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Sources/Nature of the Constitution
CONSTITUTION ACT 1867
o The BNA Act established the rules of federalism, that is, the rules that allocate governmental power between the central institutions (federal Parliament) and the provincial institutions (provincial Legislatures). But the BNA Act did not mark any break with the colonial past. Independence from the UK was not desired or even contemplated for the future. The British North Americans wanted the old rules to continue in both form and substance exactly as before.
o The best-known example of the colonists’ reliance on the old regime is the absence of any general amending clause in the BNA Act. ... The conclusion is inescapable that the Canadian framers of the BNA Act were content for the imperial Parliament to play a part in the process of amending the new Constitution.
o Another gap in the BNA Act concerns the office of Governor General. The Act, by s.9, vests general executive authority for Canada in “the Queen”, and confers several specific powers on a “Governor General”.
o The office of the GG has never been formalized in an amendment to the BNA Act. The office is still constituted by the royal prerogative (Letters patent), and appointments are still made by the Queen, although she now acts on the advice of her Canadian ministers.
o The Supreme Court of Canada was established in 1875 by an ordinary federal statute and the right of the Privy Council was retained; the abolition of PC appeals did not occur until 1949. It is still the case that the existence, composition and jurisdiction of the SCC depended upon an ordinary federal statute.
o 1960 Bill of Rights was enacted as a federal statute, not as an amendment to the BNA Act, and it was made applicable only to federal laws.
CONSTITUTION ACT 1982
o Domestic amending formula was adopted;
o The authority over Canada of the UK (imperial) Parliament was terminated;
o The Charter of Rights was adopted
o The Constitution Act, 1982 for the first time provided a definition of the phrase “Constitution of Canada” – s.52(2) “The Constitution of Canada includes ...”
CONSTIUTION OF CANADA
o The word “includes” indicates that the definition is not exhaustive. The word “means” is customary for an exhaustive definition.
New Brunswick Broadcasting Co. v Nova Scotia (1993) – the definition in s.52(2) is not exhaustive. The court held that the unwritten doctrine of parliamentary privilege should be included in the definition. The inclusion of parliamentary privilege was said to be implied by reference in the preamble of the Constitution Act, 1867 to “a constitution similar in principle to that of the UK”. Thus, the court added an unwritten doctrine of parliamentary privilege which is surprising since s.52(2) is expressed solely in terms of written instruments.
Hogg: it seems best to confine the court’s ruling to unwritten doctrine, and to treat the scheduled list of instruments as exhaustive.
o s.52(1) – Supremacy Clause
o s.52(3) – entrenches the ‘Constitution of Canada’
PARLIAMENTARY PRIVILEGE
New Brunswick Broadcasting Co. v Nova Scotia (1993)
o SCC Held: the Nova Scotia legislative assembly could ban the televising of it proceedings, because the power to exclude “strangers” from the legislative chamber was part of the assembly’s parliamentary privilege. Parliamentary privilege also includes freedom of speech in debate, including immunity from legal proceedings for things said in debate.
o Parliamentary privilege is part of the ‘Constitution of Canada’.
o It is unclear whether this has deprived the provincial Legislatures of the power to amend the powers and privileges of their legislative assemblies since an amendment would be required.
o The powers authorized by parliamentary privilege are not subject to the Charter of Rights.
o Thus, the court did not need to consider whether the assembly’s denial of access to the television media was a breach of the freedom of the press guaranteed by s.2(b).
Canada v Vaid (2005)
o PRINCIPLE: dismissal/firing is not subject to Parliamentary privilege since it is not necessary to the functioning of the House.
o Facts: Chauffeur of Speaker of the House alleged he had been dismissed on grounds that were forbidden by the Canadian Human Rights Act. House of Commons and the Speaker that the hiring and firing of all House employees were “internal affairs” that were not subject to review.
o SCC Held: his dismissal was not an unreviewable matter of parliamentary privilege. Such a sweeping claim of parliamentary privilege failed the test of necessity. Exclusive and unreviewable jurisdiction over all House employees was not necessary for the functioning of the House.
CASE LAW (Judicial activism)
o Following cases illustrate the active and creative role that the SCC has carved out for itself:
Re Remuneration of Judges (1997) – court asserted that there was an unwritten principle of judicial independence in the Constitution that could have the effect of invalidating statutes that reduced judicial salaries.
Reference re Secession of Quebec (1998) – SCC invoked unwritten principles of:
(1) democracy,
(2) federalism,
(3) constitutionalism and
(4) the protection of minorities to hold that, if a province were to decide in a referendum that it wanted to secede from Canada, the federal government and the other provinces would come under a legal duty to enter into negotiations to accomplish session.
PREROGATIVE
o The royal prerogative consists of the powers and privileges accorded by the common law to the Crown. The prerogative could be abolished or limited by statute.
o Examples of the royal prerogative:
· The office of the GG still depends upon a prerogative instrument;
· The conduct of foreign affairs, including the making of treaties and the declaring of war;
· The appointment of the Prime Minister and other Ministers;
· The issue of passports;
· The creation of Indian reserves;
· The conferring of honours such as Queen’s Counsel.
CONVENTIONS
(a) Definition of Conventions
o Conventions are rules of the constitution that are not enforced by the law courts.
o If a court did enforce a convention (no court has ever done so), the convention would be transformed into a legal rule. Conventions allow the law to adapt to changing political realities without the necessary formal amendment.
o Examples of conventions:
o The GG will exercise his/her powers only in accordance with the advice of the cabinet or the PM.
o If the GG exercised one of his powers without (or in violation of) ministerial advice, the courts would not deny validity to his act.
o Royal assent to a bill shall never be withheld.
o If the GG withheld his assent to a bill enacted by both Houses of Parliament, the courts would deny the force of law to the bill, and would not force the GG to give his assent.
(b) Conventions in the courts
Patriation Reference (1981)
o PRINCIPLE: No legal requirement of provincial consent to amend the Constitution, but a “substantial degree” of provincial consent was required as a matter of convention.
o Facts: SCC was asked on a reference whether there was a convention requiring that the consent of the provinces be obtained before the federal government requested the UK Parliament to enact an amendment to the Constitution of Canada that would affect the powers of the provinces. The court was also asked whether there was a legal requirement of provincial consent. The questions were referred by three of the eight provinces opposed to the PM’s proposals to patriate the constitution and obtain an amending procedure and charter of rights.
o SCC Held: there was no legal requirement of provincial consent to the constitutional proposals “as a matter of law”. BUT, that a “substantial degree” of provincial consent was required “as a matter of convention” before requesting the requisite legislation from the UK.
o Although there was no legal obligation upon the federal government to obtain consent of the provinces, as a matter of politics, the decision made it impossible to proceed without a “substantial degree” or provincial consent.
o Nine of the ten provinces agreed, but not Quebec. Was the consent of Quebec necessary as part of a “substantial degree” of provincial consent?
o Quebec referred this question to its CA. By the time the question reached the SCC, the Canada Act 1982 had actually been enacted by the UK Parliament.
Quebec Veto Reference (1982)
o Question: did the convention of a “substantial degree” of provincial consent require Quebec?
o SCC Held: Quebec’s consent was not necessary to make up the requisite “substantial degree” of provincial consent. By this decision the court destroyed the spectre of an “unconstitutional constitution”.
o The nine predominantly English-speaking provinces comprised a “substantial degree” of provincial consent, which satisfied the convention.
o NOTE:
(c) Convention and Usage
o A convention = a rule which is regarded as obligatory by the officials to whom it applies
o A usage = is not a rule, but merely a governmental practice which is ordinarily followed, although it is not regarded as obligatory
o A usage may develop into a convention if a practice is invariably followed over a long period of time
o There is a much stronger moral obligation to follow a convention than a usage
(d) Convention and Agreement
o If all the relevant officials agree to adopt a certain rule of constitutional conduct, then that rule may immediately come to be regarded as obligatory. The resulting convention could hardly at the beginning, be described as a custom
o Conventions established by agreement will normally be written down by the officials concerned in precise and authoritative terms
(e) Convention and Law
o A convention can be transformed into law by being enacted as a statute.
o A convention would also be transformed into law if it were enforced by the courts
o Laws and conventions are “closely interlocked”
o The conventions “do not exist in a legal vacuum”
o They regulate in the way in which legal powers shall be exercised, and they therefore presuppose the existence of the legal powers
o Thus, the conventions allow the law to adapt to changing political realities without necessity for formal amendment
(f) Convention and Policy
o In both Alta [2000] and Catholic School Teachers’ Ass. [2001], the court held that no convention restricted the policy or substance of what could be enacted by the provincial Legislatures in exercise of its power to make laws in relation to education (this is the power of s.93).
Procedures for Amending the Constitution ss. 38 to 45
HISTORY OF AMENDMENT
o Until 1982, amendments to the BNA Act had to be enacted by the UK (imperial) Parliament.
o The idea was, and still is, that a constitution should be more difficult to amend than an Income Tax Act.
o At the imperial conference of 1930 it was agreed by the PM of the UK and all the dominions that the UK Parliament would not enact any statute applying to a dominion except at the request and with the consent of that dominion.
o The convention meant that the UK would not enact an amendment to the BNA Act (or any other law applying to Canada) except at the request and with the consent of Canada.
PART V OF THE CONSTITUTION ACT, 1982
(a) Summary of Part V
o Part V entitled “Procedure for Amending Constitution of Canada”:
(1) s.38 – General amending procedure (applies when none of the other grounds apply).
(2) s.41 – unanimity procedures.
(3) s.43 – some-but-not-all-provinces (requiring the assents of the federal Parliament and only those provinces affected.
(4) s.44 – federal Parliament alone (provisions relating to the federal executive and Houses of Parliament).
(5) s.45 – each provincial Legislature (power to amend “the constitution of the province”.
(b) Comparison with Australia and U.S.A
(c) Constitution of Canada
o s.52(1) – the “Constitution of Canada” is “the supreme law of Canada”, and that “any law that is inconsistent with the provisions of the Constitution is, to the extent of inconsistency, of no force or effect”.
o s.52(1) is the current basis of judicial review.
o The “Constitution of Canada” is defined in s.52(2) of the Constitution Act, 1982.
o The amending procedures are not required for the amendment of statutes or instruments that are not part of the Constitution of Canada.
o The Official Languages Act and the Supreme Court of Canada Act are not part of the Constitution and, thus, are open to amendment by the ordinary legislative process.
(d) Charter of Rights
GENERAL AMENDING PROCEDURE (s.38)
(a) Section 38(1)
o Applies when none of the four more specific procedures is applicable.
o Section 38(1) requires that an amendment to the “Constitution of Canada” be authorized by:
(a) resolutions of both Houses of the federal Parliament, and
(b) resolutions of the legislative assemblies of at least two-thirds of the provinces, provided that they represent at least 50 per cent of the population of all the provinces.
o The two-thirds requirement means that at least seven of the ten provinces must agree to an amendment. Seven provinces would inevitably include at least one of the four western provinces and at least one of the four Atlantic provinces. The 50 per cent population requirement means that the agreeing provinces must include at least one of Ontario or Quebec.
o Often called the seven-fifty formula, because of its requirements of seven provinces and 50 per cent of the population.
o The seven-fifty formula rejects the idea of regions in favour of the equality of the provinces. However, the “regional veto statute” has the indirect effect of incorporating regions into the seven-fifty formula.
(b) Proclamation
o Once the authority for an amendment has been provided by the requisite number of resolutions of assets, s.38(1) provides that the formal act of amendment is accomplished by a “proclamation..” (s.39(1))
(c) Initiation
(d) Opting Out
o This is permitted by s.38(3)
o It permits the legislative assembly of a province to pass a resolution of dissent to an amendments
o It is not unanimity required or a veto
o A maximum of 3 provinces could opt out
o It enables any province to opt out of an amendment that derogates from that province’s powers, rights or privileges, and that is unacceptable to it.
(e) Compensation for opting out (s.40)
o s.40 imposes upon the federal government the obligation to provide “reasonable compensation” to any province that has opted out of an amendment that transfers “provincial legislative powers relating to education or other cultural matters” from the provincial Legislatures to the federal Parliament.
o The purpose of this obligation is to ensure that a province is not pressured by financial considerations into abandoning jurisdiction over educational or cultural matters.
o It singles out education and culture because of their special significance to Quebec.
(f) Revocation of Assent or Dissent
o A resolution of assent may be revoked only before the issue of the proclamation authorized by the resolution (s.46(2))
o A resolution of dissent (opting out resolution) may be revoked at any time, before or after the issue of proclamation (s.38(4))
(g) Section 42
o s.42 requires that the general amending procedure be used for six defined classes of amendment to the Constitution of Canada. s.42(1)(a)-(f)
o BUT, the SCC is nowhere provided for in the Constitution of Canada.
o The court is constituted by the Supreme Court Act, a federal statute that is not one of the instruments forming part of the Constitution.
o Since s.42 applies only to amendment to the “Constitution of Canada”, it follows that the federal Parliament, acting under s.101 of the Constitution Act, 1867, still has the power to amend the Supreme Court Act.
(h) “Regional veto” statute
o The purpose of the statute is to import new conditions into the general (seven-fifty) formula for amending the Constitution. On top of the constitutional requirement of support by seven provinces representing 50 per cent of the population, the statute imposes the new statutory requirement that the seven agreeing provinces must include five “regions” stipulated in the Act, namely, Ontario, Quebec, British Columbia, two Atlantic provinces and two Prairie provinces.
o ONLY applies to amendment that are to follow the general (seven-fifty) amending procedure of s.38.
o The regional veto statute was hastily conceived and implemented after the Quebec sovereignty referendum of 1995. It was designed to achieve through federal legislation what the failed Meech and Charlottetown Accords had been unable to achieve through constitutional amendment, namely, a greater role for Quebec over future amendments of the Constitution.
Criticism of amending procedures
o It will be difficult to secure any amendment to the Constitution, because of the high level of agreement required by the general amending procedure (and the regional veto act).
UNANIMITY PROCEDURE (s.41)
o Section 41 lists five matters in respect of which an amendment to the Constitution of Canada requires the unanimous support of the provinces. In respect of the matters listed in the s.41, each province has a veto over amendments.
SOME-BUT-NOT-ALL-PROVINCES PROCEDURE (s.43)
o One way of reconciling s.43 with s.45 would be to read s.43 as applying to an amendment of a provision applying to a single province when that provision is contained in one of the instruments which compromise the Constitution of Canada, and to read s.45 as applying to an amendment of the “constitution of the province” only when the provision to be amended is not to be found in any of the instruments comprising the Constitution of Canada
FEDERAL PARLIAMENT ALONE (s.44)
o Section 44 authorizes the federal Parliament, by ordinary legislation, to amend those parts of the Constitution of Canada which relate to “the executive government of Canada or the Senate and House of Commons”
PROVINCIAL LEGISLATURE ALONE (s.45)
o Section 45 authorizes each provincial Legislature, by ordinary legislation, to amend the “constitution of the province”.
o s.45 refers to the “constitution of the province”, which is not defined anywhere in the Constitution Act, 1982.
FUTURE AMENDMENTS
(a) Forces of Change
(b) Division of Powers
o The 1982 amendments made only one change in the division of powers between the two levels of government, and that was an increase in the provincial power over natural resources.
(c) Central Institutions
(d) Criticism of Amending Procedures
Federalism/Judicial Review
DISTRIBUTION OF GOVERNMENTAL POWER
(a) Federalism
o The central authority and the regional authorities are “coordinate”, neither is subordinate to the other. In the event of inconsistency between a federal law and a provincial law, it is the federal law which prevails.
o Reasons for federalism:
o In a country that covers a large area, and includes diverse regions, there may be advantages of efficiency and accountability in dividing the powers of government so that a national government is responsible for matters of local importance.
o In a province, being more homogenous that the nation as a whole, will occasionally adopt policies that are too innovative of radical to be acceptable to the nation as a whole. A province may serve as a “social laboratory” in which new kinds of legislative programmes can be “tested”.
i.e. medicare, which started in Saskatchewan in 1961 and became a national programme in 1968.
o Division of power act as a check against tyranny VS federal government means weak government because the dispersal of power makes it hard to enact and implement new public policies.
o WHEARE à “Canada has a quasi-federal constitution” – justified by a literal reading of the terms of the Constitution. However, subsequent case law has virtually eliminated the elements of provincial subordination.
o If either order could unilaterally change the distribution of powers, then the authorities would not be coordinate.
(b) Confederation
(c) Legislative Union
(d) Special Statue
(e) Dominion and Provinces
(f) Regions
(g) Subsidiary
o Subsidiarity is a principle of social organization that prescribes that decisions affecting individuals should, as far as reasonably possible, be made by the level of government closest to the individuals affected.
o The BNA Act accordingly invested the provincial Legislatures with authority over such matters as property and civil rights, the courts and the police, municipal institutions, hospitals and education. This was consistent with the principle of subsidiarity.
o The principle was reinforced by the decisions of the courts in the early years of confederation, which established rules that continue to set the pattern of government. Property and civil rights was given a broad interpretation, so that it now includes not only the private law of property, contract and torts, but also most of commercial law, consumer law, environmental law, labour law health law and social-services law.
o The BNA Act invested the federal Parliament with authority over interprovincial and international trade and commerce, and banking and currency, all forms of taxation and national defence.
114957 Canada v Hudson (2001)
o Held: the local decision, which was to impose more stringent standards on pesticide use should be respected. Quebec’s bylaw which severely restricted the use of pesticides in the municipality was not displaced by provincial and federal legislation also dealing with pesticides.
REASONS FOR FEDERALISM
o
FEDERALISM IN CANADA
(a) The Terms of the Constitution
(b) Early federal dominance (quasi-federal system)
o In the early years of confederation, the relationship between the new national government and the provinces was if anything understated by the term quasi-federal; it was more akin to a colonial relationship.
(c) Judicial Interpretation of the Distribution of Powers
(d) Federal-Provincial Financial Arrangements
(e) Disallowance (s.90)
o The federal power to disallow provincial statutes was frequently exercised by the dominant federal government in the early years of confederation. The power has not been exercised since 1943.
(f) Appointment of Lieutenant Governors
o The federal power to appoint Lieutenant Governors is another apparent breach of the federal principle. The Lieutenant Governor does have power under s.90 to withhold the royal assent from a bill enacted by the provincial legislative assembly, and to “reserve” the bill for consideration by the federal government. But the power is basically obsolete.
(g) Appointment of judges
o s.96 – federal power to appoint the judges of the higher provincial courts
(h) Educational Appeals
(i) Declaratory power
o s.92(10)(c) to bring a local work within federal jurisdiction by declaring it to be “for the general advantage of Canada” was frequently used in the past, mainly in respect of local railways.
(j) Conclusion
SUPREMACY OF THE CONSTITUTION
o
ROLE OF THE COURTS
(a) Development of judicial review
o The Privy Council and the provincial courts, in the years immediately after 1867, assumed the right to review the validity of legislation enacted by the Canadian legislative bodies. If a statute was inconsistent with the BNA Act, then the BNA Act had to prevail, because it was an imperial statute. After the SCC was established in 1875, it naturally assumed the same power.
o Section 52(1) – the “Constitution of Canada” is “the supreme law of Canada”, and that “any law that is inconsistent with the provisions of the Constitution is, to the extent of inconsistency, of no force or effect”.
o s.52(1) is the current basis of judicial review.
(b) Limitations of Judicial Review
(c) Alternatives to Judicial Review
SECESSION
(a) The Power to Secede
o In Canada, there is neither judicial decision nor explicit text to the same effect, but the absence of any provision in the Constitution authorizing secession makes clear that no unilateral secession is possible.
History
1980 – Quebec referendum of “sovereignty association” rejected.
1987 – Meech Lake Accord
1992 – Charlottetown Accord
1995 – Quebec referendum on “economic and political partnership”. Thus, voters had to contemplate sovereignty without association. This referendum proceeded on the assumption that a unilateral declaration of independence would be legally effective to remove Quebec, with its present boundaries, from Canada, without the need for any amendment of the Constitution of Canada regardless of whether the terms of separation were agreed to by Canada. This extraordinary claim was not challenged by the federal government of Chretien. The claim was challenged by a private citizen, Guy Bertrand, who obtained a declaration from the Quebec Superior Court that Quebec had no power to proclaim itself independent in disregard of the amending procedures of the Constitution. However, the Court refused to issue an injunction to prohibit the holding of the referendum, and the narrow “No” majority won. Eventually, the federal government did come to appreciate the merit of securing a legal ruling on the validity of a unilateral declaration of independence –
Secession Reference (1998)- A reference by the federal government to the SCC asking whether Quebec could secede unilaterally from Canada. Three questions was put to the court:
(1) what was the position under the Constitution of Canada? Court answered, unilateral secession was not permitted.
(2) what was the position under international law? Court gave the same answer.
o A secession would require an amendment of the Constitution of Canada, and would have to be accomplished in accordance with the Constitution’s amending procedures. The Court was not asked and did not address which procedure was the correct one.
o The Court said that a referendum in Quebec that yielded a “clear” majority on a “clear” question in favour of secession, while ineffective by itself to accomplish secession, “would confer legitimacy on demands for secession” and “would give rise to reciprocal obligation on all parties to Confederation to negotiate constitutional changes to respond to that desire.
o The Court found the obligation to negotiate a corollary of the fundamental, but unwritten, constitutional principles of “democracy” and “federalism”.
o The Court said that it “has no supervisory role over the political aspects of negotiations”. The immediate sequel to the Secession Reference was the enactment by Parliament of the Clarity Act.
Clarity Act –
o Section 1: if a province proposes a referendum on secession, the House of Commons is to consider the proposed question and determine whether the question is “clear”.
o Section 2: if a question is clear, and if a referendum on that question gains a majority of votes in favour of the secessionist option, the House of Commons is to consider the result and determine whether the majority is “clear”.
o The Act does not define when a majority is clear.
o The Secession Reference and the Clarity Act make clear that a constitutional amendment is needed for the secession of a province, and they set some useful ground rules.
(b) Secession by amendment
o Which one of the five different procedures is the correct one?
o No s. 43, No s.44, No s.45 (because it affects all provinces).
o s.38 – The argument for the general amending procedure of s.38 is that it covers all matters not specifically provided for elsewhere in the amending procedures, and secession is not provided for anywhere else.
o s.41 – The argument for the unanimity procedure is that secession would have an indirect impact on the matters specified in s.41, and it would be anomalous if secession (the most radical amendment of all) could be accomplished more easily that some other classes of amendments.
(c) Secession by unilateral act
o A unilateral secession would, of course, be illegal because it would be unauthorized by the existing rules of constitutional law. But such a break in legal continuity may equally be regarded as a revolution, and it is a demonstrable fact that a successful revolution eventually becomes the foundation of a new and entirely legitimate legal order.
COOPERATIVE FEDERALISM
Principles of Interpretation/JR on Federal Grounds
SCOPE
o Only the courts can provide an answer (judicial review of legislation) to a question on whether the fed parl or prov leg can enact a law that comes within the Constitution’s definition of powers
o Valid law = intra vives = when court finds that the law was enacted within the powers allocated by the Constitution to which ever leg body enacted the law.
o Invalid law = ultra vives = when court finds that the law was enacted outside the powers
allocated to the enacting body.
o The constitutional provisions distributing power between the fed parl and the prov leg are:
-restraints on legislative power in Canada
-the Charter of Rights (most important)
o When reviewing the validity of a law, two questions must be asked in this order:
1-whether the law is within the law-making powers of the enacting body
2-whether the law is consisted within the Charter of Rights.
PRIORITY BETWEEN FEDERAL AND CHARTER GROUNDS
o QUESTION:
o When the law is challenged on both federal and Charter grounds, does the Constitution accord priority to one ground over the other?
o This has little practical significance since BOTH the fed distribution of powers AND the Charter of Rights are part of the Constitution of Canada.
o HOGG à “provisions of the constitution distributing powers to the federal parliament and the provincial Legislatures are logically prior to the Charter of Rights...It is impossible for a nation to be governed without bodies possessing legislative powers, but it is possible for a nation to be governed without a Charter of Rights. “
“The argument that a law is invalid bc it isoutside the powers conferred on the enacting body by the federal part of the Constitution is a more radical argument than the argument that the law is invalid bc it offends the prohibition contained in the Charter of Rights.”
o When reviewing the validity of a law, two questions must be asked in this order:
1-whether the law is within the law-making powers of the enacting body
2-whether the law is consisted within the Charter of Rights.
o S.32(1) Charter of Rights = makes the Charter applicable to the fed Parl and the prov Leg.
s.32(1) This Charter applies
(a) to the Parliament and government of Canada in respect of all matters within the authority of Parliament ...
(b) to the legislatures and government of each province in respect of matters within the authority of the legislature of each province.
o “in respect of all matters within the authority of” the Parliament or the Legislature = it limits the application of the Charter to laws within the distribution-of-powers.
o The Charter does not apply to law that is ultra vires on federal grounds bc that law would be invalid for breach of
the power-distributing provisions of the Constitution AND invalid for breach of the Charter.
o The priority of the federal ground of judicial review does not mean that a court deciding a constitutional case must always dispose of the federal issue before proceeding to the Charter issue. The court can decide that case on the ground that seems strongest.
o There is a well-known line of cases in which laws limiting free expression have been challenged on federal grounds.
These cases raised federal issues since there is no underlying federal principle that offers a clear answer to the question of which level of government (central or regional) has the authority to restrain the federal political freedoms.
o Most commentators have pointed out that some cases seemed to turn more on a judicial concern to protect
freedom of speech than on an assessment of the federalism issue at stake.
o PAUL WEILER àhas argued, for example, that the SCC in the 1950s used doctrines of federalism as a kind of
surreptitious bill of rights, allocating jurisdiction to that level of government that had not exercised it, in order to invalidate a law that the Court really believed should not have been enacted at all.
o So, now that the Charter is available as a ground of review, a denial of fundamental political liberty can be
acknowledged as a ground of invalidity under s.2 of the Charter...the difficult federal issue would not have to be decided, therefore. BUT if the court decided that the law did NOT violate the Charter, then the federal issue would have to be decided.
o The Charter of Rights has the power of override:
S.33 of the Charter = enables the Parl or a Leg to override most of the provisions of the Charter of Rights by including in a statute, a declaration that the statute is to operate (notwithstanding the relevant provision of the Charter). This statute is considered valid (despite the breach of the Charter).
o This does NOT exist for a breach of the federal distribution of powers...because a law that is invalid for a federal distribution of powers CANNOT BE RE-ENACTED by the enacting Parliament or Legislature.
o HOWEVER, it CAN be enacted by the other level of government
i.e. if, by virtue of the federal distribution of powers, a law is competent to the federal Parliament, the law can be enacted by the provincial Legislature, and vice versa.
PROCEDURE OF JUDICIAL REVIEW
o Judicial review on federal grounds are mostly the same as those respecting judicial review on Charter grounds.
REASONING OF JUDICIAL REVIEW
o In Canada, the distribution of leg power between the fed Parl and the prov Leg is set out in both:
ss.91 of the Constitution Act 1867 = lists the kinds of laws that are competent to the fed Parl.
ss.92 of the Constitution Act 1867 = lists the kinds of laws that are competent to the prov Leg.
o Both use terminology that gives legislative authority in relation to “matters” coming within “classes of subjects”
CHARACTERIZATION OF LAWS
Russell case (1883)
o PRINCIPLE: first attempt to articulate the “pith and substance” doctrine.
The issue before the Board was the validity of the Canada Temperance Act, federal legislation permitting local areas to prohibit the sale of intoxicating liquor. An individual who had been charged with violating the Act argued that it was constitutionally invalid because it dealt with property and civil rights, a matter reserved to the provinces.
o Held: legislation was valid because it dealt with “an evil which is assumed to exist throughout the Dominion”. The fact that the liquor could be held as property did not prevent Parliament from restricting its use when this was deemed dangerous to public health or safety.
Sir Montague Smith: Parliament could enact law under the POGG power that incidentally affected property and civil rights as long as it did so for a valid purpose.
o Russell was significant because it represented the first attempt to articulate what would come to be known as the “pith and substance” doctrine.
(a) Pith and Substance Doctrine (???)
o The doctrine focuses on the purpose of the legislation, rather than its incidental effects, in determining constitutional validity.
o It is important to recognize that this doctrine enables ONE level of government to enact laws with substantial impact on matters outside its jurisdiction (see Lambe).
o The doctrine opens the door to substantial overlap in jurisdiction precisely because it ignores the incidental effects of legislation in determining the constitutional validity.
o i.e, in Russell, the fact that the federal legislation (upheld under POGG – alcohol was an evil throughout the Dominion) also affected property rights (liquor is property) did not mean that it was invalid. Montague notes, if such incidental effects were to be regarded as the primary focus of the analysis, the federal POGG power would be rendered nugatory since ‘few, if any, laws could be made by Parliament for the peace, order and good government of Canada which did not in some incidental way affect property and civil rights.
(a) “Matter”
o Identify the “matter” of the challenged law.
o It is “the pith and substance” of the law.
o Matter is:
According to LASKIN à a distillation of the constitutional value represented by the challenged legislation
According to ABEL à an abstract of the statute’s content
According to LEDERMAN à the true meaning of the challenged law
According to MUNDELL à the answer to the question, ‘what in fact does the law do and why?’
o Difficulty in identifying that “matter” of a statute is that many statutes have ONE feature/aspect which comes within a provincial head of power....and ANOTHER which comes within a federal head of power. So, the selection of ONE or the OTHER as a “matter” of the statue will dispose of the case.
i.e. a provincial statute that imposes a direct tax on banks. One feature of this law is “direct taxation” which comes within s.92(2); but another feature is banking which comes within s.91(15). If the law is in relation to direct taxation, it is good, but if banking, then bad.
-So, how does the court make the crucial choice?
-They make a judgment as to which is the most important feature: the dominant feature is the “pith and substance” or “matter” of the law. (the other feature is merely incidental, irrelevant for constitutional purposes)
Example of “pith and substance” and “incidental affects”:
Bank of Toronto v Lambe (1887)
o PRINCIPLE: If the “pith and substance” of a provincial law maintains incidental effects on a federal matter, the provincial law will still be upheld.
PC upheld a provincial law which imposed a tax on banks. The dominant feature of the law was to raise revenue, and accordingly the “matter” of the law was taxation, not banking. Thus, the law was “in relation to” taxation (the matter) and merely “affected” banking.
o It is important to recognize that this doctrine enables one level of government to enact laws with substantial impact on matters outside its jurisdiction. Here, the level of the tax was a significant excercise of legislative power over banks; but because the law was characterized as “in relation to” taxation (its “pith and substance”), it could validly “affect” banking.
{NOTE: This distinction of “in relation to” and “affected” appears in ss.91 and 92}
Compare with (a different result to pith and substance of the challenged law):
Alberta Bank Taxation Reference (1938)
PRINCIPLE: If the “pith and substance” of a provincial law directly effects a federal matter, it will be invalid.
PC struck down an Alberta law which imposed a special tax solely on the banks. The pith and substance of this particular law was to discourage the operation of the banks in Alberta. Its “matter” therefore came within “banking” and the taxing quality of the law was merely incidental. The province’s power to tax could not save the law, because its pith and substance was not taxation.
(b) Singling Out
o The Alberta Bank Taxation Reference is occasionally read as prohibiting the provincial Legislatures from “singling
out” banks or other federal undertaking for special treatment. (Singling out of the banks was one of the factors which led the PC to characterize the law as in relation to banking)
o There are a number of cases in which provincial laws have been upheld, notwithstanding that the laws singled out a person or class of persons within federal jurisdiction.
i.e. Bank of Toronto v Lambe – the taxing statute, although it applied to other corporations as well as banks, did impose a special rate of tax on banks alone. Yet the PC did not hesitate to characterize the law as in relation to taxation, not banking.
i.e. Van Buren Bridge – a provincial tax levied on a single company which operated an international railway bridge within federal jurisdiction under s.92(10) has been upheld.
i.e. Sommers – a provincial law authorizing compulsory inspection of bank records in civil litigation has been upheld as in relation to civil procedure, notwithstanding that it singled out the banks (s.91(15)).
o PRINCIPLE: These cases show that a provincial law need not be of general application to apply validly to undertakings within federal jurisdiction. A law is characterized by its “pith and substance” or “matter” (the dominant feature)...so the singling out of undertakings within federal jurisdiction is not conclusive of pith and substance.
{NOTE: exactly the same principles would apply to federal laws that singled out local works or undertakings or other matters within provincial jurisdiction]
(c) Double Aspect Doctrine
o Why is a law, which presents both federal and provincial characteristics, treated as competent to BOTH the federal Parliament AND the provincial Legislatures? It seems that such a result is inconsistent with the stipulations in ss.91 and 92...that each list of classes of subject is assigned “exclusively” to EITHER the Parliament OR the Legislatures.
o But, according to the PC in Hodge v The Queen 1883 , the double aspect doctrine:
o “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”
o The courts have not explained exactly when this doctrine is to be applied, and when it is necessary to make a choice between the federal and provincial features of a challenged law.
o LEDERMAN à the double aspect doctrine is applicable when “the contrast between the relative importance of the
two features is not so sharp”. Thus, this doctrine is the course of judicial restraint.
Examples:
o Clearly, laws prescribing rules of conduct on the roads have a “double aspect”, and are therefore competent to both orders.
O’Grady v Sparling (1960) – SCC upheld provincial highway traffic offences of driving without due care and attention and failing to remain at the scene of an accident as laws in relation to conduct on the roads under s.92(13); at the same time the court upheld very similar federal offences contained in the Criminal Code as laws in relation to the punishment of crime, which is a matter of criminal law under s.91(27).
o Clearly, another example of a field where so some laws have a “double aspect” is, securities regulation.
Multiple Access (1982) – SCC upheld a provincial and a federal law, each creating a civil remedy for insider trading. The provincial power came from the characterization of regulating the trade in securities, which comes within “property and civil rights in the province” under s.92(13). The federal power came from the federal insider trading remedy as a corporate law coming within the federal power to incorporate companies under s.91 opening words.
o Thus, the effective concurrency over power over the highways and other securities regulation, gives rise to the possibility of conflict between a valid FEDERAL law, and a valid PROVINCIAL law.
o The resolution is: the doctrine of “federal paramountcy” (next chapter).
(d) Purpose
Examples:
Alberta Bank v Taxation Reference (1938) – The fact that a provincial law levies a tax, is not decisive of its classification as a taxing measure. So, if the court concludes that the PURPOSE of the ostensible tax is to regulate or destroy the banks, then the law will be characterized as being in relation to banking, and will be invalid.
R v Big M Drug Mart (1985) – SCC held that the federal Lord’s Day Act, which prohibited various commercial activities on Sunday, was a valid exercise of the federal Parliament’s power over criminal law (But, the Act was struck down for breach of the Charter of Rights). The criminal character of the Act flowed from its PURPOSE, which was the religious one of “the preservation of the sanctity of the Christian Sabbath”. The Court acknowledged that if the PURPOSE of the statute had not been religious “but rather the secular goal of enforcing a uniform day of rest from labour”, then the Act would have fallen under provincial rather than federal competence.
Compare with:
R v Edwards Books and Art (1986) – SCC held that Ontario’s Retail Business Holidays Act, which prohibited retail stores from opening on Sundays, was a valid exercise of the province’s power over property and civil rights in the province (and survived a s.1 Charter attack). The court discovered the secular PURPOSE of the Act – providing a uniform pause day for retail workers.
o The different outcomes in Big M and Edwards Books turned on the different PURPOSES of the challenged laws: the prohibition of work on Sunday fell within federal or provincial competence depending upon whether the PURPOSE of the prohibition was religious or secular.
Ward v Canada (2002) – SCC had to characterize a federal law that prohibited the sale of baby seals. A law regulating the marketing of seals would be within the provincial authority under s.92(13). But the court accepted evidence that the PURPOSE of the law was the indirect one of limiting the killing of baby seals.
Held: the pith and substance of the law was the management of the fishery, which came within the federal authority over “sea coast and inland fisheries”, s.91(12). The federal law was upheld.
How to determine the “purpose” of a statute:
It is now established that reports of royal commissions and law reform commissions, government policy papers and even parliamentary debates (Hansard) are indeed admissible.
(e) Effect
Examples:
o If court finds a negative effect, then the court will invalidate the law by placing it under a different head:
Alberta Bank Taxation Reference – PC examined the impact on the banks of the tax which Alberta proposed and used the severity of the tax as one of the reasons for concluding that the statutes should be characterized as in relation to banking rather than taxation.
Texada Mines (1960) – SCC examined the EFFECT of a provincial law imposing a tax on iron ore, and concluded that the tax was so heavy as to make it uneconomic to sell the ore outside the province; the Court accordingly characterized the law as in relation to interprovincial trade, a federal head of power under s.91(2), rather than as in relation to direct taxation within the province under s.92(2).
Central Canada Potash (1978)- the court examined the effect of a provincial scheme for the prorationing of potash; finding that nearly all the provinces production was exported, and that the province had abundant reserves, the court characterized the scheme as in relation to interprovincial and international trade, rather than the conservation of a natural resource.
The court has also examined the administration of a statute as an aid to classifying it for constitutional purposes:
Saumur v Quebec (1953)
o PRINCIPLE: If the effect of a statute causes hardship, the courts will invalidate it by placing it under a different head of power.
o Facts: Constitutional challenge to a municipal by-law which made it an offence to distribute literature in the streets of the city of Quebec without having previously obtained the written permission of the chief of police.
o Minority: upheld the law for the purposes of protecting pedestrian traffic or controlling litter in the city streets, a legitimate topic of provincial regulation.
o Majority: Since the chief of police would make his decision on the basis of whether he found the content to be objectionable or not, the chief used the by-law as a vehicle of censorship, and the by-law constituted an effective bar to the dissemination of literature by an unpopular minority group such as the Jehovah’s Witnesses, who brought the challenge. On these findings, the by-law was classified in relation to speech or religion, and held that it was incompetent to the province (unconstitutional).
(f) Efficacy
Re Firearms Act (2000)
o Issue: could Parliament’s gun control legislation be upheld as criminal law
o Argument against Act: gun control simply burdens law-abiding farmers and hunters with pointless red tape and has no effect on those who use guns for criminal purposes. Thus, the registration of guns and licensing of owners would be completely useless as a contributor to public safety.
o Court’s rebuttal: sceptical. The restrictions on access to guns could have an effect on the incidence or severity of crime, especially domestic crime, and could reduce suicides and accidents, while a register of firearms would help to trace stolen or lost guns and contribute to the detection of crime.
o SCC Held: EFFICACY was a matter for Parliament and not the Court: “Parliament is the judge of whether a measure is likely to achieve its intended purposes: efficaciousness is not relevant to the Court’s division of powers analysis
o Thus, a law cannot be challenged on the basis of EFFICACY since EFFICACY is what Parliament says. There cannot be a challenge on the law claiming what it’s EFFECT should be.
o In choosing between competing, plausible characterizations of a law, the court should normally choose that one that would support the validity of the law.
Same answer given in:
Ward v Canada (2002) – SCC accepted the evidence that the purpose of the ban on sale of baby seals was not to regulate the marketing of baby seals but to limit the killings of baby seals by removing the commercial incentive to harvest them.
o Issue: This invited the question of why the Government did not directly prohibit the killing of the animals if that was indeed its purpose.
o SCC Held: as per MCLACHLIN C.J àthis was an impermissible inquiry into the efficacy of the law: “The purpose of legislation cannot be challenged by proposing an alternate, allegedly better, method for achieving that purpose”.
(g) Colourability
Examples:
Alberta Bank Taxation Reference – PC held that the legislation, although ostensibly designed as a taxation measure, was in reality, directed at banking.
Reciprocal Insurers (1924) – attempts by the federal parliament to regulate insurance (a provincial matter) by incorporating provisions into the Criminal Code (a federal matter), or by enacting special taxing measures, have been struck down as COLOURABLE.
Re Upper Churchill Water Rights (1984)
o SCC Held: SCC struck down a Newfoundland statute that expropriated the assets of a company that generated hydro-electricity in Labrador. Prima facie, the statute seemed valid, because it was clear that Newfoundland had the power to expropriate property situated within its borders.
o REASONING: the pith and substance of the statute was to deprive the company of the capacity to fulfill a long-term contract to supply power to Hydro-Quebec at below-market rates. The nullification of this contract was outside the power of Newfoundland, because the contract created rights in Quebec (interprovincial, a federal matter). Thus, the statute was held to be invalid as “a COLOURABLE attempt to interfere with the power of contract”.
A good example is:
R v Morgentaler (No.3) (1993)
o PRINCIPLE: A court will refer to the legislative history (hansard) to establish the purpose of the legislation and use that evidence to prove whether it is a COLOURABILITY attempt.
o SCC Held: SCC struck down a Nova Scotia statute that required “designated” medical procedures to be performed in a hospital.
o “PURPOSE” of statute: The statute declared that its purpose was “to prohibit the privatization of the provision of certain medical services in order to maintain a single high-quality health-care delivery system”. Prima facie, the statute seemed to be a health measure, which would be within the constitutional power of the province.
o SCC reading of statute’s “PURPOSE”: SCC pointed to the evidence that the stimulus for the statute came from a proposal by Dr. Henry Morgentaler to establish an abortion clinic in the province, and the court quoted extensively from the legislative history of the statute to show the legislators’ preoccupation with stopping the establishment of the Morgentaler clinic. The SCC held that the statute and regulation “were aimed primarily at suppressing the perceived harm or evil or abortion clinics”, and that they were properly characterized as invalid criminal laws. By this holding, the court made clear that it regarded the designation of the 8 non-abortion procedures as a smokescreen to conceal from a reviewing court the true purpose of the legislation.
o Arguments of COLOURABILITY are rarely successful. Often, a legislative body will find a way to do indirectly, what it cannot do directly.
i.e. the federal parliament cannot regulate the delivery of health care in the provinces, BUT is CAN transfer cash and tax points to only those provinces whose health care plans comply with federal standards of accessibility, universality, and mobility.
(h) Criteria of Choice
o The characterization of a statute is often decisive of its validity, and the court will be aware of this fact.
o The choice between competing characteristics of a statute, in order to identify the most important one as the “matter”, may be nothing less than a choice between validity or invalidity.
o But the only “political” values which may be accepted as legitimate to judicial review are those that have a constitutional dimension to them...values that may reasonably be asserted to be enduring considerations in the allocation of power between the two levels of government.
o How else is a judge to reach a decision as to the appropriate characterization of a statute, where conventional legal sources fail to supply the answer? The judge has little to provide guidance and may tend to assume that his or her personal preferences are widely shared, if not, embodied in the Constitution.
o So, in this sense, judicial review can never be wholly neutral, wholly divorced from the tendencies of the judges.
(i) Presumption of Constitutionality
o Judicial restraint in determining the validity of statutes may be expressed in terms of PRESUMPTION OF CONSTITUTIONALITY.
o This carries 3 legal consequences:
1. In choosing between competing, plausible characterizations of a law, the court should normally choose that one that would support the validity of the law (Re Firearms Act (2000)).
2. Where the validity of a law requires a finding of fact, that fact need not be proved strictly by the government; it is enough that there be a “rational basis” for the finding (standard of proof).
3. Where a law is open to both a narrow and a wide interpretation, and under the wide interpretation the law’s application would extend beyond the powers of the enacting legislative body, the court should ‘’read down” the law so as to confine it to those applications that are within the power of the enacting legislative body (reading down).
o The 3 doctrines have the effect of reducing interference by unelected judges with the affairs of the elected legislative branch of government.
o Other than #3, determinations of law and fact in Charter cases are subject to their own set of rules, and those rules are not compatible with a PRESUMPTION OF CONSTITUTIONALITY.
SEVERANCE
o A statute = elaboration of a single legislative plan or scheme
o Leading feature of the plan or scheme = “matter” (pith and substance)
o Statute in constitution = law and will stand or fall as a whole when its validity is questioned
o However....it is possible to say that, that part only of a stature is invalid, and the balance of the statute would be valid if it stood alone. Of course, the balance does not stand alone; and the question arises whether the court should “SEVER” the bad part, thereby preserving the good part......or......whether the court should declare the entire statute to be bad...
o There appears to be a presumption that a statute embodies a single statutory scheme of which all parts are independent. Thus, there seems to be a presumption against SEVERANCE.
o However, in the only Canadian case dealing with a statute containing a SEVERANCE clause, the PC refused to sever the unconstitutional portion of the statute from the rest. It was held that, after they applied the usual rule regarding SEVERANCE, their Lordships assumed that the SEVERANCE clause made no difference (A.-G. B.C v A.-G. Can [1937])
Charter cases:
-Severance is more common in Charter cases than in federalism cases.
-Although the same test applies, it is highly unusual that an entire statute is struck down under the Charter.
o Under this test, it is usually only a single section or a few sections of a stature that abridge a Charter right, and usually the rest of the statue can independently survive.
o Only one case where the entire statute was struck down – R v Big M Drug Mart (1985), which held that the Lord’s Day Act was wholly bad.
o Therefore, the presumption against SEVERANCE in federalism cases has been replaced in Charter cases by a presumption in favour of SEVERANCE!
READING DOWN DOCTRINE
o The general idea that a law should not be held to be wholly invalid just because it overreaches the limits of jurisdiction in certain respects, is in accord with a properly restrained role for the courts.
o It is simply a canon of interpretation.
o READING DOWN is like SEVERANCE = both mitigate (lessen) the impact of judicial review
o READING DOWN achieved its remedial purpose solely by the interpretation of the challenged statute;
o Whereas SEVERANCE involves holding part of the statute to be invalid.
o Therefore, READING DOWN strives to keep an act valid. It allows the bulk of the legislative policy to be accomplished, while trimming off those applications that are constitutionally bad.
INTERJURISDICTIONAL IMMUNITY
(a) Definition of INTERJURISDICTIONAL IMMUNITY
o No exact meaning
o A law that purports to apply to a matter outside the jurisdiction of the enacting legislative body may be attacked in 3 ways:
1. The validity of the law
2. The applicability of the law
3. The operability of the law
-This technique for limiting the application of the law to matters WITHIN jurisdiction, is the “reading down” doctrine.
(b) Federally-incorporated companies
o The idea is:
INTERJURISDICTIONAL IMMUNITY finds its genesis in cases concerning federally-incorporated
companies. It has been held that an otherwise valid provincial law may NOT impair the status or essential powers of a federally-incorporated company.
