurance coverage for abortions
performed in violation of the prohibition. Despite these actions, the
respondent opened his clinic and performed 14 abortions. He was charged
with 14 counts of violating the Medical Services Act. The trial
judge held that the legislation was ultra vires the province because it
was in pith and substance criminal law and acquitted the respondent. This
decision was upheld by the Court of Appeal.
Held: The appeal should be
dismissed.
Classification of a
law for purposes of federalism involves first identifying the
"matter" of the law and then assigning it to one of the "classes
of subjects" in respect of which the federal and provincial governments
have legislative authority under ss. 91 and 92 of the Constitution Act,
1867. A law's "matter" is its true character, or pith and
substance. The analysis of pith and substance necessarily starts with looking
at the legislation itself, in order to determine its legal effect. The court
will also look beyond the four corners of the legislation to inquire into its
background, context and purpose and, in appropriate cases, will consider
evidence of the actual or predicted practical effect of the legislation in
operation. The ultimate long‑term, practical effect of the legislation
is not always relevant, nor will proof of it always be necessary in
establishing the true character of the legislation. The court is entitled to
refer to extrinsic evidence of various kinds provided it is relevant and not
inherently unreliable. This clearly includes related legislation, and evidence
of the "mischief" at which the legislation is directed. It also
includes legislative history, in the sense of the events that occurred during
drafting and enactment. Provided that the court remains mindful of the limited
reliability and weight of Hansard evidence, it should be admitted as relevant
to both the background and the purpose of legislation. The excerpts from Hansard
were thus properly admitted by the trial judge in this case. This evidence
demonstrates that members of all parties in the legislature understood the
central feature of the proposed law to be prohibition of the respondent's
proposed clinic on the basis of a common and almost unanimous opposition to
abortion clinics per se.
The Medical
Services Act and Medical Services Designation Regulation together
constitute an indivisible attempt by the province to legislate in the area of
criminal law. Since they deal with a subject historically considered to be
part of the criminal law ‑‑ the prohibition of the performance of
abortions with penal consequences ‑‑ they are suspect on their
face, and it is not necessary to invoke the colourability doctrine. An examination
of their terms and legal effect, their history and purpose and the
circumstances surrounding their enactment leads to the conclusion that the
legislation's central purpose and dominant characteristic is the restriction of
abortion as a socially undesirable practice which should be suppressed or
punished. Although the evidence of the legislation's practical effect is
equivocal, it is not necessary to establish that its immediate or future
practical impact will actually be to restrict access to abortions in order to
sustain this conclusion. The legislation has an effect on abortions in private
clinics virtually indistinguishable from that of the now defunct abortion
provision of the Criminal Code, and this overlap of legal effects is
capable of supporting an inference that the legislation was designed to serve a
criminal law purpose. The events leading up to and including the enactment of
the impugned legislation also strengthen the inference that it was designed to
serve a criminal law purpose. In addition, the Hansard evidence demonstrates
both that the prohibition of the respondent's clinic was the central concern of
the legislature, and that there was a common and emphatically expressed
opposition to free‑standing abortion clinics per se. The concerns
to which the provincial government submits the legislation is primarily
directed ‑‑ privatization, cost and quality of health care, and a
policy of preventing a two‑tier system of access to medical services ‑‑
were conspicuously absent throughout most of the legislative proceedings. The
impugned legislation treats of a moral issue. While legislation which
authorizes the establishment and enforcement of a local standard of morality
does not ipso facto invade the field of criminal law, interdiction of
conduct in the interest of public morals was and remains one of the classic
ends of the criminal law. There is thus a strong inference that the purpose
and true nature of the legislation relate to a matter within the federal head
of power in respect of criminal law. This inference is supported by the
absence of evidence that privatization and the cost and quality of health care
services were anything more than incidental concerns and by the relatively
severe penalties provided for in the Act.
Cases Cited
Referred to: R. v. Morgentaler, 1988 CanLII 90 (S.C.C.), [1988] 1
S.C.R. 30; Morgentaler v. The Queen, 1975 CanLII 8 (S.C.C.), [1976] 1 S.C.R. 616; Canadian
Abortion Rights Action League Inc. v. Nova Scotia (Attorney General)
1989 CanLII 193 (NS S.C.), (1989), 93 N.S.R. (2d) 197 (T.D.), aff'd 1990 CanLII 2434 (NS C.A.), (1990) 96 N.S.R. (2d) 284 (A.D.),
leave to appeal refused, [1990] 2 S.C.R. v; Nova Scotia (Attorney General)
v. Morgentaler 
reflex, (1989), 64 D.L.R. (4th) 297 (N.S.S.C.T.D.), aff'd reflex, (1990), 69
D.L.R. (4th) 559 (N.S.S.C.A.D.), leave to appeal refused, [1990] 2 S.C.R. ix; R.
