The double-aspect doctrine

Federalism is a broad sub­cat­e­go­ry with­in Canadian con­sti­tu­tion­al law. In this con­text, fed­er­al­ism refers to the di­vi­sion of law-mak­ing pow­er be­tween our provin­cial leg­is­la­tures and fed­er­al Parliament.

In a fed­er­al sys­tem of gov­ern­ment such as ours, po­lit­i­cal pow­er is shared by two or­ders of gov­ern­ment: the fed­er­al gov­ern­ment on the one hand, and the provinces on the oth­er. Each is as­signed re­spec­tive spheres of ju­ris­dic­tion by the Constitution Act, 1867. The fed­er­al struc­ture of our coun­try also fa­cil­i­tates de­mo­c­ra­t­ic par­tic­i­pa­tion by dis­trib­ut­ing pow­er to the gov­ern­ment thought to be most suit­ed to achiev­ing the par­tic­u­lar so­ci­etal ob­jec­tive hav­ing re­gard to this di­ver­si­ty.Reference re Secession of Quebec, [1998] 2 SCR 217 at paras 55–60.

But, this di­vi­sion of pow­er is not wa­ter­tight. “The his­to­ry of Canadian con­sti­tu­tion­al law has been to al­low for a fair amount of in­ter­play and in­deed over­lap be­tween fed­er­al and provin­cial pow­ers.”Ontario (Attorney General) v OPSEU, [1987] 2 SCR 2 at para 27. One way that this over­lap plays out is through the dou­ble-as­pect doc­trine.

Multiple Access Ltd v McCutcheon,Multiple Access Ltd v McCutcheon, [1982] 2 SCR 161. the case gen­er­al­ly used to in­tro­duce the dou­ble-as­pect doc­trine, conflates two kinds of dou­ble­ness and this can lead to an over­ly nar­row con­cep­tion of the doc­trine. This ar­ti­cle presents how I’ve come to think of the dou­ble-as­pect doc­trine and one way of teas­ing apart the ways in which the doc­trine is used.

Multiple Access con­cerned leg­is­la­tion en­act­ed by the fed­er­al and Ontario leg­is­la­tures with pro­vi­sions that over­lapped significantly both in their ex­pres­sion and in the peo­ple and con­duct cov­ered. Look at sec­tion 100.4 of the Canada Corporations ActCanada Corporations Act, RSC 1970, c C-32, s 100.4(1) (“Every in­sid­er of a com­pa­ny, every per­son em­ployed or re­tained by the com­pa­ny, the au­di­tor of the com­pa­ny and every as­so­ciate of the in­sid­er and affiliate of the in­sid­er with­in the mean­ing of sub­sec­tion 125(3) who, in con­nec­tion with a trans­ac­tion re­lat­ing to the se­cu­ri­ties of the com­pa­ny, makes use of any specific confidential in­for­ma­tion for his own benefit or ad­van­tage that, if gen­er­al­ly known, might rea­son­ably be ex­pect­ed to affect ma­te­ri­al­ly the val­ue of the se­cu­ri­ties of the com­pa­ny, is li­able to com­pen­sate any per­son for any di­rect loss suffered by that per­son as a re­sult of the trans­ac­tion, un­less the in­for­ma­tion was known or ought rea­son­ably to have been known to that per­son at the time of such trans­ac­tion, and is also ac­count­able to the com­pa­ny for any di­rect benefit or ad­van­tage re­ceived or re­ceiv­able by such in­sid­er, em­ployed or re­tained per­son, au­di­tor, as­so­ciate or affiliate, as the case may be, as a re­sult of the trans­ac­tion”). and sec­tion 113 of Ontario’s Securities ActThe Securities Act, RSO 1970, c 426, s 113(1) (“Every in­sid­er of a cor­po­ra­tion or as­so­ciate or affiliate of such in­sid­er, who, in con­nec­tion with a trans­ac­tion re­lat­ing to the cap­i­tal se­cu­ri­ties of the cor­po­ra­tion, makes use of any specific confidential in­for­ma­tion for his own benefit or ad­van­tage that, if gen­er­al­ly known, might rea­son­ably be ex­pect­ed to affect ma­te­ri­al­ly the val­ue of such se­cu­ri­ties, is li­able to com­pen­sate any per­son or com­pa­ny for any di­rect loss suffered by such per­son or com­pa­ny as a re­sult of such trans­ac­tion, un­less such in­for­ma­tion was known or ought rea­son­ably to have been known to such per­son or com­pa­ny at the time of such trans­ac­tion, and is also ac­count­able to the cor­po­ra­tion for any di­rect benefit or ad­van­tage re­ceived or re­ceiv­able by such in­sid­er, as­so­ciate or affiliate, as the case may be, as a re­sult of such trans­ac­tion”). to see how sim­i­lar the pro­vi­sions were: they pro­hib­it­ed the ex­act same ac­tiv­i­ties.