Examples:
o Thus, a provincial law prohibiting all extra-provincial companies from operating in the province (John Deer Plow [1915]), and a provincial law imposing a licensing scheme for the raising of corporate capital (A-G Man v A-G Can [1929]), have been “read down” to exempt federally-incorporated companies.
o BUT, provincial laws whose impact on corporate status or powers was deemed less serious, have been held applicable to federally-incorporated companies.
(c) Federally-incorporated undertakings
“sterilizing/paralyzing” test:
o Undertakings engaged in interprovincial or international transportation or communication, which come within federal jurisdiction (under the exceptions to s.92(10) Constitution Act 1867), are immune from otherwise valid provincial laws which would have the effect of “sterilizing” the undertakings.
o Until 1966, the provincial laws that were held inapplicable to federally-regulated undertakings, were laws that asserted a power to sterilize (impair) the federally-authorized activity. This was based on the decision in Bell 1966 case [1966].
But then....
“Vital part” test replaced the “sterilizing/paralyzing” test:
Quebec Minimum Wage case (1966) a.k.a. Bell 1966 case
o SCC HELD: abandoned the language of sterilization. Held that the Bell Telephone Company (an interprovincial undertaking) was immune from a provincial minimum wage law on the lesser ground that such a law “affects a vital part of the management and operation of the undertaking”.
o Quebec’s minimum wage law could not constitutionally apply to Bell. This was NOT based on the existence of an inconsistent federal law; there was NO federal minimum wage law in existence at that time.
o The decision was based on the rule that: a provincial law CANNOT affect a “vital part” of an undertaking within federal jurisdiction (such as a telephone company).
SCC reaffirmed its commitment to the “vital part” test:
Bell 1988
o Issue: whether Bell Canada was bound in Quebec by a Quebec law that required the protective reassignment of pregnant workers who work with video monitors.
o SCC HELD as per BEETZ à: the provincial law was constitutionally incapable of applying to the federal undertaking, and had to be “read down” (keeps it valid) so that it did not apply to the federal undertaking. His view was that, occupational health and safety laws, because they regulated labour relations within a firm, affected a “vital part” of the management and operation of the firm.
“It is sufficient that the provincial statute which purports to apply to the federal undertaking, affects a vital or essential part of that undertaking, without necessarily going as far as impairing or paralyzing it”.
o Therefore, occupational health and safety laws enacted by a province could NOT constitutionally apply to a federal undertaking.
Qualification on the “vital part” test:
Irwin Toy v Quebec (1989)
o Issue: SCC had to decide whether a Quebec law that prohibited advertising directed at children could apply to advertising on television, a federally-regulated medium.
o SCC HELD: the law was applicable to advertising on television. The court acknowledged that advertising was “a vital part of the operation of a television broadcast undertaking”.
o BUT NOW, the court said that the “vital part” test applied only to provincial laws that purported to apply directly to federal undertakings. So, where a provincial law had only an “indirect effect” on the undertaking, the law would be inapplicable ONLY IF the law impaired a vital part of the undertaking. (An indirect effect falling short of impairment, even if it affected a vital part of the undertaking, would not render the provincial law constitutionally inapplicable).
o Therefore, the provincial law was valid and effective to prevent advertisers in Quebec from placing advertisements directed at children on television. The reason is because, ONLY impairment would render the law inapplicable, and the loss of children’s advertising could NOT impair the operation of the television undertaking.
o DALE GIBSONà speculated that the court had become concerned that the “vital part” test was too tight a restriction on provincial power over federal undertakings operating within the province, and so, “saw this new refinement as a way of loosening the constraints”.
Canadian Western Bank v Alberta (2007)
o The court confirmed that it had changed its mind about the test for INTERJURISDICTIONAL IMMUNITY and erased the direct-indirect distinction in Irwin Toy [1989].
o ISSUE: whether Alberta’s Insurance Act could constitutionally apply to the banks.
o HELD: the VITAL PART of an undertaking should be limited to functions that were “essential” or indispensable” or “necessary” to the federal character of the undertaking; and that the promotion of insurance by banks was too far removed from the core of banking to qualify as a VITAL PART of the banking undertaking. Therefore, the Alberta Insurance Act could validly apply to the banks when they promoted insurance and thus, the federal undertaking (banking) was NOT immune from the provincial law.
o PRINCIPLE: INTERJURISDICTIONAL IMMUNITY would apply only if a “core competence” of Parliament or “a VITAL or essential PART of an undertaking it duly constitutes”, would be impaired by a provincial law.
o It no longer mattered whether the effect of a provincial law on the core or VITAL PART was direct or indirect. In either case, the rule was the same: “in the absence of impairment, INTERJURISDICTIONAL IMMUNITY does NOT apply”.
PRINCIPLE: The doctrine of INTERJURISDICTIONAL IMMUNITY immunizes a valid federal undertaking from a valid provincial law, which has an effect on the “VITAL or essential PART” on the federal undertaking. So, if the provincial law does NOT effect a “VITAL or essential PART” of the federal undertaking, then the provincial law will apply.
Confirms Canadian Western Bank:
British Columbia v Lafarge Canada (2007)
o Held: although the development of a marine facility on port lands for the mixing of concrete was within federal power over navigation and shipping in s.91(10), they held that the regulation of the development “lies beyond the core of s.91(10). Therefore, INTERJURISDINCTIONAL IMMUNITY did not apply (thus, the provincial Act in question applied).
o BASTARACHE J àplacing his decision firmly on INTERJURISDICTIONAL IMMUNITY, held that the regulation of land use in support of port operations on port lands was within ‘the core’ of navigation and shipping, and therefore immune from provincial or municipal laws that would impair the federal regime.
Air Canada v Ontario (1997)
o PRINCIPLE: The service of liquor is not a “VITAL PART of an airlines (federal) undertaking”.
o Facts: an airline (federal) objected to paying a mark-up charged by the provincial liquor monopoly on liquor that was loaded onto aircraft from a bonded warehouse for consumption in the air. The airline took the position that the charge was an attempt by the province to regulate a VITAL PART of its undertaking.
o Issue: is the service of liquor a VITAL PART of the undertaking of an airline?
o SCC Held: the court acknowledged that in some circumstances the provision of food or beverages would form a VITAL PART of the airline’s undertaking. For example, food and water on aircraft were essential for long flights. But the provision of liquor, however attractive to the airline’s customers, “is not essential to the operation of aircraft”. The airline was required to pay the mark-up.
(d) Other federal matters
Examples of INTERJURISDICTIONAL IMMUNITY:
Re Minimum Wage Act (1948) – Provincial labour laws have been held inapplicable to postal workers and to teachers on a military base.
A.G. Quebec and Keable (1979) – Provincial laws respecting inquiries and police discipline have been held inapplicable to the Royal Canadian Mounted Police.
McKay v The Queen (1965) – A municipal by-law prohibiting the display of signs on residential property has been held inapplicable to federal election signs.
A variety of provincial laws respecting hunting, adoption and family property have been held inapplicable to Indians or on Indian reserves.
(e) Rationale of INTERJURISDICTIONAL IMMUNITY
o The above cases do not concern provincial laws that single out federal undertakings. Nor were the decisions based on the paramountcy doctrine: in most cases, there was no competing federal law in existence. The theory behind the results is that each head of federal power not only grants power to the federal Parliament but, being exclusive, denies power to the provincial Legislatures.
o The doctrine of INTERJURISDICTIONAL IMMUNITY insists that the same results cannot be accomplished by the enactment of a broader law that, by reason of its non-federal applications, could be characterized as in relation to the provincial matter (i.e. land use as in McKay)
o The difficulty is to distinguish the occasions when the INTERJURISTINCTONAL IMMUNITY applies from the occasions when the “pith and substance” doctrine applies.
INTERJURISDICTIONAL IMMUNITY vs “PITH AND SUBSTANCE”
o The “pith and substance” doctrine = stipulates that a law “in relation to” a provincial matter may validly “affect” a federal matter.
o The interjurisdictional immunity doctrine = “reads down” the provincial law to exclude the federal matter. The end result appears to enable both federal and provincial laws to be valid.
Canadian Western Bank (2007) – SCC narrowed the interjurisdictional immunity doctrine by insisting that:
***NOTE: the majority indicated a strong preference for the pith and substance doctrine as the default position when valid provincial laws intruded into federal matters. And while the interjurisdictional immunity doctrine had a role to play, it should be applied ‘with restraint’.
(f) Provincial Subjects
o The doctrine of interjurisdictional immunity ought to be reciprocal, protecting provincial subjects from incursion by federal laws.
o This is because the rationale for the doctrine is the exclusivity of the principal heads of legislative power, and the provincial heads of power in s.92 Constitution Act 1867, are just as exclusive as the federal heads in s.91.
o It is true that the federal heads of power are paramount in the event of conflict between federal and provincial laws...
o But the paramountcy doctrine cuts both ways: federal paramountcy attributes some degree of superior force to the federal heads of power; and federal paramountcy suggests the need to protect the provincial heads of power from federal law.
o The federal Parliament can protect its creatures from provincial law by enacting protective laws that will be paramount over conflicting provincial laws. The provincial Legislatures cannot do this (it would be perverse if the federal heads of power had additional protection of interjurisdictional immunity and the provincial heads of power did not).
o The conclusion must be that: each provincial head of power, no less than each federal head of power, has a “basic, minimum and unassailable content” that is immune from attack by the other level of government.
INTERPRETATION OF CONSTITUTION
(a) Relevance
o Once the “matter” (pith or substance) of a challenged law has been identified, the second stage in judicial review is to assign the “matter” to one of the “classes of subjects” (or heads of legislative power) specified in the Constitution.
o This involves the interpretation of the power-distributing language of the Constitution.
(b) Exclusiveness
o s.91 and s.92 is exclusive to the Parliament or Legislature to which it is assigned. So, a particular “matter” will come within a class of subjects in only one list.
o The exclusiveness of the two lists does NOT mean that similar or even identical laws may not be enacted by BOTH levels of government. Some laws are available to BOTH levels, but that is because such laws have a “double aspect” (or two matters).
o The descriptions of the classes of subjects (or two heads of power) appear to give rise to a good deal of duplication and overlapping:
i.e “property and civil rights in the province” (s.92(13)) appears apt to include “the regulation of trade and commerce” (s.91(2)).
The courts have dealt with this kind of apparent overlapping by interpreting each head of power as excluding the other. Thus, “trade and commerce” has been narrowed down to interprovincial and international trade and commerce, while “property and civil rights” has been interpreted as including the regulation of only local trade and commerce.
o Therefore, the courts have narrowed the meaning of the broader class in order to exclude the narrower class. This process of “MUTUAL MODIFICATION” is necessary to place each head of power in its context as part of two mutually exclusive lists.
(c) Ancillary Power
o The U.S and Australia have ancillary powers, but no list of enumerated state powers.
o The constitution of Canada does not include an ancillary powers in the enumerated powers of wither the federal Parliament or the provincial Legislatures.
o The pith and substance doctrine enables a law that is classified as “in relations to” a matter within the competence of the enacting body to have incidental or ancillary effects on matters outside the competence of the enacting body.
o The existence of ancillary power was rejected in A-G Can v Nykorak [1962] and in Papp v Papp [1970] because it was “meaningless to rely on ‘necessarily incidental (or ancillary) doctrine’ to explain the valid impact of a federal law (in relation to property/civil rights and/or divorce), on provincial mattes (like custody of children).
RATIONAL CONNECTION TEST:
Papp v Papp [1970] as per LASKIN L.A à “the rational, functional connection (or RATIONAL CONNECTION test) test allows each enumerated head of power to embrace laws that have some impact on matters entrusted to the other level of government, and it provides a flexible standard which the enacting body considerable leeway to choose the legislative techniques it deems appropriate, whole providing a judicial check on an unjustified usurpation of powers”.
Applied in:
R v Zelensky [1978] – SSC upheld the provision in the federal Criminal Code authorizing the payment of compensation to a victim of crime and cited Papp and employed the RATIONAL CONNECTION test to reject the argument that the criminal law power would not authorize the quasi-civil sanction of compensation.
Multiple Access v McCutcheon [1980]– SSC upheld a provision of federal corporation law granting a civil remedy for insider trading since the provision had a “rational, functional connection” with company law.
But the ANCILLARY POWER DOCTRINE (“essential” or “truly necessary”) in:
R v Thomas Fuller Construction [1979] – the SSC held that Federal Court Act could not confer on the Federal Court jurisdiction to determine an issue of provincial law. The court referred to “the ancillary power doctrine” and said that it was “limited to what is “truly necessary” for the effective exercise of Parliament’s legislative authority”.
o This is a much stricter test then the RATIONAL CONNECTION test
The dictum on the ancillary power was cited in:
Regional Municipality of Peel v MacKenzie [1982]– held that the federal Parliament’s criminal law power would not extend so far as to impose upon municipality an obligation to contribute to the support of a juvenile delinquent.
But in:
General Motors v City National Leasing [1989]as per DICKSON C.J à attempted to reconcile the various approaches taken by courts to define legislative powers outside the enacting body. “As the seriousness of the encroachment on provincial powers varies, so does the test required to ensure that an appropriate constitutional balance is maintained”.
o ISSUE: the law did intrude into provincial power over property and civil rights, but only “in a limited way”. So, it was sufficient to test the validity of the law by the RATIONAL CONNECTION test, and in applying that test the court upheld the validity of the civil remedy. The RATIONAL CONNECTION to the legislative scheme was that the civil remedy, by providing a means and an incentive to private enforcement, would improve the efficacy of the competition law.
Followed in Kirkbi v Ritvik Holdings [2005]
o HOGG à The General Motors judgement is unsatisfactory. The approach taken makes the answer to a simple question too complicated, too discretionary, and therefore too unpredictable.
....THEREFORE:
o The proper course for the court is to return to the true path marked out by Nykorak, Papp, Zelensky and Multiple Access.
o Each head of legislative power authorizes all provisions that have a RATIONAL CONNECTION to the exercise of that head of power.
o There is no theoretical or practical need for a separate ancillary power. The RATIONAL CONNECTION test is to be preferred to stricter alternatives (like “truly necessary” or “essential” tests), simply because it is less strict.
(d) Concurrency
o Although the ‘classes of subjects’ (heads of legislative power) are “Exclusive” to the Parliament or Legislature to which they are assigned, there are 3 provisions that explicitly give concurrent powers:
1) s.92A(2) – added in 1982 – confers on the provincial Legislatures the power to make laws in relation to the export of natural resources, and;
s.92A(3) – is explicit that the power is concurrent with the federal Parliament’s trade and commerce power.
2) s.94A – added in 1951, revised in 1964 – confers on the federal Parliament the power to make law in relation to old age pensions and supplementary benefits, and the section acknowledges the existence of concurrent provincial power.
3) s.95 – confers on BOTH federal Parliament and the provincial Legislature concurrent powers over agriculture and immigration.
o The contrast between the 2 “exclusive” lists of Canada and the single-concurrent lists of the US or Australia, is not as sharp as might be thought. There is a substantial area of concurrency in Canada, even with respect to topics covered by the two exclusive lists.
o There are 2 judge-made doctrines that leads to concurrent legislative power:
1) The “DOUBLE ASPECT” DOCTRINE – which recognizes that a law may have a double aspect, that is, ONE aspect (or characteristic) coming within the federal list, and ANOTHER aspect coming within the provincial list.
2) The “PITH AND SUBSTANCE” DOCTRINE – if the pith and substance (the matter) of a law comes within the list of the legislative body that enacted it, then the law is valid, and it is no obligation to the law that it also incidentally regulates a matter falling within the other list.
o Both the “double aspect” doctrine and the “pith and substance” doctrine enables concurrency.
(e) Exhaustiveness
o The framers of the Constitution could not foresee the future, but they did make provision for new or unforeseen kinds of laws.
o The last of the enumerated provincial classes of subjects in:
s.92(16) – “generally all matters of a merely local or private nature in the province”
o And for matters which do NOT come within this or any other enumerated class of subjects:
s.91 (opening words) – to give Parliament residuary power “to make laws for the peace, order, and good government of Canada in relation to all matters not coming within the classes of subjects assigned exclusively to the Legislature of the provinces”.
o Every conceivable law is competent to ONE level of government or the OTHER. But a law that is excessively brad or vague will be incompetent to BOTH levels of government.
o Therefore, a law MUST BE sufficiently particular that it can be attributed to a “matter” coming within ONE of the classes of subjects in relation to which the enacting body is authorized to legislate.
Saumur v Quebec [1953]
o ISSUE: whether or not to strike down a municipal by-law that forbade the distribution of literature on the streets of Quebec City without the permission of the chief of police. The by-law was administered for the regulation of the streets to prevent harassment of pedestrians and reduce littering, but the evidence showed that that the by-law was in fact administered as a vehicle of censorship by the chief of police.
o PRINCIPLE: without more precision in the drafting of the by-law to guide the chief of police’s discretion, it was impossible to classify it as ‘in relation to’ any particular matter.
o It may have been thought that a law that did NOT fit into any of the enumerated classes of subjects (including s.92(16), would come within the federal Parliament’s residuary peace, order, and good environment power...
...BUT in:
Anti-Inflation Reference [1976] as per BEETZ J à The containment and reduction of inflation could be authorized by the peace, order, and good government power...Except in times of emergency”
PRINCIPLE: A federal law that purports to regulate matters within provincial (as well as federal) competence CANNOT be saved by classifying the law as ‘in relation to’ a matter as broad and diffuse as inflation.
(f) Progressive Interpretation
o The DOCTRINE OF PROGRESSIVE INTERPRETATION is one of the means by which the Constitution Act 1867 has been able to adapt to the changes in Canadian society.
Labour Conventions case (1937)
LORD ATKIN: à “while the ship of state now sails on larger ventures and into foreign waters she still retains the watertight compartments which are an essential part of her original structure”
o Lord Atkin did not conceive of the “watertight compartments” expanding or contracting in response to new
developments.
Compare with:
LORD SANKEYà “the BNA Act planted in Canada a living tree capable of growth and expansion within its natural limits.
o The “watertight compartments” metaphor is not a reliable guide to judicial attitudes to the Constitution.
ORIGINALISM:
o The DOCTRINE OF PROGRESSIVE INTERPRETATION is sometimes rejected by scholars who argue that the courts are forever bound by the “original understanding” of the Constitution. This is called ORIGINALISM.
Example of ORIGINALISM and PROGRESSIVE INTERPRETATION:
Same-Sex Marriage Reference (2004)
o Issue: whether Parliament’s power over “marriage” would extend to legalizing same-sex marriage.
o SCC Held: SCC denied that it was bound by the original understanding, which it described as “frozen concepts” reasoning. “Our Constitution is a living tree which, by way of progressive interpretation, accommodates and addresses the realities of modern life.
o A PROGRESSIVE INTERPRETATION of s.91(26) led to the conclusion that is should be expanded to include same-sex marriage. Following this decision, Parliament enacted a law to legalize same-sex marriage.
Followed in:
Re Employment Insurance Act [2005]
o ISSUE: the validity of the provisions of the federal Employment Insurance Act that granted maternity benefits to pregnant workers who left work to have a baby and parental benefits to mothers and fathers who left work to care for a baby.
o S.91(2A) – the federal power over “unemployment insurance”.
o HELD: looking at Canada 65 years later, the SSC emphasized the “living tree” quality of the Constitution and took a PROGRESSIVE approach to ensure that Confederation can be adapted to new social realities...including “the evolution of the role of women in the labour market and the role of fathers in child care”.
o It must be remembered that the Constitution Act 1867is an organic statute which must provide the basis for the entire government of a nation over a long period of time. An inflexible interpretation would only serve to withhold necessary powers from Parliament or Legislatures....ALSO... the Constitution differs from an ordinary statute in that it CANNOT easily by amended when it becomes out of date, so that its adaptation to changing conditions must fall to a large extent upon the courts.
(g) Unwritten Constitutional Principles
o The interpretation of a constitution is the interpretation of an authoritative text, but over a long period of time, as precedents accumulate, the judicial exegesis may come to achieve more importance than the original text. The courts must apply the test to unpredictable human behaviour
o The word “unwritten” = a frank acknowledgement that the “principles” are not to be found in the written constitutional text and cannot be derived by normal processes of interpretation from the text.
Example:
Manitoba Language Reference (1985)
o PRINCIPLE: in the process of constitutional adjudication, the court may have regard to UNWRITTEN postulates which form the very foundation of the Constitution (the unwritten postulates was the ‘principle rule of law’).
o Facts: all of the laws of Manitoba enacted since 1890 would have been invalid because they were enacted in English only, in defiance of a constitutional requirement to enact the laws in English and French.
o Issue: The rule of law required that the Manitoba Legislature must follow the law of the constitution, which in turn required the court to hold the laws to be invalid. But another aspect of the rule of law called for a community regulated by law, which would be violated if Manitoba were left with a vacuum of law.
SCC Held: the laws enacted in English were invalid, but also that the laws were to remain in force for a temporary period stipulated by the court while the existing laws were translated and re-enacted.
o By virtue of the unwritten “constitutional guarantee of rule of law”, the people of Manitoba continued to be governed temporarily by a body of law that had been invalidly enacted, and that owed it force solely to the fiat (order) of the court.
Re Remuneration of Judges (1997)
o SCC Held: that three provincial statutes reducing the salaries of provincial court judges were unconstitutional, because they violated judicial independence. The Constitution contained an “UNWRITTEN PRINCIPLE” of judicial independence.
Secession Reference (1998)
o SCC Held: any secession of a province could not take place unilaterally but must respect and proceed in accordance with the four unwritten principles of the Constitution; democracy, federalism, constitutionalism and the protection of minorities.
o The court said that two of the principles, namely, democracy and federalism, required that, if a province voted to secede, the rest of Canada would come under a legal obligation to negotiate the terms of secession with that province.
o Unwritten constitutional principles are vague enough to arguably accommodate virtually any given grievance about the government policy. Fortunately, lower courts have been reluctant to invalidate government initiatives on the basis of unwritten constitutional principles, and the SSC shows some signs of reining in its creative impulses.
Babcock v Canada (2002)
o Facts: The challengers invoked three unwritten constitutional principles, namely, the rule of law, the separation of powers and the independence of the judiciary to challenge s.39 of the Canada Evidence Act, which allows the federal government to withhold cabinet documents from court proceedings to which the documents are relevant.
o Held: court rejected the challenge. “The unwritten principles must be balanced against the principle of Parliamentary sovereignty”.
o This is clearly a helpful caution notably absent from the opinions in the Remuneration and Mackin cases, where statutes were struck down (judicial independence is superior to and unqualified by any other principles of Constitution)
Another unsuccessful attempt to invoke the unwritten principle of constitution:
British Columbia v Imperial Tobacco [2005]
o Facts: BC enacted a statute for the recouping from the tobacco companies the health-care costs incurred by the province for tobacco-related disease.
o Issue: The validity of the statute was challenged as the D relied on the independence of judicial independence.
o Held: SSC said there was no breach. The breach could not lead to the invalidity of a statute (except in rare cases where statute is not properly enacted).
Paramountcy
o The doctrine of implied repeal is a solution of the common law in unitary state like the UK and New Zealand.
o This doctrine applies in Canada to resolve conflicts between laws enacted by the same legislative body.
o In Canada, conflict between the statutes of different provincial Legislatures is unlikely to occur because the legislative authority of each province is confined within its own territory.
o But conflict between statute of the federal Parliament and a statute of a provincial Legislature is bound to occur, and by virtue of the “double aspect” and “pith and substance” (incidental effect) doctrines, they may be applicable to the same facts.
o This doctrine is of no help to Canada because neither the federal Parliament nor a provincial Legislature has the power to repeal each other’s laws. For the same reason, the order in which the two laws were enacted is irrelevant: there is no reason to prefer the later over the earlier, or vice versa.
o The rule that has been adopted by the Canadian courts is the doctrine of “federal paramountcy”
o This doctrine applies where there is a federal law and a provincial law which are (1) each valid, and (2) inconsistent.
o A provincial law that is supplementary or duplicative of a federal law is NOT deemed to be inconsistent with the federal law.
EXPRESS CONTRADICTION
(a) Impossibility of Dual Compliance
Example of possibility of a dual compliance:
Multiple Access v McCutcheon (1982)
o PRINCIPLE: if both federal and provincial laws (securities) are valid and both enable compliance without breach of the other. No EXPRESS CONTRADITION: so paramountcy does NOT apply.
o Issue: whether the insider-trading provisions of provincial securities law were in conflict with the insider-trading provisions of federal corporate law.
o SCC Held: No. “In principle, there would seem to be no good reason to speak of paramountcy and preclusion except where there is actual conflict in operation, as where one enactment says ‘yes’ and the other says ‘no’.
o Since the federal and provincial laws provided essentially the same remedy for essentially the same conduct, namely, profiting from inside knowledge in the trading of stocks and bonds, there was no express contradiction.
o The rule of federal paramountcy did not apply. The provincial law was operative, despite its duplication of federal law.
Example of impossibility of dual compliance:
Gillespie v Gillespie (1973) – Where two spouses are separated, and a court order made under federal law grants custody of their child to the wife, while a court order made under provincial law grants custody to the husband, an EXPRESS CONTRADICTION occurs.
Example of Paramountcy:
M & D Farm (1999) – SCC held, since the court order permitting foreclosure proceedings was made under provincial law, and the court order saying proceedings was made under federal law, the doctrine of paramountcy required the federal law prevail.
Ø QUESTION
è Is there an impossibility of dual compliance if a federal law requires the consent of a federal agency and provincial law requires the consent of a provincial agency for the same project?
Ø Answer= No, in principle. Both levels of government may give their consent, which would obviate any conflict. Only if one level denies consent and the other grants consent, is there an impossibility of dual compliance, which would cause the federal decision to prevail.
British Columbia v Lafarge Canada (2007)
o Facts: It was necessary to obtain approval from the Vancouver Port Authority (established under federal law) for the development of a marine facility on a site in the (federally-regulated) port of Vancouver. However, the site was also within the boundaries of the City of Vancouver (established under provincial law).
o Issue: whether the development also needed the approval of the City under its land-use by-law.
SCC Held: the mere requirement of municipal approval would give rise to “operational conflict”, and therefore it was not even necessary to seek the permission of the City.
o BASTARACHE J à “until the City refuses a permit, dual compliance is not ‘impossible’ here.
(b) Frustration of Federal Purpose
o So, when there are overlapping federal and provincial laws, and it is possible to complete with both laws, but the effect of the provincial law would be to frustrate the purpose of the federal law.
Example:
Bank of Montreal v Hall (1990)
o Issue: whether there was a conflict between the federal Bank Act, which provided a procedure for the foreclosure of a mortgage held by a bank, and a provincial Act, which stipulated, as a prelude to foreclosure proceedings, that the creditor must serve on the debtor a notice giving the debtor a last opportunity to repay the loan. The bank complied with the federal procedure, but had not served notice in compliance with the provincial law.
o SCC Held: the bank was not obliged to obey the provincial law, because it was inconsistent the federal law.
o The purpose of the federal law would be frustrated if the bank had to comply with the provincial law.
o NOTE
è it was not impossible for the bank to obey both laws.
Theory was reinforced in:
Law Society of B.C. v Mangat (2001)
o Facts: federal Immigration Act provided that, in proceedings before the Immigration and Refugee Board, a party could be represented by a non-lawyer. BC’s Legal Profession Act provided that non-lawyers were prohibited from practising law.
o SCC Held: since the purpose of the federal law was to establish an informal, accessible and speedy process, that purpose would be defeated if only lawyers were permitted to appear before the Board. Therefore, compliance with the provincial law “would go contrary to Parliament’s purpose in enacting the Immigration Act. Thus provincial law was therefore inoperative.
o NOTE
è it was not impossible to comply with both laws by obeying the stricter provincial one and retaining a lawyer, but this still would have defeated the purpose of ‘informal, accessible and speedy process’.
Smith v The Queen (1960)
o Facts: the two laws were virtually identical in their effect: the federal (Criminal Code) offence was making, circulating or publishing a false prospectus; the provincial (Securities Act) offence was furnishing false information in a prospectus.
o SCC Held: the two laws were not inconsistent. The two laws could “co-exist”.
Rothmans, Benson & Hedges v Saskatchewan [2005]
o Facts: federal Tobacco Act prohibited the promotion of tobacco products, except where authorized by the act, “a person may display, at retail, a tobacco product”.
o Issue: the Saskatchewan Tobacco Control Act banned the display of tobacco products in any premises in which persons under 18 years of age were permitted. By narrowing down the federal limit on the prohibition of commercial speech, the provincial law arguably frustrated an important general purpose of the federal Act, which was to comply with the Charter of Rights. And, having regard to the impracticality of excluding persons under 18 from, i.e. supermarkets, the provincial law DID frustrate the specific purpose of the explicit permission to display.
o Held: the court decided otherwise. The provincial law did NOT frustrate the purpose of the federal law, and therefore, was NOT rendered inorerative by PARAMOUNTCY.
NEGATIVE IMPLICATION
(a) Covering the Field
o REVIEW
è A provincial law that is supplementary or duplicative of a federal law is NOT deemed to be inconsistent with the federal law.
o EXPRESS CONTRADITION suffices to invoke the PARAMOUNTCY DOCTRINE.
o Under this test – A federal law may be read as including not only its express provisions, but also a “negative implication” that those express provisions should not be supplemented or duplicated by any provincial law on the same subject.
- The question is whether the provincial law is in the same “field”, or is upon the same subject, as the federal law? If so, the provincial law is deemed to be inconsistent with the federal law.
The negative implication test (or covering the field) of inconsistency seems to have been applied on one occasion by the PC in:
Local Prohibition case [1896]
o Held: the federal local-option temperance legislature would render inoperative similar provincial legislation if both laws were ever adopted in the same district. Direct contradiction test was therefore, not satisfied and their lordships’ finding of inconsistency, although not explained, must have been presumed on a negative implication or coverage of the field.
o Issue: it was possible to comply with both laws by complying with the stricter of the two, selling liquor only in direct qualities which fitted the narrowest definition of wholesale sale.
The negative implication test (or covering the field) of inconsistency was rejected in:
O’Grady v Sparling [1960]
o Issue: federal law (Crim Code) make it an offence to drive a motor vehicle recklessly; a provincial law (Manitoba’s Hyw Traffic Act) made it an offence to drive carelessly without due care and attention. The two laws did not expressly contradict each other because it was possible to obey both by adhering to the stricter provincial standard.
o JUDSON J à rejected the negative implication test (or covering the field) of inconsistency, holding that “both provisions can live together and operate concurrently”.
o Held: the two laws were therefore NOT inconsistent and PARAMOUNTCY did NOT apply. The implication test was rejected.
Stephens v The Queen [1960]
o Issue: the question was whether inconsistency between federal (Crim Code) offence of failing to remain at the scene of an accident “with intent to escape civil or criminal liability”, and a provincial (Hwt traffic Act) offence of failing to remain at the scene of an accident?
o Held: there was no inconsistency
Smith v The Queen [1960]
o Issue: the two laws were virtually identical. The federal (Crim Code) offence was making, circulate or publishing a false prospectus; the provincial (Securities Act) offence was furnishing false information in a prospectus.
o Held: the two laws were NOT inconsistent, “the two laws could co-exist”, “no conflict in the sense that compliance with one law involves breach of the other”.
o Since these decisions were decided, the SSC has make it clear that the negative implication is rejected.
o There are a series of cases has decided that the negative implication test NO LONGER has any place in Canadian constitution law.
Mann v The Queen [1966]
o Issue: concerned a new federal Criminal Code Offence of driving a motor vehicle “in a manner that is dangerous to the public”. Did this new offence render inoperative the provincial “careless driving” offences?
o Held: PARAMOUNTCY did NOT apply.
Note: This case is much more clear then O’Grady (which stated “reckless driving”) because the federal standard was now so close to the provincial one.
Ross v Registrar of Motar Vihicles [1973] and Bell v A-G P.E.I [1973]
o Issue: the question arose whether there was inconsistency between a federal law conferring a judicial discretion to prohibit a convicted “drunk driver” from driving and a provincial law imposing an automatic suspension of a convicted drunk driver’s driving licence?
o (Followed: Provincial Secretary of P.E.I v EGAN [1941] – where the Criminal Code included a penalty for certain impaired driving offences the power to prohibit the convicted D from driving anywhere in Canada for up to 3 years. Issue: Egan was convicted of impaired driving, but court exercised discretion to make no order prohibiting Egan from driving. SCC held: Egan lost his licence: the provincial suspension was NOT inconsistent with the federal discretion).
o The new point which had to be decided in Ross and Bell arose out of an amendments to the Criminal Code in 1972 which enlarged the discretion of the court in sentencing impaired drivers.
o In Bell, where NO intermittent order had been made, the court followed Egan.
o Held: operative an automatic provincial suspension of the convicted driver’s licence.
o In Ross, the purpose of the new amendment was to enable the sentencing court to tailor its prohibition order to the facts of the case; to impose a more lenient restraint on the D to was dependent upon driving for his livelihood.
o Held: but the SCC refused to draw the implication. The intermittent order HAD been made and the court reached the same conclusion as in Bell, “this means that as long as the provincial licence suspension is in effect, the person concerned gets no benefit from the indulgence granted under the federal legislation”. But dismissed the point that asked, “is the situation any different in law from that which was considered in Egan?”
SCC’s rejection of negative implication (or covering the field) has continued in more cases:
Robinson v Countrywide Factories [1977] - Held: a provincial law avoided fraudulent preferences by insolvent debtors could stand in the face of a federal bankruptcy law.
Construction Montcalm v Minimum Wage Commission [1978] – Held: a provincial min wage law was applicable to a Crown contractor constructing an airport runway, despite the fact that there was an applicable federal min wage law.
Schneider v The Queen [1982]– Held: a provincial Heroin Treatment Act was not inconsistent with the federal Narcotic Control Act.
Multiple Access v McCutcheon [1982] – Held: court applied a provincial “insider trading” law to shares in a federally incorporated company, despite the existence of an applicable federal law prohibiting insider trading.
Rio Hotel v New Brunswick [1987] – Held: provincial prohibition of “nude entertainment” in taverns was not inconsistent with the federal Criminal Code offences involving public nudity.
Irwin Toy v Quebec [1989] – Held: provincial prohibition of advertising directed at children applied to TV, despite the existence of federal guidelines for TV ads directed at children.
Clarke v Clarke [1990] – Held: provincial matrimonial property legislation required the sharing of a military pension, despite a federal prohibition on the alienation of the person
114957 Canada v Hudson [2001] - Held: a municipal by-law restricting the use of pesticides was not rendered inoperative by federal legislation setting standards for pesticides or provincial legislation setting standards for vendors and commercial uses of pesticides.
Canadian Western Bank v Alberta [2007]–Held: provincial law requiring a licence for the promotion of insurance in the province was not rendered inoperative to banks by the federal Bank Act, which authorized banks to promote 8 specific kinds of credit-related insurance.
(b) Express Extension of PARAMOUNTCY
o QUESTION
è If the federal Parliament occupied a field of legislation by express words, would that be effective?
i.e. s.88 of the federal Indian Act provides that the provincial laws are inapplicable to Indians “to the extent that such laws make provision for any matter for which provision is made by or under this Act”.
o So, in principle, the answer to the question would be YES.
o Assuming that the express federal PARAMOUNTCY provision was valid under federalism rules, it was part of a law in relation to a federal head of power, therefore, valid. If so, then a provincial law in the same field would be inconsistent with the federal law, and therefore rendered inoperative by the DOCTRINE OF PARAMOUNTCY.
o For the most part, this is considered law.
However:
Dick v The Queen [1985]
o BEETZ J à “it would not be open to Parliament in my view to make the Indian Act paramount over provincial laws simply because the Indian Act occupied the field. Operational conflict would be required to this end”
o HOBB à “For this reason, I think the better view is that an express covering-the-field clause would be effective. It seems that PARAMOUNTCY may be expressly waived by the federal Parliament...”
OVERLAP AND DUPLICATION
(a) Constitutional Significance
o Review: The 4 PARAMOUNTCY cases (O’Grady, Smith, Stephens, and Mann) all concerned penal enactments with overlapped. They all placed an emphasis on the fact that the competing federal and provincial laws were different in some respect. The implication was that a provincial law which DUPLICATION the provisions of a federal law, would be rendered to be INOPERATIVE.
(b) Double Criminal Liability
o The overlapping or duplicative penal provisions raises the possibility that a person may be liable to conviction under both federal law and provincial law for the same conduct.
o There is nothing in PARAMOUNTCY DOCTRINE which precludes multiple prosecutions or convictions under federal and provincial laws.
o Double jeopardy issues should be dealt with as if Canada was a unitary state. This means that nearly all relevant decisions are taken by the same provincial officials or judges, regardless of whether the offences are federal or provincial.
o Issues of double jeopardy are usually resolved by prosecutorial or judicial discretion.
(c) Double Civil Liability
o Double civil liability is also a possibility under overlapping or duplicative federal and provincial laws.
o Just like the possibility of double criminal liability, the issue of double civil does not need to be resolved by the DOCTRINE OF PARAMOUNTCY.
EFFECT OF INCONSISTENCY
o The most accurate way to describing the effect on the provincial law, is to say that: it is rendered INOPERATIVE TO THE EXTENT OF INCONSISTENCY.
o The doctrine will NOT affect those parts of the provincial law which are not inconsistent with the federal law...unless the inconsistent parts are inseparable from the consistent parts.
o If the federal law is repealed, the provincial law will automatically “revive” without any re-enactment by the provincial Legislatures.
Property and Civil Rights s.92(13)
IMPORTANCE OF PROPERTY AND CIVIL RIGHTS
HISTORY OF PROPERTY AND CIVIL RIGHTS
o The Constitution Act made some changes in the historical definition of property and civil rights. The list of federal heads of legislative power in s.91 included a number of matters which would otherwise have come within property and civil rights in the province.
i.e. trade and commerce; banking; bills of exchange and promissory notes; interest; bankruptcy and insolvency; marriage and divorce; copyrights; patents of invention and discovery.
o These federal classes of subjects were withdrawn from property and civil rights by their exclusive vesting in the federal Parliament.
o In addition, peace, order, and good government phrase in the opening language of s.91 presumably contemplated that certain matters which would otherwise have come within property and civil rights could attain such a national dimension as to come within federal competence.
o The original distinction between private and public law has tended to break down for constitutional purposes, as governments have increasingly intervened to regulate the economic life of a nation.
i.e. much business activity is no longer governed simply by contract, but by statutory rules and decisions of government officials. These governmental interventions in the marketplace, if could not be fitted into a particular head of legislative power, have been allocated by the courts to property and civil rights in the province.
o Therefore the evolution of our laws has now swept much public law into the rubric which was originally designed to EXCLUDE public law.
CIVIL LIBERTIES
o Civil RIGHTS in the sense required by the Constitution Act 1867, are juristically distinct from Civil LIBERTIES.
LOCAL OR PRIVATE MATTERS
o s.92(16) – the provincial “residuary power” over “all matters of a merely local or private nature in the province” has turned out to be relatively unimportant due to the wide scope of s.92(13). It is often suggested as a possible alternative to s.92(13).
INSURANCE
(a) Reasons for Regulating
o Insurance is not listed in the enumerated heads of power.
o The insurance industry became the arena in which the two levels of government contended for the power to regulate business.
o Because the terms and conditions of insurance policies are in practice stipulated by the insurer, governments sought to protect the insured by requiring the inclusion of certain conditions in every policy.
o Governments sought to control entry to, and supervise the performance of, the industry by licensing insurer, security deposit, by limiting the insurers’ power of investment, and inspection of their books.
(b) Provincial power
o A provincial statute was the first to come before the courts.
Citizens’ Insurance Co v Parsons (1881)
o PRINCIPLE: insurance in a provincial matter under s.92(13).
o PC Held: PC upheld an Ontario statute which required that certain conditions be included in every policy of fire insurance entered into in Ontario. Their Lordships held that regulation of the terms of contracts came within property and civil rights in the province under s.91(13), and did not come within trade and commerce under s.91(2).
o The next statute to come before the courts was a federal one.
Insurance Reference (1916)
o PRINCIPLE: insurance is a provincial matter under s.92(13).
o PC Held: the federal Insurance Act 1910, which prohibited any company from carrying on the business of insurance unless it had a licence issued by the federal Minister of Finance was held unconstitutional. Their Lordships held that the regulation of a particular industry came within property and civil rights in the province, even when the industry and particular firms extended beyond be boundaries of a province.
o The Insurance Reference was followed by a series of cases where the courts had to pass on a variety of federal attempts to regain the jurisdiction.
The first response to the PC’s decision was an attempt by the federal Parliament:
A-G Ont. V Reciprocal Insurers (1924)
o PRINCIPLE: insurance is a provincial matter under s.92(13).
o Facts: Federal Parliament again responded by compelling the licensing of insurance companies by a provision in the Criminal Code making it an offence to carry on the business of insurance without a licence from the Minister of Finance.
o PC Held: this device was a colourable attempt to use the cloak of the criminal law “to interfere with the exercise of civil rights in the Provinces”.
The second response to the PC’s decision was:
Re Insurance Act of Can [1932]
o Facts: PC struck down provisions which required non-resident British subjects and aliens to obtain a licence to carry on the business of insurance, and which imposed a special tax on persons taking out insurance with unlicensed British foreign insurers.
o Held: all 3 powers were being employed colourably “to intermeddle with the conduct of insurance business”
The final response to the PC’s decision was:
Re s.16 of Special War Revenue Act [1942]
o Facts: concerned another federal statute directed at British and foreign insurers and coupled with a special tax on the customers of unregistered insurers.
o Held: SCC adopted PS’s reasoning of last insurance to hold this statute also invalid.
In the middle of this series of decisions, the PC struck down the scheme of unemployment insurance which was part of the Canadian “new deal” to combat the depression of the 1930:
Unemployment Insurance Reference (1937)
o PRINCIPLE: insurance is a provincial matter under s.92(13).
PC also struck down the scheme of unemployment insurance which was part of the Canadian “new deal” to combat the depression of the 1930s (This was decided partly that the scheme related to employment, and partly on that the scheme related to insurance).
o This decision was overcome by an amendment to the Constitution in 1940 which added ‘Unemployment insurance” as a head under s.912A.
(c) Federal power
o Despite all these setback in the courts, the federal government continues to regulate a substantial part of the insurance industry under statutes covering British and foreign companies, federally-incorporated companies and on a voluntary basis, provincially-incorporated companies.
o There has been no constitutional attack on it since 1942.
o The current federal statutes include preambles which indicate that the powers over trade and commerce, aliens and insolvency are relied upon as supporting their constitutionality.
Wentworth Insurance case [1969]
o Principle: a federal law is applicable to insolvent insurance companies
o Issue: whether the company’s deposit should be administered in accordance with the federal or the provincial law.
o Held: SCC adopted the reasoning of LASKIN J.A à that the federal law was a valid law in relation to insolvency, and the federal law was the applicable provision.
o Certainly, this decision was a startling departure from the course of decisions between 1916-1942 when so many and various federal attempts to enter the field of insurance was rebuffed.
BUSINESS IN GENERAL
o The insurance cases established that the regulation of business was ordinarily a matter within property and civil rights in the province.
o Some industries have been held to fall within federal jurisdiction because they are enumerated in s.91 or because they are expected from s.92(10).
o Some industries have been held to fall within federal jurisdiction under peace, order, and good government power (POGG power), namely, aeronautics and the production of atomic energy.
o Other federal powers confer limited power to regulate business.
o But the gaps in federal power are very important and extensive. The gaps are covered by the provincial power over property and civil rights.
PROFESSIONS AND TRADES
o The regulation of professions and trades typically takes the form of restrictions on entry, coupled with rules of conduct; fee-setting, and administration by governing body.
o Such regulation is no different for constitutional purposes than that of other industries, and comes within property and civil rights in the province.
Krieger v Law Society of Alberta (2002)
o PRINCIPLE: the regulation of a profession and a breach of professional responsibility is a provincial matter under property and civil rights even though a prosecutors breach is a criminal procedure.
o Issue: whether the Law Society of Alberta had the power to discipline a provincial Crown prosecutor who had failed to make timely disclosure to the defence of exculpatory evidence in his possession.
o SCC Held: the Law Society, which was empowered by provincial law to regulate the legal profession in the province, did have the jurisdiction. Although the duty of prosecutors to make timely disclosure was a rule of criminal procedure (a federal responsibility), a default could also be a breach of professional responsibility.
LABOUR RELATIONS (industrial disputes, working hours, wages, etc.)
(a) Provincial power
o The regulation of labour relations over most of the economy is within provincial competence under property and civil rights in the province.
Concerning industrial peace (prevention of lockouts and strikes):
Toronto Electric Commissioners v Snider (1925)
o PRINCIPLE: Labour relations is a provincial matter under s.92(13).
o PC held: the federal Industrial Disputes Investigation Act 1907 to be unconstitutional. The Act came within property and civil rights in the province. The Act afforded compulsory conciliation procedures for the settlement of industrial disputes in mining, transportation, communication and public service utilities.
o Immediately after the decision, the federal Act was amended to confine its operation to industries which were otherwise within federal legislative authority, and in this more limited form the Act was upheld.
o All provinces except P.E.I enacted legislation to adopt the federal law and thereby restoring the fact of uniform federal labour law.
o Apart from WWII, when uniform federal law on the ‘Wager model’ was proclaimed, the labour law became provincial again. This is the present situation and it shows no sign of changing.
Concerning labour standards legislation:
Labour Conventions case (1937)
o PRINCIPLE: Labour standards is a provincial matter under s.92(13).
o PC held: the federal statute which provided for weekly rest in employment, limitations on working hours and minimum wages based on the POGG (peace, order, good government) power and the treaty power as unconstitutional. Therefore, rejected arguments based on POGG, and held that laws imposing labour standards came within property and civil rights in the province.
Concerning working hours:
Empress Hotel case (1950)
o PRINCIPLE: Labour standards is a provincial matter under s.92(13).
o PC held: that minimum hours or work in a hotel could only be stipulated by the province.