v. Morgentaler, 1993 CanLII 158 (S.C.C.), [1993] 1 S.C.R. 462; Texada Mines Ltd. v. Attorney‑General
of British Columbia, [1960] S.C.R. 713; Union Colliery Co. of British
Columbia v. Bryden, [1899] A.C. 580; Whitbread v. Walley, 1990 CanLII 33 (S.C.C.), [1990] 3
S.C.R. 1273; Attorney‑General for Alberta v. Attorney‑General
for Canada, [1939] A.C. 117; Starr v. Houlden, 1990 CanLII 112 (S.C.C.), [1990] 1 S.C.R. 1366;
Switzman v. Elbling, 1957 CanLII 2 (S.C.C.), [1957] S.C.R. 285; Carnation Co. v. Quebec
Agricultural Marketing Board, 1968 CanLII 82 (S.C.C.), [1968] S.C.R. 238; Canadian Indemnity Co.
v. Attorney‑General of British Columbia, 1976 CanLII 195 (S.C.C.), [1977] 2 S.C.R. 504; R.
v. Big M Drug Mart Ltd., 1985 CanLII 69 (S.C.C.), [1985] 1 S.C.R. 295; R. v. Edwards Books
and Art Ltd., 1986 CanLII 12 (S.C.C.), [1986] 2 S.C.R. 713; Attorney‑General for Alberta v.
Attorney‑General for Canada, [1947] A.C. 503; Saumur v. City of
Quebec, 1953 CanLII 3 (S.C.C.), [1953] 2 S.C.R. 299; Reference re Anti‑Inflation Act,
1976 CanLII 16 (S.C.C.), [1976] 2 S.C.R. 373; Reference re Residential Tenancies Act, 1979,
1981 CanLII 24 (S.C.C.), [1981] 1 S.C.R. 714; Reference re Upper Churchill Water Rights Reversion Act,
1984 CanLII 17 (S.C.C.), [1984] 1 S.C.R. 297; Attorney General of Canada v. Reader's Digest
Association (Canada) Ltd., [1961] S.C.R. 775; R. v. Whyte, 1988 CanLII 47 (S.C.C.), [1988] 2
S.C.R. 3; Irwin Toy Ltd. v. Quebec (Attorney General), 1989 CanLII 87 (S.C.C.), [1989] 1 S.C.R.
927; R. v. Mercure, 1988 CanLII 107 (C.S.C.), [1988] 1 S.C.R. 234; Attorney‑General for
Saskatchewan v. Attorney‑General for Canada, [1949] A.C. 110; Hodge
v. The Queen (1883), 9 App. Cas. 117; Bell Canada v. Quebec (Commission
de la santé et de la sécurité du travail), 1988 CanLII 81 (S.C.C.), [1988] 1 S.C.R. 749; Walter
v. Attorney General of Alberta, 1969 CanLII 64 (S.C.C.), [1969] S.C.R. 383; Attorney‑General
for Ontario v. Hamilton Street Railway Co., [1903] A.C. 524; Proprietary
Articles Trade Association v. Attorney General for Canada, [1931] A.C. 310;
Reference re Validity of Section 5(a) of the Dairy Industry Act,
1948 CanLII 2 (S.C.C.), [1949] S.C.R. 1; Lord's Day Alliance of Canada v. Attorney General of
British Columbia, [1959] S.C.R. 497; Goodyear Tire and Rubber Co. of
Canada v. The Queen, 1956 CanLII 4 (S.C.C.), [1956] S.C.R. 303; Boggs v. The Queen, 1981 CanLII 39 (S.C.C.), [1981] 1
S.C.R. 49; Schneider v. The Queen, 1982 CanLII 26 (S.C.C.), [1982] 2 S.C.R. 112; Scowby v.