Multiple Access Ltd was a fed­er­al­ly in­cor­po­rat­ed com­pa­ny, so was with­in scope of the Canada Corporations Act. It also had its pub­lic stock list­ed for trad­ing on the Toronto Stock Exchange, bring­ing it with­in the scope of Ontario’s Securities Act.

Multiple Access’s share­hold­ers got Ontario’s Securities Commission to com­mence in­sid­er-trad­ing en­force­ment against the com­pa­ny un­der the Ontario act. Those share­hold­ers could have equal­ly sought en­force­ment un­der the fed­er­al act, but the lim­i­ta­tions pe­ri­od un­der the fed­er­al act had ex­pired. This was the only ma­te­r­i­al difference be­tween the two acts as they ap­plied to this com­pa­ny.

Multiple Access asked the court to de­clare that the fed­er­al act (with the al­ready-ex­pired lim­i­ta­tions pe­ri­od) was valid and thus ren­der the provin­cial law in­valid. That sec­ond step (ren­der­ing the provin­cial law in­valid) would only fol­low if the va­lid­i­ty of a fed­er­al pro­vi­sion pre­cludes the va­lid­i­ty of a near­ly-iden­ti­cal provin­cial law giv­en the di­vi­sion of pow­ers set out in sec­tions 91 and 92 of the Constitution Act, 1867. Multiple Access ar­gued that a par­tic­u­lar pro­vi­sion could only be valid as ei­ther fed­er­al or provin­cial leg­is­la­tion and that the court had to choose.

The court used the dou­ble-as­pect doc­trine to avoid this choice. It ex­plained the doc­trine us­ing ma­te­r­i­al from an ar­ti­cle by William Lederman, “Classification of Laws and the British North America Act.” Lederman’s ar­ti­cle and Multiple Access con­tem­plate one kind of sce­nario in which the dou­ble-as­pect doc­trine can arise (when the court is asked to choose which of the fed­er­al or provin­cial leg­is­la­tures gets to pass a par­tic­u­lar law), but in this sce­nario, two kinds of dou­ble­ness are conflated.

Multiple Access and Lederman’s ar­ti­cle talk about the dou­ble-as­pect doc­trine as if the fed­er­al and provin­cial leg­is­la­tures are play­ing tug-of-war over one par­tic­u­lar law, ask­ing, “who gets to en­act it?” Double-as­pect en­ters when the an­swer is, “both of you.” This is the set­ting where we look for a 50/50 split be­tween the provin­cial and fed­er­al fea­tures of a law. If a law has a rough­ly 50/50 split be­tween its provin­cial and fed­er­al fea­tures, then the court will find both the provin­cial and fed­er­al pro­vi­sions valid. This is what hap­pened in Multiple Access.

[…] some over­lap­ping in­evitably re­mains. Where this oc­curs, ei­ther one of two things has then been done. First, the na­ture of the chal­lenged law rel­e­vant to a provin­cial class of pow­ers has been com­plete­ly ig­nored as only an “in­ci­den­tal affectation” of the provin­cial sphere, and the law con­cerned has been classed only by that fea­ture of it rel­e­vant to a fed­er­al class of laws. Thus, in spite of the log­i­cal over­lap the de­ci­sion is made that only the fed­er­al Parliament has pow­er to en­act the chal­lenged law. Obviously this de­ci­sion in­volves a judge­ment that the provin­cial fea­ture of the law is quite unim­por­tant rel­a­tive to its fed­er­al fea­ture. On the oth­er hand if the fed­er­al fea­ture be deemed quite unim­por­tant rel­a­tive to the provin­cial fea­ture, then the con­verse de­ci­sion would be made. […]

But, if the con­trast be­tween the rel­a­tive im­por­tance of the two fea­tures is not so sharp […] the de­ci­sion is made that the chal­lenged rule could be en­act­ed by ei­ther the fed­er­al Parliament or a provin­cial leg­is­la­ture. [em­pha­sis added]

However, the dou­ble-as­pect doc­trine is not so nar­row: it is used even when du­pli­ca­tion is not an is­sue. In 1883, the Privy Council char­ac­ter­ized it broad­ly: “sub­jects which in one as­pect and for one pur­pose fall with­in sec­tion 92, may in an­oth­er as­pect and for an­oth­er pur­pose fall with­in sec­tion 91.”Hodge v The Queen, [1883] UKPC 59. Some notes in Canadian Constitutional Law try to ex­plain this, but it’s easy to miss.Patrick Macklem et al, Canadian Constitutional Law (Toronto: Emond, 2016) at 233. In its broad­est con­cep­tion, the dou­ble-as­pect doc­trine ex­plains any sce­nario where the courts al­low leg­is­la­tion from our two lev­els of gov­ern­ment to touch a par­tic­u­lar field. The dou­ble-as­pect doc­trine is not re­served for cas­es where the two lev­els of gov­ern­ment play tug-of-war over a pro­vi­sion; it is also at play when they play tug-of-war over a field (or, as de­vel­oped more re­cent­ly, over a fact sit­u­a­tion), through different pro­vi­sions, through different law.