Concerning unemployment insurance:
Unemployment Insurance Reference [1937]
o PRINCIPLE: Labour standards is a provincial matter under s.92(13).
o Held: Unemployment insurance is incompetent to the federal Parliament
o HOWEVER: this decision was overcome by an amendment to the Constitution adding “unemployment insurance” as a new head of federal power (s.91(2A)).
(b) Federal power
o Despite the consistent affirmation of provincial power over labour relations, there is still a substantial presence in the field.
o Immediately after the decision in Snider, the federal Parliament amended its labour legislation to apply to “employment upon or in connection with any work, undertaking or business that is within the legislative authority of the Parliament of Canada”
o Federal competence exists ONLY where it is found that the work performed by the employees is an integral part of an undertaking within federal jurisdiction, and that finding depends upon “legislative authority over the operation, not over the person of the employer”.
First time there was a challenge that the federal Parliament could regulate labour relations:
Stevedores Reference (1955)
o PRINCIPLE: the federal Parliament has the power to regulate employment (labour relations) in works, undertakings or businesses within the legislative authority of the federal Parliament even though labour relations is a provincial matter.
o Facts: two unions were claiming to represent a group of stevedores in the port of Toronto; one union was certified under provincial law, the other was certified under federal law. The federal law specifically applied to “businesses carried on for or in connection with navigation or shipping”. The subject of “navigation and shipping” is a federal head of power under s.91(10).
o SCC Held: the federal law was valid, and that it was applicable to the stevedores because their work of loading and unloading ships was an essential part of navigation and shipping.
o This case has been followed in many subsequent cases and the court has approached these cases on the basis that provincial competence over labour relations is the rule, and federal competence is the exception!
o Federal competence exists ONLY where it is found that the work performed by the employees is an integral part of an undertaking within federal jurisdiction, and that finding depends upon “legislative authority over the operation, not over the person of the employer”
QUESTION
è Where there is federal jurisdiction over labour relations within the federal sector, is the federal jurisdiction exclusive, or is it concurrent/parallel with that of the provincial Legislatures?
Commission du Salaire Minimum v Bell Telephone Co. [1966]
o Issue: whether Quebec’s min wage law applied to the Bell Tele Company, which was within federal jurisdiction as an interprovincial communications undertaking.
o Held: SCC held nevertheless that the provincial law was inapplicable to Bell. The rates of pay and hours of work were “vital parts” of the interprovincial undertaking, and that all such vital parts were subject to the exclusive legislative controls of the federal Parliament.
o Therefore: although the provincial law was valid in its application to most employment in the province, it could NOT constitutionally apply to employment in a federally-regulated industry.
o NOTE
è The doctrine of “interjurisdictional immunity” was applied here.
Bell Canada v Quebec (1988)
o The SCC rejected the criticism in the Quebec Minimum Wage case and followed its earlier decision.
o Issue: whether a provincial occupational health and safety law was applicable to an interprovincial telephone company. The provincial law gave to workers who used video monitors the right to be assigned to other duties while they were pregnant.
o SCC Held: the provincial law was inapplicable to the telephone company. By interfering in the labour relations of the company, the law would affect a vital part of the management and operation of the federal undertaking.
o NOTE
è The doctrine of “interjurisdictional immunity” was applied here.
o Federal jurisdiction over labour relations will extend outside the federal sectors of the economy in times of national emergency.
o Both of the world wars counted as emergencies, although the depression of the 1930s did not.
However, in:
Anti-Inflation Reference (1976)
o Held: SCC held that a period of double-digit inflation counted as an emergency, and on this basis upheld temporary federal wage (and price) controls which substantially transformed labour relations outside as well as inside the federal sectors of the economy.
MARKETING (and INCIDENTAL EFFECTS)
(a) Reasons for Regulation
o The reasons for regulating markets may be found in the interests of both producers and consumers.
(b) Federal Power
o REVIEW
è attempts by the federal Parliament to enact marketing schemes under trade and commerce power (s.91(2)) were struck down by PC because, “any interference with contracts was a matter within property and civil rights in the province”.
o Since the abolition of appeals to the PC, the Canadian courts have interpreted the trade and commerce power more liberally.
i.e. federal regulation of trade in grain and in oil has been upheld, even thought the regulation extended to purely local transactions.
o The reasoning was that the marketing of the products which flow across interprovincial boundaries from the province of production or importation of the province of consumption or export, could be regulated by the federal Parliament, and that some local transactions could also be regulated where there was an incident of the regulation of the interprovincial trade.
o These decisions represent a departure from the PC precedents, and a significant expansion of federal power.
(c) Provincial Power
o Contracts of sale and purchase are prima facie matters within “property and civil rights in the province” (s.92(13)) and therefore, amenable to provincial legislation.
o There is no doubt that under s.92(13) the provinces have the power to regulate intraprovincial trade, although they lack the power to regulate interprovincial trade.
o QUESTION
è To what extent should a province be permitted to burden interprovincial trade in the course of regulating intraprovincial trade?
Shannon v Lower Mainland Dairy Products Board (1938)
o PRINCIPLE: Provinces can create marketing boards regulating a product within the province with “incidental effects” on imports (or interprovincial trade).
o Facts: Provincial statute providing for the creation of a BC marketing board, with powers to control the marketing of natural products in the province (milk). The marketing board’s powers extended to all-natural products sold in the province, whether locally produced or imported. This scheme applied to all milk sold in the province, including milk produced in other provinces.
o PC Held: the application to milk produced out of the province was upheld as an “incident” of an essentially intraprovincial scheme.
Home Oil Distributors v A-G B.C [1940]
o Held: SCC upheld provincial regulation of the prices of all gasoline and fuel oil sold in the province.
Carnation Co. V Quebec Agricultural Marketing Board (1968)
o PRINCIPLE: Provinces can create marketing boards regulating a product within the province, even if the product is primarily exported (thus, regulation with an “incidental effect” on trade).
o Issue: a Quebec statute granted a provincially appointed board the power to fix the price paid by Carnation for raw milk purchased from local dairy farmers. Carnation argued that the statute was unlawful since, after processing the milk, it shipped and/or sold most of the product outside Quebec.
o SCC Held: the provincial legislation for the marketing plan for the sale of raw milk by farmers to the Carnation Company was upheld. The marketing law was “in relation to” intraprovincial trade, and that it merely “affected” interprovincial trade.
o The ultimate destination of the product could not “affect” the validity of the provincial statute because it was directed at a transaction – the sale of the milk from the farmers to Carnation – taking place wholly within the province.
o The main “matter” (pith and substance) of the law, was the regulation of a local transaction with an “incidental effect” of trade, and it was thus a valid provincial law in relation to local trade.
o These 3 cases suggest a very extensive power to regulate marketing within the province, notwithstanding the burdens incidentally placed on the residents of other provinces.
Manitoba Egg Reference (1971)
SCC unexpectedly struck down a provincial scheme to regulate the marketing of eggs.
o PRINCIPLE: If a provincial board’s aim, in addition to regulating a product, becomes the regulation of trade, the provincial board will be unconstitutional. This ensures that provinces will NOT erect “internal” trade barriers.
o Background: Arose out of “chicken and egg war” between Ontario (which produced a surplus of eggs) and Quebec (which produced a surplus of chickens). Each province established marketing plans for eggs in Quebec and chickens in Ontario, which gave undue preference to the locally-produced product.
o Facts: Manitoba, which as a producer of agricultural surpluses claimed to be injured by both plans, created an egg marketing plan of its own on the Quebec model and referred it to the courts for a judicial decision which would also effectively determine the validity of the Quebec and Ontario plans. The scheme applied to all eggs sold in Manitoba, including eggs produced elsewhere.
o SCC Held: SCC struck down the provincial scheme to regulate the marketing of eggs. Court held that “the Plan now in issue not only affects interprovincial trade in eggs, but that it aims at the regulation of such trade”. Thus, the marketing board’s aim was not only to regulate local production, but also regulate trade. The plan was accordingly held to be unconstitutional.
o NOTE
è the background of the case may have suggested to the judges that the various marketing plans could be used as vehicles by which a province could discriminate against the out-of-province product. Discrimination would of course make the plan unconstitutional and would be a clear distinction between this case and Shannon and Home Oil.
o The decision in Manitoba Egg was followed by a federal-provincial agreement which settled a national marketing plan for eggs.
o The plan allocated production to each province, and stipulated a higher price for eggs sold outside the province of production. Within each province production quotas were to be imposed on producers so as to control the supply, support prices, etc.,
o The plan was to be administered by a national marketing board and ten provincial marketing boards.
o Through the cooperative action of both levels of government, it was hoped to fill in the gaps in federal and provincial legislative power.
Re Agricultural Products Marketing Act (1978)
o SCC Held: SCC upheld the principle elements of the plan. Both the federal marketing statute and the Ontario statute were upheld, on the basis that the federal statute regulated interprovincial elements and the provincial statute regulated intraprovincial elements of the plan.
o NOTE
è This is a good example of federal-provincial diplomacy, working together to achieve a common goal.
The court has not stick on to this ruling about provincial power to control production of natural resources:
Central Canada Potash v Government of Saskatchewan (1978)
o PRINCIPLE: The court will look into the true nature and character of the legislation to decide whether the legislation aims to regulate the export of a product.
o Facts: The Saskatchewan government, in concert with the largest U.S. potash supplier, devised a plan to limit production and increase market prices.
o Sask’s arguments: the provincial power over property and civil rights included the power to impose controls on production of natural resources within the province.
o Issue: The problem with this argument was that the whole purpose of the legislation was to stabilize the market for potash in the U.S. The court had to determine the true nature and character of the legislation.
o SCC Held: struck down Sask’s prorationing scheme for potash produced in the province. The broad factors amounted to an attempt to regulate the export market in potash. The fact that the legislation took the form of quotas on production was irrelevant.
o In order to account for the different outcomes in the 2 above cases, it seems necessary to look to the destination of the product itself
o In Re Agricultural, it was established that 90%of the eggs produced in Canada were consumed within the province of production.
o In Central Canada Potash, it was established that virtually all of the potash produced in Sack was exported. This led the court to characterize the proprationing scheme as “directly aimed at the production of potash destined for export”. But this was not a plausible characterization. The court’s reasoning produces the unfortunate consequence that those provinces that, like Sask, are mainly primary producers have less control over their natural resources than those provinces that, like Ontario,
have more integrated economies.
o Neither could it be argues that the production controls had a physical conservative purpose. Eggs are a renewable resource, potash is not.
o The decision in Central Canada Potash raised an outcry in the western provinces. Those concerns lead to the enactment in 1982 of s.92A, designed to extend provincial powers in relation to natural resources.
o s.92A – provinces control exports of resources (non-renewable natural resources; like lumber and electricity ....NOT non-agricultural products; like eggs) to other provinces. The export of resources from Canada remains outside provincial legislative power.
o NOTE
è The facts of Central Canada Potash, where the bulk of the potash was destined for markets in the U.S, would be OUTSIDE this new power.
SECURITIES REGULATION
(a) Provincial power
o The provinces have the power to regulate the trade in corporate securities under s.92(13).
o It has been held that the province no longer has the power to confer upon a provincial agency discretionary power over the issue of securities by a federally-incorporated company, because the capacity to raise capital is an essential attribute of corporate status.
o Except for the limited immunity of federally-incorporated companies, the provincial power has been given a broad scope by the courts.
o In these cases where the provincial legislation has been applied to operations which are interprovincial, the court may have been influenced by the absence of federal securities legislation.
(b) Federal power
o The federal government has commissioned and published a possibility of federal regulation of securities industry, but this has not been adopted as a federal government policy.
o The federal incorporation power authorizes the regulation of the issue of securities by federally-incorporated companies.
o The criminal law power authorizes the punishment of fraudulent or deceptive practice in the securities industry.
PROPERTY
(a) General
o A province has sought to control the ownership or use of property in order to accomplish a non-proprietary objective which it could not accomplish by more direct means:
Switzman v Elbling (1957)
o Facts: Provincial law which prohibited the use of a house “to propagate communism or bolshevism.
o SCC Held: Law was not in relation to property. The law was properly characterized as either criminal law or a law in relation to speech.
o Compare with:
Bedard v Dawson (1923)
o Facts: Provincial law which prohibited the use of a house as a “disorderly house”.
o SCC Held: Law was characterized as a property law, and not as a mere supplement to Criminal Code offences in respect of disorderly houses.
(b) Foreign ownership
o QUESTION:
è Whether a province can control foreign ownership of land? YES!
Morgan v A-G PEI (1975)
o Facts: PEI statute which provided that “no person who is not a resident of the province” could acquire holdings of real property of more than a specified size except with the permission of the provincial cabinet.
o SCC Held: upheld provincial statute. The qualification for unrestricted landholding was ‘residence’, not citizenship, and so the prohibition applied to non-resident citizens as well as non-resident aliens.
o NOTE:
è If the discrimination had been against aliens instead of non-resident, the law may not have stood because “naturalization and aliens” is a federal head under s.91(25).
(c) Heritage property
Kitkatla Band v BC (2002)
o SCC Held: the protection of heritage or cultural property was within provincial jurisdiction under property and civil rights in the province.
DEBT ADJUSTMENT
o The law of contract is mainly within provincial power under property and civil rights in the province.
o But provincial power to modify creditors’ rights is circumscribed by a number of provisions of the Constitution Act.
CONSUMER PROTECTION
o Much consumer protection law is open to the province under the power over property and civil rights in the province.
Example:
Irwin Toy (1989)
o SCC Held: provincial restriction on advertising directed at children are “in relation to consumer protection” and upheld under s.92(13).
o But can’t much federal law be accurately described as in relation to consumer protection?
o The phrase ‘consumer protection’ is far too broad to serve as a “matter” for the purpose of federal distribution of powers.
EXTRATERRITORIAL COMPETENCE
o The legislative power conferred by s.92(13) is over property and civil rights in the province. Clearly, there is a territorial limitation of power.
Trade and Commerce s.91(2)
RELATIONSHIP TO PROPERTY AND CIVIL RIGHTS
o NOTE:
è The interpretative problem for Canada lay in the accommodation of the federal power over “the regulation of trade and commerce” (s.91(2)) with the provincial power over “property and civil rights in the province” (s.92(13)).
A process of “mutual modification” have narrowed the two classes of subjects so as to eliminate the overlapping and make each power exclusive.
Citizens’ Insurance Co. v Parsons (1881)
o Issue: was the validity of a provincial statute which stipulated that certain conditions were to be included in all fire insurance policies entered into the province?
o PC Held: the statute was valid in relation to property and civil rights in the province. It did NOT come within the federal trade and commerce power, because that power should be read as NOT including “the power to regulate by legislation the contracts of a particular business or trade, such as the business of fire insurance in a single province”
o Court Interpreted the federal trade and commerce under s.91(2)
(1) INTERPROVINCIAL OR INTERNATIONAL TRADE AND COMMERCE
(a) In the Privy Council
o The history of the “trade and commerce” power closely parallels the history of peace, order, and good government power (POGG).
o Like POGG, the “trade and commerce” power was severely contracted by the PC, but had been permitted to expand somewhat by the SCC since the abolition of appeals to the PC.
o NOTE
è The Parsons case DID NOT define when “trade and commerce became sufficiently interprovincial so as to come within the federal power.
Board of Commerce case [1922] as per VISCOUNT HALDANE à suggested that the “trade and commerce” power had NO independent content and could be invoked only as ancillary (additional) to other federal powers. He dismissed the trade and commerce power by saying that, “s.91(2) did not, by itself, enable interference with particular trades which Canadians would, apart from any rights of interference conferred by POGG, be free to engage in the provinces”
P.A.T.A. case [1931] as per LORD ATKIN à (orbiter) rejected Viscount Haldane’s ancillary theory of “trade and commerce” power, saying that, “the words of s.91(2) must receive their proper construction where they stand as giving an independent authority to Parliament over the particular subject-matter”
o Federal attempts to use the “trade and commerce” power to regulate marketing were also struck down by the PC and by the SCC in King v Eastern Terminal Elevator Co. [1925] and Natural Products Marketing Reference [1937].
The PC’s last consideration of “trade and commerce” power came in:
Margarine Reference (1951)
o Issue: SCC had to consider the validity of federal legislation banning the manufacture, importation, or sale of margarine. It was conceded that margarine was substantially as nutritious and fit for human consumption as was butter. According to the SCC the purpose of the enactment was social and economic, namely, “to give trade protection to the dairy industry in the production and sale of butter”.
o SCC Held: a federal prohibition of the manufacture, sale or possession of margarine (for the purpose of protecting the dairy industry) was wholly invalid, because it proscribed not only interprovincial transactions but also transactions that could be completed within a province (intraprovincial). A provision in the statute which prohibited the importation of margarine was upheld by SCC as a valid exercise of the “trade and commerce” power.
o NOTE
è The appeal to the PC did NOT include the question of importation, nor did the PC express an opinion on it.
(b) In the Supreme Court of Canada
o Since the abolition of appeals to the PC there has been a resurgence of the “trade and commerce” power.
R V Klassen [1959]
o Issue: whether the Act could validly apply to a purely local work – a feed mill which processed locally-produced wheat and sold it as feed to local farmers? The Act imposed a quota system on producers which was designed to ensure equal access to the interprovincial and export market...
o Held: that the application of the Act to such intraprovincial transactions was valid. It was incidental to the principle purpose of the Act, which was to regulate the interprovincial and export trade in grain.
NOTE:
è This decision was a striking departure from the course of PC decisions, which had consistently decided that federal regulation under the “trade and commerce” power could NOT embrace wholly intraprovincial transactions, even when the main object was to regulate the interprovincial or export trade.
è Yet, the SCC refused leave to appeal the decision.
o The new development suggested by Klassen was confirmed in:
Caloil v A-G Can [1971]
o SCC Held: upheld a federal prohibition on the transportation of sale of imported oil west of Ottawa Valley.
o The purpose was to protect the domestic industry in the West from the then cheaper imported product. Thus, the law was upheld as “an incident in the administration of an extra-provincial marketing scheme” and as “an integral part of the control of imports in the furtherance of an extraprovincial trade policy”.
o The existence of this interprovincial flow enabled the courts to uphold the regulation of intraprovincial transactions on the ground that such regulation was incidental to the main object of regulating the interprovincial flow.
o It is not yet clear to what extent interprovincial elements of a less obvious kind would provide for federal regulation...but there is a strong argument that effective regulation of the market can only be national.
R v Dominion Stores Ltd. (1979)
o Issue: the validity of Part I of the federal Canada Agricultural Products Standards Act, which established grade names for various classes of agricultural products and regulated the use of those names.
o Part II of the Act made it compulsory to use the grade names for products moving in interprovincial or international trade.
o Part I of the Act did not make it compulsory to use the grade names for products marketed within the province of production, but provided that, if the grade names were used in local trade, then the appropriate federal standards had to be complied with.
o Dominion Stores was charged under Part I with selling apples (assumed locally produced) under federally-established grade name “Canada Extra Fancy”, which did NOT comply with the standards stipulated for that grade of apples.
o SCC Held: struck down Part I of the federal Act. Court said Part I was an unconstitutional attempt to regulate local trade. Court said that Parliament could NOT regulate grade names for agricultural products traded locally. It could do so with products traded interprovincially or internationally.
o HOGG à “Dominion Stores was wrongly decided. It seems that Part I of the Act was necessary to protect the interprovincial and international scheme: if the grade names were used for locally-produced products, then the federal standards had to be complied with. Surely, such a modest intrusion into local trade has a “rational, functional connection” which the regulation of interprovincial and international trade. In rejecting this intrusion into local trade, the Court seems to have inexplicably reverted to the bad old days of the PC’s ‘watertight compartments’”.
o Another case in which the federal “trade and commerce” power was rejected for federal legislation:
Labatt Breweries (1980)
o Facts: The federal Food and Drugs Act that established compositional standards for light beer did not require producers to brew beer in a particular manner but, in the event that producers wished to label, package, or sell a product as light beer, they were required to meet the standards applicable for that product.
o SCC Held: struck down compositional standards for beer enacted under the federal Food and Drug Act. The court rejected the power to regulate interprovincial trade as a ground of validity.
o ESTEY Jà the standards were imposed without regard for the product’s movements across provincial boundaries.
(2) GENERAL TRADE AND COMMERCE
o It will be recalled that in the leading case of Parsons, the PC suggested 2 categories of “trade and commerce”
(1) Interprovincial or international trade and commerce (just considered)
(2) “general regulation of trade affecting the whole dominion” – the so-called “general” category of trade and commerce.
o Until the SCC decision in General Motors [1989], the general category of “trade and commerce” had been rather consistently rejected as a support for deferral policies of economic regulation.
o Until 1989, the only unequivocal example of a valid exercise of the general “trade and commerce” power was the Canada Standard Trade Mark case [1937].
Canada Standard Trade Mark case [1937]
o PC Held: upheld a federal statute which established a national mark called ‘Canada Standard’.
o Issue: the case seemed to decide that the general “trade and commerce” power would authorize federal standards of production or manufacture for products traded locally, provided that the federal standards were tied to the voluntary use of a distinctive mark.
o Canada Standardcase was shadowed in the Dominion Stores case, since they shared similar facts.
R v Dominion Stores Ltd. (1979)
o Issue: the validity of Part I of the federal Canada Agricultural Products Standards Act, which established grade names for various classes of agricultural products and regulated the use of those names. If the grades were voluntarily used for products traded locally, then the products had to comply with the associated federal standards.
o The four dissenting judges regarded the Canada Standard case as indistinguishable, but ESTEY J for the majority distinguished the Canada Standard case on its own.
Parliament’s attempt to regulate local production through “voluntary schemes”:
Labatt Breweries (1980)
o Facts: The federal Food and Drugs Act that established compositional standards for light beer did not require producers to brew beer in a particular manner but, in the event that producers wished to label, package, or sell a product as light beer, they were required to meet the standards applicable for that product.
o Fed’s argument: Federal government sought to uphold the regulations on the basis that they merely established voluntary labelling regulations, detailing the standards that must be met if some specific designations were used on food labels. But if Labatt did not elect to market its product as light beer, the compositional standards established by the regulations did not apply. Such a voluntary labelling scheme could be justified under Parliament’s trade powers.
o SCC Held: struck down compositional standards for light beer which had been enacted under the federal Food and Drugs Act. This federal scheme was invalid. The controls were in reality mandatory. The standards became applicable only through the voluntary use of the description “light beer”. The regulations specified standards for products using such common names as “beer” or “light beer”. Therefore, while apparently voluntary, the scheme was in practice mandatory through assigning common names and then prescribing standards for their use.
o Reasoning as per ESTEY J à referred to the “arrogation” by Parliament of “common names”, and it is certainly arguable that therein lies an essential difference between Canada Standard (and Dominion Stores) on the one hand, and Labatt Breweries on the other. In the former, the application of the federal standards depended on the use of a distinctive description, namely, Canada Standard (or Canada Extra Fancy). In the latter, the application of the federal standard depended on the use of a common description, namely, “light beer”.
MacDonald v Vapor Canada (1976)
o Issue: validity of a federal law which prohibited, and provided a civil remedy for, any “act” or “business practice” which was “contrary to honest industrial or commercial usage in Canada”.
o Federal CA Held: upheld the law on the basis that “a law laying down a set of general rules as to the conduct of businessmen in their competitive activities in Canada” was within the general category of trade and commerce.
o SCC Held: reversed the decision. The creation or extension of civil causes of action of an essentially contractual or tortuous character was a matter within property and civil rights in the province.
o Although the general “trade and commerce” power proved unavailing once again in Vapor, it was suggested by LASKIN C.J that in some circumstances, it would be available. He implied that the result might have been different if the law had been part of a “regulatory scheme” administered by a “federally-appointed agency”.
o But in the Labatt Breweries case, there was little passing reference made to the Vapor case.
o However, despite the absence of supporting authority, LASKIN C.J’s dicta in Vapor have proven to be very important, having become the basis for upholding the federal Competition Act.
o The constitutionality of the new legislation (1975 and 1986 amendments to competition law) had to be resolved in General Motors v City National Leasing [1989].
General Motors v City National Leasing [1989].
o Issue: a challenge to the validity of the civil remedy that had been introduced into the legislation in 1975.
o SCC Held as per DICKSON C.J à that the Combines Investment Act (now Competition Act) was a valid exercise of the “general” trade and commerce power. And in the case of the Competition Act, all 5 elements were present.
o NOTE
è It is important to notice that the general branch of the “trade and commerce” power authorizes the regulation of intraprovincial trade.
è Indeed, there would be no need for a general branch of “trade and commerce” if it did NOT extend beyond interprovincial and international trade.
o In City National Leasing, the allegations that gave rise to the litigation, concerned price discrimination in the financing of the purpose of vehicles by companies that lease fleets of automobiles and trucks.
o These purchases were transactions that individually took place within a single province.
o Those facts gave rise to an argument that the federal legislation should be read down to exclude such intraprovincial activity, which could be left to provincial law.
o DICKSON C.J’s answer à reference back to the provincial inability test captured in elements (4) and (5) of his definition of general trade and commerce: “Competition cannot be successfully regulated by federal legislation which is restricted to interprovincial trade”
o The conclusion was that Parliament (as well as the provinces) has the constitutional power to regulate intraprovincial aspects of competition.
DICKSON’S 5 part test is followed in:
Kirkbi v Ritvik Holdings (2005)
o Issue: manufacturer of the LEGO toy building blocks sued the manufacturer of a competing product, Mega Bloks, which used the same interlocking system as LEGO.
o SCC Held: Mega Bloks won the case on the ground that LEGO’s interlocking system was a functional characteristic of the product that could not, by law, be a trade mark. All five elements set out in City National Leasing were present. The Trademarks Act was held to be a valid exercise of the general branch of the trade and commerce power.
SPECIFIC TOPICS
o When attention is directed to more specific topics, it is found that “trade and commerce” is NOT the dominant source of power: legislative power is, for the most part, provincial, under property and civil rights in the province.
Peace, Order, and Good Government: POGG s.91 (opening words)
RESIDUARY NATURE OF POWER
o This power to make POGG power is residuary in its relationship to the provincial heads of power, because it is expressly confined to “matters not coming within the classes of subjects by this Act exclusively to the Legislatures of the provinces”. So, any matter which does NOT come within a provincial head of power, must be within the power of the federal Parliament.
o One important provincial head of power is: s.92(13) = “property and civil rights in the province”.
For the PC, s.92(13) became a kind of residuary power, and one that was more important than the federal POGG power.
o Another important provincial head of power is: s.92(16) = “generally all matters of a merely local or private nature in the province”
For the PC, ALBERT S ABEL à “there is no residuary power in the Constitution Act 1867. POGG and s.92(16) are the two complementary grants of power which distributed the residue between the two levels of government”
o Therefore, at the hands of the PC, s.92(13) and s.92(16) were considered a kind of RESIDUARY POWER. This means that the PC allowed all power to be within the provinces (something which the PC shouldn’t have allowed).
o The office of the POGG power is to accommodate the matters which do not come within any of the enumerated federal or provincial heads.
o The POGG power has three branches:
(1) the “gap”/residuary branch;
(2) the “national concern” branch; and
(3) the “emergency” branch.
(1) THE “GAP” BRANCH
o Extends to those things which can be characterized as drafting oversights...covers those things that are so obviously federal that assignment to federal jurisdiction is uncontroversial but which don’t appear to form elsewhere into the existing lists of heads of power.
i.e. federal power over incorporation of companies: s.92(11) empowers provincial Legislation to make laws in relation to “the incorporation of companies with provincial objects”.
-The courts have held that the power to incorporate companies with objects other than provincial, MUST fall within the federal POGG power because of its residuary nature (Parsons)
Jones v New Brunswick (AG) (1975)
o Issue: The federal Official Languages Act, attempted to guarantee the equal status of French and English in the institutions of the Parliament and government of Canada.
o SCC Held: upheld the validity of the Act. The power to enact legislation establishing official languages within federal institutions must be allocated to Parliament through the operation of POGG in its residual capacity. Since federal institutions and agencies are ‘clearly beyond provincial reach’ they must be within federal reach under the opening words of s.91 that expressly conferred such legislative authority on Parliament, and “on the basis of the purely residuary character of the legislative power thereby conferred.
Re Offshore Mineral Rights of BC (1967) AND Re Nfld. Continental Shelf (1984)
o Because the seabed off the shore of BC and the seabed off the shore of Nfld. lay outside the boundaries of each province, the offshore minerals were outside each province’s legislative jurisdiction.
o SCC Held: the offshore minerals therefore had to come within the federal Parliament’s POGG power “in its residual capacity”.
(2) THE “NATIONAL CONCERN” BRANCH
(a) History of national concern branch
o In the initial Canadian cases before the JCPC, it seemed to favour a broad reading of federal legislative powers. Russell reflects the short lived trend.
Russell v The Queen (1882)
o Issue: The issue before the Board was the validity of the Canada Temperance Act, federal legislation which established a local-option temperance scheme to prohibit the sale of intoxicating liquor. An individual who had been charged with violating the Act argued that it was constitutionally invalid because it dealt with property and civil rights, a matter reserved to the provinces.
o PC Held: Upheld the statute on the basis that it did not fall within any of the provincial heads of legislative power. Therefore, it must be within federal power, (didn’t say which head of federal power). The legislation was valid because it dealt with “an evil which is assumed to exist throughout the Dominion”. The fact that the liquor could be held as property did not prevent Parliament from restricting its use when this was deemed dangerous to public health or safety.
The decision in Russell was later explained in:
Local Prohibition case (1896)
o PRINCIPLE: introduced the “national concern” dimension of POGG.
o PC Held as per LORD WATSON à the decision in Russell rested on the POGG power. The idea that some matters of legislation, in their origin local and provincial, could acquire “national dimensions” or “national concern” and thereby come within the federal Parliament’s POGG power, is the core of the national concern branch of POGG.
o VISCOUNT HALDANE joined PC in 1911 and wrote many opinions in Canadian constitutional appeals. During this time, the PC severely contracted each of the major federal powers impacting the decisions on criminal law power and trade and commerce power.
o VISCOUNT HALDANE à ignored LORD WATSON’s “national dimension” dictum, and insisted that only an emergency would justify the exercise of the POGG power.
o This view persisted until after the WWII. Its inconsistency with the national dimensions view of POGG was not directly confronted until:
AG Ont. V Canada Temperance Federation (1946)
o PRINCIPLE: The POGG power is NOT confined to emergencies. There exists a “national concern” branch AND an “emergency” branch AND established a test for “national concern”.
o Facts: The Canada Temperance Act, which had been upheld in Russell, was challenged a second time.
o Arguments: either Russell was wrongly decided because it was not based on an emergency, or, if Russell was based on an emergency (as Viscount Haldane had claimed in Snider), the alleged emergency of drunkenness had now passed away.
o PC Held: Russell had NOT been decided on the basis of an emergency, and the POGG power was NOT confined to emergencies. Therefore, rejected the line of cases of the POGG power!!!
o So, VISCOUNT HALDANE à formulated a NEW TEST which bears close resemblance to LORD WATSON’S “national dimensions” dictum.
.
o The “national concern” branch of POGG has provided the sole basis for the decisions in 3 cases in the SCC: Johannesson v West St. Paul (1952)
o SCC Held: aeronautics satisfied the national concern test.
o Applied the “Double-Aspect Doctrine”
Munro v National Capital Commission (1966)
o SCC Held: the national capital region, an area around Ottawa straddling Ontario and Quebec that had been designated by federal legislation, satisfied the national concern test.
o Applied the “Incidental Effect Doctrine”
R v Crown Zellerbach (1988)
o SCC Held: Marine pollution satisfied the national concern test.
o Applied the “Provincial Inability Test”: failure of one province to act would injure the residents of the other cooperating provinces.
Also added is:
Ontario Hydro v Ontario (1993)
o SCC Held: SCC upheld the federal Atomic Energy Control Act. The federal jurisdiction over atomic energy (or nuclear power) was derived from s.92(10)(c) and the national concern branch of POGG.
o LA FOREST J à “the production, use and application of atomic energy constitutes a matter of national concern”... “the strategic and security aspects of nuclear power in relation to national defence” and to its potential for environmental catastrophes.
(b) Definition of national concern
o QUESTION:
o When does a subject matter of legislation become “the concern of the Dominion as a whole” so as to satisfy the “national concern” test?
o It is the nation-wide importance of a subject of legislation that determines whether or not it had the requisite national concern.
o There are cases where uniformity of law throughout the country is not merely desirable, but essential, in the sense that the problem is beyond the power of the provinces to deal with. (the Provincial Inability Test)
o R v Crown Zellerbach (1988)
o SCC Held: relied on the “Provincial Inability” test as a reason for finding that marine pollution was a matter of national concern.
DISTINCNESS
Anti-Inflation Reference [1976]
o SCC Held: upheld federal wage and price controls under the emergency branch of the POGG power.
o BEETZ J dissent à “inflation is too broad and diffuse a topic to qualify as a ‘matter’ coming within the national concern branch of POGG power. In order to qualify as a ‘matter’, a topic must be DISTINCT: it must have a degree of unity that makes it indivisible, an identity which makes it distinct from provincial matters and a sufficient consistence to retain the bounds of form”
The requirement of DISTINCTIVENESS was the issue that divided the SCC in:
Crown Zellerbach
o Held: upheld the federal Ocean Dumping Control Act, which prohibited dumping “at sea” on the basis that marine pollution was a matter of national concern.
o LE DAIN J dissent à “For a matter to qualify as a matter of national concern ... it must be a singleness, distinctiveness and indivisibility that clearly distinguishes it from matters of provincial concern and a scale of impact on provincial jurisdiction that is reconcilable with the fundamental distribution of legislative power under the Constitution”.
NEWNESS
The Queen v Hauser (1979)
o SCC Held: the federal Narcotic Control Act was a valid exercise of the POGG power.
o This was a surprising result because the Act had previously been upheld by the SCC as a criminal law.
o PIGEON J à “... this is essentially legislation adopted to deal with a genuinely new problem which did not exist at the time of Confederation and clearly cannot be put in the class of ‘matters of a merely local or private nature’. The subject-matter of this legislation is thus properly to be dealt with on the same footing as such other new developments as aviation (Re Aeronautics) and radio communications (Re Radio Communication)”.
o It came as a surprise to find PIGEON J with the concurrence of MARTLAND, RITCHIE and BEETZ, referring to Russell with approval.
o All these judges had joined with BEETZ in his dismissal of Russell in the Anti-Inflation Reference, as being “a special case” which is “not easy to reconcile with the Local Prohibition case”
o No indication as to WHY narcotics have attained the requisite degree of national concern. The phrase “national concern” is never used and NO reference was made to the Canadian Temperance case, Johannesson, Munro, or the Anti-Inflation Reference (Crown Zellerbach yet to be decided).
o Thus, Le Dain J’s “distinctiveness” emphasis was replaced by an emphasis on “newness”.
o HOGGàdisagrees with this outcome. The criminal classification seems more plausible, because nearly all of the Act is concerned to prohibit the production, trafficking and possession of illicit drugs, and to provide for the prosecution and punishment of offender; indeed, the penalties in the Act go as high as life imprisonment.
o HOGG à “Newness is irrelevant and unhelpful”. Other new inventions, such as, buses, trucks, telephones and movies have all been located outside POGG. Aeronautics is an anomaly, not the illustration of a general rule.
Overruled Hauser:
R v Malmo-Levine (2003)
Issue: The federal Narcotic Control Act’s (same Act is Hauser) criminalization of the possession of marijuana was challenged.
SCC Held: the Act was a valid exercise of the criminal law power, and overruled Hauser that the Act came within the national concern branch of POGG. The federal government has the same power of enforcement over its criminal laws as it has over its other laws.
(3) THE “EMERGENCY” BRANCH
(a) The non-emergency cases
Insurance Reference
o VISOUNT HALDANE à his first consideration of POGG power, “POGG power enables the Dominion Parliament to trench on the subject-matters entrusted to the provincial Legislatures by the enumeration in s.92”.
o He did not refer to the “national dimensions” test or consider the question whether the insurance industry satisfied that test.
o The “EMERGENCY TEST” first emerged in:
Board of Commerce case [1922]
o Held: rejecting POGG as authority for the statute on the ground that “highly exceptional” or “abnormal” circumstances would be required to justify the invocation of POGG, i.e. war and famine.
Toronto Electric Commissioners v Snider [1925]
o Issue: whether federal legislation for the settlement of industrial disputes was valid
o PC Held as per VISCOUNT HALDANE à it was not valid. POGG power was available only in “cases arising out of some extraordinary peril to the national life of Canada, such as cases arising out of a war”
o After the death of VISCOUNT HALDANE, the “national dimensions” test briefly surfaced in Aeronautics Reference [1932].
o But in the “New Deal” cases, the PC reverted back to the “Emergency” Doctrine. Their lordships held that an emergency would justify the invocation of the POGG power. One would assume that depression would qualify as an emergency, but their lordships denied that depression was an emergency!
(b) War
o During the WWI, the federal Parliament enacted the War Measures Act. The Act empowered the federal government to make regulations on almost any conceivable subject.
Fort Frances case (1923) – PC Held: In “a sufficiently great emergency such as that arising out of war”, the POGG power would authorize laws which in normal times would be competent only to the provinces.
Japanese Canadian Reference (1947) – The deportation of Japanese Canadians after WWII was upheld under the emergency basis.
Wartime Leasehold Regulations Reference (1950) – Rent control during and after WWII was upheld under the emergency basis.
o In each of these cases, the issue was whether wartime measures could be continued in time of peace. In Fort Frances, VISCOUNT HALDANE à “very clear evidence would be required to allow the court to overrule the decision of the Government that exceptional measure were still requisite”
o Therefore, using BEETZ in Re Anti-Inflation Act: “The EMERGENCY branch of POGG should be confined to the temporary and extraordinary role required for national regulation in time of actual war (or other emergency)”
(c) Apprehended insurrection
o “October crisis” 1970 – the War Measures Act was proclaimed in force when the FLQ, a violent Quebec separatist group, kidnapped a British diplomat and a Quebec cabinet minister. The government used the powers conferred by the Act to make the Public Order Regulations; these regulations outlawed the FLQ, and gave the police new powers of arrest, search, seizure and detention.
(d) Inflation
Anti-Inflation Reference (1976)
o Held: the federal Anti-Inflation Act was upheld as an emergency measure.
o The most serious difficulty with this conclusion was that the Act itself, did not assert the existence of an emergency. The Act, and regulations there under, controlled increases in wages, fees, prices, profits, and dividends.
o There had been a period of twenty months of double-digit inflation in Canada, and the inflation had been accompanied by relatively high rates of unemployment.
o HOGG à believes that the factual material before the court denied the existence of an emergency. The formations in the Anti-Inflation Reference make it almost impossible to challenge federal legislation on the ground that there is no emergency. This means that the federal Parliament can use its emergency power almost at will due to this.
(e) Temporary character of law
o There is one important limitation on the federal emergency power: it will support only temporary measures.
o An ostensibly temporary measure can always be continued in by force by Parliament, while an ostensibly permanent measure can be repealed at any time.
o The “New Deal” statutes, which were enacted to deal with the depression of the 1930s had this dual character: designed not only to help alleviate the immediate suffering of the depression, but also to provide permanent economic security which it was hoped would prevent a similar disaster in the future.
Unemployment Insurance Reference (1937)
o PRINCIPLE: measures must not be permanent for an “emergency” under POGG to be valid.
o PC Held: PC struck down most of the “New Deal” legislation, and while it appears that their Lordship’s primary reason was that the depression did not qualify as a genuine emergency, it is fair inference that they were influenced by the permanent nature of the “new Deal” measures.
o Similarly in
Board of Commerce case [1922]
o Held: The Federal legislation to control hoarding and profiteering caused by the economic dislocation which was the aftermath of WWI was held to be unconstitutional.
o So then, the contrast between the Board of Commerce case on the one hand, and Anti-Inflation Reference on the other is too obvious. In the former cases the legislation was permanent. While in Anti-Inflation Reference the legislation was temporary.
o NOTE
è NO permanent measure has EVER been upheld under the Emergency power!
RELATIONSHIP BETWEEN NATIONAL CONCERN AND EMERGENCY
o It is clear that the PC was WRONG in asserting that only an emergency would justify the innovation of the POGG power. Johannesson, Munro, Crown Zellerbach, and Ontario Hydro establish that the “Emergency Test” CANNOT be the exclusive touchstone.
o So, we must accept that there is a class of case for which ONLY an emergency will suffice to found federal power.
o It is NOT possible to argue that laws affecting property and civil rights must satisfy the “emergency test”, while laws NOT affecting property and civil rights must ONLY satisfy the “national concern test”.
o Zoning, expropriation and logging are normally within property and civil rights in the province, and so, Johannesson, Munro, and Crown Zellerbach, had a profound impact upon property and civil rights in the province. Yet, it was the “national concern” doctrine, NOT the “emergency” doctrine, which was applied in the cases.
o In a more sophisticated reconciliation of the cases, W.R LEDERMAN à “such subject matters (like aviation, the national capital region, and atomic energy) each had a natural unity that is quite limited and specific in its extent”.
o He contrasted these “limited and specific” subject matters with sweeping categories (like environmental pollution, culture, or language).
o Therefore, if the sweeping categories were enfranchised as federal subject matters simply on the basis of “national concern”, then there would be no limit to reach federal legislative powers and the existing distribution of legislative powers would become unstable.
o Only in an emergency could the federal Parliament assume the plenary power over the whole of a sweeping category.
o This theory explains most cases.
In the “Emergency” cases: legislation which asserted a new sweeping category of federal power over property, prices, wage or persons, etc.... were involved. In the following cases, the LEGISLATION WAS UPHELD ONLY IF THERE WAS AN EMERGENCY:
i.e. Board of Commerce, Fort Frances, Snider, Labour Conventions, Natural Products Marketing, Wartime Leasehold Regulations, Japanese Canadians.
In the “National Concern” cases: legislation over a more distinct and specific subject matter was involved. In the following cases, NO EMERGENCY WAS CALLED FOR, and the LEGISLATION WAS UPHELD IF THE SUBJECT MATTER WAS JUDGED TO BE OF NATIONAL CONCERN:
i.e. Johannesson, Munro, Ontario Hydro, Crown Zellerbach
o NOTE:
o Not all of the cases fit the theory. Russell and Margarine do not sit easily together. Additionally, Unemployment Insurance Reference also presents difficulty.
Criminal Law s.91(27)
DISTRIBUTION OF POWERS
.
o The Criminal Code is enforced by the provinces; and the decisions to investigate, charge, and prosecute offences are therefore matters of provincial policy which will no doubt be framed in response to local conditions and sentiments.
o So, the criminal law is NOT as centralized as other fields of federal legislative competence.
o Thus, this provision authorizes provincial policing and prosecution of offences under the Criminal Code and the establishment of courts of criminal jurisdiction.
o Criminal trials accordingly take place in provincial courts.
o Jurisdiction over correctional institutions is divided between the two orders of government:
s.91(28) – federal Parliament has jurisdiction over “penitentiaries”, which hold offenders sentenced to imprisonment for two years or more.
s.92(6) – provincial Legislatures have jurisdiction over “prisons”, which hold offenders sentenced to imprisonment for less than two years.
o Another provincial head of power that is relevant is:
s.92(15) – provincial Legislatures have jurisdiction in relation to: “The imposition of punishment by fine, penalty, or imprisonment for enforcing any law of the province made in relation to any matter coming within any of the classes of subjects enumerated in this section”.
o In this section, provincial Legislatures can enact penal sanctions for the enforcement of provincial laws.
o This section has imported a substantial degree of concurrent provincial jurisdiction to enact penal laws which are indistinguishable from federal criminal laws.
DEFINITION OF CRIMINAL LAW
o Federal Parliament’s power to enact “criminal law” is very difficult to define.
Board of Commerce case
o VISCOUNT HALDANE à the federal Parliament’s power was applicable only “where the subject matter is one which by its very nature belongs to the domain of criminal jurisprudence”
o But this definition if far too narrow.
P.A.T.A. case (1931)
o LORD ATKIN à “the federal power was not confined to what was criminal by the law of England or of any Province in 1867...he power may extend to legislation to make new crimes ... Is the act prohibited with penal consequences?”
o This definition is far too wide in that it would enable the federal Parliament to expand its jurisdiction indefinitely, simply by framing its legislation in the form of a prohibition coupled with a penalty.
o Thus far, two ingredients for a criminal law: (1) prohibition; and (2) a penalty
o A third ingredient was added to the definition of criminal law:
Margarine Reference (1951)
o PRINCIPLE: third ingredient of a criminal law is a “criminal purpose”.
o Issue: the federal law in issue prohibited the manufacture, importation or sale of margarine. It was obvious that the purpose of the law was to protect the dairy industry.
o Held: although the law perfectly fitted the criminal form of a prohibition coupled with a penalty, the economic object of protecting an industry from its competitors made the law in pith and substance in relation to property and civil rights in the province (controlling the manufacture of a product in a province). There was no criminal purpose, only purpose was protection of dairy.
o RAND J à a prohibition was not criminal unless it served “a public purpose which can support it as being in relation to the criminal law”.
o Examples of the public purposes – public peace, order, security, health, morality, etc. (non-exhaustive list).
o The protection of the dairy industry was NOT a qualifying public purpose.
o Note:
o Note:
o PRINCIPLE: there must be a relationship between the criminal action in question and the purpose of the criminal law.
o Issue: On reviewing the highway legislation of all the provinces, the court discovered that drivers’ licences could also be suspended for breach of a variety of provincial regulations, and in particular for failure to pay insurance premiums, civil judgements, taxes and licence fees.
o SCC Held: struck down the federal Criminal Code offence of driving a motor vehicle while one’s provincial driver’s licence was suspended. These grounds for licence suspensions bore “no relationship in practice or in theory to the owner’s ability to drive and hence to public safety on the highways of the nation. The Criminal Code offence of driving while suspended was accordingly unconstitutional.
o NOTE:
Ward v Canada (2002)
o PRINCIPLE: The purpose of the criminal law must be criminal. The purpose of managing fisheries is NOT a criminal purpose.
o Facts: SCC had to characterize a federal law that prohibited the sale of baby seals. A law regulating the marketing of seals would be within the provincial authority under s.92(13).
o SCC Held: a federal regulation that prohibited the sale of baby seals could not be upheld under the criminal law power, despite the fact that the purpose of the prohibition was to limit the killing of baby seals. The court found that the law had been driven, not by the widely publicised concern about inhumane methods of killing, but by the concern about the depletion of the resource through large-scale commercial harvesting. The ultimate purpose of the law was to manage the fishery, and that was not a purpose that could sustain a criminal law.
o The pith and substance of the law was the management of the fishery, which came within the federal authority over “sea coast and inland fisheries”, s.91(12). The federal law was upheld.