Glendinning, 1986 CanLII 30 (S.C.C.), [1986] 2 S.C.R. 226; Westendorp v. The Queen, 1983 CanLII 1 (S.C.C.), [1983] 1
S.C.R. 43; Rio Hotel Ltd. v. New Brunswick (Liquor Licensing Board),
1987 CanLII 72 (S.C.C.), [1987] 2 S.C.R. 59; Ladore v. Bennett, [1939] A.C. 468; Attorney‑General
for Ontario v. Reciprocal Insurers, [1924] A.C. 328; Central Canada
Potash Co. v. Saskatchewan, 1978 CanLII 21 (S.C.C.), [1979] 1 S.C.R. 42; Nova Scotia Board of
Censors v. NcNeil, 1978 CanLII 6 (S.C.C.), [1978] 2 S.C.R. 662; O'Grady v. Sparling, [1960]
S.C.R. 804; Smith v. The Queen, 1960 CanLII 12 (S.C.C.), [1960] S.C.R. 776; Stephens v. The
Queen, [1960] S.C.R. 823; R. v. Chiasson (1982), 39 N.B.R. (2d) 631
(C.A.), aff'd 1984 CanLII 136 (S.C.C.), [1984] 1 S.C.R. 266; Reference re Freedom of Informed Choice
(Abortions) Act reflex, (1985), 44 Sask. R. 104; Attorney General for Canada and
Dupond v. City of Montreal, 1978 CanLII 201 (S.C.C.), [1978] 2 S.C.R. 770; Attorney General of
Canada v. Law Society of British Columbia, 1982 CanLII 29 (S.C.C.), [1982] 2 S.C.R. 307; Johnson
v. Attorney General of Alberta, [1954] S.C.R. 127; Reference re
Alberta Statutes, 1938 CanLII 1 (S.C.C.), [1938] S.C.R. 100.
Statutes and
Regulations Cited
Constitution Act, 1867, ss. 91(27), 92(7), (13), (15),
(16).
Criminal
Code, R.S.C. 1970,
c. C‑34, s. 251.
Criminal
Code, R.S.C., 1985,
c. C‑46, s. 287.
Criminal
Law Amendment Act, 1968‑69, S.C. 1968-69, c. 38, s. 18.
Health
Act, R.S.N.S. 1989,
c. 195.
Health
Services and Insurance Act, R.S.N.S. 1989, c. 197.
Hospitals
Act, R.S.N.S. 1989,
c. 208.
Lord
Ellenborough's Act
(U.K.), 43 Geo. 3, c. 58.
Medical
Services Act,
R.S.N.S. 1989, c. 281, ss. 2 to 8.
Medical
Services Designation Regulation, N.S. Reg. 152/89.
N.S.
Reg. 32/89.
N.S.
Reg. 33/89.
N.S.
Reg. 34/89.
N.S.
Regs. 149‑151/89.
Authors Cited
Abel,
Albert S. "The Neglected Logic of 91 and 92" (1969), 19 U.T.L.J.
487.
Hogg,
Peter W. Constitutional Law of Canada, vol. 1, 3rd ed.
(Supplemented). Scarborough, Ont.: Carswell, 1992 (loose-leaf).
Laskin,
Bora. "Tests for the Validity of Legislation: What's the `Matter'?"
(1955), 11 U.T.L.J. 114.
Lederman, W. R.
"The Balanced Interpretation of the Federal Distribution of Legislative
Powers in Canada" (1965). Reprinted in Lederman, Continuing Canadian
Constitutional Dilemmas. Toronto: Butterworths, 1981, 266.
McConnell,
Moira L. "`Even by Commonsense Morality': Morgentaler, Borowski
and the Constitution of Canada" (1989), 68 Can. Bar Rev. 765.
McConnell,
Moira L., and Lorenne Clark. "Abortion Law in Canada: A Matter of
National Concern" (1991), 14 Dalhousie L.J. 81.
Nova
Scotia. House of Assembly. Debates and Proceedings (March 16, 1989).
Pepin,
René. "Le pouvoir des provinces canadiennes de légiférer sur la moralité
publique" (1988), 19 R.G.D. 865.
Scott, F. R.
Civil Liberties and Canadian Federalism. Toronto: University Press,
1959.
APPEAL from a
judgment of the Nova Scotia Supreme Court, Appeal Division 1991 CanLII 2596 (NS C.A.), (1991), 104 N.S.R.
(2d) 361, 283 A.P.R. 361, 66 C.C.C. (3d) 288, 7 C.R. (4th) 1, 83 D.L.R. (4th)
8, affirming a judgment of the Provincial Court reflex, (1990), 99 N.S.R. (2d) 293, 270
A.P.R. 293, acquitting the respondent of violating the Medical Services Act
on the ground that the legislation was ultra vires the province. Appeal
dismissed.
Marian F. H.
Tyson and Louise
Walsh Poirier, for the appellant.
Anne S.
Derrick and Jacqueline
Mullenger, for the respondent.
Edward R.
Sojonky, Q.C.,
and Yvonne E. Milosevic, for the intervener the Attorney General of
Canada.
Bruce Judah, for the intervener the Attorney
General for New Brunswick.
Angela M.
Costigan and Lynn
Kirwin, for the intervener REAL Women of Canada.
Mary Eberts and Ian Godfrey, for the
intervener the Canadian Abortion Rights Action League.
