Double aspect
Encyclopedia
Double aspect is a legal doctrine in Canadian constitutional law that allows for laws to be created by both provincial and federal governments in relation to the same subject matter. Typically, the federalist
system assigns subject matters of legislation to a single head of power. However, certain matters have several dimensions to them such that for one purpose the matter will fall to one head of power, while for another purpose it will fall to the other. For example, highway traffic laws fall into the property and civil rights
power of the province but equally can be a criminal offence which is in the criminal law power of the federal government.
The origin of the doctrine comes from the Privy Council
decision of Hodge v. The Queen
(1883), where it was stated that "subjects which in one aspect and for one purpose fall within s. 92, may in another aspect and for another purpose fall within s. 91".
Canadian federalism
Canada is a federation with two distinct jurisdictions of political authority: the country-wide federal government and the ten regionally-based provincial governments. It also has three territorial governments in the far north, though these are subject to the federal government...
system assigns subject matters of legislation to a single head of power. However, certain matters have several dimensions to them such that for one purpose the matter will fall to one head of power, while for another purpose it will fall to the other. For example, highway traffic laws fall into the property and civil rights
Property and civil rights
In Canadian constitutional law, section 92 of the Constitution Act, 1867 provides the provincial government with the exclusive authority to legislate on matters related to property and civil rights in the Province. Note that civil rights in this context is different from what is understood as civil...
power of the province but equally can be a criminal offence which is in the criminal law power of the federal government.
The origin of the doctrine comes from the Privy Council
Judicial Committee of the Privy Council
The Judicial Committee of the Privy Council is one of the highest courts in the United Kingdom. Established by the Judicial Committee Act 1833 to hear appeals formerly heard by the King in Council The Judicial Committee of the Privy Council (JCPC) is one of the highest courts in the United...
decision of Hodge v. The Queen
Hodge v. The Queen
Hodge v. The Queen 9 App Cas 117 is a famous Privy Council decision on interpreting the Constitution of Canada. This was the first time the doctrine of double aspect was applied to division of powers analysis....
(1883), where it was stated that "subjects which in one aspect and for one purpose fall within s. 92, may in another aspect and for another purpose fall within s. 91".
Matters of double aspect
The Courts have established several matters that are considered "double aspect" and can be legislated by either provincial or federal government. Those matters include:- Entertainment in Taverns (Taverns Rio Hotel v. New Brunswick [1987])
- Gaming (R. v. Furtney [1991] 3 S.C.R. 89 and Siemens v. Manitoba)
- Interest rates (Ontario v. Barfried Enterprises [1963])
- Insolvency (Robinson v. Countrywide Factors [1978])
- Maintenance of spouses and child custody (Papp v. Papp (1970))
- Security regulations (Multiple Access v. McCutcheon [1982])
- Temperance (Attorney-General for Ontario v. Attorney-General for the DominionAttorney-General for Ontario v. Attorney-General for the DominionAttorney General for Ontario v. Attorney General for the Dominion, and the Distillers and Brewers’ Association of Ontario , [1896] A.C...
[1896])