R v Malmo-Levine (2003)
o PRINCIPLE: No “harm principle” is a requirement of a valid criminal law.
o Issue: validity of criminalization of the possession of marijuana.
o Argument: marijuana causes no harm.
o SCC Held: the presence of harm to others was not a requirement of a valid criminal law. Also, the court did succeed in identifying some harms.
FOOD AND DRUGS
(a) Food and Drug Standards
R v Wetmore (1983)
o PRINCIPLE: a product must be dangerous, adulterated (impure) or misbranded to be within the criminal law power.
o SCC Held: Food and drug legislation making illegal the manufacture or sale of dangerous products, adulterated products or misbranded products is within the criminal law power.
o BUT IN:
Margarine Reference (1951) – margarine was NOT injurious to health (although in 1886 it was considered so), and thus its manufacture could NOT be upheld under the federal criminal law power.
Labatt Breweries (1979)
o PRINICPLE: All federal standards are invalid, except those few that can be related to health.
o Facts: Regulations under the Food and Drugs Act stipulated that any product described as “light beer” must contain no more than 2.5% alcohol. Labatt retailed a product they described as “lite” beer (which the court held to be equivalent to “light” beer), which had an alcohol content of 4%.
Labatt’s argument: the compositional standard was unconstitutional.
o SCC Held: The part of the FADA that authorized regulations prescribing compositional standards for food was unconstitutional, and could NOT be supported under the criminal law power.
o ESTEY Jà acknowledged that the criminal law power could be used to enact laws for the protection of health (much of the Food and Drugs Act is directed at that end), but he found that the alcoholic requirement for light beer was not related to health. He also acknowledged that the criminal law power could be used for the prevention of deception (Food and Drug Act also directed at), but he found that the specification of the compositional standards for light beer could not be supported on this ground either.
o HOGG à The Labatt decision is unfortunate in precluding a national regime of compositional standards for food. It would be costly and inconvenient for such manufacturers to comply with a variety of provincially-established standards.
· ESTEY J was impressed by the fact that Labbat specified on the label of their “lite” beer that it contained 4% alcohol. Obviously, this meant that the careful and knowledgeable reader of the label would not be deceived as to the product’s alcohol content.
· The regulation should have been upheld as a criminal law.
(b) Illicit Drugs
o The non-medical use of drugs proscribed by the federal Narcotic Control Act, which prohibits the protection, importation, sale and possession of a variety of illicit drugs, has been upheld as a criminal law.
Schneider v The Queen (1982)
o PRINCIPLE: A valid provincial law is NOT criminal if: the ‘pith and substance’ was the protection of public health, with incidental affects on liberty.
o Facts: The provincial BC’s Heroin Treatment Act provided for the compulsory apprehension, assessment and treatment of drug addicts; the treatment included compulsory detention in a treatment centre for up to six months.
o Argument against: this was really a criminal law based on the deprivations of liberty. The Act was designed to treat and cure drug addicts, not to deter or punish them; but in some ways this made the legislation more rather than less oppressive, since the coercive features were not accompanies by procedural safeguards in the criminal justice process.
o SCC Held: SCC upheld the provincial legislation. Medical treatment of drug addiction came within provincial authority over public health as a “local or private” matter within s.92(16). The coercive elements of the Act were incidental to its public health purpose.
o Thus, the ‘pith and substance’ was the protection of public health, with incidental affects on liberty.
(c) Tobacco
RJR-MacDonald v Canada (1995)
o PRINCIPLE: The protection of public health is a valid purpose for the criminal law AND a criminal purpose may be pursued by indirect means.
o Facts: Federal Tobacco Products Control Act prohibited the advertising of cigarettes and other tobacco products and required the placement of health warnings on packages.
o Issue: was this a valid criminal law?
o SCC Held: Valid criminal law. The protection of public health supplied the required purpose to support the exercise of the criminal-law power. Protection from a dangerous product.
o HOWEVER, the Act was struck down under the Charter, because of the impact of the advertising ban of freedom of expression.
o A criminal purpose may be pursued by indirect means = health risks of tobacco did NOT require the outright banning of cigarettes.
o Sequel case:
Can v JTI-Macdonald Crop (2007) – SCC upheld a new federal Tobacco Act, which was a less sweeping ban on the advertising of tobacco products. The more limited ban was upheld under s.1 as a reasonable limit on freedom of expression. The court reaffirmed the RJR ruling that “restrictions on tobacco advertising are a valid exercise of Parliament’s criminal law power”.
HEALTH
s.91(27) – Federal power to punish conduct that is dangerous to health.
ENVIRONMENTAL PROTECTION
R v Hydro-Quebec (1997) – SCC agreed that the protection of the environment was a public purpose that would support a federal law under the criminal-law power and upheld the Canadian Environmental Protection Act under the criminal-law power.
Dissent: the Act was regulatory rather than criminal.
ABORTION
o Canada’s Criminal Code use to prohibit abortions.
Morgentaler v The Queen (1975)
o Issue: The validity of the prohibition was challenged on the basis that the safety of modern techniques of abortion made the prohibition inappropriate as a protection for the health of pregnant women.
o Held: the prohibition was not authorized by the criminal law power.
o LASKIN à held that it was open to Parliament under the criminal law power to prohibit the termination of pregnancy, even if the termination would not endanger the health of the woman. The principle objective of the prohibition was “to protect the state interest in the foetus”, and that was sufficient to make the prohibition a valid exercise of the criminal law power.
o NOTE:
è Morgentaler (1988) – SCC struck down the law as contrary to s.7.
è The Criminal Code no longer prohibits abortion.
COMPETITION LAW
o The encouragement of competition throughout much of the private sector of the Canadian economy has been a longstanding policy of Canada’s federal governments.
o Argument: a competitive market is the best means of providing efficient use of labour, capital and natural resources. In these competitive sections, the governmental regulations of the industry is less necessary.
o But, because economic activity ignores provincial boundaries, and labour, capital and technology are highly mobile, it is difficult to regulate anti-competitive practices at a provincial level.
o It is generally agreed that such regulations MUST be federal if it is to be effective.
History:
o In 1919 two regulations were enacted: Combines and Fair Prices Act and Board of Commerce Act.
o Both were held to be unconstitutional in Board of Commerce case [1921] and repealed them to the Combines Investigation Act 1923. Here the PC rejected the arguments in support which were based on POGG power, the trade and commerce power, and the criminal law power.
o In P.A.T.A – PC upheld the Act as a valid criminal law. This decision established that the criminal law power was capable of expansion into the world of commerce.
o In 1935 – the prohibition of anti-competitive price discrimination was added to the Criminal Code and was upheld by the PC and the SCC as a criminal law.
o In 1952 – federal Parliament authorized the courts to make order prohibiting the continuation of illegal practices or dissolving illegal mergers and to impose conventional criminal sanctions. This was challenged by Goodyear Tire [1956] – SCC upheld the Act as being within criminal law power.
Today:
o Canada has a Competition Law.
o This was radically altered by two phrases of amendment in 1975 and 1986.
o The 1975 Combines Investigation Act was expanded to apply to the service industries, and a new CIVIL remedy was added to the Act enforced through the Restrictive Trade Practice Commission.
o The Combines Investigation Act was then changed to the Competition Act in 1986 and the Restrictive Trade Practice Commission was changed to the Competition Tribunal. Thus, the provisions of the Act that are now enforced by the Tribunal are CIVIL: they do NOT carry a criminal sanction.
o The criminal aspect of the Act is greatly diminished in importance and the criminal law power no longer provides a constitutional foundation for much of the Act.
General Motors v City National Leasing [1989]
o Issue: involved a civil remedy in the Act which had been added in 1975. This remedy allowed any person who had suffered loss as a result of a breach of the Act to sue the person who committed the breach.
o SCC Held: upheld the constitutionality of the civil remedy. The court said that the Act was a valid law under the trade and commerce power. There was no reason, therefore, why its enforcement should be limited to criminal sanctions.
o Therefore, the civil remedy was a valid part of the law, because it was designed to provide an incentive to private enforcement of the law, as a supplement to public enforcement.
SUNDAY OBSERVANCE LAW
(a) Federal power
o Before 1903 is was generally assumed that laws regarding Sunday observance were competent to the provinces.
A-G Ont v Hamilton Street Railway [1903]
o PC Held: shattered that assumption when struck down the Ontario Lord’s Day as a criminal law.
o Followed in
Henry Brinks [1955]
o Issue: a provincial law, which authorized a municipal by-law requiring the closing of shops on six days recognized as holy days by the Roman Catholic church.
o SCC Held: unconstitutional. This was in the same category as a Sunday observance law
o These 2 cases established that limitations on wk or play which are imposed for religious reasons are criminal laws solely within the competence of the federal Parliament.
o The federal Parliament then moved to fill the void created by the invalidation of provincial Sunday observance laws.
o So, in 1906, Parliament enacted the Lord’s Day Act, which prohibited work and other commercial activities on Sunday. This Act was not vulnerable to challenge until the Charter of Rights were established...
R v Big M Drug Mart (1985)
o PRINCIPLE: Safeguarding morality could be a criminal purpose.
o SCC Held: SCC confirmed that the Lord’s Day Act was a valid exercise of the criminal law power, because it pursued the religious purpose of preserving the sanctity of the Christian Sabbath. The law came within criminal purposes because it was intended to safeguard morality.
o HOWEVER, the SCC held that the Act offended the Charter guarantee of freedom of religion, because its purpose was to compel the observance of the Christian Sabbath.
o It was not justified under s.1, and held the Lord’s Day Act to be unconstitutional.
(b) Provincial power
Lieberman v The Queen (1963)
o SCC held: that provincial authority also extends to the imposition of limits on the business hours of commercial establishments. SCC upheld a provincial law which required the closing of pool rooms and bowling alleys between midnight and six a.m. on any weekday, and all day on Sunday because the motivation was for secular purposes.
o NOTE:
R v Edwards Books and Art (1986)
o PRINCIPLE: a “pause day” for secular purposes is a valid provincial law.
o Facts: Ontario law that prohibited retail stores from opening on Sundays.
o SCC Held: SCC held a provincial law providing a “pause day” for secular purposes “is properly characterized as relating to property and civil rights in the province”. The secular purpose was justified under s.1.
GUN CONTROL
o In 1995, the federal Parliament amended the Criminal Code by enacting the Firearms Act, which expanded the existing rules by requiring that ALL guns be registered and ALL gun owners be licensed.
Re Firearms Act (2000)
o Facts: In 1995, Parliament amended the Criminal Code provisions by enacting the Firearms Act, which expanded the existing rules by requiring all guns to be registered and all gun owners to be licensed.
o SCC Held: The Act was a valid exercise of the criminal law power. The purpose of the Act was to restrict access to inherently dangerous things. The Act’s requirements were all directed to public safety: domestic violence, suicides, accidents, etc. Even the licensing criteria included checks of criminal records.
o It was true that guns were property, but the Act’s focus on public safety distinguished the Act from provincial property registration schemes. The effect on property was incidental to the main purpose of public safety (the pith and substance). The Act was NOT merely regulatory.
PREVENTION OF CRIME
(a) Prevention in general
o The most important application is having a law aimed at the prevention of crime.
o The Criminal Code includes an elaborate regime of assessment, treatment and disposition to deal with accused persons who suffer from mental disorders:
Group 1 – accused who have been tried but not criminally responsible on account of their mental disorder
Group 2 – accused who have been charged, but who have not been tried on the group that they are unfair to stand trial, by reason of their mental disorder. They remain in criminal system due to their unresolved charge.
(b) Young Offenders
o Today, there is the Youth Criminal Justice Act 2003.
CRIMINAL LAW AND CIVIL REMEDY
(a) Federal Power Generally to Create Civil Remedies
o The federal Parliament’s criminal law power will authorize the creating of a civil right of action for breach of criminal status.
The federal Parliament has no independent power to create civil remedies akin to its power over criminal law. So, if the “pith and substance” of a federal law is the creation of a NEW civil cause of action, the law will be invalid as coming within the provincial head of power “property and civil rights in the province” (s.92(13)).
MacDonald v Vapor Canada [1976]
o SCC Held: s.7(e) of the federal Trade Marks Act was invalid on this basis above.
o LASKIN à “s.7(e) came within property and civil rights in the province. this is an ‘detached provision’ that is not part of the broader regulatory scheme”
o Therefore, the assumption is clearly spelt out: a law validly enacted in relation to trademarks or patents or copyrights, may validly include appropriate means of enforcement.
Papp v Papp [1969]
o Issue: whether the Divorce Act could validly provide for the custody of the children was a matter coming within property and civil rights in the province.
o Held: the custody provisions of the federal Divorce Act were valid because there was a “rational, functional connection” between them and the admittedly valid provisions of the Act concerning divorce.
o Therefore, the “Functional Connection” test has been established and used to uphold many SCC cases.
(b) Criminal Law Power to Create Civil Remedies
o Question:
R v Zelensky [1978]
o SCC Held: upheld a provision of the Criminal Code that authorized a criminal court to order the accused to pay to the victim compensation for any loss or damage caused by the commission of the offence.
o LASKIN à emphasised the criminal characteristics of the provision. The order for compensation was to be made as part of the sentencing process in the criminal proceedings....NOT in a separate civil action. Only to resolve the appropriate amount of compensation, will take place in a separate civil action. As well, this order was discretionary.
CRIMINAL LAW AND REGULATORY AUTHORITY
o QUESTION:
o The competition and insurance cases encourage the view that the criminal law power will NOT sustain a regulatory scheme which relies upon more sophisticated tools than a simple prohibition and penalty.
Nova Scotia Board of Censors v McNeil (1978)
o SCC Held: The censorship of films was NOT criminal. SCC upheld Nova Scotia’s censorship law a being the regulation of an industry within the province, s.92(13), or a local or private matter under s.92(16).
o RITCHIE J à pointed out that the censorship law did NOT take the criminal form of a prohibition coupled with a penalty.
o HOGG à agrees
R v Furtney [1991]
o Issue: a challenge against the Criminal Code provisions respecting lotteries. The Code prohibited lotteries, but made an exception for organizations licensed buy the Lieutenant Governor in Council of a province
o SCC Held: the Criminal Code provision was a valid criminal law, despite the fact that it delegated regulatory power to the provincial L.G.C.
o STEVENSON à accepted HOGG suggestion of colourability: “the decriminalization of lotteries licensed under prescribed conditions is NOT colourable”
o The Canadian Environmental Protection Act is a federal law that established a scheme for the regulation of toxic substances.
o The Ministers of Environment and Health have the authority to examine the effects of any substance and recommend to the Governor in Council whether the substance is toxic.
o ... if decided to be toxic, it comes under the regulatory authority of the Governor in Council who regulates or discards it. If substance is yet to be classified, the Minister may make an “interm order” which is a temporary regulation imposed on a toxic.
R v Hydro-Quebec (1997)
o PRINCIPLE: The Criminal-law power authorizes complex legislation, including discretionary administrative authority.
o Facts: Hydro-Quebec was prosecuted for violating an interim order that restricted the emission of PCB’s.
o HC’s argument: The Act, and therefore the “interim order”, was outside the criminal-law power.
o Dissent: The Act lacked the prohibitory character of a criminal law because there was no prohibition until the administrative process to classify the substance had been completed.
o SCC Held: Valid criminal law. Because the administrative procedure for assessing the toxicity of substances culminated in a prohibition enforced by a penal sanction, the scheme was sufficiently prohibitory.
Re Firearms Act (2000)
o PRINCIPLE: A complex regulatory Act may still be criminal AND a criminal purpose may be achieved through indirect means.
o Argument against Act: The Act was regulatory rather than criminal because of the complexity of the regime and the discretionary powers vested in the licensing and registration authorities. Only an outright prohibition of guns would be a valid criminal law.
o SCC Held: Valid criminal law. The purpose of gun control was public safety, which is typically a criminal purpose. The purpose was ultimately affected by a prohibition of unregistered guns and unlicensed holders, and the prohibition was backed by penalties.
o SCC relied on R v Hydro-Quebec for the proposition that the criminal-law power authorizes complex legislation, including discretionary administrative authority.
o SCC relied on RJR for the proposition that a criminal purpose may be pursued by indirect means. Just as the health risks of tobacco did not require the outright banning of cigarettes, nor did the safety risks of guns require the outright banning of guns.
PROVINCIAL POWER TO ENACT PENAL LAWS
o REMEMBER:
o The dominant tendency of the case law had been to uphold provincial penal legislation:
Bedard v Dawson (1923)
o SCC Held: upheld provincial law authorizing the closing of “disorderly houses”, which were primarily defined as houses in respect of which there had been Criminal Code convictions for gambling or prostitution. Prima facie, the provincial law appeared to be simply supplementing undoubted criminal laws by adding new penalties.
o The court upheld the law as in relation to property, and at most as aimed at suppressing the conditions likely to cause crime rather than at the punishment of crime.
o Compare with:
Westendorp v The Queen (1983)
o SCC held: struck down a municipal by-law that prohibited a person from remaining on the street for the purpose of prostitution, and from approaching another person for the purpose of prostitution.
o LASKINà condemned this line or reasoning as “baffling”, and held that the purpose of the by-law was “so patently an attempt to control or punish prostitution as to be beyond question”
o Westendorp is a reminder that the provincial power to create offences under s.92(15) is not as broad as the federal power under s.91(27)
Language Rights ss.16 to 22
DISTRIBUTION OF POWER OVER LANGUAGE
o Since confederation, federal statutes have been enacted in both languages, because that was required by s.133, Constitution Act 1867.
o Language – ss.16 to 22, Charter.
o A law prescribing that language(s) must/may be used in certain situations will be classified for constitutional purposes to the institutions or activities that the provision covers
Jones v AG of New Brunswick (1974)
o Issue: The federal Official Languages Act purported to make the English and French languages the official languages of Canada “in the institutions of the Parliament and Government of Canada”.
o SCC Held: Upheld Act. The law was authorized by federal power over federal governmental and parliamentary institutions (which stemmed from the POGG power. Provisions recognizing both languages in federal courts could also be authorized by federal power over federal courts (s.101). Provisions concerning languages in criminal proceedings in provincial courts could also be authorized by federal power over criminal procedure (s.91(27)).
o Also Held: Upheld a section of New Brunswick’s Official Languages Act, which provided for the use of both official languages in the courts of NB; this section was authorized by the provincial power over administration of justice in the province (s.92(14)).
Devine v Quebec (1988)
o SCC Held: upheld various provisions of Quebec’s Charter of the French Language that regulated the language of commerce which was a matter within the provincial jurisdiction over property and civil rights in the province under s.92(13).
o i.e. public signs, commercial advertising
LANGUAGE OF CONSTIUTION
Charter of Rights = Constitution of Canada = Constitution Act
s.57 s.56 s.133
o Therefore, English and French versions of the Acts are EQUALLY AUTHORITATIVE
LANGUAGE OF STATUTES
(a) Constitutional Requirements
s.133, Constitution Act 1867 –
o permits either English or French to be used in debates in the Houses of the federal Parliament and Quebec Legislature;
o it requires the statutes of the federal and Quebec Legislature to be printed in both languages
o it provides that either language may be used in any pleading or process in the federal courts and the Quebec courts
o Section 133 = does NOT apply to the Legislature and courts of any province other than Quebec.
o Although, s.23 of the Manitoba Act, 1870 includes a provision for the use of either language in the Legislature and courts.
o Charter of Rights ss.16 to 23 = same as s.133 in application to legislative bodies (and courts) of federal government...but NOT Quebec.
(b) Quebec’s Charter of the French Language
AG of Quebec v Blaikie (1979)
o Issue: Quebec’s Charter purported the make French the language of the Legislature. The Act provided that bills were to be drafted and enacted in French only (although an English translation was to be printed and publishes, but not official).
o SCC Held: SCC struck down those provisions of Quebec charter to make the language in statutes in French only because they contravened s.133.
(c) Manitoba’s Official Language Act
o In 1890, Manitoba enacted the Official Language Act which provided that “the English language only” shall be used in the records and journals ... In effect, the Act was an attempt to repeal most of s.23 of the Manitoba Act.
o Held: Act was held invalid in 1892 and 1909.
o The Manitoba Legislature did not comply with the decision and again, in AG of Manitoba v Forest (1979) held the Act to be unconstitutional because s.23 could not be amended by the Official Language Act.
Re Manitoba Language Rights (1985)
o SCC confirmed that the failure to comply with s.23’s requirement of bilingual enactment resulted in the invalidity of the purported statute. This meant that nearly all of the laws of the province were unconstitutional.
o Held: Court declared that the province’s statutes were in temporary force until their translation.
o s.23 must be seen in the same scope as s.133. It must translate and re-enact the province and statute and delegated legislation (see Re Manitoba Language Rights Order No.3)[1992])
(d) Incorporation by reference
AG of Quebec v Collier (1985)
o PRINCIPLE: When a statute refers to a document (i.e. session paper) that is essential to the operation of the statute, the statute must follow the language requirements of s.133.
o Facts: Two Quebec statutes fixed public sector wages by reference to session papers tabled in the Legislature; the details were not in the statutes, only in the session papers to which the statute referred to. The session papers were only in French, while the statute was in both languages.
o SCC Held: the statutes were unconstitutional since the session papers were tabled in one language only and contravened s.133.
(e) Delegated legislation
Blaikie (1979) – s.133 applies to delegated legislation.
Blaikie (no.2) (1981) –
o The court qualified the earlier delegated legislation ruling.
o Only regulations made by “the Government” were subject to s.133 which includes the Lieutenant Governor, the Executive Council and Ministers.
o Even regulations that were made by officials or bodies OUTSIDE the government, were subject to the approval of the government.
o Thus, still subject to s.133
o NOT subject to s.133 = local municipalities and school boards. Regulations that are not made by, or approved by, the government.
o Another special category was the court’s rules of practice. These rules were not made by the government, but by judges...but they are STILL subject to s.133 (so were the rules of those administrative tribunals whose functions were ‘quasi-judicial’).
Re Manitoba Language Rights Order No.3)[1992
o Re-enactment of delegated legislation
o Principle: .23 applied only to “instruments of a legislative nature”
o SCC Held: s.23 applied only to “instruments of a legislative nature” which included three characteristics:
(1) it would establish a “rule of conduct”
(2) it would have the “force of law”
(3) it would be “of general application rather than directed at specific individuals or situations”
LANGUAGE OF COURTS
(a) Constitutional Requirements
s.133 = s.23 = s.19(2) Charter
o All impose similar requirements with respect to the courts, there is a CHOICE as to which language (eng or fre) may be used by a person pleading or processing...
(b) Definition of Courts
o Blaikiesaid that the courts covered by s.133 = s.96 courts, inferior courts, and administrative tribunals established by statute
(c) Language of Process
MacDonald v City of Montreal (1986)
o Facts: An English speaking Quebecer defended a charge of speeding on the ground that the summons had been issued by the Quebec court in French only.
o SCC Held: The unilingual summons did not breach s.133. Since s.133 provides that “either” of the two languages may be used in any process issuing from a Quebec court, it gave a choice.
o BEETZà used the literal approach to s.133 (a narrow approach) to say that the court must issue its process on ONE language only. He distinguished human rights vs. Language rights (this should receive a more restrained interpretation)
(d) Language of Proceedings
Societe des Adadiens v Association of Parents (1986)
o Facts: The Societe claimed that s.19(2) (which imposed similar language to s.133) was breached when an application was heard by a panel of three judges, one of whom, the Society alleged, did not understand French.
o SCC Held: s.19(2) did not confer a French-speaking litigant the right to be heard by a judge who understood French. While litigant had constitutional right to use French or English, neither s.19(2) nor s.133 conferred any guarantee that the litigant will be heard or understood in language of choice.
o BEETZ à took the same view as above. Pointed out that the right to a fair hearing, which was recognized by the common law rules of natural justice, and which was protected in part by ss. 7 to 14 of the Charter, would be offended by a presiding judge’s failure to comprehend the evidence or argument.
o S.20 of charter applied to allow communications in French (regardless of the demand for “reasonableness” of French-language service)
(e) Right to Interpreter
s.14 of Charter – right of a party or witness to an interpreter (who doesn’t understand. Who is deaf)
R v Tran (1994)
o PRINCIPLE: s.14 right to interpreter was to be continuous and contemporaneous.
o Facts: The accused Vietnamese person could not speak or understand English and was provided with an interpreter. At one point a witness (who happened to be the interpreter) testified in English and then gave only a summary of the translation. The accused was convicted and appealed on the ground there was a breach of his s.14 right to an interpreter.
SCC Held: s.14 was breached. “The quality of the interpretation had to meet the standard of “continuity, precision, impartiality, competence and contemporaneousness”.
LANGUAGE OF GOVERNMENT
(a) Section 16 of Charter
o s.16 = French and English are the “Official Languages” of Canada and New Brunswick
(b) Section 20 of Charter
o s.20 = Obligation on Government to provide bilingual services to the public
DesRochers v Canada [2009]
o Principle: s.20 should be given “a liberal and purposive interpretation”
o SCC Held: like other language rights, s.20 should be given “a liberal and purposive interpretation”. This requires that, when s.20 applies, the principle of equality of BOTH languages that is guaranteed by s.16(1) must be respected.
o It is not a question of accommodating the minority language speakers: “services of equal quality” in both official languages MUST be provided. Therefore, the federal program to promote economic development in rural areas did not have to provide identical services or yield identical results to each language community because they had different needs and priorities.
o BUT the program DID have to provide benefits of equal quality to those who sought to access the program (regardless if there were fewer French-speakers).
o Therefore the tests:
o In the federal jurisdiction, the obligation attaches to any “head or central office” of an institution of Parliament or government of Canada without qualification.
o It attaches to other federal government offices also. But only
(1) where there is a “significant demand” for bilingual services from that office.
(2) or due to the “nature of the office” it is “reasonable” that bilingual services be provided by that office
NOTE:
NOTE:
LANGUAGE OF COMMERCE
o No language rights in the Constitution of Canada protects the use of English and French language in commercial (or private) settings.
o S.2(b) Charter = freedom of expression
Ford v Quebec (1988)
o Issue: Provision in Quebec’s Charter of the French Language that required commercial signs and advertisements to be in French only.
o SCC Held: struck down provision that required commercial signs and ads to be in French only.
o the freedom of expression (s.2(b)) included “the freedom to express oneself in the language of one’s choice”, and this was in breach.
o While s.1 would save some laws designed to protect the French language, the total prohibition of other languages was a disproportionately severe measure.
o The Government of Quebec caused the Legislature to re-enact the prohibition of English on commercial signs and advertisements (while allowing bilingual interior signs) by implementing the notwithstanding clause, s.33.
Devine v Quebec (1988)
o Held: Provisions of Quebec’s Charter, which required the non-exclusive (inclusive) use of French in brochures, order, etc. offended the freedom of expression, even though there was no prohibition of English.
o However, upheld under s.1. s.1 saved the non-exclusive requirements to provide French language. Therefore, broachers, orders, invoices, and other business documents in French was upheld (despite the fact that it offended s.2(b)).
LANGUAGE OF EDUCATION
(a) Section 93 of Constitution Act, 1867
s.93 = confers upon the Provincial Legislatures the power to make laws in relation to education (power to prescribe the language of instruction in the schools)
NOTE:
Ottawa Roman Catholic Separate School Trustees v Mackell [1916]
o Held: Ontario had the power to require that English be the language of instruction in hitherto French-speaking Roman Catholic separate schools in the province. At the time of the confederation, the statute governing separate schools in Ontario did NOT confer upon separate schools the legal right to use French as a language of instruction. Therefore, this right was invalidating s.93.
o Lordships examined the statute law governing the separate schools in Ontario at the time of the confederation, and concluded that the law did not confer upon the separate schools the legal right to use French as the language of instruction.
o Since no such right existed at confederation, no such right was preserved by s.93.
o Court looked at s.93 “class of persons” = to mean “class of persons determined according to religious belief, and not to race or language”
o Also said that at the time of the confederation, trustees of separate schools did NOT have the right to choose the language of instruction (regardless of whether the entire class of Roman Catholics conferred this upon the trustees)
(c) Section 23 of Charter
s.23, Charter = Members of the English-speaking minority in Quebec or the French-speaking minority in other provinces, have the right to have their children receive primary and secondary school instruction in the (minority) language in that province.
(d) Mother Tongue of Parent
o s.23(1)(a) = applies to English-speakers in Quebec as well as to French-speakers elsewhere in Canada
o i.e. In any provinces with English-speaking majorities, a Canadian citizen whose first language learned and still understood is French, has the right to have their children receive primary and secondary school instruction in French.
o This would be satisfied by an Ontario parent which could establish that
(e) Language of Instruction of Parent in Canada
o s.23(1)(b) = The “Canada Clause” because Canadian citizens who move from one province to another, retain the right to have their children educated in the same language as that in which the parent was educated anywhere in Canada.
A-G of Quebec v Quebec Protestant School Boards [1984]
o Issue: Quebec’s charter of the French language limited admission to English-language schools in Quebec to the children of persons who have been educated in English in Quebec.
o SCC Held: this “Quebec clause” was in conflict with the “Canada clause” (s.23(1)(b) of the Charter). Therefore, the Quebec clause had to yield to the Canada clause, and school boards in Quebec were obliged to admit to English-speaking schools the children of parents who had been educated in English anywhere in Canada.
(f) Language of Instruction of Child in Canada
o s.23(2) = applies to citizens who have a child who has received or is receiving primary or secondary school instruction in English or French in Canada. They have the right to have all their children receive their schooling in the same language.
Solski v Quebec [2005]
o SCC Held: Quebec law was consistent with the s.23(2) right and upheld the law without report to s.1
o According to the court, the “major part” requirement would be inconsistent with s.23(2) it is called for a “quantitative” measurement of the proportion of time spent by the child in English-speaking instruction in Canada.
o The requirement should be “read down” to a “qualitative” restriction, which would only require “a significant part, through not necessarily the majority” of the child’s instruction to have been in English.
(g) Where numbers warrant
Mahe v Alberta [1990]
o SCC Held: the effect of s.23(3)(a) and (b) was to establish a “sliding scale” of entitlement, based on the number of children whose parents qualify under s.23.
o Therefore, the idea of a sliding scale is simply that s.23 guarantees whatever type and level of rights and services appropriate in order to provide minority language instruction for the particular number of students involved.
o A small number of minority language students would = bus transportation to the minority language school
o A larger number of students would = the provision of classroom space and some intensive minority language instruction within a majority language school.
o A larger number would cross the where-numbers-warrent threshold
o This where-numbers-warrent test was followed in:
Re Public Schools Act (Man) [1999] – SCC struck down Manitoba’s legislation respecting French-language schools, because it made no provision for the parents of French-language students to have management and control over French-language education. Even on the basis of a low figure, the number warranted the establishment of an independent French-language school board in Manitoba under the exclusive management and control of the French-language minority.
Arsenault-Cameron v Price Edward Island [2000] – SCC sided with the parents in ordering the establishment of a French school in Summerside PEI. It was a mistake to work from the known demand for French-language school, because if a school were to be established, demand would likely rise....
(h) Denominational Schools
o Mahe = therefore the court held that denominational school rights were NOT prejudiced – they were merely “regulated” – by vesting of some exclusive powers of management and control in trustees who represented French-speaking parents
(i) Supervision of Remedial Orders
o s.24(1) = a breach of s.23 (like a breach of any other charter right) may be remedied under s.24(1) which the court considers an appropriate remedy
Doucet-Boudreau v Nova Scotia [2003]
o Superior Court Judge Held: application of French-speaking parents and found that in 5 districts of the province, the number of children of French-speaking parents warranted French-language schools. Under s.24(1) held that the 5 schools be built and that programs of instruction be developed for each school.
o SCC Held: upheld provision for judicial supervision and upheld the trial judge’s order because they repeated his concerns about the danger of progressive assimilation of the French-speaking schools. They took the view that the supervisory order was appropriate and just in the circumstances. S.24(1) is valid.
Aboriginal Peoples and Treaty Rights s.91(2), s.25, s.35
FEDERAL LEGISLATIVE POWER
(a) Section 91(24)
(b) Indians
o Thus, two heads of power:
(1) a power over “Indians”, and
o This power may be exercised in respect of Indians only, whether or not they reside on, or have any connection with lands reserved for the Indians.
(2) a power over “lands reserved for the Indians”.
o This power may be exercised in respect of Indians and non-Indians so long as the law is related to lands reserved for the Indians.
o Thus is part of the Charter, but it does not create any new rights. It is an interpretative provision.
o This makes clear that the equality guarantee in s.15 does NOT invalidate aboriginal or treaty rights.
o The definition of “aboriginal peoples of Canada” includes:
- the Indian
- Inuit and
-Metis peoples of Canada
s.88, Indian Act – makes clear that provincial “laws of general application” apply to “Indians”.
o Status Indians = live on Indian reserves, have Indian Act privileges and within s.91(24)
o Non-status Indians = live on Indian reserves, NOT part of Indian Act. Within s.91(24)
o Metis People = can live on Indian reserves intermarriage between French-Canadian men and Indian women. May be within s.91(24)
o Inuit or Eskimo People = NOT covered by Indian Act. Do NOT live on Indian reserves. Can be included in s.91(24).
Therefore, Non-Status Indians, Metis, Inuit/Eskimo people are NOT govern med by the Indian Act but by s.91(24).
Federal Indian Act – defines the term “Indian” for the purposes of that Act, and establishes a register to record the names of qualified persons (about 700,00 status Indians in Canada). Persons within the statutory definition of the Act are known as “status Indians”.
o Non-status Indians, which number about 200,000, are “Indians” within the meaning of s.91(24), although they are not governed by the Indian Act.
(c) Lands Reserved for Indians
o S.91(24) = federal Parliament legislative power over “land reserved for the Indians”
(d) Canadian Bill of Rights
s.1(b), Bill of Rights – guarantee of “equality before the law”, and specifically forbids “discrimination by reason of race”.
o The federal Indian Act appears on its face to offend the guarantee of equality in the Bill of Rights.
R v Drybones (1969) – SCC held the use of the racial classification “Indian” in s.94 of the Indian Act, which made it an offence for an Indian to be intoxicated off a reserve, violated the equality guarantee in the Bill of Rights.
o This decision case doubt on all of the provisions of the Indian Act, and on the whole principle of a special regime of law for Indians.
(e) Charter of Rights
Corbiere – SCC struck down the provision in the Indian Act that made residence on the reserve a requirement for voting in band elections because the distinction between Indians who lived on the reserve (and could vote) and Indian who did not was a breach of s.15.
(f) Treaties
o Treaties within OTHER counties have no effect on Canadian law unless they are implemented by Federal legislation
o Before 1982, treaties entered into within Indian tribes were prohibited by the Federal law from performing their treaty outside the season required by Federal law
o Today, s.35 gives constitutional protection for treaty rights and international treaties
PROVINCIAL LEGISLATIVE POWER
(a) Application of provincial laws
o The general rule: is that provincial laws apply to Indians and lands reserved for the Indians, so long as the law is in relation to a matter coming within a provincial head of power.
R v Hill (1907) – Ontario CA held that a provincial law confining the practice of medicine to qualified physicians applied to Indians. The offence did not take place on a reserve, but would have been the same if it had.
R v Francis (1988) – SCC held that provincial labour law applied to a shoe-manufacturing business located on a reserve which was owned by Indians, employed Indians and which had been funded by the Department of Indian Affairs.
5 exceptions to general rule that provincial laws apply to Indians and lands reserved for Indians:
(i) Singling out
o If provincial law singled out Indians or Indian reserves for special treatment, then the law is invalid
(ii) Indianess
o A provincial law that affects “an integral part of primary federal jurisdiction over Indians and lands reserved for the Indians” will be inapplicable, even though the law is one of general application that is otherwise within provincial competence.
Paul v BC (2003)
o Issue: The defendant, an Indian, claimed that he was exercising an aboriginal right when he cut down trees in a provincial forest in apparent violation of the Code. He argued that the province could not empower an administrative tribunal to make a ruling about the existence or applicability of aboriginal rights.
o SCC Held: court rejected this argument on the basis that adjudication was distinct from legislation and since the function conferred on the Forest Appeals Commission included the power to decide questions of law, the Commission’s decision was upheld.
(iii) Paramountcy
o If a provincial law is inconsistent with a provision of the Indian Act (or any other federal law), the provincial law is rendered inoperative by the doctrine of federal paramountcy.
(iv) Natural Resources Agreements
o Provincial law CANNOT deprive Indians of this right to game and fish for food (which is protected by the 3 prairie provinces)
(v) s.35
o Aboriginal and treaty rights, since 1982, have been protected by s.35.
o Therefore, constitutional status given to aboriginal and treaty rights
o Therefore, protected from impairment by provincial law
SECTION 88 OF INDIAN ACT
(a) Text of s.88
o S.88 Indian Act = provincial laws of general application to “Indians”. This is in operation as a federal incorporation of provincial laws to make provisional laws applicable as part of the federal law.
(b) Laws of General Application
Dick v The Queen [1985]
o PRINCIPLE: Provincial laws NOT affecting ‘Indianness’, but which apply to Indians of their own force, are NOT within s.88 I.A
o BEETZ à s.88 I.A applies to provincial laws that affect ‘Indianness’ by impairing the status of capacity of Indians. Therefore, provincial laws that can be applied to Indians, without touching their ‘Indianness’, will apply to Indians of their own force.
o THEREFRE PROVINCIAL LAWS OF GENERAL APPLICATION CAB INFRINGE ON ABORIGINAL RIGHTS. BUT S.88 DOES NOT ALLOW PROVINCIAL LAWS OF GENERAL APPLICATION TO EXTINGUISH ABORIGINAL RIGHTS!
(c) Paramountcy Exception
o Any conflict between statute and a provisional law of general application is to be resolved in favour of federal statute.
o BUT THE EXCEPTION IS: Exception to s.88 = the “paramountcy doctrine” continues to apply to provincial laws of general application despite the adoption of federal statute. Therefore, applies only where there is this contradiction.
o Only provincial laws that affect “Indianness” will be subject to this paramount exception
i.e. provincial laws that do NOT affect ‘indianness’, apply to Indians in their own force (not through s.88), and they are subject to the rule of paramount (not the expanded rule of s.88)
(d) Treaty Exception
o Any conflict between a treaty made within Indians and a provincial law of general application, MUST go in favour of the treaty provision
NATURAL RESOURCES AGREEMENTS
o Alberta, Saskatchewan and Manitoba, limits provincial competence by making laws applicable to Indians within the “Natural Resources Agreement”
ABORIGINAL RIGHTS
(a) Recognition of aboriginal rights
o s.35 = gives constitutional protection to “the existing aboriginal and treaty rights of the aboriginal peoples of Canada”.
*Guerin v The Queen [1984]
o PRINCIPLE: aboriginal title survived European settlement and assumption of souverighnty by the Crown. Aboriginal title to land gave rise to a fiduciary duty by the Crown to deal within the land for the benefit of Indians.
o SCC HELD: aboriginal title of the Musqueaam Indian Band to land in B.C was recognized. The fiduciary duty had been broken, so the Indians received damages
R v Sparrow [1990]
o PRINCIPLE: test of justification. S.35 provided constitutional protection for the aboriginal rights.
“All dealings with aboriginal people, the government has the responsibility to act in a fiduciary capacity”
o HELD: Aboriginal rights, including fiduciary duty, are constitutionally protected under s.35.
o THEREFORE, BOTH CASES RECOGNIZE A FIDUCIARY OR A TRUST-LIKE OBLIGATIONS BY THE CROWN! AND BOTH CASES CONFIRM ABORIGINAL RIGHTS EXIST AT COMMON LAW
(b) Definition of aboriginal rights
o Before Van der Peet the SCC made no attempt to define the characteristics of aboriginal rights:
R v Van der Peet (1996)
o PRINCIPLE: There is a Legal test to identify an “existing aboriginal right” within the meaning of s.35:
“in order to be an aboriginal right an activity must be an element of a practice, custom or tradition integral to the distinctive culture of the aboriginal group asserting the right”...
àIn order for a practice to be “integral” = the practice must be “of central significance” to the aboriginal society: it must be a “defining” characteristic of the society.
àThe practice must have developed before “contact” = “before the arrival of Europeans in NA...the bone hook would be replaced by the steel hook, the bow and arrow by the gun, and so on..contemporary practices that developed “solely as a response to European influences” do not qualify.
o Facts: Aboriginal defendant had been convicted of selling fish which was prohibited under the federal Fisheries Act that restricted fishing for food.
o SCC Held: The exchange of fish did occur in the society of the Sto:lo people before contact with Europeans, but it was incidental to their practice of fishing for food. Unlike the practice of fishing for food, the practice of selling fish was not an “integral” part of the Sto:lo culture. It was only after contact that the people had begun fishing to supply a market, one created by European demand for fish.
Van der Peet applied in:
R v Gladstone (1996) – SCC held the claimed aboriginal right, which was to sell herring spawn on kelp, was established. Evidence showed that, before contact, the Heiltsuk people habitually sold large quantities of herring to other Indian tribes. The purpose of this activity was not to dispose of surplus food (as in Van der Peet); now was it incidental to social and ceremonial traditions (as in Smokehouse). The trade in herring spawn was “a central and defining feature of Heilstuk society”.
Mitchell v Minister of National Revenue (2001) – SCC rejected the claim by the Mohawk people of Akwesasne to an aboriginal right to bring goods purchased in the U.S. across the St. Lawrence River (the international border) into Canada without paying customs duty on the goods. Evidence was no sufficient, at most, the occasions of trade were few, and participation in northernly trade was “not a practice integral to the distinctive culture of the Mohawk people”.
R v Sappier (2006) – harvesting of wood for domestic uses was integral to the distinctive culture.
By definition, Van der Peet, could not apply to the Metis since their society was formed after European contact (with Europeans). However, this has been accommodated for:
R v Powley (2003) – for Metis claimants of aboriginal rights, the focus on European contact had to be moved forward, not to the time of European sovereignty, but to ‘the time of effective European control”. Apart from this shift in time, the same Van der Peet definition applied.
(c) Aboriginal self-government
R v Pamajewon (1996)
o PRINCIPLE: aboriginal right of self-government extends only to activities that took place before European contact, and then only to those activities that were an integral part of the aboriginal society.
o SCC held: that gambling was not an integral part of the distinctive cultures of the First Nations, and therefore, they had no aboriginal right to regulate gambling. The defendants were properly convicted of breaching the gaming provisions of the Criminal Code.
NOTE:
Delgamuuk v British Columbia [1997]
o LAMER àlaid down rules of evidence and substance to govern the new trial. Provided reasons as the nature of aboriginal title. There are 5 differences between aboriginal title and non-aboriginal title:
1. Source of A.T derives from pre-sovereignty occupation (rather than post-sov grant from Crown)
2. A.T confers exclusive right to land and occupation of land
3. A.T in inalienable, except to the Crown. This means that the Crown must act as an intermediary between aboriginal owners and third parties (aboriginal owners must first surrender their land to Crown who then is under fiduciary duty to deal with land in best interest of aboriginal)
4. A.T can only be held communally by aboriginals as members of aboriginal nation
5. A.t is constitutionally protected (s.35) and s.35 must satisfy the Sparrow test of justification
(e) Extinguishment of Aboriginal Rights
o Aboriginal rights, including title, can be distinguished in 2 ways:
1) By surrender: voluntarily surrender their aboriginal rights to the crown
2) By constitutional amendment: it would be in breach of the Crown’s fiduciary duty to aboriginal people to proceed with an amendment affecting aboriginal people and rights without their active participation)
TREATY RIGHTS
(a) Introduction
(b) History
(c) Definition of treaty
o It is an agreement between the Crown and an aboriginal nation with the following characteristics:
(1) Parties
(2) Agency
(3) Intention to create legal relations
(4) Consideration
(5) Formality
Simon v The Queen (1985)
o Issue: whether the legal recognition should be given to a “peace and friendship” treaty signed in 1752 by the governor of Nova Scotia and the Chief of the Micmac Indians. The document purported to guarantee to the Indians “free liberty of hunting and fishing as usual” in the treaty area. Thus, does the “treaty” fall within the meaning f s.88 of Indian Act?
o SCC Held: this was a valid treaty, which, by virtue of s.88 of the Indian Act, exempted the Micmac defendant from the game laws of Nova Scotia.
o A treaty MUST have an intention to creatE obligations that are mutually binding. Therefore, the surrender of aboriginal rights is NOT a requirement of a valid treaty. THERE MUST BE CONSIDERATION MOVING FROM INDIAN SIDE AND THE CROWN SHOULD BE HELD TO ITS SIDE OF THE BARGAIN
Nowegijick v The Queen (1983) – It is a well established principle of interpretation that “treaties and statutes relating to Indians should be liberally construed and doubtful expression resolved in favour of the Indians”.
o Because the Indians were not in a position to fully understand the Treaty, unequal bargaining rights between the Crown and the aboriginal people.
(d) Interpretation of Treating Rights
o Between the Crown and the aboriginal nation, they should be liberally construed and doubtful expressions resolved in favour of Indians
o Marshall 1 à Marshall 2 à Marshall 3
Marshall 3 (2005) – Logging was not a traditional Mi’Kmaq activity in 1760. And, while treaty rights are not frozen in time, modern logging activity could not be characterized as the natural evolution of the minor trade in wood products. The defendants had no treaty right to cut down trees for commercial purposes without a licence.
HELD: while modern eel fishing was a logical evolution of trading activity, logging was not a traditional activity for Mi’Kmaq activity. Therefore, NO TREATY RIGHTS to cut down trees for commercial purposes without a licence
SEE Morris
o Progressive interpretation of an Indian treaty:
R v Morris (2006) – SCC held “the use of guns, spotlights and motor vehicles is the current state of the evolution of the Tsartlip’s historic hunting practices”: these modern ways of hunting “do not change the essential character of the practice, namely, night hunting with illumination”. The practice was protected by the treaty, and the two accused were free.