//Sopinka J.//
The judgment of the
Court was delivered by
Sopinka
J. --
Introduction
The question in
this appeal is whether the Nova Scotia Medical Services Act, R.S.N.S.
1989, c. 281, and the regulation made under the Act, N.S. Reg. 152/89, are ultra
vires the province of Nova Scotia on the ground that they are in pith and
substance criminal law. The Act and regulation make it an offence to perform
an abortion outside a hospital.
Between October 26
and November 2, 1989, the respondent performed 14 abortions at his clinic in
Halifax. He was charged with 14 counts of violating the Medical Services
Act. He was acquitted at trial after the trial judge held that the
legislation under which he was charged was beyond the province's legislative
authority to enact because it was in pith and substance criminal law. This
decision was upheld by the Nova Scotia Court of Appeal. The Crown appeals from
the Court of Appeal's decision with leave of this Court.
Facts and Legislation
In January 1988,
this Court ruled that the Criminal Code provisions relating to abortion
were unconstitutional because they violated women's Charter guarantee of
security of the person: R. v. Morgentaler, 1988 CanLII 90 (S.C.C.), [1988] 1 S.C.R. 30 (Morgentaler
(1988)). At the same time the Court reaffirmed its earlier decision that
the provisions were a valid exercise of the federal criminal law power: Morgentaler
v. The Queen, 1975 CanLII 8 (S.C.C.), [1976] 1 S.C.R. 616 (Morgentaler (1975)). The 1988
decision meant that abortion was no longer regulated by the criminal law. It
was no longer an offence to obtain or perform an abortion in a clinic such as
those run by the respondent. A year later, in January 1989, it was rumoured in
Nova Scotia that the respondent intended to establish a free-standing abortion
clinic in Halifax. Subsequently, the respondent publicly confirmed his
intention to do so.
On March 16, 1989,
the Nova Scotia government took action to prevent Dr. Morgentaler from
realizing his intention. The Governor in Council approved two identical
regulations, one under the Health Act, R.S.N.S. 1989, c. 195 (N.S. Reg.
33/89), and one under the Hospitals Act, R.S.N.S. 1989, c. 208 (N.S.
Reg. 34/89), which prohibited the performance of an abortion anywhere other
than in a place approved as a hospital under the Hospitals Act. At the
same time it made a regulation (N.S. Reg. 32/89) pursuant to the Health
Services and Insurance Act, R.S.N.S. 1989, c. 197, denying medical services
insurance coverage for abortions performed outside a hospital. These
regulations are referred to collectively as the "March regulations".
On May 8, 1989, one
of the interveners in the present case, the Canadian Abortion Rights Action
League (CARAL), launched a court challenge to the constitutionality of the
March regulations. The matter was set for hearing on June 22, 1989. The case
was adjourned and ultimately dismissed for lack of standing, primarily because
the same issues would be determined in the present case: Canadian Abortion
Rights Action League Inc. v. Nova Scotia (Attorney General) 1990 CanLII 2434 (NS C.A.), (1990), 96
N.S.R. (2d) 284 (A.D.), aff'g 1989 CanLII 193 (NS S.C.), (1989), 93 N.S.R. (2d) 197 (T.D.), leave to
appeal refused, [1990] 2 S.C.R. v.
CARAL's court
challenge to the March regulations was still outstanding on June 6, 1989, when
the Minister of Health and Fitness introduced the Medical Services Act
for first reading. The Act progressed rapidly through the legislature. It
received third reading and Royal Assent on June 15, the last day of the legislative
session. The relevant portions of the Act are as follows:
2 The purpose of this Act is to
prohibit the privatization of the provision of certain medical services in
order to maintain a single high-quality health-care delivery system for all
Nova Scotians.
3 In this Act,
(a)
"designated medical service" means a medical service designated
pursuant to the regulations;
...
4 No person shall perform or assist in
the performance of a designated medical service other than in a hospital
approved as a hospital pursuant to the Hospitals Act.
5 Notwithstanding the Health
Services and Insurance Act, a person who performs or for whom is performed
a medical service contrary to this Act is not entitled to reimbursement
pursuant to that Act.
6 (1) Every person who contravenes
this Act is guilty of an offence and liable upon summary conviction to a fine
of not less than ten thousand dollars nor more than fifty thousand dollars.
...
7 Notwithstanding any other provision
of this Act, where designated medical services are being performed contrary to
this Act, the Minister may, at any time, apply to a judge of the Supreme Court
for an injunction, and the judge may make any order that in the opinion of the
judge the case requires.
8
(1) The Governor in
Council, on the recommendation of the Minister, may make regulations
(a)
after consultation by the Minister with the Medical Society of Nova Scotia,
designating a medical service for the purpose of this Act;
...
