PPAS 3135 Chapter Notes - Chapter 1: Rothmans, Benson & Hedges, Judicial Restraint, Pith
25 Jun 2018
School
Department
Course
Professor
The Paramountcy Doctrine and Rothmans, Benson & Hedges v. Saskatchewan
Sukhpreet Singh
214 346 322
Sirvan Karimi
Nov. 30th 2017
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The following paper will focus on the legal doctrine of legislative paramouncty, in regards
to its application in the case; Rothmans, Benson, and Hedges v. Saskatchewan, 2005. (CanLII,
2005). This paper will aim to define the rationale behind this doctrine as well as explain the
timeline in which this case developed. The purpose for which it was used in the following case to
declare a decision and an analysis of such will determine the numerous implications the judgement
had on Canada.
The Doctrine of Federal Paramountcy
The concept behind paramountcy is another legal doctrine that is rooted in the longstanding
struggle for jurisdictional control over legislation. This conflict arises from the Canadian system of
government, which is federalism in which there are two equal bodies of government, within their
own right. Due to this, laws that are passed by one level of government can be in conflict with or
impede on the jurisdiction of the other body. The provincial and federal legislative bodies will both
have interests in issue that reflect the dimensions of both levels of government, requiring each to
provide a remedy. One of the reconciliations to these conflicts is the doctrine in question; which
would deem a provincial law inoperable if there is a conflict between the two jurisdictions law that
creates inconsistency.
This doctrine establishes that federal law takes primary authority over any valid provincial
law, when tested by the courts for inconsistency. The test for inconsistency has seen gradual
development over time as it has been applied by the Supreme Court of Canada (SCC).
Inconsistency is defined by two principles to test the properties of the jurisdictional dispute, firstly;
is there an operational conflict between the two levels of government in regarding their respective
law, from which it is impossible to comply with both? Secondly; does the provincial law cause a
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frustration in the application and purpose of the federal law? If both of these questions are
sufficiently answered, in which it is clear that dual compliance is impossible and that provincial law
is incompatible with purpose of the federal law, the jurisdictional overlap is remedied by ruling the
provincial law as inoperative. (Rosiers, 2017)
Analysis of Rothmans, Benson, and Hedges v. Saskatchewan
A clear definition of the doctrine has been established, one which will explain the reasoning
for why it was used in the highlighted case. The Rothmans, Benson, and Hedges v. Saskatchewan
case is a clear example of the purpose of this doctrine. The controversy arose between the
Saskatchewan legislation Tobacco Control Act and the federal Tobacco Act. The conflict was
specifically regarding section 6 of Tobacco Control Act and section 30 of the Tobacco Act, both of
which prohibited the advertising or displaying of tobacco products. Furthermore the provincial act
made it a focus to ensure that such advertisement of any tobacco products could not be made within
premises of minors. This specific requirement was one of the key elements that was brought into
question during the case.
The company Rothmans, Benson, and Hedges argued that the provincial law should be
inoperative in light of the doctrine of federal legislative paramountcy. They attempted to sue within
the Saskatchewan Court of Queen’s Bench, seeking two forms of relief in regards to the provincial
law; “a declaration that s. 6 of The Tobacco Control Act is inoperative in light of s. 30 of
the Tobacco Act , and a declaration that ss. 6 and 7 of The Tobacco Control Act are of no force and
effect in light of s. 2 (b) of the Canadian Charter of Rights and Freedoms .” (CanLII, 2005)
The courts of the Queen’s Bench held that there was no conflict between two sections of
each respective law. This ruling is quite justified as a close examination of the sections reveals that
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