(e) Extinguishment of rights
o Treaty rights and aboriginal rights may be extinguished in two ways:
(1) by voluntary surrender to the Crown, and
(2) by constitutional amendment.
o Evidence of longstanding non-exercise of treaty rights does not cause an extinguishment.
CONSTITUTION ACT 1867
o The BNA Act established the rules of federalism, that is, the rules that allocate governmental power between the central institutions (federal Parliament) and the provincial institutions (provincial Legislatures). But the BNA Act did not mark any break with the colonial past. Independence from the UK was not desired or even contemplated for the future. The British North Americans wanted the old rules to continue in both form and substance exactly as before.
o The best-known example of the colonists’ reliance on the old regime is the absence of any general amending clause in the BNA Act. ... The conclusion is inescapable that the Canadian framers of the BNA Act were content for the imperial Parliament to play a part in the process of amending the new Constitution.
o Another gap in the BNA Act concerns the office of Governor General. The Act, by s.9, vests general executive authority for Canada in “the Queen”, and confers several specific powers on a “Governor General”.
o The office of the GG has never been formalized in an amendment to the BNA Act. The office is still constituted by the royal prerogative (Letters patent), and appointments are still made by the Queen, although she now acts on the advice of her Canadian ministers.
o The Supreme Court of Canada was established in 1875 by an ordinary federal statute and the right of the Privy Council was retained; the abolition of PC appeals did not occur until 1949. It is still the case that the existence, composition and jurisdiction of the SCC depended upon an ordinary federal statute.
o 1960 Bill of Rights was enacted as a federal statute, not as an amendment to the BNA Act, and it was made applicable only to federal laws.
CONSTITUTION ACT 1982
o Domestic amending formula was adopted;
o The authority over Canada of the UK (imperial) Parliament was terminated;
o The Charter of Rights was adopted
o The Constitution Act, 1982 for the first time provided a definition of the phrase “Constitution of Canada” – s.52(2) “The Constitution of Canada includes ...”
CONSTIUTION OF CANADA
o The word “includes” indicates that the definition is not exhaustive. The word “means” is customary for an exhaustive definition.
New Brunswick Broadcasting Co. v Nova Scotia (1993) – the definition in s.52(2) is not exhaustive. The court held that the unwritten doctrine of parliamentary privilege should be included in the definition. The inclusion of parliamentary privilege was said to be implied by reference in the preamble of the Constitution Act, 1867 to “a constitution similar in principle to that of the UK”. Thus, the court added an unwritten doctrine of parliamentary privilege which is surprising since s.52(2) is expressed solely in terms of written instruments.
Hogg: it seems best to confine the court’s ruling to unwritten doctrine, and to treat the scheduled list of instruments as exhaustive.
o s.52(1) – Supremacy Clause
o s.52(3) – entrenches the ‘Constitution of Canada’
PARLIAMENTARY PRIVILEGE
New Brunswick Broadcasting Co. v Nova Scotia (1993)
o SCC Held: the Nova Scotia legislative assembly could ban the televising of it proceedings, because the power to exclude “strangers” from the legislative chamber was part of the assembly’s parliamentary privilege. Parliamentary privilege also includes freedom of speech in debate, including immunity from legal proceedings for things said in debate.
o Parliamentary privilege is part of the ‘Constitution of Canada’.
o It is unclear whether this has deprived the provincial Legislatures of the power to amend the powers and privileges of their legislative assemblies since an amendment would be required.
o The powers authorized by parliamentary privilege are not subject to the Charter of Rights.
o Thus, the court did not need to consider whether the assembly’s denial of access to the television media was a breach of the freedom of the press guaranteed by s.2(b).
Canada v Vaid (2005)
o PRINCIPLE: dismissal/firing is not subject to Parliamentary privilege since it is not necessary to the functioning of the House.
o Facts: Chauffeur of Speaker of the House alleged he had been dismissed on grounds that were forbidden by the Canadian Human Rights Act. House of Commons and the Speaker that the hiring and firing of all House employees were “internal affairs” that were not subject to review.
o SCC Held: his dismissal was not an unreviewable matter of parliamentary privilege. Such a sweeping claim of parliamentary privilege failed the test of necessity. Exclusive and unreviewable jurisdiction over all House employees was not necessary for the functioning of the House.
CASE LAW (Judicial activism)
o Following cases illustrate the active and creative role that the SCC has carved out for itself:
Re Remuneration of Judges (1997) – court asserted that there was an unwritten principle of judicial independence in the Constitution that could have the effect of invalidating statutes that reduced judicial salaries.
Reference re Secession of Quebec (1998) – SCC invoked unwritten principles of:
(1) democracy,
(2) federalism,
(3) constitutionalism and
(4) the protection of minorities to hold that, if a province were to decide in a referendum that it wanted to secede from Canada, the federal government and the other provinces would come under a legal duty to enter into negotiations to accomplish session.
PREROGATIVE
o The royal prerogative consists of the powers and privileges accorded by the common law to the Crown. The prerogative could be abolished or limited by statute.
o Examples of the royal prerogative:
· The office of the GG still depends upon a prerogative instrument;
· The conduct of foreign affairs, including the making of treaties and the declaring of war;
· The appointment of the Prime Minister and other Ministers;
· The issue of passports;
· The creation of Indian reserves;
· The conferring of honours such as Queen’s Counsel.
CONVENTIONS
(a) Definition of Conventions
o Conventions are rules of the constitution that are not enforced by the law courts.
o If a court did enforce a convention (no court has ever done so), the convention would be transformed into a legal rule. Conventions allow the law to adapt to changing political realities without the necessary formal amendment.
o Examples of conventions:
o The GG will exercise his/her powers only in accordance with the advice of the cabinet or the PM.
o If the GG exercised one of his powers without (or in violation of) ministerial advice, the courts would not deny validity to his act.
o Royal assent to a bill shall never be withheld.
o If the GG withheld his assent to a bill enacted by both Houses of Parliament, the courts would deny the force of law to the bill, and would not force the GG to give his assent.
(b) Conventions in the courts
Patriation Reference (1981)
o PRINCIPLE: No legal requirement of provincial consent to amend the Constitution, but a “substantial degree” of provincial consent was required as a matter of convention.
o Facts: SCC was asked on a reference whether there was a convention requiring that the consent of the provinces be obtained before the federal government requested the UK Parliament to enact an amendment to the Constitution of Canada that would affect the powers of the provinces. The court was also asked whether there was a legal requirement of provincial consent. The questions were referred by three of the eight provinces opposed to the PM’s proposals to patriate the constitution and obtain an amending procedure and charter of rights.
o SCC Held: there was no legal requirement of provincial consent to the constitutional proposals “as a matter of law”. BUT, that a “substantial degree” of provincial consent was required “as a matter of convention” before requesting the requisite legislation from the UK.
o Although there was no legal obligation upon the federal government to obtain consent of the provinces, as a matter of politics, the decision made it impossible to proceed without a “substantial degree” or provincial consent.
o Nine of the ten provinces agreed, but not Quebec. Was the consent of Quebec necessary as part of a “substantial degree” of provincial consent?
o Quebec referred this question to its CA. By the time the question reached the SCC, the Canada Act 1982 had actually been enacted by the UK Parliament.
Quebec Veto Reference (1982)
o Question: did the convention of a “substantial degree” of provincial consent require Quebec?
o SCC Held: Quebec’s consent was not necessary to make up the requisite “substantial degree” of provincial consent. By this decision the court destroyed the spectre of an “unconstitutional constitution”.
o The nine predominantly English-speaking provinces comprised a “substantial degree” of provincial consent, which satisfied the convention.
o NOTE:
- Quebec was of course legally bound by the Constitution Act, 1982, because the Act had been adopted into law by the correct constitutional procedures. Quebec “opted out” of the Charter of Rights to the maximum extent possible under s.33 by introducing a “notwithstanding clause” into each of its existing statutes, and into every newly-enacted statute. In these ways, the point was made that the Constitution Act, 1982 lacked political legitimacy in the province of Quebec.
(c) Convention and Usage
o A convention = a rule which is regarded as obligatory by the officials to whom it applies
o A usage = is not a rule, but merely a governmental practice which is ordinarily followed, although it is not regarded as obligatory
o A usage may develop into a convention if a practice is invariably followed over a long period of time
o There is a much stronger moral obligation to follow a convention than a usage
(d) Convention and Agreement
o If all the relevant officials agree to adopt a certain rule of constitutional conduct, then that rule may immediately come to be regarded as obligatory. The resulting convention could hardly at the beginning, be described as a custom
o Conventions established by agreement will normally be written down by the officials concerned in precise and authoritative terms
(e) Convention and Law
o A convention can be transformed into law by being enacted as a statute.
o A convention would also be transformed into law if it were enforced by the courts
o Laws and conventions are “closely interlocked”
o The conventions “do not exist in a legal vacuum”
o They regulate in the way in which legal powers shall be exercised, and they therefore presuppose the existence of the legal powers
o Thus, the conventions allow the law to adapt to changing political realities without necessity for formal amendment
(f) Convention and Policy
o In both Alta [2000] and Catholic School Teachers’ Ass. [2001], the court held that no convention restricted the policy or substance of what could be enacted by the provincial Legislatures in exercise of its power to make laws in relation to education (this is the power of s.93).
Procedures for Amending the Constitution ss. 38 to 45
HISTORY OF AMENDMENT
o Until 1982, amendments to the BNA Act had to be enacted by the UK (imperial) Parliament.
o The idea was, and still is, that a constitution should be more difficult to amend than an Income Tax Act.
o At the imperial conference of 1930 it was agreed by the PM of the UK and all the dominions that the UK Parliament would not enact any statute applying to a dominion except at the request and with the consent of that dominion.
o The convention meant that the UK would not enact an amendment to the BNA Act (or any other law applying to Canada) except at the request and with the consent of Canada.
PART V OF THE CONSTITUTION ACT, 1982
(a) Summary of Part V
o Part V entitled “Procedure for Amending Constitution of Canada”:
(1) s.38 – General amending procedure (applies when none of the other grounds apply).
(2) s.41 – unanimity procedures.
(3) s.43 – some-but-not-all-provinces (requiring the assents of the federal Parliament and only those provinces affected.
(4) s.44 – federal Parliament alone (provisions relating to the federal executive and Houses of Parliament).
(5) s.45 – each provincial Legislature (power to amend “the constitution of the province”.
(b) Comparison with Australia and U.S.A
(c) Constitution of Canada
o s.52(1) – the “Constitution of Canada” is “the supreme law of Canada”, and that “any law that is inconsistent with the provisions of the Constitution is, to the extent of inconsistency, of no force or effect”.
o s.52(1) is the current basis of judicial review.
o The “Constitution of Canada” is defined in s.52(2) of the Constitution Act, 1982.
o The amending procedures are not required for the amendment of statutes or instruments that are not part of the Constitution of Canada.
o The Official Languages Act and the Supreme Court of Canada Act are not part of the Constitution and, thus, are open to amendment by the ordinary legislative process.
(d) Charter of Rights
GENERAL AMENDING PROCEDURE (s.38)
(a) Section 38(1)
o Applies when none of the four more specific procedures is applicable.
o Section 38(1) requires that an amendment to the “Constitution of Canada” be authorized by:
(a) resolutions of both Houses of the federal Parliament, and
(b) resolutions of the legislative assemblies of at least two-thirds of the provinces, provided that they represent at least 50 per cent of the population of all the provinces.
o The two-thirds requirement means that at least seven of the ten provinces must agree to an amendment. Seven provinces would inevitably include at least one of the four western provinces and at least one of the four Atlantic provinces. The 50 per cent population requirement means that the agreeing provinces must include at least one of Ontario or Quebec.
o Often called the seven-fifty formula, because of its requirements of seven provinces and 50 per cent of the population.
o The seven-fifty formula rejects the idea of regions in favour of the equality of the provinces. However, the “regional veto statute” has the indirect effect of incorporating regions into the seven-fifty formula.
(b) Proclamation
o Once the authority for an amendment has been provided by the requisite number of resolutions of assets, s.38(1) provides that the formal act of amendment is accomplished by a “proclamation..” (s.39(1))
(c) Initiation
(d) Opting Out
o This is permitted by s.38(3)
o It permits the legislative assembly of a province to pass a resolution of dissent to an amendments
o It is not unanimity required or a veto
o A maximum of 3 provinces could opt out
o It enables any province to opt out of an amendment that derogates from that province’s powers, rights or privileges, and that is unacceptable to it.
(e) Compensation for opting out (s.40)
o s.40 imposes upon the federal government the obligation to provide “reasonable compensation” to any province that has opted out of an amendment that transfers “provincial legislative powers relating to education or other cultural matters” from the provincial Legislatures to the federal Parliament.
o The purpose of this obligation is to ensure that a province is not pressured by financial considerations into abandoning jurisdiction over educational or cultural matters.
o It singles out education and culture because of their special significance to Quebec.
(f) Revocation of Assent or Dissent
o A resolution of assent may be revoked only before the issue of the proclamation authorized by the resolution (s.46(2))
o A resolution of dissent (opting out resolution) may be revoked at any time, before or after the issue of proclamation (s.38(4))
(g) Section 42
o s.42 requires that the general amending procedure be used for six defined classes of amendment to the Constitution of Canada. s.42(1)(a)-(f)
o BUT, the SCC is nowhere provided for in the Constitution of Canada.
o The court is constituted by the Supreme Court Act, a federal statute that is not one of the instruments forming part of the Constitution.
o Since s.42 applies only to amendment to the “Constitution of Canada”, it follows that the federal Parliament, acting under s.101 of the Constitution Act, 1867, still has the power to amend the Supreme Court Act.
(h) “Regional veto” statute
o The purpose of the statute is to import new conditions into the general (seven-fifty) formula for amending the Constitution. On top of the constitutional requirement of support by seven provinces representing 50 per cent of the population, the statute imposes the new statutory requirement that the seven agreeing provinces must include five “regions” stipulated in the Act, namely, Ontario, Quebec, British Columbia, two Atlantic provinces and two Prairie provinces.
o ONLY applies to amendment that are to follow the general (seven-fifty) amending procedure of s.38.
o The regional veto statute was hastily conceived and implemented after the Quebec sovereignty referendum of 1995. It was designed to achieve through federal legislation what the failed Meech and Charlottetown Accords had been unable to achieve through constitutional amendment, namely, a greater role for Quebec over future amendments of the Constitution.
Criticism of amending procedures
o It will be difficult to secure any amendment to the Constitution, because of the high level of agreement required by the general amending procedure (and the regional veto act).
UNANIMITY PROCEDURE (s.41)
o Section 41 lists five matters in respect of which an amendment to the Constitution of Canada requires the unanimous support of the provinces. In respect of the matters listed in the s.41, each province has a veto over amendments.
SOME-BUT-NOT-ALL-PROVINCES PROCEDURE (s.43)
o One way of reconciling s.43 with s.45 would be to read s.43 as applying to an amendment of a provision applying to a single province when that provision is contained in one of the instruments which compromise the Constitution of Canada, and to read s.45 as applying to an amendment of the “constitution of the province” only when the provision to be amended is not to be found in any of the instruments comprising the Constitution of Canada
FEDERAL PARLIAMENT ALONE (s.44)
o Section 44 authorizes the federal Parliament, by ordinary legislation, to amend those parts of the Constitution of Canada which relate to “the executive government of Canada or the Senate and House of Commons”
PROVINCIAL LEGISLATURE ALONE (s.45)
o Section 45 authorizes each provincial Legislature, by ordinary legislation, to amend the “constitution of the province”.
o s.45 refers to the “constitution of the province”, which is not defined anywhere in the Constitution Act, 1982.
FUTURE AMENDMENTS
(a) Forces of Change
(b) Division of Powers
o The 1982 amendments made only one change in the division of powers between the two levels of government, and that was an increase in the provincial power over natural resources.
(c) Central Institutions
(d) Criticism of Amending Procedures
Federalism/Judicial Review
DISTRIBUTION OF GOVERNMENTAL POWER
(a) Federalism
o The central authority and the regional authorities are “coordinate”, neither is subordinate to the other. In the event of inconsistency between a federal law and a provincial law, it is the federal law which prevails.
o Reasons for federalism:
o In a country that covers a large area, and includes diverse regions, there may be advantages of efficiency and accountability in dividing the powers of government so that a national government is responsible for matters of local importance.
o In a province, being more homogenous that the nation as a whole, will occasionally adopt policies that are too innovative of radical to be acceptable to the nation as a whole. A province may serve as a “social laboratory” in which new kinds of legislative programmes can be “tested”.
i.e. medicare, which started in Saskatchewan in 1961 and became a national programme in 1968.
o Division of power act as a check against tyranny VS federal government means weak government because the dispersal of power makes it hard to enact and implement new public policies.
o WHEARE à “Canada has a quasi-federal constitution” – justified by a literal reading of the terms of the Constitution. However, subsequent case law has virtually eliminated the elements of provincial subordination.
o If either order could unilaterally change the distribution of powers, then the authorities would not be coordinate.
(b) Confederation
(c) Legislative Union
(d) Special Statue
(e) Dominion and Provinces
(f) Regions
(g) Subsidiary
o Subsidiarity is a principle of social organization that prescribes that decisions affecting individuals should, as far as reasonably possible, be made by the level of government closest to the individuals affected.
o The BNA Act accordingly invested the provincial Legislatures with authority over such matters as property and civil rights, the courts and the police, municipal institutions, hospitals and education. This was consistent with the principle of subsidiarity.
o The principle was reinforced by the decisions of the courts in the early years of confederation, which established rules that continue to set the pattern of government. Property and civil rights was given a broad interpretation, so that it now includes not only the private law of property, contract and torts, but also most of commercial law, consumer law, environmental law, labour law health law and social-services law.
o The BNA Act invested the federal Parliament with authority over interprovincial and international trade and commerce, and banking and currency, all forms of taxation and national defence.
114957 Canada v Hudson (2001)
o Held: the local decision, which was to impose more stringent standards on pesticide use should be respected. Quebec’s bylaw which severely restricted the use of pesticides in the municipality was not displaced by provincial and federal legislation also dealing with pesticides.
REASONS FOR FEDERALISM
o
FEDERALISM IN CANADA
(a) The Terms of the Constitution
(b) Early federal dominance (quasi-federal system)
o In the early years of confederation, the relationship between the new national government and the provinces was if anything understated by the term quasi-federal; it was more akin to a colonial relationship.
(c) Judicial Interpretation of the Distribution of Powers
(d) Federal-Provincial Financial Arrangements
(e) Disallowance (s.90)
o The federal power to disallow provincial statutes was frequently exercised by the dominant federal government in the early years of confederation. The power has not been exercised since 1943.
(f) Appointment of Lieutenant Governors
o The federal power to appoint Lieutenant Governors is another apparent breach of the federal principle. The Lieutenant Governor does have power under s.90 to withhold the royal assent from a bill enacted by the provincial legislative assembly, and to “reserve” the bill for consideration by the federal government. But the power is basically obsolete.
(g) Appointment of judges
o s.96 – federal power to appoint the judges of the higher provincial courts
(h) Educational Appeals
(i) Declaratory power
o s.92(10)(c) to bring a local work within federal jurisdiction by declaring it to be “for the general advantage of Canada” was frequently used in the past, mainly in respect of local railways.
(j) Conclusion
SUPREMACY OF THE CONSTITUTION
o
ROLE OF THE COURTS
(a) Development of judicial review
o The Privy Council and the provincial courts, in the years immediately after 1867, assumed the right to review the validity of legislation enacted by the Canadian legislative bodies. If a statute was inconsistent with the BNA Act, then the BNA Act had to prevail, because it was an imperial statute. After the SCC was established in 1875, it naturally assumed the same power.
o Section 52(1) – the “Constitution of Canada” is “the supreme law of Canada”, and that “any law that is inconsistent with the provisions of the Constitution is, to the extent of inconsistency, of no force or effect”.
o s.52(1) is the current basis of judicial review.
(b) Limitations of Judicial Review
(c) Alternatives to Judicial Review
SECESSION
(a) The Power to Secede
o In Canada, there is neither judicial decision nor explicit text to the same effect, but the absence of any provision in the Constitution authorizing secession makes clear that no unilateral secession is possible.
History
1980 – Quebec referendum of “sovereignty association” rejected.
1987 – Meech Lake Accord
1992 – Charlottetown Accord
1995 – Quebec referendum on “economic and political partnership”. Thus, voters had to contemplate sovereignty without association. This referendum proceeded on the assumption that a unilateral declaration of independence would be legally effective to remove Quebec, with its present boundaries, from Canada, without the need for any amendment of the Constitution of Canada regardless of whether the terms of separation were agreed to by Canada. This extraordinary claim was not challenged by the federal government of Chretien. The claim was challenged by a private citizen, Guy Bertrand, who obtained a declaration from the Quebec Superior Court that Quebec had no power to proclaim itself independent in disregard of the amending procedures of the Constitution. However, the Court refused to issue an injunction to prohibit the holding of the referendum, and the narrow “No” majority won. Eventually, the federal government did come to appreciate the merit of securing a legal ruling on the validity of a unilateral declaration of independence –
Secession Reference (1998)- A reference by the federal government to the SCC asking whether Quebec could secede unilaterally from Canada. Three questions was put to the court:
(1) what was the position under the Constitution of Canada? Court answered, unilateral secession was not permitted.
(2) what was the position under international law? Court gave the same answer.
o A secession would require an amendment of the Constitution of Canada, and would have to be accomplished in accordance with the Constitution’s amending procedures. The Court was not asked and did not address which procedure was the correct one.
o The Court said that a referendum in Quebec that yielded a “clear” majority on a “clear” question in favour of secession, while ineffective by itself to accomplish secession, “would confer legitimacy on demands for secession” and “would give rise to reciprocal obligation on all parties to Confederation to negotiate constitutional changes to respond to that desire.
o The Court found the obligation to negotiate a corollary of the fundamental, but unwritten, constitutional principles of “democracy” and “federalism”.
o The Court said that it “has no supervisory role over the political aspects of negotiations”. The immediate sequel to the Secession Reference was the enactment by Parliament of the Clarity Act.
Clarity Act –
o Section 1: if a province proposes a referendum on secession, the House of Commons is to consider the proposed question and determine whether the question is “clear”.
o Section 2: if a question is clear, and if a referendum on that question gains a majority of votes in favour of the secessionist option, the House of Commons is to consider the result and determine whether the majority is “clear”.
o The Act does not define when a majority is clear.
o The Secession Reference and the Clarity Act make clear that a constitutional amendment is needed for the secession of a province, and they set some useful ground rules.
(b) Secession by amendment
o Which one of the five different procedures is the correct one?
o No s. 43, No s.44, No s.45 (because it affects all provinces).
o s.38 – The argument for the general amending procedure of s.38 is that it covers all matters not specifically provided for elsewhere in the amending procedures, and secession is not provided for anywhere else.
o s.41 – The argument for the unanimity procedure is that secession would have an indirect impact on the matters specified in s.41, and it would be anomalous if secession (the most radical amendment of all) could be accomplished more easily that some other classes of amendments.
(c) Secession by unilateral act
o A unilateral secession would, of course, be illegal because it would be unauthorized by the existing rules of constitutional law. But such a break in legal continuity may equally be regarded as a revolution, and it is a demonstrable fact that a successful revolution eventually becomes the foundation of a new and entirely legitimate legal order.
COOPERATIVE FEDERALISM
Principles of Interpretation/JR on Federal Grounds
SCOPE
o Only the courts can provide an answer (judicial review of legislation) to a question on whether the fed parl or prov leg can enact a law that comes within the Constitution’s definition of powers
o Valid law = intra vives = when court finds that the law was enacted within the powers allocated by the Constitution to which ever leg body enacted the law.
o Invalid law = ultra vives = when court finds that the law was enacted outside the powers
allocated to the enacting body.
o The constitutional provisions distributing power between the fed parl and the prov leg are:
-restraints on legislative power in Canada
-the Charter of Rights (most important)
o When reviewing the validity of a law, two questions must be asked in this order:
1-whether the law is within the law-making powers of the enacting body
2-whether the law is consisted within the Charter of Rights.
PRIORITY BETWEEN FEDERAL AND CHARTER GROUNDS
o QUESTION:
o When the law is challenged on both federal and Charter grounds, does the Constitution accord priority to one ground over the other?
o This has little practical significance since BOTH the fed distribution of powers AND the Charter of Rights are part of the Constitution of Canada.
o HOGG à “provisions of the constitution distributing powers to the federal parliament and the provincial Legislatures are logically prior to the Charter of Rights...It is impossible for a nation to be governed without bodies possessing legislative powers, but it is possible for a nation to be governed without a Charter of Rights. “
“The argument that a law is invalid bc it isoutside the powers conferred on the enacting body by the federal part of the Constitution is a more radical argument than the argument that the law is invalid bc it offends the prohibition contained in the Charter of Rights.”
o When reviewing the validity of a law, two questions must be asked in this order:
1-whether the law is within the law-making powers of the enacting body
2-whether the law is consisted within the Charter of Rights.
o S.32(1) Charter of Rights = makes the Charter applicable to the fed Parl and the prov Leg.
s.32(1) This Charter applies
(a) to the Parliament and government of Canada in respect of all matters within the authority of Parliament ...
(b) to the legislatures and government of each province in respect of matters within the authority of the legislature of each province.
o “in respect of all matters within the authority of” the Parliament or the Legislature = it limits the application of the Charter to laws within the distribution-of-powers.
o The Charter does not apply to law that is ultra vires on federal grounds bc that law would be invalid for breach of
the power-distributing provisions of the Constitution AND invalid for breach of the Charter.
o The priority of the federal ground of judicial review does not mean that a court deciding a constitutional case must always dispose of the federal issue before proceeding to the Charter issue. The court can decide that case on the ground that seems strongest.
o There is a well-known line of cases in which laws limiting free expression have been challenged on federal grounds.
These cases raised federal issues since there is no underlying federal principle that offers a clear answer to the question of which level of government (central or regional) has the authority to restrain the federal political freedoms.
o Most commentators have pointed out that some cases seemed to turn more on a judicial concern to protect
freedom of speech than on an assessment of the federalism issue at stake.
o PAUL WEILER àhas argued, for example, that the SCC in the 1950s used doctrines of federalism as a kind of
surreptitious bill of rights, allocating jurisdiction to that level of government that had not exercised it, in order to invalidate a law that the Court really believed should not have been enacted at all.
o So, now that the Charter is available as a ground of review, a denial of fundamental political liberty can be
acknowledged as a ground of invalidity under s.2 of the Charter...the difficult federal issue would not have to be decided, therefore. BUT if the court decided that the law did NOT violate the Charter, then the federal issue would have to be decided.
o The Charter of Rights has the power of override:
S.33 of the Charter = enables the Parl or a Leg to override most of the provisions of the Charter of Rights by including in a statute, a declaration that the statute is to operate (notwithstanding the relevant provision of the Charter). This statute is considered valid (despite the breach of the Charter).
o This does NOT exist for a breach of the federal distribution of powers...because a law that is invalid for a federal distribution of powers CANNOT BE RE-ENACTED by the enacting Parliament or Legislature.
o HOWEVER, it CAN be enacted by the other level of government
i.e. if, by virtue of the federal distribution of powers, a law is competent to the federal Parliament, the law can be enacted by the provincial Legislature, and vice versa.
PROCEDURE OF JUDICIAL REVIEW
o Judicial review on federal grounds are mostly the same as those respecting judicial review on Charter grounds.
REASONING OF JUDICIAL REVIEW
o In Canada, the distribution of leg power between the fed Parl and the prov Leg is set out in both:
ss.91 of the Constitution Act 1867 = lists the kinds of laws that are competent to the fed Parl.
ss.92 of the Constitution Act 1867 = lists the kinds of laws that are competent to the prov Leg.
o Both use terminology that gives legislative authority in relation to “matters” coming within “classes of subjects”
CHARACTERIZATION OF LAWS
Russell case (1883)
o PRINCIPLE: first attempt to articulate the “pith and substance” doctrine.
The issue before the Board was the validity of the Canada Temperance Act, federal legislation permitting local areas to prohibit the sale of intoxicating liquor. An individual who had been charged with violating the Act argued that it was constitutionally invalid because it dealt with property and civil rights, a matter reserved to the provinces.
o Held: legislation was valid because it dealt with “an evil which is assumed to exist throughout the Dominion”. The fact that the liquor could be held as property did not prevent Parliament from restricting its use when this was deemed dangerous to public health or safety.
Sir Montague Smith: Parliament could enact law under the POGG power that incidentally affected property and civil rights as long as it did so for a valid purpose.
o Russell was significant because it represented the first attempt to articulate what would come to be known as the “pith and substance” doctrine.
(a) Pith and Substance Doctrine (???)
o The doctrine focuses on the purpose of the legislation, rather than its incidental effects, in determining constitutional validity.
o It is important to recognize that this doctrine enables ONE level of government to enact laws with substantial impact on matters outside its jurisdiction (see Lambe).
o The doctrine opens the door to substantial overlap in jurisdiction precisely because it ignores the incidental effects of legislation in determining the constitutional validity.
o i.e, in Russell, the fact that the federal legislation (upheld under POGG – alcohol was an evil throughout the Dominion) also affected property rights (liquor is property) did not mean that it was invalid. Montague notes, if such incidental effects were to be regarded as the primary focus of the analysis, the federal POGG power would be rendered nugatory since ‘few, if any, laws could be made by Parliament for the peace, order and good government of Canada which did not in some incidental way affect property and civil rights.
(a) “Matter”
o Identify the “matter” of the challenged law.
o It is “the pith and substance” of the law.
o Matter is:
According to LASKIN à a distillation of the constitutional value represented by the challenged legislation
According to ABEL à an abstract of the statute’s content
According to LEDERMAN à the true meaning of the challenged law
According to MUNDELL à the answer to the question, ‘what in fact does the law do and why?’
o Difficulty in identifying that “matter” of a statute is that many statutes have ONE feature/aspect which comes within a provincial head of power....and ANOTHER which comes within a federal head of power. So, the selection of ONE or the OTHER as a “matter” of the statue will dispose of the case.
i.e. a provincial statute that imposes a direct tax on banks. One feature of this law is “direct taxation” which comes within s.92(2); but another feature is banking which comes within s.91(15). If the law is in relation to direct taxation, it is good, but if banking, then bad.
-So, how does the court make the crucial choice?
-They make a judgment as to which is the most important feature: the dominant feature is the “pith and substance” or “matter” of the law. (the other feature is merely incidental, irrelevant for constitutional purposes)
Example of “pith and substance” and “incidental affects”:
Bank of Toronto v Lambe (1887)
o PRINCIPLE: If the “pith and substance” of a provincial law maintains incidental effects on a federal matter, the provincial law will still be upheld.
PC upheld a provincial law which imposed a tax on banks. The dominant feature of the law was to raise revenue, and accordingly the “matter” of the law was taxation, not banking. Thus, the law was “in relation to” taxation (the matter) and merely “affected” banking.
o It is important to recognize that this doctrine enables one level of government to enact laws with substantial impact on matters outside its jurisdiction. Here, the level of the tax was a significant excercise of legislative power over banks; but because the law was characterized as “in relation to” taxation (its “pith and substance”), it could validly “affect” banking.
{NOTE: This distinction of “in relation to” and “affected” appears in ss.91 and 92}
Compare with (a different result to pith and substance of the challenged law):
Alberta Bank Taxation Reference (1938)
PRINCIPLE: If the “pith and substance” of a provincial law directly effects a federal matter, it will be invalid.
PC struck down an Alberta law which imposed a special tax solely on the banks. The pith and substance of this particular law was to discourage the operation of the banks in Alberta. Its “matter” therefore came within “banking” and the taxing quality of the law was merely incidental. The province’s power to tax could not save the law, because its pith and substance was not taxation.
(b) Singling Out
o The Alberta Bank Taxation Reference is occasionally read as prohibiting the provincial Legislatures from “singling
out” banks or other federal undertaking for special treatment. (Singling out of the banks was one of the factors which led the PC to characterize the law as in relation to banking)
o There are a number of cases in which provincial laws have been upheld, notwithstanding that the laws singled out a person or class of persons within federal jurisdiction.
i.e. Bank of Toronto v Lambe – the taxing statute, although it applied to other corporations as well as banks, did impose a special rate of tax on banks alone. Yet the PC did not hesitate to characterize the law as in relation to taxation, not banking.
i.e. Van Buren Bridge – a provincial tax levied on a single company which operated an international railway bridge within federal jurisdiction under s.92(10) has been upheld.
i.e. Sommers – a provincial law authorizing compulsory inspection of bank records in civil litigation has been upheld as in relation to civil procedure, notwithstanding that it singled out the banks (s.91(15)).
o PRINCIPLE: These cases show that a provincial law need not be of general application to apply validly to undertakings within federal jurisdiction. A law is characterized by its “pith and substance” or “matter” (the dominant feature)...so the singling out of undertakings within federal jurisdiction is not conclusive of pith and substance.
{NOTE: exactly the same principles would apply to federal laws that singled out local works or undertakings or other matters within provincial jurisdiction]
(c) Double Aspect Doctrine
o Why is a law, which presents both federal and provincial characteristics, treated as competent to BOTH the federal Parliament AND the provincial Legislatures? It seems that such a result is inconsistent with the stipulations in ss.91 and 92...that each list of classes of subject is assigned “exclusively” to EITHER the Parliament OR the Legislatures.
o But, according to the PC in Hodge v The Queen 1883 , the double aspect doctrine:
o “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”
o The courts have not explained exactly when this doctrine is to be applied, and when it is necessary to make a choice between the federal and provincial features of a challenged law.
o LEDERMAN à the double aspect doctrine is applicable when “the contrast between the relative importance of the
two features is not so sharp”. Thus, this doctrine is the course of judicial restraint.
Examples:
o Clearly, laws prescribing rules of conduct on the roads have a “double aspect”, and are therefore competent to both orders.
O’Grady v Sparling (1960) – SCC upheld provincial highway traffic offences of driving without due care and attention and failing to remain at the scene of an accident as laws in relation to conduct on the roads under s.92(13); at the same time the court upheld very similar federal offences contained in the Criminal Code as laws in relation to the punishment of crime, which is a matter of criminal law under s.91(27).
o Clearly, another example of a field where so some laws have a “double aspect” is, securities regulation.
Multiple Access (1982) – SCC upheld a provincial and a federal law, each creating a civil remedy for insider trading. The provincial power came from the characterization of regulating the trade in securities, which comes within “property and civil rights in the province” under s.92(13). The federal power came from the federal insider trading remedy as a corporate law coming within the federal power to incorporate companies under s.91 opening words.
o Thus, the effective concurrency over power over the highways and other securities regulation, gives rise to the possibility of conflict between a valid FEDERAL law, and a valid PROVINCIAL law.
o The resolution is: the doctrine of “federal paramountcy” (next chapter).
(d) Purpose
Examples:
Alberta Bank v Taxation Reference (1938) – The fact that a provincial law levies a tax, is not decisive of its classification as a taxing measure. So, if the court concludes that the PURPOSE of the ostensible tax is to regulate or destroy the banks, then the law will be characterized as being in relation to banking, and will be invalid.
R v Big M Drug Mart (1985) – SCC held that the federal Lord’s Day Act, which prohibited various commercial activities on Sunday, was a valid exercise of the federal Parliament’s power over criminal law (But, the Act was struck down for breach of the Charter of Rights). The criminal character of the Act flowed from its PURPOSE, which was the religious one of “the preservation of the sanctity of the Christian Sabbath”. The Court acknowledged that if the PURPOSE of the statute had not been religious “but rather the secular goal of enforcing a uniform day of rest from labour”, then the Act would have fallen under provincial rather than federal competence.
Compare with:
R v Edwards Books and Art (1986) – SCC held that Ontario’s Retail Business Holidays Act, which prohibited retail stores from opening on Sundays, was a valid exercise of the province’s power over property and civil rights in the province (and survived a s.1 Charter attack). The court discovered the secular PURPOSE of the Act – providing a uniform pause day for retail workers.
o The different outcomes in Big M and Edwards Books turned on the different PURPOSES of the challenged laws: the prohibition of work on Sunday fell within federal or provincial competence depending upon whether the PURPOSE of the prohibition was religious or secular.
Ward v Canada (2002) – SCC had to characterize a federal law that prohibited the sale of baby seals. A law regulating the marketing of seals would be within the provincial authority under s.92(13). But the court accepted evidence that the PURPOSE of the law was the indirect one of limiting the killing of baby seals.
Held: the pith and substance of the law was the management of the fishery, which came within the federal authority over “sea coast and inland fisheries”, s.91(12). The federal law was upheld.
How to determine the “purpose” of a statute:
It is now established that reports of royal commissions and law reform commissions, government policy papers and even parliamentary debates (Hansard) are indeed admissible.
(e) Effect
Examples:
o If court finds a negative effect, then the court will invalidate the law by placing it under a different head:
Alberta Bank Taxation Reference – PC examined the impact on the banks of the tax which Alberta proposed and used the severity of the tax as one of the reasons for concluding that the statutes should be characterized as in relation to banking rather than taxation.
Texada Mines (1960) – SCC examined the EFFECT of a provincial law imposing a tax on iron ore, and concluded that the tax was so heavy as to make it uneconomic to sell the ore outside the province; the Court accordingly characterized the law as in relation to interprovincial trade, a federal head of power under s.91(2), rather than as in relation to direct taxation within the province under s.92(2).
Central Canada Potash (1978)- the court examined the effect of a provincial scheme for the prorationing of potash; finding that nearly all the provinces production was exported, and that the province had abundant reserves, the court characterized the scheme as in relation to interprovincial and international trade, rather than the conservation of a natural resource.
The court has also examined the administration of a statute as an aid to classifying it for constitutional purposes:
Saumur v Quebec (1953)
o PRINCIPLE: If the effect of a statute causes hardship, the courts will invalidate it by placing it under a different head of power.
o Facts: Constitutional challenge to a municipal by-law which made it an offence to distribute literature in the streets of the city of Quebec without having previously obtained the written permission of the chief of police.
o Minority: upheld the law for the purposes of protecting pedestrian traffic or controlling litter in the city streets, a legitimate topic of provincial regulation.
o Majority: Since the chief of police would make his decision on the basis of whether he found the content to be objectionable or not, the chief used the by-law as a vehicle of censorship, and the by-law constituted an effective bar to the dissemination of literature by an unpopular minority group such as the Jehovah’s Witnesses, who brought the challenge. On these findings, the by-law was classified in relation to speech or religion, and held that it was incompetent to the province (unconstitutional).
(f) Efficacy
Re Firearms Act (2000)
o Issue: could Parliament’s gun control legislation be upheld as criminal law
o Argument against Act: gun control simply burdens law-abiding farmers and hunters with pointless red tape and has no effect on those who use guns for criminal purposes. Thus, the registration of guns and licensing of owners would be completely useless as a contributor to public safety.
o Court’s rebuttal: sceptical. The restrictions on access to guns could have an effect on the incidence or severity of crime, especially domestic crime, and could reduce suicides and accidents, while a register of firearms would help to trace stolen or lost guns and contribute to the detection of crime.
o SCC Held: EFFICACY was a matter for Parliament and not the Court: “Parliament is the judge of whether a measure is likely to achieve its intended purposes: efficaciousness is not relevant to the Court’s division of powers analysis
o Thus, a law cannot be challenged on the basis of EFFICACY since EFFICACY is what Parliament says. There cannot be a challenge on the law claiming what it’s EFFECT should be.
o In choosing between competing, plausible characterizations of a law, the court should normally choose that one that would support the validity of the law.
Same answer given in:
Ward v Canada (2002) – SCC accepted the evidence that the purpose of the ban on sale of baby seals was not to regulate the marketing of baby seals but to limit the killings of baby seals by removing the commercial incentive to harvest them.
o Issue: This invited the question of why the Government did not directly prohibit the killing of the animals if that was indeed its purpose.
o SCC Held: as per MCLACHLIN C.J àthis was an impermissible inquiry into the efficacy of the law: “The purpose of legislation cannot be challenged by proposing an alternate, allegedly better, method for achieving that purpose”.
(g) Colourability
Examples:
Alberta Bank Taxation Reference – PC held that the legislation, although ostensibly designed as a taxation measure, was in reality, directed at banking.
Reciprocal Insurers (1924) – attempts by the federal parliament to regulate insurance (a provincial matter) by incorporating provisions into the Criminal Code (a federal matter), or by enacting special taxing measures, have been struck down as COLOURABLE.
Re Upper Churchill Water Rights (1984)
o SCC Held: SCC struck down a Newfoundland statute that expropriated the assets of a company that generated hydro-electricity in Labrador. Prima facie, the statute seemed valid, because it was clear that Newfoundland had the power to expropriate property situated within its borders.
o REASONING: the pith and substance of the statute was to deprive the company of the capacity to fulfill a long-term contract to supply power to Hydro-Quebec at below-market rates. The nullification of this contract was outside the power of Newfoundland, because the contract created rights in Quebec (interprovincial, a federal matter). Thus, the statute was held to be invalid as “a COLOURABLE attempt to interfere with the power of contract”.
A good example is:
R v Morgentaler (No.3) (1993)
o PRINCIPLE: A court will refer to the legislative history (hansard) to establish the purpose of the legislation and use that evidence to prove whether it is a COLOURABILITY attempt.
o SCC Held: SCC struck down a Nova Scotia statute that required “designated” medical procedures to be performed in a hospital.
o “PURPOSE” of statute: The statute declared that its purpose was “to prohibit the privatization of the provision of certain medical services in order to maintain a single high-quality health-care delivery system”. Prima facie, the statute seemed to be a health measure, which would be within the constitutional power of the province.
o SCC reading of statute’s “PURPOSE”: SCC pointed to the evidence that the stimulus for the statute came from a proposal by Dr. Henry Morgentaler to establish an abortion clinic in the province, and the court quoted extensively from the legislative history of the statute to show the legislators’ preoccupation with stopping the establishment of the Morgentaler clinic. The SCC held that the statute and regulation “were aimed primarily at suppressing the perceived harm or evil or abortion clinics”, and that they were properly characterized as invalid criminal laws. By this holding, the court made clear that it regarded the designation of the 8 non-abortion procedures as a smokescreen to conceal from a reviewing court the true purpose of the legislation.
o Arguments of COLOURABILITY are rarely successful. Often, a legislative body will find a way to do indirectly, what it cannot do directly.
i.e. the federal parliament cannot regulate the delivery of health care in the provinces, BUT is CAN transfer cash and tax points to only those provinces whose health care plans comply with federal standards of accessibility, universality, and mobility.
(h) Criteria of Choice
o The characterization of a statute is often decisive of its validity, and the court will be aware of this fact.
o The choice between competing characteristics of a statute, in order to identify the most important one as the “matter”, may be nothing less than a choice between validity or invalidity.
o But the only “political” values which may be accepted as legitimate to judicial review are those that have a constitutional dimension to them...values that may reasonably be asserted to be enduring considerations in the allocation of power between the two levels of government.
o How else is a judge to reach a decision as to the appropriate characterization of a statute, where conventional legal sources fail to supply the answer? The judge has little to provide guidance and may tend to assume that his or her personal preferences are widely shared, if not, embodied in the Constitution.
o So, in this sense, judicial review can never be wholly neutral, wholly divorced from the tendencies of the judges.
(i) Presumption of Constitutionality
o Judicial restraint in determining the validity of statutes may be expressed in terms of PRESUMPTION OF CONSTITUTIONALITY.
o This carries 3 legal consequences:
1. In choosing between competing, plausible characterizations of a law, the court should normally choose that one that would support the validity of the law (Re Firearms Act (2000)).
2. Where the validity of a law requires a finding of fact, that fact need not be proved strictly by the government; it is enough that there be a “rational basis” for the finding (standard of proof).
3. Where a law is open to both a narrow and a wide interpretation, and under the wide interpretation the law’s application would extend beyond the powers of the enacting legislative body, the court should ‘’read down” the law so as to confine it to those applications that are within the power of the enacting legislative body (reading down).
o The 3 doctrines have the effect of reducing interference by unelected judges with the affairs of the elected legislative branch of government.
o Other than #3, determinations of law and fact in Charter cases are subject to their own set of rules, and those rules are not compatible with a PRESUMPTION OF CONSTITUTIONALITY.
SEVERANCE
o A statute = elaboration of a single legislative plan or scheme
o Leading feature of the plan or scheme = “matter” (pith and substance)
o Statute in constitution = law and will stand or fall as a whole when its validity is questioned
o However....it is possible to say that, that part only of a stature is invalid, and the balance of the statute would be valid if it stood alone. Of course, the balance does not stand alone; and the question arises whether the court should “SEVER” the bad part, thereby preserving the good part......or......whether the court should declare the entire statute to be bad...
o There appears to be a presumption that a statute embodies a single statutory scheme of which all parts are independent. Thus, there seems to be a presumption against SEVERANCE.
o However, in the only Canadian case dealing with a statute containing a SEVERANCE clause, the PC refused to sever the unconstitutional portion of the statute from the rest. It was held that, after they applied the usual rule regarding SEVERANCE, their Lordships assumed that the SEVERANCE clause made no difference (A.-G. B.C v A.-G. Can [1937])
Charter cases:
-Severance is more common in Charter cases than in federalism cases.
-Although the same test applies, it is highly unusual that an entire statute is struck down under the Charter.
o Under this test, it is usually only a single section or a few sections of a stature that abridge a Charter right, and usually the rest of the statue can independently survive.
o Only one case where the entire statute was struck down – R v Big M Drug Mart (1985), which held that the Lord’s Day Act was wholly bad.
o Therefore, the presumption against SEVERANCE in federalism cases has been replaced in Charter cases by a presumption in favour of SEVERANCE!
READING DOWN DOCTRINE
o The general idea that a law should not be held to be wholly invalid just because it overreaches the limits of jurisdiction in certain respects, is in accord with a properly restrained role for the courts.
o It is simply a canon of interpretation.
o READING DOWN is like SEVERANCE = both mitigate (lessen) the impact of judicial review
o READING DOWN achieved its remedial purpose solely by the interpretation of the challenged statute;
o Whereas SEVERANCE involves holding part of the statute to be invalid.
o Therefore, READING DOWN strives to keep an act valid. It allows the bulk of the legislative policy to be accomplished, while trimming off those applications that are constitutionally bad.