The Medical Society was consulted
after the passage of the Act, and a list of medical services was finalized. On
July 20, 1989, the Medical Services Designation Regulation, N.S. Reg.
152/89, was made, designating the following medical services for the purposes
of the Act:
(a)Arthroscopy
(b)Colonoscopy
(which, for greater certainty, does not include flexible sigmoidoscopy)
(c)Upper
Gastro-Intestinal Endoscopy
(d)Abortion,
including a therapeutic abortion, but not including emergency services related
to a spontaneous abortion or related to complications arising from a previously
performed abortion
(e)Lithotripsy
(f)Liposuction
(g)Nuclear
Medicine
(h)Installation
or Removal of Intraocular Lenses
(i)Eletromyography,
including Nerve Conduction Studies
The March regulations were revoked on
the same day by N.S. Regs. 149-151/89. Item (d) of the new regulation
continued the March regulations' prohibition of the performance of abortions
outside hospitals. Section 5 of the Act continued the denial of health
insurance coverage for abortions performed in violation of the prohibition.
Despite these
actions, Dr. Morgentaler opened his clinic in Halifax as predicted. At first
the clinic only provided counselling and referrals to Dr. Morgentaler's
Montreal clinic. On October 26, 1989, however, Dr. Morgentaler defied the Nova
Scotia legislation by performing seven abortions. He announced that he had
done so at a press conference later that day. Several days later he performed
seven more abortions. He was charged with 14 counts of unlawfully performing a
designated medical service, to wit, an abortion, other than in a hospital
approved as such under the Hospitals Act, contrary to s. 6 of the Medical
Services Act. Dr. Morgentaler publicly announced his resolve to continue
his activities in contravention of the Act, and on November 6, 1989 the
government of Nova Scotia obtained an interim injunction under s. 7 of the Act
to restrain him from further violations of the Act pending the resolution of
the charges and the constitutional challenge in court: Nova Scotia
(Attorney General) v. Morgentaler reflex, (1989), 64 D.L.R. (4th) 297
(N.S.S.C.T.D.), aff'd reflex, (1990), 69 D.L.R. (4th) 559 (N.S.S.C.A.D.), leave to
appeal refused [1990] 2 S.C.R. ix.
When the case
proceeded to trial in June 1990, Dr. Morgentaler did not dispute that he had
performed the abortions as alleged. He argued, instead, that the Act and the
regulation were inconsistent with the Constitution of Canada and consequently
of no force or effect, on the grounds that they violate women's Charter
rights to security of the person and equality and that they are an unlawful
encroachment on the federal Parliament's exclusive criminal law jurisdiction.
He also argued that the regulation was an abuse of discretion by the provincial
cabinet and therefore in excess of its jurisdiction.
Judgments Below
A. Provincial Court
of Nova Scotia reflex, (1990), 99 N.S.R. (2d) 293
Kennedy Prov. Ct.
J. decided to address the distribution of powers issue first and having done
so, found it unnecessary to go any farther. He concluded that "the
prohibition and regulation of abortion has been and remains criminal law in
this country" and held, at p. 295:
It
would seem, therefore, that if the prohibition or regulation of abortion is
criminal law and if Parliament, as part of its proper exercise of its exclusive
criminal law-making power, may determine what is not criminal as well as what
is criminal, then by restricting the performance of therapeutic abortions to hospitals
the Province of Nova Scotia has trespassed into an area of Federal Government
competence.
He held that he could properly look
beyond the four corners of the legislation to consider extrinsic evidence of
the legislative history in determining the pith and substance of the
legislation. He found that the Nova Scotia government had notice in January
1989 of Dr. Morgentaler's intention to open an abortion clinic in Halifax. He
reviewed the chronology of events that followed and held that it was reasonable
to infer that the government believed that the Medical Services Act and
regulation accomplished the same purpose as the March regulations. He observed
that the provincial government had created a Royal Commission on Health Care
Issues in 1987, with a mandate to recommend health care policy, and that the
Act was passed before the Commission had rendered its report even though the
Throne Speech of February 23, 1989 indicated that the government was awaiting
the report. Kennedy Prov. Ct. J. also noted that the Medical Society was not
consulted until after the Act was passed and that even then, according to the
then president of the Society, the restriction of abortion was not negotiable.
Kennedy Prov. Ct.
J. held evidence of statements and speeches made in the legislature during
debates to be relevant and admissible. He found that the Health Minister had
openly stated the government's policy to stop free-standing abortion clinics,
in particular Dr. Morgentaler's, that this sentiment permeated the debates on
both sides of the Assembly, and that Dr. Morgentaler was an acknowledged
"mischief" against which the legislation was directed. He also
considered relevant, though not determinative, the substantial penalties
imposed by the Act (s. 6(1)).
