Hamilton City's Attempt to Stamp Out Community Mail Delivery Ruled Unconstitutional (Sort Of)

In response to Canada Post's announcement that it was restructuring its mail delivery and doing away with home delivery services, the City of Hamilton passed a by-law giving the City control over the installation of equipment on municipal roads, including Canada Post's community mailbox ("CMB") delivery systems. Last week, the Ontario Court of Appeal held1 that the by-law was constitutionally inoperative to Canada Post since it conflicted with the federal Canada Post Corporation Act2 and the Mail Receptacles Regulations.3 The Court of Appeal's decision highlights a tension in the pith and substance jurisprudence between the principle of colourability on the one hand and the motive and purpose of the enacting body on the other. Furthermore, the decision reveals a preference for resolving division of powers disputes through the paramountcy doctrine, which gives rise to a narrower constitutional remedy.

The Vires Analysis

A law is said to be "colourable" where it is enacted under the guise of a head of power within the enacting body's competence but is, in reality, in relation to a matter within the exclusive jurisdiction of another level of government. The classic example is R. v. Morgentaler.4 In Morgentaler, the Supreme Court held that provincial legislation prohibiting certain surgical procedures were in reality an attempt to ban abortions through use of the criminal law power reserved exclusively to Parliament.

However, in Gun Registry II,5 the Supreme Court distinguished between the purpose of an enactment and the motives of the enacting body. The Court held that the motives of government must be distinguished from the law's purpose: "[a]n intention on the part of one level of government to prevent another from realizing a policy objective it disagrees with does not, on its own, lead to the conclusion that there is an encroachment on the other level of government's sphere of exclusive jurisdiction."6

The distinction between motive and purpose is a fine one. As the Canada Post Court held, the pith and substance analysis requires examination of both the purpose and effect of the impugned law. The effect of the law includes both its legal effect and the practical consequences that result from the legislation. A law's purpose may be discerned from both intrinsic evidence as well as extrinsic evidence, such as minutes of Parliamentary debates.7

There was considerable evidence before the Court demonstrating that the Hamilton City by-law was...