INTERJURISDICTIONAL IMMUNITY
(a) Definition of INTERJURISDICTIONAL IMMUNITY
o No exact meaning
o A law that purports to apply to a matter outside the jurisdiction of the enacting legislative body may be attacked in 3 ways:
1. The validity of the law
2. The applicability of the law
3. The operability of the law
- -Argument that the law is invalid because the “matter” of the law comes within a class of subjects that is outside the jurisdiction of the enacting legislative body
- –Acknowledge that the law is valid in most of its application, but that the law should be interpreted so as to NOT apply to “matters” that are outside the jurisdiction of the enacting body.
-This technique for limiting the application of the law to matters WITHIN jurisdiction, is the “reading down” doctrine.
- –Argument that the law is inoperative through the doctrine of paramountcy.
(b) Federally-incorporated companies
o The idea is:
INTERJURISDICTIONAL IMMUNITY finds its genesis in cases concerning federally-incorporated
companies. It has been held that an otherwise valid provincial law may NOT impair the status or essential powers of a federally-incorporated company.
Examples:
o Thus, a provincial law prohibiting all extra-provincial companies from operating in the province (John Deer Plow [1915]), and a provincial law imposing a licensing scheme for the raising of corporate capital (A-G Man v A-G Can [1929]), have been “read down” to exempt federally-incorporated companies.
o BUT, provincial laws whose impact on corporate status or powers was deemed less serious, have been held applicable to federally-incorporated companies.
(c) Federally-incorporated undertakings
“sterilizing/paralyzing” test:
o Undertakings engaged in interprovincial or international transportation or communication, which come within federal jurisdiction (under the exceptions to s.92(10) Constitution Act 1867), are immune from otherwise valid provincial laws which would have the effect of “sterilizing” the undertakings.
o Until 1966, the provincial laws that were held inapplicable to federally-regulated undertakings, were laws that asserted a power to sterilize (impair) the federally-authorized activity. This was based on the decision in Bell 1966 case [1966].
But then....
“Vital part” test replaced the “sterilizing/paralyzing” test:
Quebec Minimum Wage case (1966) a.k.a. Bell 1966 case
o SCC HELD: abandoned the language of sterilization. Held that the Bell Telephone Company (an interprovincial undertaking) was immune from a provincial minimum wage law on the lesser ground that such a law “affects a vital part of the management and operation of the undertaking”.
o Quebec’s minimum wage law could not constitutionally apply to Bell. This was NOT based on the existence of an inconsistent federal law; there was NO federal minimum wage law in existence at that time.
o The decision was based on the rule that: a provincial law CANNOT affect a “vital part” of an undertaking within federal jurisdiction (such as a telephone company).
SCC reaffirmed its commitment to the “vital part” test:
Bell 1988
o Issue: whether Bell Canada was bound in Quebec by a Quebec law that required the protective reassignment of pregnant workers who work with video monitors.
o SCC HELD as per BEETZ à: the provincial law was constitutionally incapable of applying to the federal undertaking, and had to be “read down” (keeps it valid) so that it did not apply to the federal undertaking. His view was that, occupational health and safety laws, because they regulated labour relations within a firm, affected a “vital part” of the management and operation of the firm.
“It is sufficient that the provincial statute which purports to apply to the federal undertaking, affects a vital or essential part of that undertaking, without necessarily going as far as impairing or paralyzing it”.
o Therefore, occupational health and safety laws enacted by a province could NOT constitutionally apply to a federal undertaking.
Qualification on the “vital part” test:
Irwin Toy v Quebec (1989)
o Issue: SCC had to decide whether a Quebec law that prohibited advertising directed at children could apply to advertising on television, a federally-regulated medium.
o SCC HELD: the law was applicable to advertising on television. The court acknowledged that advertising was “a vital part of the operation of a television broadcast undertaking”.
o BUT NOW, the court said that the “vital part” test applied only to provincial laws that purported to apply directly to federal undertakings. So, where a provincial law had only an “indirect effect” on the undertaking, the law would be inapplicable ONLY IF the law impaired a vital part of the undertaking. (An indirect effect falling short of impairment, even if it affected a vital part of the undertaking, would not render the provincial law constitutionally inapplicable).
o Therefore, the provincial law was valid and effective to prevent advertisers in Quebec from placing advertisements directed at children on television. The reason is because, ONLY impairment would render the law inapplicable, and the loss of children’s advertising could NOT impair the operation of the television undertaking.
o DALE GIBSONà speculated that the court had become concerned that the “vital part” test was too tight a restriction on provincial power over federal undertakings operating within the province, and so, “saw this new refinement as a way of loosening the constraints”.
- But in Ontario v Canadian Pacific [1995], the SSC confirmed the CA decision that the Canadian Pacific interprovincial railway company and its undertakings within federal jurisdiction did not breach the Ontario Act because the Act was not aimed at the management and control of an undertaking. The court did not apply the VITAL PART test (even though the right-of-way was the vital part of the railway, and the provincial law that regulated the clearance of the right-of way affected a vital part of the operation of the railway).
Canadian Western Bank v Alberta (2007)
o The court confirmed that it had changed its mind about the test for INTERJURISDICTIONAL IMMUNITY and erased the direct-indirect distinction in Irwin Toy [1989].
o ISSUE: whether Alberta’s Insurance Act could constitutionally apply to the banks.
o HELD: the VITAL PART of an undertaking should be limited to functions that were “essential” or indispensable” or “necessary” to the federal character of the undertaking; and that the promotion of insurance by banks was too far removed from the core of banking to qualify as a VITAL PART of the banking undertaking. Therefore, the Alberta Insurance Act could validly apply to the banks when they promoted insurance and thus, the federal undertaking (banking) was NOT immune from the provincial law.
o PRINCIPLE: INTERJURISDICTIONAL IMMUNITY would apply only if a “core competence” of Parliament or “a VITAL or essential PART of an undertaking it duly constitutes”, would be impaired by a provincial law.
o It no longer mattered whether the effect of a provincial law on the core or VITAL PART was direct or indirect. In either case, the rule was the same: “in the absence of impairment, INTERJURISDICTIONAL IMMUNITY does NOT apply”.
PRINCIPLE: The doctrine of INTERJURISDICTIONAL IMMUNITY immunizes a valid federal undertaking from a valid provincial law, which has an effect on the “VITAL or essential PART” on the federal undertaking. So, if the provincial law does NOT effect a “VITAL or essential PART” of the federal undertaking, then the provincial law will apply.
Confirms Canadian Western Bank:
British Columbia v Lafarge Canada (2007)
o Held: although the development of a marine facility on port lands for the mixing of concrete was within federal power over navigation and shipping in s.91(10), they held that the regulation of the development “lies beyond the core of s.91(10). Therefore, INTERJURISDINCTIONAL IMMUNITY did not apply (thus, the provincial Act in question applied).
o BASTARACHE J àplacing his decision firmly on INTERJURISDICTIONAL IMMUNITY, held that the regulation of land use in support of port operations on port lands was within ‘the core’ of navigation and shipping, and therefore immune from provincial or municipal laws that would impair the federal regime.
Air Canada v Ontario (1997)
o PRINCIPLE: The service of liquor is not a “VITAL PART of an airlines (federal) undertaking”.
o Facts: an airline (federal) objected to paying a mark-up charged by the provincial liquor monopoly on liquor that was loaded onto aircraft from a bonded warehouse for consumption in the air. The airline took the position that the charge was an attempt by the province to regulate a VITAL PART of its undertaking.
o Issue: is the service of liquor a VITAL PART of the undertaking of an airline?
o SCC Held: the court acknowledged that in some circumstances the provision of food or beverages would form a VITAL PART of the airline’s undertaking. For example, food and water on aircraft were essential for long flights. But the provision of liquor, however attractive to the airline’s customers, “is not essential to the operation of aircraft”. The airline was required to pay the mark-up.
(d) Other federal matters
Examples of INTERJURISDICTIONAL IMMUNITY:
Re Minimum Wage Act (1948) – Provincial labour laws have been held inapplicable to postal workers and to teachers on a military base.
A.G. Quebec and Keable (1979) – Provincial laws respecting inquiries and police discipline have been held inapplicable to the Royal Canadian Mounted Police.
McKay v The Queen (1965) – A municipal by-law prohibiting the display of signs on residential property has been held inapplicable to federal election signs.
A variety of provincial laws respecting hunting, adoption and family property have been held inapplicable to Indians or on Indian reserves.
(e) Rationale of INTERJURISDICTIONAL IMMUNITY
o The above cases do not concern provincial laws that single out federal undertakings. Nor were the decisions based on the paramountcy doctrine: in most cases, there was no competing federal law in existence. The theory behind the results is that each head of federal power not only grants power to the federal Parliament but, being exclusive, denies power to the provincial Legislatures.
o The doctrine of INTERJURISDICTIONAL IMMUNITY insists that the same results cannot be accomplished by the enactment of a broader law that, by reason of its non-federal applications, could be characterized as in relation to the provincial matter (i.e. land use as in McKay)
o The difficulty is to distinguish the occasions when the INTERJURISTINCTONAL IMMUNITY applies from the occasions when the “pith and substance” doctrine applies.
INTERJURISDICTIONAL IMMUNITY vs “PITH AND SUBSTANCE”
o The “pith and substance” doctrine = stipulates that a law “in relation to” a provincial matter may validly “affect” a federal matter.
o The interjurisdictional immunity doctrine = “reads down” the provincial law to exclude the federal matter. The end result appears to enable both federal and provincial laws to be valid.
Canadian Western Bank (2007) – SCC narrowed the interjurisdictional immunity doctrine by insisting that:
***NOTE: the majority indicated a strong preference for the pith and substance doctrine as the default position when valid provincial laws intruded into federal matters. And while the interjurisdictional immunity doctrine had a role to play, it should be applied ‘with restraint’.
(f) Provincial Subjects
o The doctrine of interjurisdictional immunity ought to be reciprocal, protecting provincial subjects from incursion by federal laws.
o This is because the rationale for the doctrine is the exclusivity of the principal heads of legislative power, and the provincial heads of power in s.92 Constitution Act 1867, are just as exclusive as the federal heads in s.91.
o It is true that the federal heads of power are paramount in the event of conflict between federal and provincial laws...
o But the paramountcy doctrine cuts both ways: federal paramountcy attributes some degree of superior force to the federal heads of power; and federal paramountcy suggests the need to protect the provincial heads of power from federal law.
o The federal Parliament can protect its creatures from provincial law by enacting protective laws that will be paramount over conflicting provincial laws. The provincial Legislatures cannot do this (it would be perverse if the federal heads of power had additional protection of interjurisdictional immunity and the provincial heads of power did not).
o The conclusion must be that: each provincial head of power, no less than each federal head of power, has a “basic, minimum and unassailable content” that is immune from attack by the other level of government.
INTERPRETATION OF CONSTITUTION
(a) Relevance
o Once the “matter” (pith or substance) of a challenged law has been identified, the second stage in judicial review is to assign the “matter” to one of the “classes of subjects” (or heads of legislative power) specified in the Constitution.
o This involves the interpretation of the power-distributing language of the Constitution.
(b) Exclusiveness
o s.91 and s.92 is exclusive to the Parliament or Legislature to which it is assigned. So, a particular “matter” will come within a class of subjects in only one list.
o The exclusiveness of the two lists does NOT mean that similar or even identical laws may not be enacted by BOTH levels of government. Some laws are available to BOTH levels, but that is because such laws have a “double aspect” (or two matters).
o The descriptions of the classes of subjects (or two heads of power) appear to give rise to a good deal of duplication and overlapping:
i.e “property and civil rights in the province” (s.92(13)) appears apt to include “the regulation of trade and commerce” (s.91(2)).
The courts have dealt with this kind of apparent overlapping by interpreting each head of power as excluding the other. Thus, “trade and commerce” has been narrowed down to interprovincial and international trade and commerce, while “property and civil rights” has been interpreted as including the regulation of only local trade and commerce.
o Therefore, the courts have narrowed the meaning of the broader class in order to exclude the narrower class. This process of “MUTUAL MODIFICATION” is necessary to place each head of power in its context as part of two mutually exclusive lists.
(c) Ancillary Power
o The U.S and Australia have ancillary powers, but no list of enumerated state powers.
o The constitution of Canada does not include an ancillary powers in the enumerated powers of wither the federal Parliament or the provincial Legislatures.
o The pith and substance doctrine enables a law that is classified as “in relations to” a matter within the competence of the enacting body to have incidental or ancillary effects on matters outside the competence of the enacting body.
o The existence of ancillary power was rejected in A-G Can v Nykorak [1962] and in Papp v Papp [1970] because it was “meaningless to rely on ‘necessarily incidental (or ancillary) doctrine’ to explain the valid impact of a federal law (in relation to property/civil rights and/or divorce), on provincial mattes (like custody of children).
RATIONAL CONNECTION TEST:
Papp v Papp [1970] as per LASKIN L.A à “the rational, functional connection (or RATIONAL CONNECTION test) test allows each enumerated head of power to embrace laws that have some impact on matters entrusted to the other level of government, and it provides a flexible standard which the enacting body considerable leeway to choose the legislative techniques it deems appropriate, whole providing a judicial check on an unjustified usurpation of powers”.
Applied in:
R v Zelensky [1978] – SSC upheld the provision in the federal Criminal Code authorizing the payment of compensation to a victim of crime and cited Papp and employed the RATIONAL CONNECTION test to reject the argument that the criminal law power would not authorize the quasi-civil sanction of compensation.
Multiple Access v McCutcheon [1980]– SSC upheld a provision of federal corporation law granting a civil remedy for insider trading since the provision had a “rational, functional connection” with company law.
But the ANCILLARY POWER DOCTRINE (“essential” or “truly necessary”) in:
R v Thomas Fuller Construction [1979] – the SSC held that Federal Court Act could not confer on the Federal Court jurisdiction to determine an issue of provincial law. The court referred to “the ancillary power doctrine” and said that it was “limited to what is “truly necessary” for the effective exercise of Parliament’s legislative authority”.
o This is a much stricter test then the RATIONAL CONNECTION test
The dictum on the ancillary power was cited in:
Regional Municipality of Peel v MacKenzie [1982]– held that the federal Parliament’s criminal law power would not extend so far as to impose upon municipality an obligation to contribute to the support of a juvenile delinquent.
But in:
General Motors v City National Leasing [1989]as per DICKSON C.J à attempted to reconcile the various approaches taken by courts to define legislative powers outside the enacting body. “As the seriousness of the encroachment on provincial powers varies, so does the test required to ensure that an appropriate constitutional balance is maintained”.
o ISSUE: the law did intrude into provincial power over property and civil rights, but only “in a limited way”. So, it was sufficient to test the validity of the law by the RATIONAL CONNECTION test, and in applying that test the court upheld the validity of the civil remedy. The RATIONAL CONNECTION to the legislative scheme was that the civil remedy, by providing a means and an incentive to private enforcement, would improve the efficacy of the competition law.
Followed in Kirkbi v Ritvik Holdings [2005]
o HOGG à The General Motors judgement is unsatisfactory. The approach taken makes the answer to a simple question too complicated, too discretionary, and therefore too unpredictable.
....THEREFORE:
o The proper course for the court is to return to the true path marked out by Nykorak, Papp, Zelensky and Multiple Access.
o Each head of legislative power authorizes all provisions that have a RATIONAL CONNECTION to the exercise of that head of power.
o There is no theoretical or practical need for a separate ancillary power. The RATIONAL CONNECTION test is to be preferred to stricter alternatives (like “truly necessary” or “essential” tests), simply because it is less strict.
(d) Concurrency
o Although the ‘classes of subjects’ (heads of legislative power) are “Exclusive” to the Parliament or Legislature to which they are assigned, there are 3 provisions that explicitly give concurrent powers:
1) s.92A(2) – added in 1982 – confers on the provincial Legislatures the power to make laws in relation to the export of natural resources, and;
s.92A(3) – is explicit that the power is concurrent with the federal Parliament’s trade and commerce power.
2) s.94A – added in 1951, revised in 1964 – confers on the federal Parliament the power to make law in relation to old age pensions and supplementary benefits, and the section acknowledges the existence of concurrent provincial power.
3) s.95 – confers on BOTH federal Parliament and the provincial Legislature concurrent powers over agriculture and immigration.
o The contrast between the 2 “exclusive” lists of Canada and the single-concurrent lists of the US or Australia, is not as sharp as might be thought. There is a substantial area of concurrency in Canada, even with respect to topics covered by the two exclusive lists.
o There are 2 judge-made doctrines that leads to concurrent legislative power:
1) The “DOUBLE ASPECT” DOCTRINE – which recognizes that a law may have a double aspect, that is, ONE aspect (or characteristic) coming within the federal list, and ANOTHER aspect coming within the provincial list.
2) The “PITH AND SUBSTANCE” DOCTRINE – if the pith and substance (the matter) of a law comes within the list of the legislative body that enacted it, then the law is valid, and it is no obligation to the law that it also incidentally regulates a matter falling within the other list.
o Both the “double aspect” doctrine and the “pith and substance” doctrine enables concurrency.
(e) Exhaustiveness
o The framers of the Constitution could not foresee the future, but they did make provision for new or unforeseen kinds of laws.
o The last of the enumerated provincial classes of subjects in:
s.92(16) – “generally all matters of a merely local or private nature in the province”
o And for matters which do NOT come within this or any other enumerated class of subjects:
s.91 (opening words) – to give Parliament residuary power “to make laws for the peace, order, and good government of Canada in relation to all matters not coming within the classes of subjects assigned exclusively to the Legislature of the provinces”.
o Every conceivable law is competent to ONE level of government or the OTHER. But a law that is excessively brad or vague will be incompetent to BOTH levels of government.
o Therefore, a law MUST BE sufficiently particular that it can be attributed to a “matter” coming within ONE of the classes of subjects in relation to which the enacting body is authorized to legislate.
Saumur v Quebec [1953]
o ISSUE: whether or not to strike down a municipal by-law that forbade the distribution of literature on the streets of Quebec City without the permission of the chief of police. The by-law was administered for the regulation of the streets to prevent harassment of pedestrians and reduce littering, but the evidence showed that that the by-law was in fact administered as a vehicle of censorship by the chief of police.
o PRINCIPLE: without more precision in the drafting of the by-law to guide the chief of police’s discretion, it was impossible to classify it as ‘in relation to’ any particular matter.
o It may have been thought that a law that did NOT fit into any of the enumerated classes of subjects (including s.92(16), would come within the federal Parliament’s residuary peace, order, and good environment power...
...BUT in:
Anti-Inflation Reference [1976] as per BEETZ J à The containment and reduction of inflation could be authorized by the peace, order, and good government power...Except in times of emergency”
PRINCIPLE: A federal law that purports to regulate matters within provincial (as well as federal) competence CANNOT be saved by classifying the law as ‘in relation to’ a matter as broad and diffuse as inflation.
(f) Progressive Interpretation
o The DOCTRINE OF PROGRESSIVE INTERPRETATION is one of the means by which the Constitution Act 1867 has been able to adapt to the changes in Canadian society.
Labour Conventions case (1937)
LORD ATKIN: à “while the ship of state now sails on larger ventures and into foreign waters she still retains the watertight compartments which are an essential part of her original structure”
o Lord Atkin did not conceive of the “watertight compartments” expanding or contracting in response to new
developments.
Compare with:
LORD SANKEYà “the BNA Act planted in Canada a living tree capable of growth and expansion within its natural limits.
o The “watertight compartments” metaphor is not a reliable guide to judicial attitudes to the Constitution.
ORIGINALISM:
o The DOCTRINE OF PROGRESSIVE INTERPRETATION is sometimes rejected by scholars who argue that the courts are forever bound by the “original understanding” of the Constitution. This is called ORIGINALISM.
Example of ORIGINALISM and PROGRESSIVE INTERPRETATION:
Same-Sex Marriage Reference (2004)
o Issue: whether Parliament’s power over “marriage” would extend to legalizing same-sex marriage.
o SCC Held: SCC denied that it was bound by the original understanding, which it described as “frozen concepts” reasoning. “Our Constitution is a living tree which, by way of progressive interpretation, accommodates and addresses the realities of modern life.
o A PROGRESSIVE INTERPRETATION of s.91(26) led to the conclusion that is should be expanded to include same-sex marriage. Following this decision, Parliament enacted a law to legalize same-sex marriage.
Followed in:
Re Employment Insurance Act [2005]
o ISSUE: the validity of the provisions of the federal Employment Insurance Act that granted maternity benefits to pregnant workers who left work to have a baby and parental benefits to mothers and fathers who left work to care for a baby.
o S.91(2A) – the federal power over “unemployment insurance”.
o HELD: looking at Canada 65 years later, the SSC emphasized the “living tree” quality of the Constitution and took a PROGRESSIVE approach to ensure that Confederation can be adapted to new social realities...including “the evolution of the role of women in the labour market and the role of fathers in child care”.
o It must be remembered that the Constitution Act 1867is an organic statute which must provide the basis for the entire government of a nation over a long period of time. An inflexible interpretation would only serve to withhold necessary powers from Parliament or Legislatures....ALSO... the Constitution differs from an ordinary statute in that it CANNOT easily by amended when it becomes out of date, so that its adaptation to changing conditions must fall to a large extent upon the courts.
(g) Unwritten Constitutional Principles
o The interpretation of a constitution is the interpretation of an authoritative text, but over a long period of time, as precedents accumulate, the judicial exegesis may come to achieve more importance than the original text. The courts must apply the test to unpredictable human behaviour
o The word “unwritten” = a frank acknowledgement that the “principles” are not to be found in the written constitutional text and cannot be derived by normal processes of interpretation from the text.
Example:
Manitoba Language Reference (1985)
o PRINCIPLE: in the process of constitutional adjudication, the court may have regard to UNWRITTEN postulates which form the very foundation of the Constitution (the unwritten postulates was the ‘principle rule of law’).
o Facts: all of the laws of Manitoba enacted since 1890 would have been invalid because they were enacted in English only, in defiance of a constitutional requirement to enact the laws in English and French.
o Issue: The rule of law required that the Manitoba Legislature must follow the law of the constitution, which in turn required the court to hold the laws to be invalid. But another aspect of the rule of law called for a community regulated by law, which would be violated if Manitoba were left with a vacuum of law.
SCC Held: the laws enacted in English were invalid, but also that the laws were to remain in force for a temporary period stipulated by the court while the existing laws were translated and re-enacted.
o By virtue of the unwritten “constitutional guarantee of rule of law”, the people of Manitoba continued to be governed temporarily by a body of law that had been invalidly enacted, and that owed it force solely to the fiat (order) of the court.
Re Remuneration of Judges (1997)
o SCC Held: that three provincial statutes reducing the salaries of provincial court judges were unconstitutional, because they violated judicial independence. The Constitution contained an “UNWRITTEN PRINCIPLE” of judicial independence.
Secession Reference (1998)
o SCC Held: any secession of a province could not take place unilaterally but must respect and proceed in accordance with the four unwritten principles of the Constitution; democracy, federalism, constitutionalism and the protection of minorities.
o The court said that two of the principles, namely, democracy and federalism, required that, if a province voted to secede, the rest of Canada would come under a legal obligation to negotiate the terms of secession with that province.
o Unwritten constitutional principles are vague enough to arguably accommodate virtually any given grievance about the government policy. Fortunately, lower courts have been reluctant to invalidate government initiatives on the basis of unwritten constitutional principles, and the SSC shows some signs of reining in its creative impulses.
Babcock v Canada (2002)
o Facts: The challengers invoked three unwritten constitutional principles, namely, the rule of law, the separation of powers and the independence of the judiciary to challenge s.39 of the Canada Evidence Act, which allows the federal government to withhold cabinet documents from court proceedings to which the documents are relevant.
o Held: court rejected the challenge. “The unwritten principles must be balanced against the principle of Parliamentary sovereignty”.
o This is clearly a helpful caution notably absent from the opinions in the Remuneration and Mackin cases, where statutes were struck down (judicial independence is superior to and unqualified by any other principles of Constitution)
Another unsuccessful attempt to invoke the unwritten principle of constitution:
British Columbia v Imperial Tobacco [2005]
o Facts: BC enacted a statute for the recouping from the tobacco companies the health-care costs incurred by the province for tobacco-related disease.
o Issue: The validity of the statute was challenged as the D relied on the independence of judicial independence.
o Held: SSC said there was no breach. The breach could not lead to the invalidity of a statute (except in rare cases where statute is not properly enacted).
Paramountcy
o The doctrine of implied repeal is a solution of the common law in unitary state like the UK and New Zealand.
o This doctrine applies in Canada to resolve conflicts between laws enacted by the same legislative body.
o In Canada, conflict between the statutes of different provincial Legislatures is unlikely to occur because the legislative authority of each province is confined within its own territory.
o But conflict between statute of the federal Parliament and a statute of a provincial Legislature is bound to occur, and by virtue of the “double aspect” and “pith and substance” (incidental effect) doctrines, they may be applicable to the same facts.
o This doctrine is of no help to Canada because neither the federal Parliament nor a provincial Legislature has the power to repeal each other’s laws. For the same reason, the order in which the two laws were enacted is irrelevant: there is no reason to prefer the later over the earlier, or vice versa.
o The rule that has been adopted by the Canadian courts is the doctrine of “federal paramountcy”
o This doctrine applies where there is a federal law and a provincial law which are (1) each valid, and (2) inconsistent.
o A provincial law that is supplementary or duplicative of a federal law is NOT deemed to be inconsistent with the federal law.
EXPRESS CONTRADICTION
(a) Impossibility of Dual Compliance
Example of possibility of a dual compliance:
Multiple Access v McCutcheon (1982)
o PRINCIPLE: if both federal and provincial laws (securities) are valid and both enable compliance without breach of the other. No EXPRESS CONTRADITION: so paramountcy does NOT apply.
o Issue: whether the insider-trading provisions of provincial securities law were in conflict with the insider-trading provisions of federal corporate law.
o SCC Held: No. “In principle, there would seem to be no good reason to speak of paramountcy and preclusion except where there is actual conflict in operation, as where one enactment says ‘yes’ and the other says ‘no’.
o Since the federal and provincial laws provided essentially the same remedy for essentially the same conduct, namely, profiting from inside knowledge in the trading of stocks and bonds, there was no express contradiction.
o The rule of federal paramountcy did not apply. The provincial law was operative, despite its duplication of federal law.
Example of impossibility of dual compliance:
Gillespie v Gillespie (1973) – Where two spouses are separated, and a court order made under federal law grants custody of their child to the wife, while a court order made under provincial law grants custody to the husband, an EXPRESS CONTRADICTION occurs.
Example of Paramountcy:
M & D Farm (1999) – SCC held, since the court order permitting foreclosure proceedings was made under provincial law, and the court order saying proceedings was made under federal law, the doctrine of paramountcy required the federal law prevail.
Ø QUESTION
è Is there an impossibility of dual compliance if a federal law requires the consent of a federal agency and provincial law requires the consent of a provincial agency for the same project?
Ø Answer= No, in principle. Both levels of government may give their consent, which would obviate any conflict. Only if one level denies consent and the other grants consent, is there an impossibility of dual compliance, which would cause the federal decision to prevail.
British Columbia v Lafarge Canada (2007)
o Facts: It was necessary to obtain approval from the Vancouver Port Authority (established under federal law) for the development of a marine facility on a site in the (federally-regulated) port of Vancouver. However, the site was also within the boundaries of the City of Vancouver (established under provincial law).
o Issue: whether the development also needed the approval of the City under its land-use by-law.
SCC Held: the mere requirement of municipal approval would give rise to “operational conflict”, and therefore it was not even necessary to seek the permission of the City.
o BASTARACHE J à “until the City refuses a permit, dual compliance is not ‘impossible’ here.
(b) Frustration of Federal Purpose
o So, when there are overlapping federal and provincial laws, and it is possible to complete with both laws, but the effect of the provincial law would be to frustrate the purpose of the federal law.
Example:
Bank of Montreal v Hall (1990)
o Issue: whether there was a conflict between the federal Bank Act, which provided a procedure for the foreclosure of a mortgage held by a bank, and a provincial Act, which stipulated, as a prelude to foreclosure proceedings, that the creditor must serve on the debtor a notice giving the debtor a last opportunity to repay the loan. The bank complied with the federal procedure, but had not served notice in compliance with the provincial law.
o SCC Held: the bank was not obliged to obey the provincial law, because it was inconsistent the federal law.
o The purpose of the federal law would be frustrated if the bank had to comply with the provincial law.
o NOTE
è it was not impossible for the bank to obey both laws.
Theory was reinforced in:
Law Society of B.C. v Mangat (2001)
o Facts: federal Immigration Act provided that, in proceedings before the Immigration and Refugee Board, a party could be represented by a non-lawyer. BC’s Legal Profession Act provided that non-lawyers were prohibited from practising law.
o SCC Held: since the purpose of the federal law was to establish an informal, accessible and speedy process, that purpose would be defeated if only lawyers were permitted to appear before the Board. Therefore, compliance with the provincial law “would go contrary to Parliament’s purpose in enacting the Immigration Act. Thus provincial law was therefore inoperative.
o NOTE
è it was not impossible to comply with both laws by obeying the stricter provincial one and retaining a lawyer, but this still would have defeated the purpose of ‘informal, accessible and speedy process’.
Smith v The Queen (1960)
o Facts: the two laws were virtually identical in their effect: the federal (Criminal Code) offence was making, circulating or publishing a false prospectus; the provincial (Securities Act) offence was furnishing false information in a prospectus.
o SCC Held: the two laws were not inconsistent. The two laws could “co-exist”.
Rothmans, Benson & Hedges v Saskatchewan [2005]
o Facts: federal Tobacco Act prohibited the promotion of tobacco products, except where authorized by the act, “a person may display, at retail, a tobacco product”.
o Issue: the Saskatchewan Tobacco Control Act banned the display of tobacco products in any premises in which persons under 18 years of age were permitted. By narrowing down the federal limit on the prohibition of commercial speech, the provincial law arguably frustrated an important general purpose of the federal Act, which was to comply with the Charter of Rights. And, having regard to the impracticality of excluding persons under 18 from, i.e. supermarkets, the provincial law DID frustrate the specific purpose of the explicit permission to display.
o Held: the court decided otherwise. The provincial law did NOT frustrate the purpose of the federal law, and therefore, was NOT rendered inorerative by PARAMOUNTCY.
NEGATIVE IMPLICATION
(a) Covering the Field
o REVIEW
è A provincial law that is supplementary or duplicative of a federal law is NOT deemed to be inconsistent with the federal law.
o EXPRESS CONTRADITION suffices to invoke the PARAMOUNTCY DOCTRINE.
o Under this test – A federal law may be read as including not only its express provisions, but also a “negative implication” that those express provisions should not be supplemented or duplicated by any provincial law on the same subject.
- The question is whether the provincial law is in the same “field”, or is upon the same subject, as the federal law? If so, the provincial law is deemed to be inconsistent with the federal law.
The negative implication test (or covering the field) of inconsistency seems to have been applied on one occasion by the PC in:
Local Prohibition case [1896]
o Held: the federal local-option temperance legislature would render inoperative similar provincial legislation if both laws were ever adopted in the same district. Direct contradiction test was therefore, not satisfied and their lordships’ finding of inconsistency, although not explained, must have been presumed on a negative implication or coverage of the field.
o Issue: it was possible to comply with both laws by complying with the stricter of the two, selling liquor only in direct qualities which fitted the narrowest definition of wholesale sale.
The negative implication test (or covering the field) of inconsistency was rejected in:
O’Grady v Sparling [1960]
o Issue: federal law (Crim Code) make it an offence to drive a motor vehicle recklessly; a provincial law (Manitoba’s Hyw Traffic Act) made it an offence to drive carelessly without due care and attention. The two laws did not expressly contradict each other because it was possible to obey both by adhering to the stricter provincial standard.
o JUDSON J à rejected the negative implication test (or covering the field) of inconsistency, holding that “both provisions can live together and operate concurrently”.
o Held: the two laws were therefore NOT inconsistent and PARAMOUNTCY did NOT apply. The implication test was rejected.
Stephens v The Queen [1960]
o Issue: the question was whether inconsistency between federal (Crim Code) offence of failing to remain at the scene of an accident “with intent to escape civil or criminal liability”, and a provincial (Hwt traffic Act) offence of failing to remain at the scene of an accident?
o Held: there was no inconsistency
Smith v The Queen [1960]
o Issue: the two laws were virtually identical. The federal (Crim Code) offence was making, circulate or publishing a false prospectus; the provincial (Securities Act) offence was furnishing false information in a prospectus.
o Held: the two laws were NOT inconsistent, “the two laws could co-exist”, “no conflict in the sense that compliance with one law involves breach of the other”.
o Since these decisions were decided, the SSC has make it clear that the negative implication is rejected.
o There are a series of cases has decided that the negative implication test NO LONGER has any place in Canadian constitution law.
Mann v The Queen [1966]
o Issue: concerned a new federal Criminal Code Offence of driving a motor vehicle “in a manner that is dangerous to the public”. Did this new offence render inoperative the provincial “careless driving” offences?
o Held: PARAMOUNTCY did NOT apply.
Note: This case is much more clear then O’Grady (which stated “reckless driving”) because the federal standard was now so close to the provincial one.
Ross v Registrar of Motar Vihicles [1973] and Bell v A-G P.E.I [1973]
o Issue: the question arose whether there was inconsistency between a federal law conferring a judicial discretion to prohibit a convicted “drunk driver” from driving and a provincial law imposing an automatic suspension of a convicted drunk driver’s driving licence?
o (Followed: Provincial Secretary of P.E.I v EGAN [1941] – where the Criminal Code included a penalty for certain impaired driving offences the power to prohibit the convicted D from driving anywhere in Canada for up to 3 years. Issue: Egan was convicted of impaired driving, but court exercised discretion to make no order prohibiting Egan from driving. SCC held: Egan lost his licence: the provincial suspension was NOT inconsistent with the federal discretion).
o The new point which had to be decided in Ross and Bell arose out of an amendments to the Criminal Code in 1972 which enlarged the discretion of the court in sentencing impaired drivers.
o In Bell, where NO intermittent order had been made, the court followed Egan.
o Held: operative an automatic provincial suspension of the convicted driver’s licence.
o In Ross, the purpose of the new amendment was to enable the sentencing court to tailor its prohibition order to the facts of the case; to impose a more lenient restraint on the D to was dependent upon driving for his livelihood.
o Held: but the SCC refused to draw the implication. The intermittent order HAD been made and the court reached the same conclusion as in Bell, “this means that as long as the provincial licence suspension is in effect, the person concerned gets no benefit from the indulgence granted under the federal legislation”. But dismissed the point that asked, “is the situation any different in law from that which was considered in Egan?”
SCC’s rejection of negative implication (or covering the field) has continued in more cases:
Robinson v Countrywide Factories [1977] - Held: a provincial law avoided fraudulent preferences by insolvent debtors could stand in the face of a federal bankruptcy law.
Construction Montcalm v Minimum Wage Commission [1978] – Held: a provincial min wage law was applicable to a Crown contractor constructing an airport runway, despite the fact that there was an applicable federal min wage law.
Schneider v The Queen [1982]– Held: a provincial Heroin Treatment Act was not inconsistent with the federal Narcotic Control Act.
Multiple Access v McCutcheon [1982] – Held: court applied a provincial “insider trading” law to shares in a federally incorporated company, despite the existence of an applicable federal law prohibiting insider trading.
Rio Hotel v New Brunswick [1987] – Held: provincial prohibition of “nude entertainment” in taverns was not inconsistent with the federal Criminal Code offences involving public nudity.
Irwin Toy v Quebec [1989] – Held: provincial prohibition of advertising directed at children applied to TV, despite the existence of federal guidelines for TV ads directed at children.
Clarke v Clarke [1990] – Held: provincial matrimonial property legislation required the sharing of a military pension, despite a federal prohibition on the alienation of the person
114957 Canada v Hudson [2001] - Held: a municipal by-law restricting the use of pesticides was not rendered inoperative by federal legislation setting standards for pesticides or provincial legislation setting standards for vendors and commercial uses of pesticides.
Canadian Western Bank v Alberta [2007]–Held: provincial law requiring a licence for the promotion of insurance in the province was not rendered inoperative to banks by the federal Bank Act, which authorized banks to promote 8 specific kinds of credit-related insurance.
(b) Express Extension of PARAMOUNTCY
o QUESTION
è If the federal Parliament occupied a field of legislation by express words, would that be effective?
i.e. s.88 of the federal Indian Act provides that the provincial laws are inapplicable to Indians “to the extent that such laws make provision for any matter for which provision is made by or under this Act”.
o So, in principle, the answer to the question would be YES.
o Assuming that the express federal PARAMOUNTCY provision was valid under federalism rules, it was part of a law in relation to a federal head of power, therefore, valid. If so, then a provincial law in the same field would be inconsistent with the federal law, and therefore rendered inoperative by the DOCTRINE OF PARAMOUNTCY.
o For the most part, this is considered law.
However:
Dick v The Queen [1985]
o BEETZ J à “it would not be open to Parliament in my view to make the Indian Act paramount over provincial laws simply because the Indian Act occupied the field. Operational conflict would be required to this end”
o HOBB à “For this reason, I think the better view is that an express covering-the-field clause would be effective. It seems that PARAMOUNTCY may be expressly waived by the federal Parliament...”
OVERLAP AND DUPLICATION
(a) Constitutional Significance
o Review: The 4 PARAMOUNTCY cases (O’Grady, Smith, Stephens, and Mann) all concerned penal enactments with overlapped. They all placed an emphasis on the fact that the competing federal and provincial laws were different in some respect. The implication was that a provincial law which DUPLICATION the provisions of a federal law, would be rendered to be INOPERATIVE.
(b) Double Criminal Liability
o The overlapping or duplicative penal provisions raises the possibility that a person may be liable to conviction under both federal law and provincial law for the same conduct.
o There is nothing in PARAMOUNTCY DOCTRINE which precludes multiple prosecutions or convictions under federal and provincial laws.
o Double jeopardy issues should be dealt with as if Canada was a unitary state. This means that nearly all relevant decisions are taken by the same provincial officials or judges, regardless of whether the offences are federal or provincial.
o Issues of double jeopardy are usually resolved by prosecutorial or judicial discretion.
(c) Double Civil Liability
o Double civil liability is also a possibility under overlapping or duplicative federal and provincial laws.
o Just like the possibility of double criminal liability, the issue of double civil does not need to be resolved by the DOCTRINE OF PARAMOUNTCY.
EFFECT OF INCONSISTENCY
o The most accurate way to describing the effect on the provincial law, is to say that: it is rendered INOPERATIVE TO THE EXTENT OF INCONSISTENCY.
o The doctrine will NOT affect those parts of the provincial law which are not inconsistent with the federal law...unless the inconsistent parts are inseparable from the consistent parts.
o If the federal law is repealed, the provincial law will automatically “revive” without any re-enactment by the provincial Legislatures.
Property and Civil Rights s.92(13)
IMPORTANCE OF PROPERTY AND CIVIL RIGHTS
HISTORY OF PROPERTY AND CIVIL RIGHTS
o The Constitution Act made some changes in the historical definition of property and civil rights. The list of federal heads of legislative power in s.91 included a number of matters which would otherwise have come within property and civil rights in the province.
i.e. trade and commerce; banking; bills of exchange and promissory notes; interest; bankruptcy and insolvency; marriage and divorce; copyrights; patents of invention and discovery.
o These federal classes of subjects were withdrawn from property and civil rights by their exclusive vesting in the federal Parliament.
o In addition, peace, order, and good government phrase in the opening language of s.91 presumably contemplated that certain matters which would otherwise have come within property and civil rights could attain such a national dimension as to come within federal competence.
o The original distinction between private and public law has tended to break down for constitutional purposes, as governments have increasingly intervened to regulate the economic life of a nation.
i.e. much business activity is no longer governed simply by contract, but by statutory rules and decisions of government officials. These governmental interventions in the marketplace, if could not be fitted into a particular head of legislative power, have been allocated by the courts to property and civil rights in the province.
o Therefore the evolution of our laws has now swept much public law into the rubric which was originally designed to EXCLUDE public law.
CIVIL LIBERTIES
o Civil RIGHTS in the sense required by the Constitution Act 1867, are juristically distinct from Civil LIBERTIES.
LOCAL OR PRIVATE MATTERS
o s.92(16) – the provincial “residuary power” over “all matters of a merely local or private nature in the province” has turned out to be relatively unimportant due to the wide scope of s.92(13). It is often suggested as a possible alternative to s.92(13).
INSURANCE
(a) Reasons for Regulating
o Insurance is not listed in the enumerated heads of power.
o The insurance industry became the arena in which the two levels of government contended for the power to regulate business.
o Because the terms and conditions of insurance policies are in practice stipulated by the insurer, governments sought to protect the insured by requiring the inclusion of certain conditions in every policy.
o Governments sought to control entry to, and supervise the performance of, the industry by licensing insurer, security deposit, by limiting the insurers’ power of investment, and inspection of their books.
(b) Provincial power
o A provincial statute was the first to come before the courts.
Citizens’ Insurance Co v Parsons (1881)
o PRINCIPLE: insurance in a provincial matter under s.92(13).
o PC Held: PC upheld an Ontario statute which required that certain conditions be included in every policy of fire insurance entered into in Ontario. Their Lordships held that regulation of the terms of contracts came within property and civil rights in the province under s.91(13), and did not come within trade and commerce under s.91(2).
o The next statute to come before the courts was a federal one.
Insurance Reference (1916)
o PRINCIPLE: insurance is a provincial matter under s.92(13).
o PC Held: the federal Insurance Act 1910, which prohibited any company from carrying on the business of insurance unless it had a licence issued by the federal Minister of Finance was held unconstitutional. Their Lordships held that the regulation of a particular industry came within property and civil rights in the province, even when the industry and particular firms extended beyond be boundaries of a province.
o The Insurance Reference was followed by a series of cases where the courts had to pass on a variety of federal attempts to regain the jurisdiction.
The first response to the PC’s decision was an attempt by the federal Parliament:
A-G Ont. V Reciprocal Insurers (1924)
o PRINCIPLE: insurance is a provincial matter under s.92(13).
o Facts: Federal Parliament again responded by compelling the licensing of insurance companies by a provision in the Criminal Code making it an offence to carry on the business of insurance without a licence from the Minister of Finance.
o PC Held: this device was a colourable attempt to use the cloak of the criminal law “to interfere with the exercise of civil rights in the Provinces”.
The second response to the PC’s decision was:
Re Insurance Act of Can [1932]
o Facts: PC struck down provisions which required non-resident British subjects and aliens to obtain a licence to carry on the business of insurance, and which imposed a special tax on persons taking out insurance with unlicensed British foreign insurers.
o Held: all 3 powers were being employed colourably “to intermeddle with the conduct of insurance business”
The final response to the PC’s decision was:
Re s.16 of Special War Revenue Act [1942]
o Facts: concerned another federal statute directed at British and foreign insurers and coupled with a special tax on the customers of unregistered insurers.
o Held: SCC adopted PS’s reasoning of last insurance to hold this statute also invalid.
In the middle of this series of decisions, the PC struck down the scheme of unemployment insurance which was part of the Canadian “new deal” to combat the depression of the 1930:
Unemployment Insurance Reference (1937)
o PRINCIPLE: insurance is a provincial matter under s.92(13).
PC also struck down the scheme of unemployment insurance which was part of the Canadian “new deal” to combat the depression of the 1930s (This was decided partly that the scheme related to employment, and partly on that the scheme related to insurance).
o This decision was overcome by an amendment to the Constitution in 1940 which added ‘Unemployment insurance” as a head under s.912A.
(c) Federal power
o Despite all these setback in the courts, the federal government continues to regulate a substantial part of the insurance industry under statutes covering British and foreign companies, federally-incorporated companies and on a voluntary basis, provincially-incorporated companies.
o There has been no constitutional attack on it since 1942.
o The current federal statutes include preambles which indicate that the powers over trade and commerce, aliens and insolvency are relied upon as supporting their constitutionality.
Wentworth Insurance case [1969]
o Principle: a federal law is applicable to insolvent insurance companies
o Issue: whether the company’s deposit should be administered in accordance with the federal or the provincial law.
o Held: SCC adopted the reasoning of LASKIN J.A à that the federal law was a valid law in relation to insolvency, and the federal law was the applicable provision.
o Certainly, this decision was a startling departure from the course of decisions between 1916-1942 when so many and various federal attempts to enter the field of insurance was rebuffed.
BUSINESS IN GENERAL
o The insurance cases established that the regulation of business was ordinarily a matter within property and civil rights in the province.
o Some industries have been held to fall within federal jurisdiction because they are enumerated in s.91 or because they are expected from s.92(10).
o Some industries have been held to fall within federal jurisdiction under peace, order, and good government power (POGG power), namely, aeronautics and the production of atomic energy.
o Other federal powers confer limited power to regulate business.
o But the gaps in federal power are very important and extensive. The gaps are covered by the provincial power over property and civil rights.
PROFESSIONS AND TRADES
o The regulation of professions and trades typically takes the form of restrictions on entry, coupled with rules of conduct; fee-setting, and administration by governing body.
o Such regulation is no different for constitutional purposes than that of other industries, and comes within property and civil rights in the province.
Krieger v Law Society of Alberta (2002)
o PRINCIPLE: the regulation of a profession and a breach of professional responsibility is a provincial matter under property and civil rights even though a prosecutors breach is a criminal procedure.
o Issue: whether the Law Society of Alberta had the power to discipline a provincial Crown prosecutor who had failed to make timely disclosure to the defence of exculpatory evidence in his possession.
o SCC Held: the Law Society, which was empowered by provincial law to regulate the legal profession in the province, did have the jurisdiction. Although the duty of prosecutors to make timely disclosure was a rule of criminal procedure (a federal responsibility), a default could also be a breach of professional responsibility.
LABOUR RELATIONS (industrial disputes, working hours, wages, etc.)
(a) Provincial power
o The regulation of labour relations over most of the economy is within provincial competence under property and civil rights in the province.