He concluded that
the Act and regulation were in pith and substance criminal law, "made
primarily to control and restrict abortions within the province" and
"to keep free-standing abortion clinics, and in the specific, Dr.
Morgentaler out of Nova Scotia" (at p. 302). The province's privatization
concerns, while real, were incidental to the paramount purpose of the
legislation. Given this conclusion, Kennedy Prov. Ct. J. acquitted the
respondent. He refrained from dealing with the Charter issues unless
directed by an appeal court to do so.
B. Nova Scotia
Supreme Court, Appeal Division 1991 CanLII 2596 (NS C.A.), (1991), 104 N.S.R. (2d) 361
(1)Freeman J.A., Clarke
C.J.N.S. and Hart and Chipman JJ.A. concurring
Freeman
J.A. held, at p. 363, that while the province had the legislative power to pass
a law in the present form, the question was whether it was colourable criminal
law, i.e.:
...
whether the province properly used [its] powers and created a law within the
provincial competence, or whether it improperly attempted to use federal powers
to pass a law that, regardless of its form, is actually a criminal law.
He held that both purpose and effect
are relevant to characterizing the "matter" in relation to which a
law is enacted. He found that the legislation effectively duplicated s. 251 of
the Criminal Code, R.S.C. 1970, c. C-34 (now s. 287), the section struck
down by this Court in Morgentaler (1988), supra. On the other
hand, he also held that the effect of the Act was to prevent privatization, and
since legislative effects alone were inconclusive, he examined purpose in more
depth. He held that the legislative debates were admissible and relevant to
the background and purpose of the legislation. They demonstrated that the
government's intent in making the March regulations and introducing the Act was
to prevent the establishment of Morgentaler clinics in Nova Scotia, and that
the members of both sides of the House understood this as the paramount purpose
of the legislation.
Freeman J.A.
conceded that a credible case could be made out for the provincial objective of
stamping out privatization of health care services, but disagreed that this was
the primary target of the legislation. Six factors pointed in the other
direction (at pp. 376-77), and they are worth repeating in full:
1. Privatization
of medical services had not been enunciated as a government objective prior to
the introduction of the Medical Services Act. It was not mentioned in
the Throne Speech on February 23, 1989. The Throne Speech did say that a Royal
Commission Report was being awaited. The order-in-council establishing the
Royal Commission made no reference to privatization.
2. The
"March regulations" were obviously aimed at Morgentaler clinics.
Hon. David Nantes, Health Minister, made that clear when he announced them to
the legislature .... The Medical Services Act was presented to the
legislature following a court challenge to the March regulations. It was
introduced on June 6, 1989, and passed, with the appearance of last-minute
haste, the day the House closed on June 15, 1989. The March regulations were
encompassed by the Medical Services Act and its regulation. They were
revoked, no longer necessary, on July 20, 1989, the day the regulation was
passed under the Medical Services Act.
3. In
explaining the desirability of avoiding the pitfalls of privatization, the
Crown relied heavily on economic considerations. The report of the Royal
Commission on Health Costs was being awaited, as the Throne Speech noted. In
passing the Medical Services Act on June 15, 1989, the legislature
elected to do so without the benefit of observations or recommendations by the
Royal Commission....
4. The
Crown's evidence as to the official policy of the government of Nova Scotia on
the privatization issue was given by Mr. Malcom [a senior bureaucrat].... The
Minister of Health or other cabinet Ministers could have given the best
evidence as to the real purpose of the Medical Services Act. While Mr.
Nantes emphasized privatization in moving second reading of the Medical
Services Act, his remarks to the house about the abortion clinics left
little doubt about the government's objectives for the Act.
5. The
Department of Health had been engaged in discussions with the Medical Society
of Nova Scotia to have more health care services delivered outside of
hospitals. The Medical Society was not consulted about the Act prior to
its introduction. The evidence suggests the Act runs counter to the
direction of the talks.
6. Under
s. 35 of the Health Services and Insurance Act the penalty for a
violation of either the Act or regulations made under it is a maximum
fine of $100 for a first offence and $200 for a subsequent offence. Under the Hospitals
Act the maximum fine is $500. The Medical Services Act provides for
a minimum fine of $10,000 and a maximum fine of $50,000. The Crown's
explanation for the substantial penalties under the Medical Services Act
is noteworthy:
"Penalties
are a means of enforcing compliance with provincial laws.... Where a person is
determined to carry on a lucrative business, as is Dr. Morgentaler, who charged
an average of $350 per procedure (Admission of Facts), and who anticipates
being open for business in Halifax two days per week, (Transcript, p. 1165) at
15 procedures per day, or approximately $10,000 for two days work, if the
penalty was not substantial, it would not ensure compliance with the law. In
this case a penalty of $10,000 represents approximately two days work for Dr.