“In most cas­es, ap­pli­ca­tion of the doc­trine sim­ply en­tails the court ev­i­denc­ing a will­ing­ness to ap­ply the pith and sub­stance doc­trine flexibly, and to char­ac­ter­ize sim­i­lar fed­er­al and provin­cial en­act­ments in such a man­ner as to per­mit the court to up­hold both en­act­ments as valid.”Ibid at 233.

Here are some more re­cent state­ments that demon­strate the breadth of the doc­trine:

Activities, acts or con­duct can some­times be viewed from different nor­ma­tive per­spec­tives, one re­lat­ing to a fed­er­al pow­er and the oth­er to a provin­cial pow­er. Where this is the case, the dou­ble as­pect doc­trine is en­gaged.Reference re Assisted Human Reproduction Act, 2010 SCC 61 at para 185.

“Double oc­cu­pan­cy” of a field of en­deav­our, such as health, is a per­ma­nent fea­ture of the Canadian con­sti­tu­tion­al or­der. It leads to a stan­dard “dou­ble as­pect” analy­sis un­der which both as­pects sub­sist side by side.Ibid at para 67.

[G]am­ing is a mat­ter that falls with­in the “dou­ble as­pect” doc­trine. Accordingly, gam­ing can be sub­ject to leg­is­la­tion by both the fed­er­al and provin­cial gov­ern­ments.Siemens v Manitoba (Attorney General), 2003 SCC 3 at para 22.

Most re­cent­ly, in the Greenhouse Gas Pollution Pricing Act ref­er­ence,References re Greenhouse Gas Pollution Pricing Act, 2021 SCC 11. the court clarified that it prefers the first of those three fram­ings: “that the dou­ble as­pect doc­trine con­cerns fact sit­u­a­tions.”Ibid at para 130. “The same fact sit­u­a­tions can be reg­u­lat­ed from different per­spec­tives, one of which may re­late to a provin­cial pow­er and the oth­er to a fed­er­al pow­er.”Ibid at para 125, cit­ing Desgagnés Transport Inc v Wärtsilä Canada Inc, 2019 SCC 58 at para 84.

Paragraph 130 of the GGPPA ref­er­ence confirms the pre­sen­ta­tion above (re­plac­ing “field” with “fact sit­u­a­tion”). I’ll re­pro­duce it next, along with my own added notes to ex­plain how I un­der­stand it.

I rec­og­nize that it might be ar­gued that Canada and the provinces are ex­er­cis­ing their ju­ris­dic­tion in re­la­tion to different mat­tersAnd therefore (the argument goes) the double-aspect doctrine does not apply. rather than to different as­pects of the same mat­ter, that is, that Canada’s au­thor­i­ty is lim­it­ed to min­i­mum na­tion­al stan­dards of GHG pric­ing strin­gency and that this is ob­vi­ous­ly different than the mat­ters in re­la­tion to which provinces might ex­er­cise ju­ris­dic­tion over GHG pric­ing. This view“This view” being the narrow view that for the double-aspect doctrine to apply, we must find that the federal and provincial governments are trying to legislate the very same mat­ter, albeit via different aspects. finds sup­port in some of the lan­guage used by this Court, such as the com­ment in Canadian Western Bank that the dou­ble as­pect doc­trine con­cerns “the var­i­ous ‘as­pects’ of the ‘mat­ter’”: para. 30. However, I do not read Canadian Western Bank that nar­row­ly, giv­en this Court’s re­cent guid­ance in Desgagnés Transport, in which it stat­ed that the dou­ble as­pect doc­trine con­cerns “fact sit­u­a­tions”. Moreover, the fact that Canada can be un­der­stood to be em­pow­ered to deal only with a different mat­ter than the provinces does not change the re­sult­ing ju­ris­dic­tion­al re­al­i­ty that where Canada is em­pow­ered to im­pose a min­i­mum na­tion­al stan­dard, a dou­ble as­pect sit­u­a­tion aris­es: fed­er­al and provin­cial laws ap­ply con­cur­rent­ly, but the fed­er­al law is para­mount.Even if we were to deny that the double-aspect doctrine would apply in the case where Canada and the provinces are exercising their jurisdiction in relation to different matters, the legal situation will be the same and federal paramountcy will apply in the case of conflict. From the per­spec­tive of provin­cial au­ton­o­my, the cor­ro­sive effect is the same. Therefore, courts must rec­og­nize that this amounts to an in­vi­ta­tion to iden­ti­fy a pre­vi­ous­ly unidentified dou­ble as­pect, with clear con­se­quences for provin­cial au­ton­o­my.