Concerning industrial peace (prevention of lockouts and strikes):
Toronto Electric Commissioners v Snider (1925)
o PRINCIPLE: Labour relations is a provincial matter under s.92(13).
o PC held: the federal Industrial Disputes Investigation Act 1907 to be unconstitutional. The Act came within property and civil rights in the province. The Act afforded compulsory conciliation procedures for the settlement of industrial disputes in mining, transportation, communication and public service utilities.
o Immediately after the decision, the federal Act was amended to confine its operation to industries which were otherwise within federal legislative authority, and in this more limited form the Act was upheld.
o All provinces except P.E.I enacted legislation to adopt the federal law and thereby restoring the fact of uniform federal labour law.
o Apart from WWII, when uniform federal law on the ‘Wager model’ was proclaimed, the labour law became provincial again. This is the present situation and it shows no sign of changing.
Concerning labour standards legislation:
Labour Conventions case (1937)
o PRINCIPLE: Labour standards is a provincial matter under s.92(13).
o PC held: the federal statute which provided for weekly rest in employment, limitations on working hours and minimum wages based on the POGG (peace, order, good government) power and the treaty power as unconstitutional. Therefore, rejected arguments based on POGG, and held that laws imposing labour standards came within property and civil rights in the province.
Concerning working hours:
Empress Hotel case (1950)
o PRINCIPLE: Labour standards is a provincial matter under s.92(13).
o PC held: that minimum hours or work in a hotel could only be stipulated by the province.
Concerning unemployment insurance:
Unemployment Insurance Reference [1937]
o PRINCIPLE: Labour standards is a provincial matter under s.92(13).
o Held: Unemployment insurance is incompetent to the federal Parliament
o HOWEVER: this decision was overcome by an amendment to the Constitution adding “unemployment insurance” as a new head of federal power (s.91(2A)).
(b) Federal power
o Despite the consistent affirmation of provincial power over labour relations, there is still a substantial presence in the field.
o Immediately after the decision in Snider, the federal Parliament amended its labour legislation to apply to “employment upon or in connection with any work, undertaking or business that is within the legislative authority of the Parliament of Canada”
o Federal competence exists ONLY where it is found that the work performed by the employees is an integral part of an undertaking within federal jurisdiction, and that finding depends upon “legislative authority over the operation, not over the person of the employer”.
First time there was a challenge that the federal Parliament could regulate labour relations:
Stevedores Reference (1955)
o PRINCIPLE: the federal Parliament has the power to regulate employment (labour relations) in works, undertakings or businesses within the legislative authority of the federal Parliament even though labour relations is a provincial matter.
o Facts: two unions were claiming to represent a group of stevedores in the port of Toronto; one union was certified under provincial law, the other was certified under federal law. The federal law specifically applied to “businesses carried on for or in connection with navigation or shipping”. The subject of “navigation and shipping” is a federal head of power under s.91(10).
o SCC Held: the federal law was valid, and that it was applicable to the stevedores because their work of loading and unloading ships was an essential part of navigation and shipping.
o This case has been followed in many subsequent cases and the court has approached these cases on the basis that provincial competence over labour relations is the rule, and federal competence is the exception!
o Federal competence exists ONLY where it is found that the work performed by the employees is an integral part of an undertaking within federal jurisdiction, and that finding depends upon “legislative authority over the operation, not over the person of the employer”
QUESTION
è Where there is federal jurisdiction over labour relations within the federal sector, is the federal jurisdiction exclusive, or is it concurrent/parallel with that of the provincial Legislatures?
Commission du Salaire Minimum v Bell Telephone Co. [1966]
o Issue: whether Quebec’s min wage law applied to the Bell Tele Company, which was within federal jurisdiction as an interprovincial communications undertaking.
o Held: SCC held nevertheless that the provincial law was inapplicable to Bell. The rates of pay and hours of work were “vital parts” of the interprovincial undertaking, and that all such vital parts were subject to the exclusive legislative controls of the federal Parliament.
o Therefore: although the provincial law was valid in its application to most employment in the province, it could NOT constitutionally apply to employment in a federally-regulated industry.
o NOTE
è The doctrine of “interjurisdictional immunity” was applied here.
Bell Canada v Quebec (1988)
o The SCC rejected the criticism in the Quebec Minimum Wage case and followed its earlier decision.
o Issue: whether a provincial occupational health and safety law was applicable to an interprovincial telephone company. The provincial law gave to workers who used video monitors the right to be assigned to other duties while they were pregnant.
o SCC Held: the provincial law was inapplicable to the telephone company. By interfering in the labour relations of the company, the law would affect a vital part of the management and operation of the federal undertaking.
o NOTE
è The doctrine of “interjurisdictional immunity” was applied here.
o Federal jurisdiction over labour relations will extend outside the federal sectors of the economy in times of national emergency.
o Both of the world wars counted as emergencies, although the depression of the 1930s did not.
However, in:
Anti-Inflation Reference (1976)
o Held: SCC held that a period of double-digit inflation counted as an emergency, and on this basis upheld temporary federal wage (and price) controls which substantially transformed labour relations outside as well as inside the federal sectors of the economy.
MARKETING (and INCIDENTAL EFFECTS)
(a) Reasons for Regulation
o The reasons for regulating markets may be found in the interests of both producers and consumers.
(b) Federal Power
o REVIEW
è attempts by the federal Parliament to enact marketing schemes under trade and commerce power (s.91(2)) were struck down by PC because, “any interference with contracts was a matter within property and civil rights in the province”.
o Since the abolition of appeals to the PC, the Canadian courts have interpreted the trade and commerce power more liberally.
i.e. federal regulation of trade in grain and in oil has been upheld, even thought the regulation extended to purely local transactions.
o The reasoning was that the marketing of the products which flow across interprovincial boundaries from the province of production or importation of the province of consumption or export, could be regulated by the federal Parliament, and that some local transactions could also be regulated where there was an incident of the regulation of the interprovincial trade.
o These decisions represent a departure from the PC precedents, and a significant expansion of federal power.
(c) Provincial Power
o Contracts of sale and purchase are prima facie matters within “property and civil rights in the province” (s.92(13)) and therefore, amenable to provincial legislation.
o There is no doubt that under s.92(13) the provinces have the power to regulate intraprovincial trade, although they lack the power to regulate interprovincial trade.
o QUESTION
è To what extent should a province be permitted to burden interprovincial trade in the course of regulating intraprovincial trade?
Shannon v Lower Mainland Dairy Products Board (1938)
o PRINCIPLE: Provinces can create marketing boards regulating a product within the province with “incidental effects” on imports (or interprovincial trade).
o Facts: Provincial statute providing for the creation of a BC marketing board, with powers to control the marketing of natural products in the province (milk). The marketing board’s powers extended to all-natural products sold in the province, whether locally produced or imported. This scheme applied to all milk sold in the province, including milk produced in other provinces.
o PC Held: the application to milk produced out of the province was upheld as an “incident” of an essentially intraprovincial scheme.
Home Oil Distributors v A-G B.C [1940]
o Held: SCC upheld provincial regulation of the prices of all gasoline and fuel oil sold in the province.
Carnation Co. V Quebec Agricultural Marketing Board (1968)
o PRINCIPLE: Provinces can create marketing boards regulating a product within the province, even if the product is primarily exported (thus, regulation with an “incidental effect” on trade).
o Issue: a Quebec statute granted a provincially appointed board the power to fix the price paid by Carnation for raw milk purchased from local dairy farmers. Carnation argued that the statute was unlawful since, after processing the milk, it shipped and/or sold most of the product outside Quebec.
o SCC Held: the provincial legislation for the marketing plan for the sale of raw milk by farmers to the Carnation Company was upheld. The marketing law was “in relation to” intraprovincial trade, and that it merely “affected” interprovincial trade.
o The ultimate destination of the product could not “affect” the validity of the provincial statute because it was directed at a transaction – the sale of the milk from the farmers to Carnation – taking place wholly within the province.
o The main “matter” (pith and substance) of the law, was the regulation of a local transaction with an “incidental effect” of trade, and it was thus a valid provincial law in relation to local trade.
o These 3 cases suggest a very extensive power to regulate marketing within the province, notwithstanding the burdens incidentally placed on the residents of other provinces.
Manitoba Egg Reference (1971)
SCC unexpectedly struck down a provincial scheme to regulate the marketing of eggs.
o PRINCIPLE: If a provincial board’s aim, in addition to regulating a product, becomes the regulation of trade, the provincial board will be unconstitutional. This ensures that provinces will NOT erect “internal” trade barriers.
o Background: Arose out of “chicken and egg war” between Ontario (which produced a surplus of eggs) and Quebec (which produced a surplus of chickens). Each province established marketing plans for eggs in Quebec and chickens in Ontario, which gave undue preference to the locally-produced product.
o Facts: Manitoba, which as a producer of agricultural surpluses claimed to be injured by both plans, created an egg marketing plan of its own on the Quebec model and referred it to the courts for a judicial decision which would also effectively determine the validity of the Quebec and Ontario plans. The scheme applied to all eggs sold in Manitoba, including eggs produced elsewhere.
o SCC Held: SCC struck down the provincial scheme to regulate the marketing of eggs. Court held that “the Plan now in issue not only affects interprovincial trade in eggs, but that it aims at the regulation of such trade”. Thus, the marketing board’s aim was not only to regulate local production, but also regulate trade. The plan was accordingly held to be unconstitutional.
o NOTE
è the background of the case may have suggested to the judges that the various marketing plans could be used as vehicles by which a province could discriminate against the out-of-province product. Discrimination would of course make the plan unconstitutional and would be a clear distinction between this case and Shannon and Home Oil.
o The decision in Manitoba Egg was followed by a federal-provincial agreement which settled a national marketing plan for eggs.
o The plan allocated production to each province, and stipulated a higher price for eggs sold outside the province of production. Within each province production quotas were to be imposed on producers so as to control the supply, support prices, etc.,
o The plan was to be administered by a national marketing board and ten provincial marketing boards.
o Through the cooperative action of both levels of government, it was hoped to fill in the gaps in federal and provincial legislative power.
Re Agricultural Products Marketing Act (1978)
o SCC Held: SCC upheld the principle elements of the plan. Both the federal marketing statute and the Ontario statute were upheld, on the basis that the federal statute regulated interprovincial elements and the provincial statute regulated intraprovincial elements of the plan.
o NOTE
è This is a good example of federal-provincial diplomacy, working together to achieve a common goal.
The court has not stick on to this ruling about provincial power to control production of natural resources:
Central Canada Potash v Government of Saskatchewan (1978)
o PRINCIPLE: The court will look into the true nature and character of the legislation to decide whether the legislation aims to regulate the export of a product.
o Facts: The Saskatchewan government, in concert with the largest U.S. potash supplier, devised a plan to limit production and increase market prices.
o Sask’s arguments: the provincial power over property and civil rights included the power to impose controls on production of natural resources within the province.
o Issue: The problem with this argument was that the whole purpose of the legislation was to stabilize the market for potash in the U.S. The court had to determine the true nature and character of the legislation.
o SCC Held: struck down Sask’s prorationing scheme for potash produced in the province. The broad factors amounted to an attempt to regulate the export market in potash. The fact that the legislation took the form of quotas on production was irrelevant.
o In order to account for the different outcomes in the 2 above cases, it seems necessary to look to the destination of the product itself
o In Re Agricultural, it was established that 90%of the eggs produced in Canada were consumed within the province of production.
o In Central Canada Potash, it was established that virtually all of the potash produced in Sack was exported. This led the court to characterize the proprationing scheme as “directly aimed at the production of potash destined for export”. But this was not a plausible characterization. The court’s reasoning produces the unfortunate consequence that those provinces that, like Sask, are mainly primary producers have less control over their natural resources than those provinces that, like Ontario,
have more integrated economies.
o Neither could it be argues that the production controls had a physical conservative purpose. Eggs are a renewable resource, potash is not.
o The decision in Central Canada Potash raised an outcry in the western provinces. Those concerns lead to the enactment in 1982 of s.92A, designed to extend provincial powers in relation to natural resources.
o s.92A – provinces control exports of resources (non-renewable natural resources; like lumber and electricity ....NOT non-agricultural products; like eggs) to other provinces. The export of resources from Canada remains outside provincial legislative power.
o NOTE
è The facts of Central Canada Potash, where the bulk of the potash was destined for markets in the U.S, would be OUTSIDE this new power.
SECURITIES REGULATION
(a) Provincial power
o The provinces have the power to regulate the trade in corporate securities under s.92(13).
o It has been held that the province no longer has the power to confer upon a provincial agency discretionary power over the issue of securities by a federally-incorporated company, because the capacity to raise capital is an essential attribute of corporate status.
o Except for the limited immunity of federally-incorporated companies, the provincial power has been given a broad scope by the courts.
o In these cases where the provincial legislation has been applied to operations which are interprovincial, the court may have been influenced by the absence of federal securities legislation.
(b) Federal power
o The federal government has commissioned and published a possibility of federal regulation of securities industry, but this has not been adopted as a federal government policy.
o The federal incorporation power authorizes the regulation of the issue of securities by federally-incorporated companies.
o The criminal law power authorizes the punishment of fraudulent or deceptive practice in the securities industry.
PROPERTY
(a) General
o A province has sought to control the ownership or use of property in order to accomplish a non-proprietary objective which it could not accomplish by more direct means:
Switzman v Elbling (1957)
o Facts: Provincial law which prohibited the use of a house “to propagate communism or bolshevism.
o SCC Held: Law was not in relation to property. The law was properly characterized as either criminal law or a law in relation to speech.
o Compare with:
Bedard v Dawson (1923)
o Facts: Provincial law which prohibited the use of a house as a “disorderly house”.
o SCC Held: Law was characterized as a property law, and not as a mere supplement to Criminal Code offences in respect of disorderly houses.
(b) Foreign ownership
o QUESTION:
è Whether a province can control foreign ownership of land? YES!
Morgan v A-G PEI (1975)
o Facts: PEI statute which provided that “no person who is not a resident of the province” could acquire holdings of real property of more than a specified size except with the permission of the provincial cabinet.
o SCC Held: upheld provincial statute. The qualification for unrestricted landholding was ‘residence’, not citizenship, and so the prohibition applied to non-resident citizens as well as non-resident aliens.
o NOTE:
è If the discrimination had been against aliens instead of non-resident, the law may not have stood because “naturalization and aliens” is a federal head under s.91(25).
(c) Heritage property
Kitkatla Band v BC (2002)
o SCC Held: the protection of heritage or cultural property was within provincial jurisdiction under property and civil rights in the province.
DEBT ADJUSTMENT
o The law of contract is mainly within provincial power under property and civil rights in the province.
o But provincial power to modify creditors’ rights is circumscribed by a number of provisions of the Constitution Act.
CONSUMER PROTECTION
o Much consumer protection law is open to the province under the power over property and civil rights in the province.
Example:
Irwin Toy (1989)
o SCC Held: provincial restriction on advertising directed at children are “in relation to consumer protection” and upheld under s.92(13).
o But can’t much federal law be accurately described as in relation to consumer protection?
o The phrase ‘consumer protection’ is far too broad to serve as a “matter” for the purpose of federal distribution of powers.
EXTRATERRITORIAL COMPETENCE
o The legislative power conferred by s.92(13) is over property and civil rights in the province. Clearly, there is a territorial limitation of power.
Trade and Commerce s.91(2)
RELATIONSHIP TO PROPERTY AND CIVIL RIGHTS
o NOTE:
è The interpretative problem for Canada lay in the accommodation of the federal power over “the regulation of trade and commerce” (s.91(2)) with the provincial power over “property and civil rights in the province” (s.92(13)).
A process of “mutual modification” have narrowed the two classes of subjects so as to eliminate the overlapping and make each power exclusive.
Citizens’ Insurance Co. v Parsons (1881)
o Issue: was the validity of a provincial statute which stipulated that certain conditions were to be included in all fire insurance policies entered into the province?
o PC Held: the statute was valid in relation to property and civil rights in the province. It did NOT come within the federal trade and commerce power, because that power should be read as NOT including “the power to regulate by legislation the contracts of a particular business or trade, such as the business of fire insurance in a single province”
o Court Interpreted the federal trade and commerce under s.91(2)
(1) INTERPROVINCIAL OR INTERNATIONAL TRADE AND COMMERCE
(a) In the Privy Council
o The history of the “trade and commerce” power closely parallels the history of peace, order, and good government power (POGG).
o Like POGG, the “trade and commerce” power was severely contracted by the PC, but had been permitted to expand somewhat by the SCC since the abolition of appeals to the PC.
o NOTE
è The Parsons case DID NOT define when “trade and commerce became sufficiently interprovincial so as to come within the federal power.
Board of Commerce case [1922] as per VISCOUNT HALDANE à suggested that the “trade and commerce” power had NO independent content and could be invoked only as ancillary (additional) to other federal powers. He dismissed the trade and commerce power by saying that, “s.91(2) did not, by itself, enable interference with particular trades which Canadians would, apart from any rights of interference conferred by POGG, be free to engage in the provinces”
P.A.T.A. case [1931] as per LORD ATKIN à (orbiter) rejected Viscount Haldane’s ancillary theory of “trade and commerce” power, saying that, “the words of s.91(2) must receive their proper construction where they stand as giving an independent authority to Parliament over the particular subject-matter”
o Federal attempts to use the “trade and commerce” power to regulate marketing were also struck down by the PC and by the SCC in King v Eastern Terminal Elevator Co. [1925] and Natural Products Marketing Reference [1937].
The PC’s last consideration of “trade and commerce” power came in:
Margarine Reference (1951)
o Issue: SCC had to consider the validity of federal legislation banning the manufacture, importation, or sale of margarine. It was conceded that margarine was substantially as nutritious and fit for human consumption as was butter. According to the SCC the purpose of the enactment was social and economic, namely, “to give trade protection to the dairy industry in the production and sale of butter”.
o SCC Held: a federal prohibition of the manufacture, sale or possession of margarine (for the purpose of protecting the dairy industry) was wholly invalid, because it proscribed not only interprovincial transactions but also transactions that could be completed within a province (intraprovincial). A provision in the statute which prohibited the importation of margarine was upheld by SCC as a valid exercise of the “trade and commerce” power.
o NOTE
è The appeal to the PC did NOT include the question of importation, nor did the PC express an opinion on it.
(b) In the Supreme Court of Canada
o Since the abolition of appeals to the PC there has been a resurgence of the “trade and commerce” power.
R V Klassen [1959]
o Issue: whether the Act could validly apply to a purely local work – a feed mill which processed locally-produced wheat and sold it as feed to local farmers? The Act imposed a quota system on producers which was designed to ensure equal access to the interprovincial and export market...
o Held: that the application of the Act to such intraprovincial transactions was valid. It was incidental to the principle purpose of the Act, which was to regulate the interprovincial and export trade in grain.
NOTE:
è This decision was a striking departure from the course of PC decisions, which had consistently decided that federal regulation under the “trade and commerce” power could NOT embrace wholly intraprovincial transactions, even when the main object was to regulate the interprovincial or export trade.
è Yet, the SCC refused leave to appeal the decision.
o The new development suggested by Klassen was confirmed in:
Caloil v A-G Can [1971]
o SCC Held: upheld a federal prohibition on the transportation of sale of imported oil west of Ottawa Valley.
o The purpose was to protect the domestic industry in the West from the then cheaper imported product. Thus, the law was upheld as “an incident in the administration of an extra-provincial marketing scheme” and as “an integral part of the control of imports in the furtherance of an extraprovincial trade policy”.
o The existence of this interprovincial flow enabled the courts to uphold the regulation of intraprovincial transactions on the ground that such regulation was incidental to the main object of regulating the interprovincial flow.
o It is not yet clear to what extent interprovincial elements of a less obvious kind would provide for federal regulation...but there is a strong argument that effective regulation of the market can only be national.
R v Dominion Stores Ltd. (1979)
o Issue: the validity of Part I of the federal Canada Agricultural Products Standards Act, which established grade names for various classes of agricultural products and regulated the use of those names.
o Part II of the Act made it compulsory to use the grade names for products moving in interprovincial or international trade.
o Part I of the Act did not make it compulsory to use the grade names for products marketed within the province of production, but provided that, if the grade names were used in local trade, then the appropriate federal standards had to be complied with.
o Dominion Stores was charged under Part I with selling apples (assumed locally produced) under federally-established grade name “Canada Extra Fancy”, which did NOT comply with the standards stipulated for that grade of apples.
o SCC Held: struck down Part I of the federal Act. Court said Part I was an unconstitutional attempt to regulate local trade. Court said that Parliament could NOT regulate grade names for agricultural products traded locally. It could do so with products traded interprovincially or internationally.
o HOGG à “Dominion Stores was wrongly decided. It seems that Part I of the Act was necessary to protect the interprovincial and international scheme: if the grade names were used for locally-produced products, then the federal standards had to be complied with. Surely, such a modest intrusion into local trade has a “rational, functional connection” which the regulation of interprovincial and international trade. In rejecting this intrusion into local trade, the Court seems to have inexplicably reverted to the bad old days of the PC’s ‘watertight compartments’”.
o Another case in which the federal “trade and commerce” power was rejected for federal legislation:
Labatt Breweries (1980)
o Facts: The federal Food and Drugs Act that established compositional standards for light beer did not require producers to brew beer in a particular manner but, in the event that producers wished to label, package, or sell a product as light beer, they were required to meet the standards applicable for that product.
o SCC Held: struck down compositional standards for beer enacted under the federal Food and Drug Act. The court rejected the power to regulate interprovincial trade as a ground of validity.
o ESTEY Jà the standards were imposed without regard for the product’s movements across provincial boundaries.
(2) GENERAL TRADE AND COMMERCE
o It will be recalled that in the leading case of Parsons, the PC suggested 2 categories of “trade and commerce”
(1) Interprovincial or international trade and commerce (just considered)
(2) “general regulation of trade affecting the whole dominion” – the so-called “general” category of trade and commerce.
o Until the SCC decision in General Motors [1989], the general category of “trade and commerce” had been rather consistently rejected as a support for deferral policies of economic regulation.
o Until 1989, the only unequivocal example of a valid exercise of the general “trade and commerce” power was the Canada Standard Trade Mark case [1937].
Canada Standard Trade Mark case [1937]
o PC Held: upheld a federal statute which established a national mark called ‘Canada Standard’.
o Issue: the case seemed to decide that the general “trade and commerce” power would authorize federal standards of production or manufacture for products traded locally, provided that the federal standards were tied to the voluntary use of a distinctive mark.
o Canada Standardcase was shadowed in the Dominion Stores case, since they shared similar facts.
R v Dominion Stores Ltd. (1979)
o Issue: the validity of Part I of the federal Canada Agricultural Products Standards Act, which established grade names for various classes of agricultural products and regulated the use of those names. If the grades were voluntarily used for products traded locally, then the products had to comply with the associated federal standards.
o The four dissenting judges regarded the Canada Standard case as indistinguishable, but ESTEY J for the majority distinguished the Canada Standard case on its own.
Parliament’s attempt to regulate local production through “voluntary schemes”:
Labatt Breweries (1980)
o Facts: The federal Food and Drugs Act that established compositional standards for light beer did not require producers to brew beer in a particular manner but, in the event that producers wished to label, package, or sell a product as light beer, they were required to meet the standards applicable for that product.
o Fed’s argument: Federal government sought to uphold the regulations on the basis that they merely established voluntary labelling regulations, detailing the standards that must be met if some specific designations were used on food labels. But if Labatt did not elect to market its product as light beer, the compositional standards established by the regulations did not apply. Such a voluntary labelling scheme could be justified under Parliament’s trade powers.
o SCC Held: struck down compositional standards for light beer which had been enacted under the federal Food and Drugs Act. This federal scheme was invalid. The controls were in reality mandatory. The standards became applicable only through the voluntary use of the description “light beer”. The regulations specified standards for products using such common names as “beer” or “light beer”. Therefore, while apparently voluntary, the scheme was in practice mandatory through assigning common names and then prescribing standards for their use.
o Reasoning as per ESTEY J à referred to the “arrogation” by Parliament of “common names”, and it is certainly arguable that therein lies an essential difference between Canada Standard (and Dominion Stores) on the one hand, and Labatt Breweries on the other. In the former, the application of the federal standards depended on the use of a distinctive description, namely, Canada Standard (or Canada Extra Fancy). In the latter, the application of the federal standard depended on the use of a common description, namely, “light beer”.
MacDonald v Vapor Canada (1976)
o Issue: validity of a federal law which prohibited, and provided a civil remedy for, any “act” or “business practice” which was “contrary to honest industrial or commercial usage in Canada”.
o Federal CA Held: upheld the law on the basis that “a law laying down a set of general rules as to the conduct of businessmen in their competitive activities in Canada” was within the general category of trade and commerce.
o SCC Held: reversed the decision. The creation or extension of civil causes of action of an essentially contractual or tortuous character was a matter within property and civil rights in the province.
o Although the general “trade and commerce” power proved unavailing once again in Vapor, it was suggested by LASKIN C.J that in some circumstances, it would be available. He implied that the result might have been different if the law had been part of a “regulatory scheme” administered by a “federally-appointed agency”.
o But in the Labatt Breweries case, there was little passing reference made to the Vapor case.
o However, despite the absence of supporting authority, LASKIN C.J’s dicta in Vapor have proven to be very important, having become the basis for upholding the federal Competition Act.
o The constitutionality of the new legislation (1975 and 1986 amendments to competition law) had to be resolved in General Motors v City National Leasing [1989].
General Motors v City National Leasing [1989].
o Issue: a challenge to the validity of the civil remedy that had been introduced into the legislation in 1975.
o SCC Held as per DICKSON C.J à that the Combines Investment Act (now Competition Act) was a valid exercise of the “general” trade and commerce power. And in the case of the Competition Act, all 5 elements were present.
o NOTE
è It is important to notice that the general branch of the “trade and commerce” power authorizes the regulation of intraprovincial trade.
è Indeed, there would be no need for a general branch of “trade and commerce” if it did NOT extend beyond interprovincial and international trade.
o In City National Leasing, the allegations that gave rise to the litigation, concerned price discrimination in the financing of the purpose of vehicles by companies that lease fleets of automobiles and trucks.
o These purchases were transactions that individually took place within a single province.
o Those facts gave rise to an argument that the federal legislation should be read down to exclude such intraprovincial activity, which could be left to provincial law.
o DICKSON C.J’s answer à reference back to the provincial inability test captured in elements (4) and (5) of his definition of general trade and commerce: “Competition cannot be successfully regulated by federal legislation which is restricted to interprovincial trade”
o The conclusion was that Parliament (as well as the provinces) has the constitutional power to regulate intraprovincial aspects of competition.
DICKSON’S 5 part test is followed in:
Kirkbi v Ritvik Holdings (2005)
o Issue: manufacturer of the LEGO toy building blocks sued the manufacturer of a competing product, Mega Bloks, which used the same interlocking system as LEGO.
o SCC Held: Mega Bloks won the case on the ground that LEGO’s interlocking system was a functional characteristic of the product that could not, by law, be a trade mark. All five elements set out in City National Leasing were present. The Trademarks Act was held to be a valid exercise of the general branch of the trade and commerce power.
SPECIFIC TOPICS
o When attention is directed to more specific topics, it is found that “trade and commerce” is NOT the dominant source of power: legislative power is, for the most part, provincial, under property and civil rights in the province.
Peace, Order, and Good Government: POGG s.91 (opening words)
RESIDUARY NATURE OF POWER
o This power to make POGG power is residuary in its relationship to the provincial heads of power, because it is expressly confined to “matters not coming within the classes of subjects by this Act exclusively to the Legislatures of the provinces”. So, any matter which does NOT come within a provincial head of power, must be within the power of the federal Parliament.
o One important provincial head of power is: s.92(13) = “property and civil rights in the province”.
For the PC, s.92(13) became a kind of residuary power, and one that was more important than the federal POGG power.
o Another important provincial head of power is: s.92(16) = “generally all matters of a merely local or private nature in the province”
For the PC, ALBERT S ABEL à “there is no residuary power in the Constitution Act 1867. POGG and s.92(16) are the two complementary grants of power which distributed the residue between the two levels of government”
o Therefore, at the hands of the PC, s.92(13) and s.92(16) were considered a kind of RESIDUARY POWER. This means that the PC allowed all power to be within the provinces (something which the PC shouldn’t have allowed).
o The office of the POGG power is to accommodate the matters which do not come within any of the enumerated federal or provincial heads.
o The POGG power has three branches:
(1) the “gap”/residuary branch;
(2) the “national concern” branch; and
(3) the “emergency” branch.
(1) THE “GAP” BRANCH
o Extends to those things which can be characterized as drafting oversights...covers those things that are so obviously federal that assignment to federal jurisdiction is uncontroversial but which don’t appear to form elsewhere into the existing lists of heads of power.
i.e. federal power over incorporation of companies: s.92(11) empowers provincial Legislation to make laws in relation to “the incorporation of companies with provincial objects”.
-The courts have held that the power to incorporate companies with objects other than provincial, MUST fall within the federal POGG power because of its residuary nature (Parsons)
Jones v New Brunswick (AG) (1975)
o Issue: The federal Official Languages Act, attempted to guarantee the equal status of French and English in the institutions of the Parliament and government of Canada.
o SCC Held: upheld the validity of the Act. The power to enact legislation establishing official languages within federal institutions must be allocated to Parliament through the operation of POGG in its residual capacity. Since federal institutions and agencies are ‘clearly beyond provincial reach’ they must be within federal reach under the opening words of s.91 that expressly conferred such legislative authority on Parliament, and “on the basis of the purely residuary character of the legislative power thereby conferred.
Re Offshore Mineral Rights of BC (1967) AND Re Nfld. Continental Shelf (1984)
o Because the seabed off the shore of BC and the seabed off the shore of Nfld. lay outside the boundaries of each province, the offshore minerals were outside each province’s legislative jurisdiction.
o SCC Held: the offshore minerals therefore had to come within the federal Parliament’s POGG power “in its residual capacity”.
(2) THE “NATIONAL CONCERN” BRANCH
(a) History of national concern branch
o In the initial Canadian cases before the JCPC, it seemed to favour a broad reading of federal legislative powers. Russell reflects the short lived trend.
Russell v The Queen (1882)
o Issue: The issue before the Board was the validity of the Canada Temperance Act, federal legislation which established a local-option temperance scheme to prohibit the sale of intoxicating liquor. An individual who had been charged with violating the Act argued that it was constitutionally invalid because it dealt with property and civil rights, a matter reserved to the provinces.
o PC Held: Upheld the statute on the basis that it did not fall within any of the provincial heads of legislative power. Therefore, it must be within federal power, (didn’t say which head of federal power). The legislation was valid because it dealt with “an evil which is assumed to exist throughout the Dominion”. The fact that the liquor could be held as property did not prevent Parliament from restricting its use when this was deemed dangerous to public health or safety.
The decision in Russell was later explained in:
Local Prohibition case (1896)
o PRINCIPLE: introduced the “national concern” dimension of POGG.
o PC Held as per LORD WATSON à the decision in Russell rested on the POGG power. The idea that some matters of legislation, in their origin local and provincial, could acquire “national dimensions” or “national concern” and thereby come within the federal Parliament’s POGG power, is the core of the national concern branch of POGG.
o VISCOUNT HALDANE joined PC in 1911 and wrote many opinions in Canadian constitutional appeals. During this time, the PC severely contracted each of the major federal powers impacting the decisions on criminal law power and trade and commerce power.
o VISCOUNT HALDANE à ignored LORD WATSON’s “national dimension” dictum, and insisted that only an emergency would justify the exercise of the POGG power.
o This view persisted until after the WWII. Its inconsistency with the national dimensions view of POGG was not directly confronted until:
AG Ont. V Canada Temperance Federation (1946)
o PRINCIPLE: The POGG power is NOT confined to emergencies. There exists a “national concern” branch AND an “emergency” branch AND established a test for “national concern”.
o Facts: The Canada Temperance Act, which had been upheld in Russell, was challenged a second time.
o Arguments: either Russell was wrongly decided because it was not based on an emergency, or, if Russell was based on an emergency (as Viscount Haldane had claimed in Snider), the alleged emergency of drunkenness had now passed away.
o PC Held: Russell had NOT been decided on the basis of an emergency, and the POGG power was NOT confined to emergencies. Therefore, rejected the line of cases of the POGG power!!!
o So, VISCOUNT HALDANE à formulated a NEW TEST which bears close resemblance to LORD WATSON’S “national dimensions” dictum.
.
o The “national concern” branch of POGG has provided the sole basis for the decisions in 3 cases in the SCC: Johannesson v West St. Paul (1952)
o SCC Held: aeronautics satisfied the national concern test.
o Applied the “Double-Aspect Doctrine”
Munro v National Capital Commission (1966)
o SCC Held: the national capital region, an area around Ottawa straddling Ontario and Quebec that had been designated by federal legislation, satisfied the national concern test.
o Applied the “Incidental Effect Doctrine”
R v Crown Zellerbach (1988)
o SCC Held: Marine pollution satisfied the national concern test.
o Applied the “Provincial Inability Test”: failure of one province to act would injure the residents of the other cooperating provinces.
Also added is:
Ontario Hydro v Ontario (1993)
o SCC Held: SCC upheld the federal Atomic Energy Control Act. The federal jurisdiction over atomic energy (or nuclear power) was derived from s.92(10)(c) and the national concern branch of POGG.
o LA FOREST J à “the production, use and application of atomic energy constitutes a matter of national concern”... “the strategic and security aspects of nuclear power in relation to national defence” and to its potential for environmental catastrophes.
(b) Definition of national concern
o QUESTION:
o When does a subject matter of legislation become “the concern of the Dominion as a whole” so as to satisfy the “national concern” test?
o It is the nation-wide importance of a subject of legislation that determines whether or not it had the requisite national concern.
o There are cases where uniformity of law throughout the country is not merely desirable, but essential, in the sense that the problem is beyond the power of the provinces to deal with. (the Provincial Inability Test)
o R v Crown Zellerbach (1988)
o SCC Held: relied on the “Provincial Inability” test as a reason for finding that marine pollution was a matter of national concern.
DISTINCNESS
Anti-Inflation Reference [1976]
o SCC Held: upheld federal wage and price controls under the emergency branch of the POGG power.
o BEETZ J dissent à “inflation is too broad and diffuse a topic to qualify as a ‘matter’ coming within the national concern branch of POGG power. In order to qualify as a ‘matter’, a topic must be DISTINCT: it must have a degree of unity that makes it indivisible, an identity which makes it distinct from provincial matters and a sufficient consistence to retain the bounds of form”
The requirement of DISTINCTIVENESS was the issue that divided the SCC in:
Crown Zellerbach
o Held: upheld the federal Ocean Dumping Control Act, which prohibited dumping “at sea” on the basis that marine pollution was a matter of national concern.
o LE DAIN J dissent à “For a matter to qualify as a matter of national concern ... it must be a singleness, distinctiveness and indivisibility that clearly distinguishes it from matters of provincial concern and a scale of impact on provincial jurisdiction that is reconcilable with the fundamental distribution of legislative power under the Constitution”.
NEWNESS
The Queen v Hauser (1979)
o SCC Held: the federal Narcotic Control Act was a valid exercise of the POGG power.
o This was a surprising result because the Act had previously been upheld by the SCC as a criminal law.
o PIGEON J à “... this is essentially legislation adopted to deal with a genuinely new problem which did not exist at the time of Confederation and clearly cannot be put in the class of ‘matters of a merely local or private nature’. The subject-matter of this legislation is thus properly to be dealt with on the same footing as such other new developments as aviation (Re Aeronautics) and radio communications (Re Radio Communication)”.
o It came as a surprise to find PIGEON J with the concurrence of MARTLAND, RITCHIE and BEETZ, referring to Russell with approval.
o All these judges had joined with BEETZ in his dismissal of Russell in the Anti-Inflation Reference, as being “a special case” which is “not easy to reconcile with the Local Prohibition case”
o No indication as to WHY narcotics have attained the requisite degree of national concern. The phrase “national concern” is never used and NO reference was made to the Canadian Temperance case, Johannesson, Munro, or the Anti-Inflation Reference (Crown Zellerbach yet to be decided).
o Thus, Le Dain J’s “distinctiveness” emphasis was replaced by an emphasis on “newness”.
o HOGGàdisagrees with this outcome. The criminal classification seems more plausible, because nearly all of the Act is concerned to prohibit the production, trafficking and possession of illicit drugs, and to provide for the prosecution and punishment of offender; indeed, the penalties in the Act go as high as life imprisonment.
o HOGG à “Newness is irrelevant and unhelpful”. Other new inventions, such as, buses, trucks, telephones and movies have all been located outside POGG. Aeronautics is an anomaly, not the illustration of a general rule.
Overruled Hauser:
R v Malmo-Levine (2003)
Issue: The federal Narcotic Control Act’s (same Act is Hauser) criminalization of the possession of marijuana was challenged.
SCC Held: the Act was a valid exercise of the criminal law power, and overruled Hauser that the Act came within the national concern branch of POGG. The federal government has the same power of enforcement over its criminal laws as it has over its other laws.
(3) THE “EMERGENCY” BRANCH
(a) The non-emergency cases
Insurance Reference
o VISOUNT HALDANE à his first consideration of POGG power, “POGG power enables the Dominion Parliament to trench on the subject-matters entrusted to the provincial Legislatures by the enumeration in s.92”.
o He did not refer to the “national dimensions” test or consider the question whether the insurance industry satisfied that test.
o The “EMERGENCY TEST” first emerged in:
Board of Commerce case [1922]
o Held: rejecting POGG as authority for the statute on the ground that “highly exceptional” or “abnormal” circumstances would be required to justify the invocation of POGG, i.e. war and famine.
Toronto Electric Commissioners v Snider [1925]
o Issue: whether federal legislation for the settlement of industrial disputes was valid
o PC Held as per VISCOUNT HALDANE à it was not valid. POGG power was available only in “cases arising out of some extraordinary peril to the national life of Canada, such as cases arising out of a war”
o After the death of VISCOUNT HALDANE, the “national dimensions” test briefly surfaced in Aeronautics Reference [1932].
o But in the “New Deal” cases, the PC reverted back to the “Emergency” Doctrine. Their lordships held that an emergency would justify the invocation of the POGG power. One would assume that depression would qualify as an emergency, but their lordships denied that depression was an emergency!
(b) War
o During the WWI, the federal Parliament enacted the War Measures Act. The Act empowered the federal government to make regulations on almost any conceivable subject.
Fort Frances case (1923) – PC Held: In “a sufficiently great emergency such as that arising out of war”, the POGG power would authorize laws which in normal times would be competent only to the provinces.
Japanese Canadian Reference (1947) – The deportation of Japanese Canadians after WWII was upheld under the emergency basis.
Wartime Leasehold Regulations Reference (1950) – Rent control during and after WWII was upheld under the emergency basis.
o In each of these cases, the issue was whether wartime measures could be continued in time of peace. In Fort Frances, VISCOUNT HALDANE à “very clear evidence would be required to allow the court to overrule the decision of the Government that exceptional measure were still requisite”
o Therefore, using BEETZ in Re Anti-Inflation Act: “The EMERGENCY branch of POGG should be confined to the temporary and extraordinary role required for national regulation in time of actual war (or other emergency)”
(c) Apprehended insurrection
o “October crisis” 1970 – the War Measures Act was proclaimed in force when the FLQ, a violent Quebec separatist group, kidnapped a British diplomat and a Quebec cabinet minister. The government used the powers conferred by the Act to make the Public Order Regulations; these regulations outlawed the FLQ, and gave the police new powers of arrest, search, seizure and detention.
(d) Inflation
Anti-Inflation Reference (1976)
o Held: the federal Anti-Inflation Act was upheld as an emergency measure.
o The most serious difficulty with this conclusion was that the Act itself, did not assert the existence of an emergency. The Act, and regulations there under, controlled increases in wages, fees, prices, profits, and dividends.
o There had been a period of twenty months of double-digit inflation in Canada, and the inflation had been accompanied by relatively high rates of unemployment.
o HOGG à believes that the factual material before the court denied the existence of an emergency. The formations in the Anti-Inflation Reference make it almost impossible to challenge federal legislation on the ground that there is no emergency. This means that the federal Parliament can use its emergency power almost at will due to this.
(e) Temporary character of law
o There is one important limitation on the federal emergency power: it will support only temporary measures.
o An ostensibly temporary measure can always be continued in by force by Parliament, while an ostensibly permanent measure can be repealed at any time.
o The “New Deal” statutes, which were enacted to deal with the depression of the 1930s had this dual character: designed not only to help alleviate the immediate suffering of the depression, but also to provide permanent economic security which it was hoped would prevent a similar disaster in the future.
Unemployment Insurance Reference (1937)
o PRINCIPLE: measures must not be permanent for an “emergency” under POGG to be valid.
o PC Held: PC struck down most of the “New Deal” legislation, and while it appears that their Lordship’s primary reason was that the depression did not qualify as a genuine emergency, it is fair inference that they were influenced by the permanent nature of the “new Deal” measures.
o Similarly in
Board of Commerce case [1922]
o Held: The Federal legislation to control hoarding and profiteering caused by the economic dislocation which was the aftermath of WWI was held to be unconstitutional.
o So then, the contrast between the Board of Commerce case on the one hand, and Anti-Inflation Reference on the other is too obvious. In the former cases the legislation was permanent. While in Anti-Inflation Reference the legislation was temporary.
o NOTE
è NO permanent measure has EVER been upheld under the Emergency power!
RELATIONSHIP BETWEEN NATIONAL CONCERN AND EMERGENCY
o It is clear that the PC was WRONG in asserting that only an emergency would justify the innovation of the POGG power. Johannesson, Munro, Crown Zellerbach, and Ontario Hydro establish that the “Emergency Test” CANNOT be the exclusive touchstone.
o So, we must accept that there is a class of case for which ONLY an emergency will suffice to found federal power.
o It is NOT possible to argue that laws affecting property and civil rights must satisfy the “emergency test”, while laws NOT affecting property and civil rights must ONLY satisfy the “national concern test”.
o Zoning, expropriation and logging are normally within property and civil rights in the province, and so, Johannesson, Munro, and Crown Zellerbach, had a profound impact upon property and civil rights in the province. Yet, it was the “national concern” doctrine, NOT the “emergency” doctrine, which was applied in the cases.
o In a more sophisticated reconciliation of the cases, W.R LEDERMAN à “such subject matters (like aviation, the national capital region, and atomic energy) each had a natural unity that is quite limited and specific in its extent”.
o He contrasted these “limited and specific” subject matters with sweeping categories (like environmental pollution, culture, or language).
o Therefore, if the sweeping categories were enfranchised as federal subject matters simply on the basis of “national concern”, then there would be no limit to reach federal legislative powers and the existing distribution of legislative powers would become unstable.
o Only in an emergency could the federal Parliament assume the plenary power over the whole of a sweeping category.
o This theory explains most cases.
In the “Emergency” cases: legislation which asserted a new sweeping category of federal power over property, prices, wage or persons, etc.... were involved. In the following cases, the LEGISLATION WAS UPHELD ONLY IF THERE WAS AN EMERGENCY:
i.e. Board of Commerce, Fort Frances, Snider, Labour Conventions, Natural Products Marketing, Wartime Leasehold Regulations, Japanese Canadians.
In the “National Concern” cases: legislation over a more distinct and specific subject matter was involved. In the following cases, NO EMERGENCY WAS CALLED FOR, and the LEGISLATION WAS UPHELD IF THE SUBJECT MATTER WAS JUDGED TO BE OF NATIONAL CONCERN:
i.e. Johannesson, Munro, Ontario Hydro, Crown Zellerbach
o NOTE:
o Not all of the cases fit the theory. Russell and Margarine do not sit easily together. Additionally, Unemployment Insurance Reference also presents difficulty.
Criminal Law s.91(27)
DISTRIBUTION OF POWERS
.
o The Criminal Code is enforced by the provinces; and the decisions to investigate, charge, and prosecute offences are therefore matters of provincial policy which will no doubt be framed in response to local conditions and sentiments.
o So, the criminal law is NOT as centralized as other fields of federal legislative competence.
o Thus, this provision authorizes provincial policing and prosecution of offences under the Criminal Code and the establishment of courts of criminal jurisdiction.
o Criminal trials accordingly take place in provincial courts.
o Jurisdiction over correctional institutions is divided between the two orders of government:
s.91(28) – federal Parliament has jurisdiction over “penitentiaries”, which hold offenders sentenced to imprisonment for two years or more.
s.92(6) – provincial Legislatures have jurisdiction over “prisons”, which hold offenders sentenced to imprisonment for less than two years.
o Another provincial head of power that is relevant is:
s.92(15) – provincial Legislatures have jurisdiction in relation to: “The imposition of punishment by fine, penalty, or imprisonment for enforcing any law of the province made in relation to any matter coming within any of the classes of subjects enumerated in this section”.
o In this section, provincial Legislatures can enact penal sanctions for the enforcement of provincial laws.
o This section has imported a substantial degree of concurrent provincial jurisdiction to enact penal laws which are indistinguishable from federal criminal laws.
DEFINITION OF CRIMINAL LAW
o Federal Parliament’s power to enact “criminal law” is very difficult to define.
Board of Commerce case
o VISCOUNT HALDANE à the federal Parliament’s power was applicable only “where the subject matter is one which by its very nature belongs to the domain of criminal jurisprudence”
o But this definition if far too narrow.