Morgentaler." [Freeman J.A.'s emphasis.]
Freeman
J.A. concluded as follows, at p. 378:
In
summary, there is little in the evidence of the purpose of the Medical
Services Act to suggest that its primary thrust was privatization, and a
great deal that shows it was primarily intended to prohibit Morgentaler
abortion clinics. It will be recalled that the effect was somewhat equivocal:
it impacted upon private abortion clinics in the same manner as s. 251 of the Criminal
Code, but it also had the effect of preventing privatization. When the
purpose and effect of the Act are considered together, against the
background of all the relevant circumstances, the conclusion is inescapable.
The
Medical Services Act is in its pith and substance criminal law, as Judge
Kennedy found it to be. As such, it is beyond the jurisdiction of the
government of Nova Scotia; it must be struck down.
(2) Jones
J.A., dissenting
In Jones J.A.'s view,
the issue was "simply whether the province has the power to regulate how
and where medical services may be performed in the province" (at p. 378).
He referred to the provinces' general jurisdiction over health matters
including the non-criminal aspects of abortion, and after considering the terms
of the Medical Services Act, he concluded, at p. 383:
In
the absence of federal legislation the province has a legitimate interest in
the performance of abortions in doctors' offices where that practice is
objectionable to the public. Obviously that was the view of the Legislature.
In my view the pith and substance of the Act is simply the regulation of
where these medical services can be performed. I see no difference in
principle between such legislation and legislation requiring the treatment of
aids patients or battered children in hospitals. Those are matters within the
power of the provinces to legislate in relation to public health. That being
so it is not open to this Court to review the reasons for the legislation.
He considered the
"colourability" doctrine inapplicable since here the province was
empowered to deal with the subject, and "[l]egislation is not open to
review on the issue of colourability where a legislature is clearly acting
within its powers" (at pp. 384-85). He would have allowed the appeal and
ordered the trial to continue.
Issues
On
February 18, 1992, the Chief Justice stated the following constitutional
questions:
1.Is
the Medical Services Act, R.S.N.S. 1989, c. 281, ultra vires the
Legislature of the Province of Nova Scotia on the ground that the Act is
legislation in relation to criminal law falling within the exclusive
legislative jurisdiction of the Parliament of Canada under s. 91(27) of the Constitution
Act, 1867?
2.Is
the Medical Services Designation Regulation, N.S. Reg. 152/89, made on
the 20th day of July, 1989, pursuant to s. 8 of the Medical Services Act,
R.S.N.S. 1989, c. 281, ultra vires the Lieutenant Governor in Council on
the ground the Regulation was made pursuant to legislation in relation to
criminal law falling within the exclusive legislative jurisdiction of the
Parliament of Canada under s. 91(27) of the Constitution Act, 1867?
It is important to
keep in mind that the question before us is limited to the distribution of
powers. The impact of the Canadian Charter of Rights and Freedoms on
legislation of this kind, while an important subject, is not in issue here. A
holding that this legislation relates to a matter within the legislative
competence of one or the other level of government does not mean that such
legislation would either survive or fail the scrutiny of the Charter.
Moreover, even for
purposes of the distribution of powers the issues are limited in this case:
the criminal law power is the only federal head of power in issue. This is the
basis on which the case has proceeded since the trial, and is reflected in the
terms of the constitutional questions. Although the argument has been made
elsewhere that abortion falls properly under the federal government's residual
power to legislate for peace, order and good government (see, e.g., M.
McConnell and L. Clark, "Abortion Law in Canada: A Matter of National
Concern" (1991), 14 Dalhousie L.J. 81), that argument cannot be
entertained here because of the way in which the issues were framed. Hence the
intervener CARAL was not allowed to present argument on this issue in this
case: R. v. Morgentaler, 1993 CanLII 158 (S.C.C.), [1993] 1 S.C.R. 462 (motion in chambers). The
only issues are whether the legislation is within the competence of the
province under s. 92 of the Constitution Act, 1867, or whether it is in
relation to the criminal law and thus within the exclusive competence of
Parliament under s. 91(27).
Analysis
A. General
The appellant
argued that the Medical Services Act and the regulation are valid
provincial legislation enacted pursuant to the province's legislative authority
over hospitals, health, the medical profession and the practice of medicine.
It relies particularly on heads (7), (13), and (16) of s. 92 of the Constitution
Act, 1867, which give the province exclusive legislative authority over:
92. ...
7.
The Establishment, Maintenance, and Management of Hospitals, Asylums,
Charities, and Eleemosynary Institutions in and for the Province, other than
Marine Hospitals.
...
13.
Property and Civil Rights in the Province.
...
16.
Generally all Matters of a merely local or private Nature in the Province.
The ground on which the legislation is
challenged is head (27) of s. 91, which reserves "The Criminal Law
..." to Parliament. On the basis of the analysis that follows I conclude
that the Medical Services Act and Medical Services Designation
Regulation are criminal law in pith and substance and consequently ultra
vires the province of Nova Scotia. The appeal must therefore be
dismissed.
In my opinion, the
Act and Medical Services Designation Regulation must be considered
together for the purposes of constitutional characterization. The Act is in
general terms, and only by N.S. Reg. 152/89 were its terms given specific
meaning by attachment to particular medical services. The history of the Act,
including its consideration in the House of Assembly and its connection to the
earlier March regulations, shows that it was always considered in light of the
medical services to which it would apply, and it was almost always discussed
with particular reference to one of them, namely abortion. The Act and the
list of services eventually embodied in the regulation were intertwined from
the start.
The situation is
similar to that in Texada Mines Ltd. v. Attorney-General of British Columbia,
[1960] S.C.R. 713, in which British Columbia enacted legislation providing for
a tax to be imposed in respect of a mineral or minerals found in a
"producing area". The rate of tax, the minerals subject to it and
the producing area in which it would apply were all left to be designated.
Regulations were made designating a certain area as a "producing
area", designating iron as the only mineral subject to the tax and setting
the rate of tax. This Court considered the statute together with the
regulations for the purposes of constitutional characterization, and found
(after referring also to related statutes, the legislative history and
background including the province's historical efforts to encourage iron
smelting in the province by means of what were effectively export taxes, the
nature of the iron ore market, and the deterrent effect of the tax) that the
statute was an ultra vires attempt to encourage the establishment of an
iron ore smelter by imposing a prohibitive export tax. The regulations gave
concrete meaning and content to the statute and were indispensable to its
classification for constitutional purposes.
In similar fashion,
the statute and regulation are considered together in the following analysis.
I will refer to them both together as "the legislation". Together,
in my opinion, they constitute an indivisible attempt by the province to legislate
in the area of criminal law.
B. Classification of
Laws
(1) "What's
the `Matter'?"
Classification of a
law for purposes of federalism involves first identifying the
"matter" of the law and then assigning it to one of the "classes
of subjects" in respect to which the federal and provincial governments
have legislative authority under ss. 91 and 92 of the Constitution Act, 1867.
This process of classification is "an interlocking one, in which the
British North America Act and the challenged legislation react on one another
and fix each other's meaning": B. Laskin, "Tests for the Validity of
Legislation: What's the `Matter'?" (1955), 11 U.T.L.J. 114, at p.
127. Courts apply considerations of policy along with legal principle; the
task requires "a nice balance of legal skill, respect for established
rules, and plain common sense. It is not and never can be an exact
science": F. R. Scott, Civil Liberties and Canadian Federalism
(1959), at p. 26.
A law's
"matter" is its leading feature or true character, often described as
its pith and substance: Union Colliery Co. of British Columbia v. Bryden,
[1899] A.C. 580 (P.C.), at p. 587; see also Whitbread v. Walley, 1990 CanLII 33 (S.C.C.), [1990]
3 S.C.R. 1273, at p. 1286. There is no single test for a law's pith and
substance. The approach must be flexible and a technical, formalistic approach
is to be avoided. See Hogg, Constitutional Law of Canada (3rd ed.
1992), vol. 1, at p. 15-13. While both the purpose and effect of the law are
relevant considerations in the process of characterization (see, e.g., Attorney-General
for Alberta v. Attorney-General for Canada, [1939] A.C. 117 (P.C.) (the Alberta
Bank Taxation Reference), at p. 130; Starr v. Houlden, 1990 CanLII 112 (S.C.C.), [1990] 1
S.C.R. 1366, at pp. 1389, 1392), it is often the case that the legislation's
dominant purpose or aim is the key to constitutional validity. Rand J. put it
this way in Switzman v. Elbling, 1957 CanLII 2 (S.C.C.), [1957] S.C.R. 285, at pp. 302-3:
The
detailed distribution made by ss. 91 and 92 places limits to direct and
immediate purposes of provincial action.... The settled principle that calls
for a determination of the "real character", the "pith and
substance", of what purports to be enacted and whether it is
"colourable" or is intended to effect its ostensible object, means
that the true nature of the legislative act, its substance in purpose, must lie
within s. 92 or some other endowment of provincial
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