P.A.T.A. case (1931)
o LORD ATKIN à “the federal power was not confined to what was criminal by the law of England or of any Province in 1867...he power may extend to legislation to make new crimes ... Is the act prohibited with penal consequences?”
o This definition is far too wide in that it would enable the federal Parliament to expand its jurisdiction indefinitely, simply by framing its legislation in the form of a prohibition coupled with a penalty.
o Thus far, two ingredients for a criminal law: (1) prohibition; and (2) a penalty
o A third ingredient was added to the definition of criminal law:
Margarine Reference (1951)
o PRINCIPLE: third ingredient of a criminal law is a “criminal purpose”.
o Issue: the federal law in issue prohibited the manufacture, importation or sale of margarine. It was obvious that the purpose of the law was to protect the dairy industry.
o Held: although the law perfectly fitted the criminal form of a prohibition coupled with a penalty, the economic object of protecting an industry from its competitors made the law in pith and substance in relation to property and civil rights in the province (controlling the manufacture of a product in a province). There was no criminal purpose, only purpose was protection of dairy.
o RAND J à a prohibition was not criminal unless it served “a public purpose which can support it as being in relation to the criminal law”.
o Examples of the public purposes – public peace, order, security, health, morality, etc. (non-exhaustive list).
o The protection of the dairy industry was NOT a qualifying public purpose.
o Note:
- The requirement of a typically criminal public purpose is really only a slightly more sophisticated formation of VISCOUNT HALDANE’S “domain of criminal jurisprudence”
o Note:
- Apart from traditional crimes, various forms of economic regulation have been upheld as ‘criminal law’.
o PRINCIPLE: there must be a relationship between the criminal action in question and the purpose of the criminal law.
o Issue: On reviewing the highway legislation of all the provinces, the court discovered that drivers’ licences could also be suspended for breach of a variety of provincial regulations, and in particular for failure to pay insurance premiums, civil judgements, taxes and licence fees.
o SCC Held: struck down the federal Criminal Code offence of driving a motor vehicle while one’s provincial driver’s licence was suspended. These grounds for licence suspensions bore “no relationship in practice or in theory to the owner’s ability to drive and hence to public safety on the highways of the nation. The Criminal Code offence of driving while suspended was accordingly unconstitutional.
o NOTE:
- The offence would have been constitutional if a provincial licence could be suspended for breach of Criminal Code provisions concerned with fitness to drive.
Ward v Canada (2002)
o PRINCIPLE: The purpose of the criminal law must be criminal. The purpose of managing fisheries is NOT a criminal purpose.
o Facts: SCC had to characterize a federal law that prohibited the sale of baby seals. A law regulating the marketing of seals would be within the provincial authority under s.92(13).
o SCC Held: a federal regulation that prohibited the sale of baby seals could not be upheld under the criminal law power, despite the fact that the purpose of the prohibition was to limit the killing of baby seals. The court found that the law had been driven, not by the widely publicised concern about inhumane methods of killing, but by the concern about the depletion of the resource through large-scale commercial harvesting. The ultimate purpose of the law was to manage the fishery, and that was not a purpose that could sustain a criminal law.
o The pith and substance of the law was the management of the fishery, which came within the federal authority over “sea coast and inland fisheries”, s.91(12). The federal law was upheld.
R v Malmo-Levine (2003)
o PRINCIPLE: No “harm principle” is a requirement of a valid criminal law.
o Issue: validity of criminalization of the possession of marijuana.
o Argument: marijuana causes no harm.
o SCC Held: the presence of harm to others was not a requirement of a valid criminal law. Also, the court did succeed in identifying some harms.
FOOD AND DRUGS
(a) Food and Drug Standards
R v Wetmore (1983)
o PRINCIPLE: a product must be dangerous, adulterated (impure) or misbranded to be within the criminal law power.
o SCC Held: Food and drug legislation making illegal the manufacture or sale of dangerous products, adulterated products or misbranded products is within the criminal law power.
o BUT IN:
Margarine Reference (1951) – margarine was NOT injurious to health (although in 1886 it was considered so), and thus its manufacture could NOT be upheld under the federal criminal law power.
Labatt Breweries (1979)
o PRINICPLE: All federal standards are invalid, except those few that can be related to health.
o Facts: Regulations under the Food and Drugs Act stipulated that any product described as “light beer” must contain no more than 2.5% alcohol. Labatt retailed a product they described as “lite” beer (which the court held to be equivalent to “light” beer), which had an alcohol content of 4%.
Labatt’s argument: the compositional standard was unconstitutional.
o SCC Held: The part of the FADA that authorized regulations prescribing compositional standards for food was unconstitutional, and could NOT be supported under the criminal law power.
o ESTEY Jà acknowledged that the criminal law power could be used to enact laws for the protection of health (much of the Food and Drugs Act is directed at that end), but he found that the alcoholic requirement for light beer was not related to health. He also acknowledged that the criminal law power could be used for the prevention of deception (Food and Drug Act also directed at), but he found that the specification of the compositional standards for light beer could not be supported on this ground either.
o HOGG à The Labatt decision is unfortunate in precluding a national regime of compositional standards for food. It would be costly and inconvenient for such manufacturers to comply with a variety of provincially-established standards.
· ESTEY J was impressed by the fact that Labbat specified on the label of their “lite” beer that it contained 4% alcohol. Obviously, this meant that the careful and knowledgeable reader of the label would not be deceived as to the product’s alcohol content.
· The regulation should have been upheld as a criminal law.
(b) Illicit Drugs
o The non-medical use of drugs proscribed by the federal Narcotic Control Act, which prohibits the protection, importation, sale and possession of a variety of illicit drugs, has been upheld as a criminal law.
Schneider v The Queen (1982)
o PRINCIPLE: A valid provincial law is NOT criminal if: the ‘pith and substance’ was the protection of public health, with incidental affects on liberty.
o Facts: The provincial BC’s Heroin Treatment Act provided for the compulsory apprehension, assessment and treatment of drug addicts; the treatment included compulsory detention in a treatment centre for up to six months.
o Argument against: this was really a criminal law based on the deprivations of liberty. The Act was designed to treat and cure drug addicts, not to deter or punish them; but in some ways this made the legislation more rather than less oppressive, since the coercive features were not accompanies by procedural safeguards in the criminal justice process.
o SCC Held: SCC upheld the provincial legislation. Medical treatment of drug addiction came within provincial authority over public health as a “local or private” matter within s.92(16). The coercive elements of the Act were incidental to its public health purpose.
o Thus, the ‘pith and substance’ was the protection of public health, with incidental affects on liberty.
(c) Tobacco
RJR-MacDonald v Canada (1995)
o PRINCIPLE: The protection of public health is a valid purpose for the criminal law AND a criminal purpose may be pursued by indirect means.
o Facts: Federal Tobacco Products Control Act prohibited the advertising of cigarettes and other tobacco products and required the placement of health warnings on packages.
o Issue: was this a valid criminal law?
o SCC Held: Valid criminal law. The protection of public health supplied the required purpose to support the exercise of the criminal-law power. Protection from a dangerous product.
o HOWEVER, the Act was struck down under the Charter, because of the impact of the advertising ban of freedom of expression.
o A criminal purpose may be pursued by indirect means = health risks of tobacco did NOT require the outright banning of cigarettes.
o Sequel case:
Can v JTI-Macdonald Crop (2007) – SCC upheld a new federal Tobacco Act, which was a less sweeping ban on the advertising of tobacco products. The more limited ban was upheld under s.1 as a reasonable limit on freedom of expression. The court reaffirmed the RJR ruling that “restrictions on tobacco advertising are a valid exercise of Parliament’s criminal law power”.
HEALTH
s.91(27) – Federal power to punish conduct that is dangerous to health.
ENVIRONMENTAL PROTECTION
R v Hydro-Quebec (1997) – SCC agreed that the protection of the environment was a public purpose that would support a federal law under the criminal-law power and upheld the Canadian Environmental Protection Act under the criminal-law power.
Dissent: the Act was regulatory rather than criminal.
ABORTION
o Canada’s Criminal Code use to prohibit abortions.
Morgentaler v The Queen (1975)
o Issue: The validity of the prohibition was challenged on the basis that the safety of modern techniques of abortion made the prohibition inappropriate as a protection for the health of pregnant women.
o Held: the prohibition was not authorized by the criminal law power.
o LASKIN à held that it was open to Parliament under the criminal law power to prohibit the termination of pregnancy, even if the termination would not endanger the health of the woman. The principle objective of the prohibition was “to protect the state interest in the foetus”, and that was sufficient to make the prohibition a valid exercise of the criminal law power.
o NOTE:
è Morgentaler (1988) – SCC struck down the law as contrary to s.7.
è The Criminal Code no longer prohibits abortion.
COMPETITION LAW
o The encouragement of competition throughout much of the private sector of the Canadian economy has been a longstanding policy of Canada’s federal governments.
o Argument: a competitive market is the best means of providing efficient use of labour, capital and natural resources. In these competitive sections, the governmental regulations of the industry is less necessary.
o But, because economic activity ignores provincial boundaries, and labour, capital and technology are highly mobile, it is difficult to regulate anti-competitive practices at a provincial level.
o It is generally agreed that such regulations MUST be federal if it is to be effective.
History:
o In 1919 two regulations were enacted: Combines and Fair Prices Act and Board of Commerce Act.
o Both were held to be unconstitutional in Board of Commerce case [1921] and repealed them to the Combines Investigation Act 1923. Here the PC rejected the arguments in support which were based on POGG power, the trade and commerce power, and the criminal law power.
o In P.A.T.A – PC upheld the Act as a valid criminal law. This decision established that the criminal law power was capable of expansion into the world of commerce.
o In 1935 – the prohibition of anti-competitive price discrimination was added to the Criminal Code and was upheld by the PC and the SCC as a criminal law.
o In 1952 – federal Parliament authorized the courts to make order prohibiting the continuation of illegal practices or dissolving illegal mergers and to impose conventional criminal sanctions. This was challenged by Goodyear Tire [1956] – SCC upheld the Act as being within criminal law power.
Today:
o Canada has a Competition Law.
o This was radically altered by two phrases of amendment in 1975 and 1986.
o The 1975 Combines Investigation Act was expanded to apply to the service industries, and a new CIVIL remedy was added to the Act enforced through the Restrictive Trade Practice Commission.
o The Combines Investigation Act was then changed to the Competition Act in 1986 and the Restrictive Trade Practice Commission was changed to the Competition Tribunal. Thus, the provisions of the Act that are now enforced by the Tribunal are CIVIL: they do NOT carry a criminal sanction.
o The criminal aspect of the Act is greatly diminished in importance and the criminal law power no longer provides a constitutional foundation for much of the Act.
General Motors v City National Leasing [1989]
o Issue: involved a civil remedy in the Act which had been added in 1975. This remedy allowed any person who had suffered loss as a result of a breach of the Act to sue the person who committed the breach.
o SCC Held: upheld the constitutionality of the civil remedy. The court said that the Act was a valid law under the trade and commerce power. There was no reason, therefore, why its enforcement should be limited to criminal sanctions.
o Therefore, the civil remedy was a valid part of the law, because it was designed to provide an incentive to private enforcement of the law, as a supplement to public enforcement.
SUNDAY OBSERVANCE LAW
(a) Federal power
o Before 1903 is was generally assumed that laws regarding Sunday observance were competent to the provinces.
A-G Ont v Hamilton Street Railway [1903]
o PC Held: shattered that assumption when struck down the Ontario Lord’s Day as a criminal law.
o Followed in
Henry Brinks [1955]
o Issue: a provincial law, which authorized a municipal by-law requiring the closing of shops on six days recognized as holy days by the Roman Catholic church.
o SCC Held: unconstitutional. This was in the same category as a Sunday observance law
o These 2 cases established that limitations on wk or play which are imposed for religious reasons are criminal laws solely within the competence of the federal Parliament.
o The federal Parliament then moved to fill the void created by the invalidation of provincial Sunday observance laws.
o So, in 1906, Parliament enacted the Lord’s Day Act, which prohibited work and other commercial activities on Sunday. This Act was not vulnerable to challenge until the Charter of Rights were established...
R v Big M Drug Mart (1985)
o PRINCIPLE: Safeguarding morality could be a criminal purpose.
o SCC Held: SCC confirmed that the Lord’s Day Act was a valid exercise of the criminal law power, because it pursued the religious purpose of preserving the sanctity of the Christian Sabbath. The law came within criminal purposes because it was intended to safeguard morality.
o HOWEVER, the SCC held that the Act offended the Charter guarantee of freedom of religion, because its purpose was to compel the observance of the Christian Sabbath.
o It was not justified under s.1, and held the Lord’s Day Act to be unconstitutional.
(b) Provincial power
Lieberman v The Queen (1963)
o SCC held: that provincial authority also extends to the imposition of limits on the business hours of commercial establishments. SCC upheld a provincial law which required the closing of pool rooms and bowling alleys between midnight and six a.m. on any weekday, and all day on Sunday because the motivation was for secular purposes.
o NOTE:
- The court distinguished Hamilton Street Railway, Henry Brinks and other Sunday observance cases on the groundthat the prohibition in those cases had a RELIGIOUS MOTIVATION. Whereas Lieberman was primarily concerned with SECULAR MATTERS.
R v Edwards Books and Art (1986)
o PRINCIPLE: a “pause day” for secular purposes is a valid provincial law.
o Facts: Ontario law that prohibited retail stores from opening on Sundays.
o SCC Held: SCC held a provincial law providing a “pause day” for secular purposes “is properly characterized as relating to property and civil rights in the province”. The secular purpose was justified under s.1.
GUN CONTROL
o In 1995, the federal Parliament amended the Criminal Code by enacting the Firearms Act, which expanded the existing rules by requiring that ALL guns be registered and ALL gun owners be licensed.
Re Firearms Act (2000)
o Facts: In 1995, Parliament amended the Criminal Code provisions by enacting the Firearms Act, which expanded the existing rules by requiring all guns to be registered and all gun owners to be licensed.
o SCC Held: The Act was a valid exercise of the criminal law power. The purpose of the Act was to restrict access to inherently dangerous things. The Act’s requirements were all directed to public safety: domestic violence, suicides, accidents, etc. Even the licensing criteria included checks of criminal records.
o It was true that guns were property, but the Act’s focus on public safety distinguished the Act from provincial property registration schemes. The effect on property was incidental to the main purpose of public safety (the pith and substance). The Act was NOT merely regulatory.
PREVENTION OF CRIME
(a) Prevention in general
o The most important application is having a law aimed at the prevention of crime.
o The Criminal Code includes an elaborate regime of assessment, treatment and disposition to deal with accused persons who suffer from mental disorders:
Group 1 – accused who have been tried but not criminally responsible on account of their mental disorder
Group 2 – accused who have been charged, but who have not been tried on the group that they are unfair to stand trial, by reason of their mental disorder. They remain in criminal system due to their unresolved charge.
(b) Young Offenders
o Today, there is the Youth Criminal Justice Act 2003.
CRIMINAL LAW AND CIVIL REMEDY
(a) Federal Power Generally to Create Civil Remedies
o The federal Parliament’s criminal law power will authorize the creating of a civil right of action for breach of criminal status.
The federal Parliament has no independent power to create civil remedies akin to its power over criminal law. So, if the “pith and substance” of a federal law is the creation of a NEW civil cause of action, the law will be invalid as coming within the provincial head of power “property and civil rights in the province” (s.92(13)).
MacDonald v Vapor Canada [1976]
o SCC Held: s.7(e) of the federal Trade Marks Act was invalid on this basis above.
o LASKIN à “s.7(e) came within property and civil rights in the province. this is an ‘detached provision’ that is not part of the broader regulatory scheme”
o Therefore, the assumption is clearly spelt out: a law validly enacted in relation to trademarks or patents or copyrights, may validly include appropriate means of enforcement.
Papp v Papp [1969]
o Issue: whether the Divorce Act could validly provide for the custody of the children was a matter coming within property and civil rights in the province.
o Held: the custody provisions of the federal Divorce Act were valid because there was a “rational, functional connection” between them and the admittedly valid provisions of the Act concerning divorce.
o Therefore, the “Functional Connection” test has been established and used to uphold many SCC cases.
(b) Criminal Law Power to Create Civil Remedies
o Question:
- Does the criminal law power, like other heads of federal power, authorize the federal Parliament to confer a civil right of action for breach of a statutory prohibition?
R v Zelensky [1978]
o SCC Held: upheld a provision of the Criminal Code that authorized a criminal court to order the accused to pay to the victim compensation for any loss or damage caused by the commission of the offence.
o LASKIN à emphasised the criminal characteristics of the provision. The order for compensation was to be made as part of the sentencing process in the criminal proceedings....NOT in a separate civil action. Only to resolve the appropriate amount of compensation, will take place in a separate civil action. As well, this order was discretionary.
CRIMINAL LAW AND REGULATORY AUTHORITY
o QUESTION:
- Whether the criminal law power will sustain the establishment of a regulatory scheme, in which an administrative agency or official exercises discretionary authority?
o The competition and insurance cases encourage the view that the criminal law power will NOT sustain a regulatory scheme which relies upon more sophisticated tools than a simple prohibition and penalty.
Nova Scotia Board of Censors v McNeil (1978)
o SCC Held: The censorship of films was NOT criminal. SCC upheld Nova Scotia’s censorship law a being the regulation of an industry within the province, s.92(13), or a local or private matter under s.92(16).
o RITCHIE J à pointed out that the censorship law did NOT take the criminal form of a prohibition coupled with a penalty.
o HOGG à agrees
R v Furtney [1991]
o Issue: a challenge against the Criminal Code provisions respecting lotteries. The Code prohibited lotteries, but made an exception for organizations licensed buy the Lieutenant Governor in Council of a province
o SCC Held: the Criminal Code provision was a valid criminal law, despite the fact that it delegated regulatory power to the provincial L.G.C.
o STEVENSON à accepted HOGG suggestion of colourability: “the decriminalization of lotteries licensed under prescribed conditions is NOT colourable”
o The Canadian Environmental Protection Act is a federal law that established a scheme for the regulation of toxic substances.
o The Ministers of Environment and Health have the authority to examine the effects of any substance and recommend to the Governor in Council whether the substance is toxic.
o ... if decided to be toxic, it comes under the regulatory authority of the Governor in Council who regulates or discards it. If substance is yet to be classified, the Minister may make an “interm order” which is a temporary regulation imposed on a toxic.
R v Hydro-Quebec (1997)
o PRINCIPLE: The Criminal-law power authorizes complex legislation, including discretionary administrative authority.
o Facts: Hydro-Quebec was prosecuted for violating an interim order that restricted the emission of PCB’s.
o HC’s argument: The Act, and therefore the “interim order”, was outside the criminal-law power.
o Dissent: The Act lacked the prohibitory character of a criminal law because there was no prohibition until the administrative process to classify the substance had been completed.
o SCC Held: Valid criminal law. Because the administrative procedure for assessing the toxicity of substances culminated in a prohibition enforced by a penal sanction, the scheme was sufficiently prohibitory.
Re Firearms Act (2000)
o PRINCIPLE: A complex regulatory Act may still be criminal AND a criminal purpose may be achieved through indirect means.
o Argument against Act: The Act was regulatory rather than criminal because of the complexity of the regime and the discretionary powers vested in the licensing and registration authorities. Only an outright prohibition of guns would be a valid criminal law.
o SCC Held: Valid criminal law. The purpose of gun control was public safety, which is typically a criminal purpose. The purpose was ultimately affected by a prohibition of unregistered guns and unlicensed holders, and the prohibition was backed by penalties.
o SCC relied on R v Hydro-Quebec for the proposition that the criminal-law power authorizes complex legislation, including discretionary administrative authority.
o SCC relied on RJR for the proposition that a criminal purpose may be pursued by indirect means. Just as the health risks of tobacco did not require the outright banning of cigarettes, nor did the safety risks of guns require the outright banning of guns.
PROVINCIAL POWER TO ENACT PENAL LAWS
o REMEMBER:
- The provincial Legislatures have the power under s.92(15) to “impose punishment by fine, penalty or imprisonment” for the purposes of enforcing otherwise valid provincial laws.
o The dominant tendency of the case law had been to uphold provincial penal legislation:
Bedard v Dawson (1923)
o SCC Held: upheld provincial law authorizing the closing of “disorderly houses”, which were primarily defined as houses in respect of which there had been Criminal Code convictions for gambling or prostitution. Prima facie, the provincial law appeared to be simply supplementing undoubted criminal laws by adding new penalties.
o The court upheld the law as in relation to property, and at most as aimed at suppressing the conditions likely to cause crime rather than at the punishment of crime.
o Compare with:
Westendorp v The Queen (1983)
o SCC held: struck down a municipal by-law that prohibited a person from remaining on the street for the purpose of prostitution, and from approaching another person for the purpose of prostitution.
o LASKINà condemned this line or reasoning as “baffling”, and held that the purpose of the by-law was “so patently an attempt to control or punish prostitution as to be beyond question”
o Westendorp is a reminder that the provincial power to create offences under s.92(15) is not as broad as the federal power under s.91(27)
Language Rights ss.16 to 22
DISTRIBUTION OF POWER OVER LANGUAGE
o Since confederation, federal statutes have been enacted in both languages, because that was required by s.133, Constitution Act 1867.
o Language – ss.16 to 22, Charter.
o A law prescribing that language(s) must/may be used in certain situations will be classified for constitutional purposes to the institutions or activities that the provision covers
Jones v AG of New Brunswick (1974)
o Issue: The federal Official Languages Act purported to make the English and French languages the official languages of Canada “in the institutions of the Parliament and Government of Canada”.
o SCC Held: Upheld Act. The law was authorized by federal power over federal governmental and parliamentary institutions (which stemmed from the POGG power. Provisions recognizing both languages in federal courts could also be authorized by federal power over federal courts (s.101). Provisions concerning languages in criminal proceedings in provincial courts could also be authorized by federal power over criminal procedure (s.91(27)).
o Also Held: Upheld a section of New Brunswick’s Official Languages Act, which provided for the use of both official languages in the courts of NB; this section was authorized by the provincial power over administration of justice in the province (s.92(14)).
Devine v Quebec (1988)
o SCC Held: upheld various provisions of Quebec’s Charter of the French Language that regulated the language of commerce which was a matter within the provincial jurisdiction over property and civil rights in the province under s.92(13).
o i.e. public signs, commercial advertising
LANGUAGE OF CONSTIUTION
Charter of Rights = Constitution of Canada = Constitution Act
s.57 s.56 s.133
o Therefore, English and French versions of the Acts are EQUALLY AUTHORITATIVE
LANGUAGE OF STATUTES
(a) Constitutional Requirements
s.133, Constitution Act 1867 –
o permits either English or French to be used in debates in the Houses of the federal Parliament and Quebec Legislature;
o it requires the statutes of the federal and Quebec Legislature to be printed in both languages
o it provides that either language may be used in any pleading or process in the federal courts and the Quebec courts
o Section 133 = does NOT apply to the Legislature and courts of any province other than Quebec.
o Although, s.23 of the Manitoba Act, 1870 includes a provision for the use of either language in the Legislature and courts.
o Charter of Rights ss.16 to 23 = same as s.133 in application to legislative bodies (and courts) of federal government...but NOT Quebec.
(b) Quebec’s Charter of the French Language
AG of Quebec v Blaikie (1979)
o Issue: Quebec’s Charter purported the make French the language of the Legislature. The Act provided that bills were to be drafted and enacted in French only (although an English translation was to be printed and publishes, but not official).
o SCC Held: SCC struck down those provisions of Quebec charter to make the language in statutes in French only because they contravened s.133.
(c) Manitoba’s Official Language Act
o In 1890, Manitoba enacted the Official Language Act which provided that “the English language only” shall be used in the records and journals ... In effect, the Act was an attempt to repeal most of s.23 of the Manitoba Act.
o Held: Act was held invalid in 1892 and 1909.
o The Manitoba Legislature did not comply with the decision and again, in AG of Manitoba v Forest (1979) held the Act to be unconstitutional because s.23 could not be amended by the Official Language Act.
Re Manitoba Language Rights (1985)
o SCC confirmed that the failure to comply with s.23’s requirement of bilingual enactment resulted in the invalidity of the purported statute. This meant that nearly all of the laws of the province were unconstitutional.
o Held: Court declared that the province’s statutes were in temporary force until their translation.
o s.23 must be seen in the same scope as s.133. It must translate and re-enact the province and statute and delegated legislation (see Re Manitoba Language Rights Order No.3)[1992])
(d) Incorporation by reference
AG of Quebec v Collier (1985)
o PRINCIPLE: When a statute refers to a document (i.e. session paper) that is essential to the operation of the statute, the statute must follow the language requirements of s.133.
o Facts: Two Quebec statutes fixed public sector wages by reference to session papers tabled in the Legislature; the details were not in the statutes, only in the session papers to which the statute referred to. The session papers were only in French, while the statute was in both languages.
o SCC Held: the statutes were unconstitutional since the session papers were tabled in one language only and contravened s.133.
(e) Delegated legislation
Blaikie (1979) – s.133 applies to delegated legislation.
Blaikie (no.2) (1981) –
o The court qualified the earlier delegated legislation ruling.
o Only regulations made by “the Government” were subject to s.133 which includes the Lieutenant Governor, the Executive Council and Ministers.
o Even regulations that were made by officials or bodies OUTSIDE the government, were subject to the approval of the government.
o Thus, still subject to s.133
o NOT subject to s.133 = local municipalities and school boards. Regulations that are not made by, or approved by, the government.
o Another special category was the court’s rules of practice. These rules were not made by the government, but by judges...but they are STILL subject to s.133 (so were the rules of those administrative tribunals whose functions were ‘quasi-judicial’).
Re Manitoba Language Rights Order No.3)[1992
o Re-enactment of delegated legislation
o Principle: .23 applied only to “instruments of a legislative nature”
o SCC Held: s.23 applied only to “instruments of a legislative nature” which included three characteristics:
(1) it would establish a “rule of conduct”
(2) it would have the “force of law”
(3) it would be “of general application rather than directed at specific individuals or situations”
LANGUAGE OF COURTS
(a) Constitutional Requirements
s.133 = s.23 = s.19(2) Charter
o All impose similar requirements with respect to the courts, there is a CHOICE as to which language (eng or fre) may be used by a person pleading or processing...
(b) Definition of Courts
o Blaikiesaid that the courts covered by s.133 = s.96 courts, inferior courts, and administrative tribunals established by statute
(c) Language of Process
MacDonald v City of Montreal (1986)
o Facts: An English speaking Quebecer defended a charge of speeding on the ground that the summons had been issued by the Quebec court in French only.
o SCC Held: The unilingual summons did not breach s.133. Since s.133 provides that “either” of the two languages may be used in any process issuing from a Quebec court, it gave a choice.
o BEETZà used the literal approach to s.133 (a narrow approach) to say that the court must issue its process on ONE language only. He distinguished human rights vs. Language rights (this should receive a more restrained interpretation)
(d) Language of Proceedings
Societe des Adadiens v Association of Parents (1986)
o Facts: The Societe claimed that s.19(2) (which imposed similar language to s.133) was breached when an application was heard by a panel of three judges, one of whom, the Society alleged, did not understand French.
o SCC Held: s.19(2) did not confer a French-speaking litigant the right to be heard by a judge who understood French. While litigant had constitutional right to use French or English, neither s.19(2) nor s.133 conferred any guarantee that the litigant will be heard or understood in language of choice.
o BEETZ à took the same view as above. Pointed out that the right to a fair hearing, which was recognized by the common law rules of natural justice, and which was protected in part by ss. 7 to 14 of the Charter, would be offended by a presiding judge’s failure to comprehend the evidence or argument.
o S.20 of charter applied to allow communications in French (regardless of the demand for “reasonableness” of French-language service)
(e) Right to Interpreter
s.14 of Charter – right of a party or witness to an interpreter (who doesn’t understand. Who is deaf)
R v Tran (1994)
o PRINCIPLE: s.14 right to interpreter was to be continuous and contemporaneous.
o Facts: The accused Vietnamese person could not speak or understand English and was provided with an interpreter. At one point a witness (who happened to be the interpreter) testified in English and then gave only a summary of the translation. The accused was convicted and appealed on the ground there was a breach of his s.14 right to an interpreter.
SCC Held: s.14 was breached. “The quality of the interpretation had to meet the standard of “continuity, precision, impartiality, competence and contemporaneousness”.
LANGUAGE OF GOVERNMENT
(a) Section 16 of Charter
o s.16 = French and English are the “Official Languages” of Canada and New Brunswick
(b) Section 20 of Charter
o s.20 = Obligation on Government to provide bilingual services to the public
DesRochers v Canada [2009]
o Principle: s.20 should be given “a liberal and purposive interpretation”
o SCC Held: like other language rights, s.20 should be given “a liberal and purposive interpretation”. This requires that, when s.20 applies, the principle of equality of BOTH languages that is guaranteed by s.16(1) must be respected.
o It is not a question of accommodating the minority language speakers: “services of equal quality” in both official languages MUST be provided. Therefore, the federal program to promote economic development in rural areas did not have to provide identical services or yield identical results to each language community because they had different needs and priorities.
o BUT the program DID have to provide benefits of equal quality to those who sought to access the program (regardless if there were fewer French-speakers).
o Therefore the tests:
o In the federal jurisdiction, the obligation attaches to any “head or central office” of an institution of Parliament or government of Canada without qualification.
o It attaches to other federal government offices also. But only
(1) where there is a “significant demand” for bilingual services from that office.
(2) or due to the “nature of the office” it is “reasonable” that bilingual services be provided by that office
NOTE:
- Alternative tests are not elaborated by s.20. It will ultimately be for the courts to give meaning to the tests.
NOTE:
- Other than in New Brunswick, the other 9 provinces have NO constitutional obligation to provide government services in BOTH Official Languages
LANGUAGE OF COMMERCE
o No language rights in the Constitution of Canada protects the use of English and French language in commercial (or private) settings.
o S.2(b) Charter = freedom of expression
Ford v Quebec (1988)
o Issue: Provision in Quebec’s Charter of the French Language that required commercial signs and advertisements to be in French only.
o SCC Held: struck down provision that required commercial signs and ads to be in French only.
o the freedom of expression (s.2(b)) included “the freedom to express oneself in the language of one’s choice”, and this was in breach.
o While s.1 would save some laws designed to protect the French language, the total prohibition of other languages was a disproportionately severe measure.
o The Government of Quebec caused the Legislature to re-enact the prohibition of English on commercial signs and advertisements (while allowing bilingual interior signs) by implementing the notwithstanding clause, s.33.
Devine v Quebec (1988)
o Held: Provisions of Quebec’s Charter, which required the non-exclusive (inclusive) use of French in brochures, order, etc. offended the freedom of expression, even though there was no prohibition of English.
o However, upheld under s.1. s.1 saved the non-exclusive requirements to provide French language. Therefore, broachers, orders, invoices, and other business documents in French was upheld (despite the fact that it offended s.2(b)).
LANGUAGE OF EDUCATION
(a) Section 93 of Constitution Act, 1867
s.93 = confers upon the Provincial Legislatures the power to make laws in relation to education (power to prescribe the language of instruction in the schools)
NOTE:
- But it did NOT affect the rights and privileges to denominational (separate) schools at the time of the confederation)
Ottawa Roman Catholic Separate School Trustees v Mackell [1916]
o Held: Ontario had the power to require that English be the language of instruction in hitherto French-speaking Roman Catholic separate schools in the province. At the time of the confederation, the statute governing separate schools in Ontario did NOT confer upon separate schools the legal right to use French as a language of instruction. Therefore, this right was invalidating s.93.
o Lordships examined the statute law governing the separate schools in Ontario at the time of the confederation, and concluded that the law did not confer upon the separate schools the legal right to use French as the language of instruction.
o Since no such right existed at confederation, no such right was preserved by s.93.
o Court looked at s.93 “class of persons” = to mean “class of persons determined according to religious belief, and not to race or language”
o Also said that at the time of the confederation, trustees of separate schools did NOT have the right to choose the language of instruction (regardless of whether the entire class of Roman Catholics conferred this upon the trustees)
(c) Section 23 of Charter
s.23, Charter = Members of the English-speaking minority in Quebec or the French-speaking minority in other provinces, have the right to have their children receive primary and secondary school instruction in the (minority) language in that province.
(d) Mother Tongue of Parent
o s.23(1)(a) = applies to English-speakers in Quebec as well as to French-speakers elsewhere in Canada
o i.e. In any provinces with English-speaking majorities, a Canadian citizen whose first language learned and still understood is French, has the right to have their children receive primary and secondary school instruction in French.
o This would be satisfied by an Ontario parent which could establish that
- Their ‘first language learned’ was French
- That this language is ‘still understood’
(e) Language of Instruction of Parent in Canada
o s.23(1)(b) = The “Canada Clause” because Canadian citizens who move from one province to another, retain the right to have their children educated in the same language as that in which the parent was educated anywhere in Canada.
A-G of Quebec v Quebec Protestant School Boards [1984]
o Issue: Quebec’s charter of the French language limited admission to English-language schools in Quebec to the children of persons who have been educated in English in Quebec.
o SCC Held: this “Quebec clause” was in conflict with the “Canada clause” (s.23(1)(b) of the Charter). Therefore, the Quebec clause had to yield to the Canada clause, and school boards in Quebec were obliged to admit to English-speaking schools the children of parents who had been educated in English anywhere in Canada.
(f) Language of Instruction of Child in Canada
o s.23(2) = applies to citizens who have a child who has received or is receiving primary or secondary school instruction in English or French in Canada. They have the right to have all their children receive their schooling in the same language.
Solski v Quebec [2005]
o SCC Held: Quebec law was consistent with the s.23(2) right and upheld the law without report to s.1
o According to the court, the “major part” requirement would be inconsistent with s.23(2) it is called for a “quantitative” measurement of the proportion of time spent by the child in English-speaking instruction in Canada.
o The requirement should be “read down” to a “qualitative” restriction, which would only require “a significant part, through not necessarily the majority” of the child’s instruction to have been in English.
(g) Where numbers warrant
Mahe v Alberta [1990]
o SCC Held: the effect of s.23(3)(a) and (b) was to establish a “sliding scale” of entitlement, based on the number of children whose parents qualify under s.23.
o Therefore, the idea of a sliding scale is simply that s.23 guarantees whatever type and level of rights and services appropriate in order to provide minority language instruction for the particular number of students involved.
o A small number of minority language students would = bus transportation to the minority language school
o A larger number of students would = the provision of classroom space and some intensive minority language instruction within a majority language school.
o A larger number would cross the where-numbers-warrent threshold
o This where-numbers-warrent test was followed in:
Re Public Schools Act (Man) [1999] – SCC struck down Manitoba’s legislation respecting French-language schools, because it made no provision for the parents of French-language students to have management and control over French-language education. Even on the basis of a low figure, the number warranted the establishment of an independent French-language school board in Manitoba under the exclusive management and control of the French-language minority.
Arsenault-Cameron v Price Edward Island [2000] – SCC sided with the parents in ordering the establishment of a French school in Summerside PEI. It was a mistake to work from the known demand for French-language school, because if a school were to be established, demand would likely rise....
(h) Denominational Schools
o Mahe = therefore the court held that denominational school rights were NOT prejudiced – they were merely “regulated” – by vesting of some exclusive powers of management and control in trustees who represented French-speaking parents
(i) Supervision of Remedial Orders
o s.24(1) = a breach of s.23 (like a breach of any other charter right) may be remedied under s.24(1) which the court considers an appropriate remedy
Doucet-Boudreau v Nova Scotia [2003]
o Superior Court Judge Held: application of French-speaking parents and found that in 5 districts of the province, the number of children of French-speaking parents warranted French-language schools. Under s.24(1) held that the 5 schools be built and that programs of instruction be developed for each school.
o SCC Held: upheld provision for judicial supervision and upheld the trial judge’s order because they repeated his concerns about the danger of progressive assimilation of the French-speaking schools. They took the view that the supervisory order was appropriate and just in the circumstances. S.24(1) is valid.
Aboriginal Peoples and Treaty Rights s.91(2), s.25, s.35
FEDERAL LEGISLATIVE POWER
(a) Section 91(24)
(b) Indians
o Thus, two heads of power:
(1) a power over “Indians”, and
o This power may be exercised in respect of Indians only, whether or not they reside on, or have any connection with lands reserved for the Indians.
(2) a power over “lands reserved for the Indians”.
o This power may be exercised in respect of Indians and non-Indians so long as the law is related to lands reserved for the Indians.
o Thus is part of the Charter, but it does not create any new rights. It is an interpretative provision.
o This makes clear that the equality guarantee in s.15 does NOT invalidate aboriginal or treaty rights.
o The definition of “aboriginal peoples of Canada” includes:
- the Indian
- Inuit and
-Metis peoples of Canada
s.88, Indian Act – makes clear that provincial “laws of general application” apply to “Indians”.
o Status Indians = live on Indian reserves, have Indian Act privileges and within s.91(24)
o Non-status Indians = live on Indian reserves, NOT part of Indian Act. Within s.91(24)
o Metis People = can live on Indian reserves intermarriage between French-Canadian men and Indian women. May be within s.91(24)
o Inuit or Eskimo People = NOT covered by Indian Act. Do NOT live on Indian reserves. Can be included in s.91(24).
Therefore, Non-Status Indians, Metis, Inuit/Eskimo people are NOT govern med by the Indian Act but by s.91(24).
Federal Indian Act – defines the term “Indian” for the purposes of that Act, and establishes a register to record the names of qualified persons (about 700,00 status Indians in Canada). Persons within the statutory definition of the Act are known as “status Indians”.
o Non-status Indians, which number about 200,000, are “Indians” within the meaning of s.91(24), although they are not governed by the Indian Act.
(c) Lands Reserved for Indians
o S.91(24) = federal Parliament legislative power over “land reserved for the Indians”
(d) Canadian Bill of Rights
s.1(b), Bill of Rights – guarantee of “equality before the law”, and specifically forbids “discrimination by reason of race”.
o The federal Indian Act appears on its face to offend the guarantee of equality in the Bill of Rights.
R v Drybones (1969) – SCC held the use of the racial classification “Indian” in s.94 of the Indian Act, which made it an offence for an Indian to be intoxicated off a reserve, violated the equality guarantee in the Bill of Rights.
o This decision case doubt on all of the provisions of the Indian Act, and on the whole principle of a special regime of law for Indians.
(e) Charter of Rights
Corbiere – SCC struck down the provision in the Indian Act that made residence on the reserve a requirement for voting in band elections because the distinction between Indians who lived on the reserve (and could vote) and Indian who did not was a breach of s.15.
(f) Treaties
o Treaties within OTHER counties have no effect on Canadian law unless they are implemented by Federal legislation
o Before 1982, treaties entered into within Indian tribes were prohibited by the Federal law from performing their treaty outside the season required by Federal law
o Today, s.35 gives constitutional protection for treaty rights and international treaties
PROVINCIAL LEGISLATIVE POWER
(a) Application of provincial laws
o The general rule: is that provincial laws apply to Indians and lands reserved for the Indians, so long as the law is in relation to a matter coming within a provincial head of power.
R v Hill (1907) – Ontario CA held that a provincial law confining the practice of medicine to qualified physicians applied to Indians. The offence did not take place on a reserve, but would have been the same if it had.
R v Francis (1988) – SCC held that provincial labour law applied to a shoe-manufacturing business located on a reserve which was owned by Indians, employed Indians and which had been funded by the Department of Indian Affairs.
5 exceptions to general rule that provincial laws apply to Indians and lands reserved for Indians:
(i) Singling out
o If provincial law singled out Indians or Indian reserves for special treatment, then the law is invalid
(ii) Indianess
o A provincial law that affects “an integral part of primary federal jurisdiction over Indians and lands reserved for the Indians” will be inapplicable, even though the law is one of general application that is otherwise within provincial competence.
Paul v BC (2003)
o Issue: The defendant, an Indian, claimed that he was exercising an aboriginal right when he cut down trees in a provincial forest in apparent violation of the Code. He argued that the province could not empower an administrative tribunal to make a ruling about the existence or applicability of aboriginal rights.
o SCC Held: court rejected this argument on the basis that adjudication was distinct from legislation and since the function conferred on the Forest Appeals Commission included the power to decide questions of law, the Commission’s decision was upheld.
(iii) Paramountcy
o If a provincial law is inconsistent with a provision of the Indian Act (or any other federal law), the provincial law is rendered inoperative by the doctrine of federal paramountcy.
(iv) Natural Resources Agreements
o Provincial law CANNOT deprive Indians of this right to game and fish for food (which is protected by the 3 prairie provinces)
(v) s.35
o Aboriginal and treaty rights, since 1982, have been protected by s.35.
o Therefore, constitutional status given to aboriginal and treaty rights
o Therefore, protected from impairment by provincial law
SECTION 88 OF INDIAN ACT
(a) Text of s.88
o S.88 Indian Act = provincial laws of general application to “Indians”. This is in operation as a federal incorporation of provincial laws to make provisional laws applicable as part of the federal law.
(b) Laws of General Application
Dick v The Queen [1985]
o PRINCIPLE: Provincial laws NOT affecting ‘Indianness’, but which apply to Indians of their own force, are NOT within s.88 I.A
o BEETZ à s.88 I.A applies to provincial laws that affect ‘Indianness’ by impairing the status of capacity of Indians. Therefore, provincial laws that can be applied to Indians, without touching their ‘Indianness’, will apply to Indians of their own force.
o THEREFRE PROVINCIAL LAWS OF GENERAL APPLICATION CAB INFRINGE ON ABORIGINAL RIGHTS. BUT S.88 DOES NOT ALLOW PROVINCIAL LAWS OF GENERAL APPLICATION TO EXTINGUISH ABORIGINAL RIGHTS!
(c) Paramountcy Exception
o Any conflict between statute and a provisional law of general application is to be resolved in favour of federal statute.
o BUT THE EXCEPTION IS: Exception to s.88 = the “paramountcy doctrine” continues to apply to provincial laws of general application despite the adoption of federal statute. Therefore, applies only where there is this contradiction.
o Only provincial laws that affect “Indianness” will be subject to this paramount exception
i.e. provincial laws that do NOT affect ‘indianness’, apply to Indians in their own force (not through s.88), and they are subject to the rule of paramount (not the expanded rule of s.88)
(d) Treaty Exception
o Any conflict between a treaty made within Indians and a provincial law of general application, MUST go in favour of the treaty provision
NATURAL RESOURCES AGREEMENTS
o Alberta, Saskatchewan and Manitoba, limits provincial competence by making laws applicable to Indians within the “Natural Resources Agreement”
ABORIGINAL RIGHTS
(a) Recognition of aboriginal rights
o s.35 = gives constitutional protection to “the existing aboriginal and treaty rights of the aboriginal peoples of Canada”.
*Guerin v The Queen [1984]
o PRINCIPLE: aboriginal title survived European settlement and assumption of souverighnty by the Crown. Aboriginal title to land gave rise to a fiduciary duty by the Crown to deal within the land for the benefit of Indians.
o SCC HELD: aboriginal title of the Musqueaam Indian Band to land in B.C was recognized. The fiduciary duty had been broken, so the Indians received damages
R v Sparrow [1990]
o PRINCIPLE: test of justification. S.35 provided constitutional protection for the aboriginal rights.
“All dealings with aboriginal people, the government has the responsibility to act in a fiduciary capacity”
o HELD: Aboriginal rights, including fiduciary duty, are constitutionally protected under s.35.
o THEREFORE, BOTH CASES RECOGNIZE A FIDUCIARY OR A TRUST-LIKE OBLIGATIONS BY THE CROWN! AND BOTH CASES CONFIRM ABORIGINAL RIGHTS EXIST AT COMMON LAW
(b) Definition of aboriginal rights
o Before Van der Peet the SCC made no attempt to define the characteristics of aboriginal rights:
R v Van der Peet (1996)
o PRINCIPLE: There is a Legal test to identify an “existing aboriginal right” within the meaning of s.35:
“in order to be an aboriginal right an activity must be an element of a practice, custom or tradition integral to the distinctive culture of the aboriginal group asserting the right”...
àIn order for a practice to be “integral” = the practice must be “of central significance” to the aboriginal society: it must be a “defining” characteristic of the society.
àThe practice must have developed before “contact” = “before the arrival of Europeans in NA...the bone hook would be replaced by the steel hook, the bow and arrow by the gun, and so on..contemporary practices that developed “solely as a response to European influences” do not qualify.
o Facts: Aboriginal defendant had been convicted of selling fish which was prohibited under the federal Fisheries Act that restricted fishing for food.
o SCC Held: The exchange of fish did occur in the society of the Sto:lo people before contact with Europeans, but it was incidental to their practice of fishing for food. Unlike the practice of fishing for food, the practice of selling fish was not an “integral” part of the Sto:lo culture. It was only after contact that the people had begun fishing to supply a market, one created by European demand for fish.
Van der Peet applied in:
R v Gladstone (1996) – SCC held the claimed aboriginal right, which was to sell herring spawn on kelp, was established. Evidence showed that, before contact, the Heiltsuk people habitually sold large quantities of herring to other Indian tribes. The purpose of this activity was not to dispose of surplus food (as in Van der Peet); now was it incidental to social and ceremonial traditions (as in Smokehouse). The trade in herring spawn was “a central and defining feature of Heilstuk society”.
Mitchell v Minister of National Revenue (2001) – SCC rejected the claim by the Mohawk people of Akwesasne to an aboriginal right to bring goods purchased in the U.S. across the St. Lawrence River (the international border) into Canada without paying customs duty on the goods. Evidence was no sufficient, at most, the occasions of trade were few, and participation in northernly trade was “not a practice integral to the distinctive culture of the Mohawk people”.
R v Sappier (2006) – harvesting of wood for domestic uses was integral to the distinctive culture.
By definition, Van der Peet, could not apply to the Metis since their society was formed after European contact (with Europeans). However, this has been accommodated for:
R v Powley (2003) – for Metis claimants of aboriginal rights, the focus on European contact had to be moved forward, not to the time of European sovereignty, but to ‘the time of effective European control”. Apart from this shift in time, the same Van der Peet definition applied.
(c) Aboriginal self-government
R v Pamajewon (1996)
o PRINCIPLE: aboriginal right of self-government extends only to activities that took place before European contact, and then only to those activities that were an integral part of the aboriginal society.
o SCC held: that gambling was not an integral part of the distinctive cultures of the First Nations, and therefore, they had no aboriginal right to regulate gambling. The defendants were properly convicted of breaching the gaming provisions of the Criminal Code.
NOTE:
- The Charlottown Accord, if it was ratified, would have protected and regulated the aboriginal right of self-government under s.35.1.
Delgamuuk v British Columbia [1997]
o LAMER àlaid down rules of evidence and substance to govern the new trial. Provided reasons as the nature of aboriginal title. There are 5 differences between aboriginal title and non-aboriginal title:
1. Source of A.T derives from pre-sovereignty occupation (rather than post-sov grant from Crown)
2. A.T confers exclusive right to land and occupation of land
3. A.T in inalienable, except to the Crown. This means that the Crown must act as an intermediary between aboriginal owners and third parties (aboriginal owners must first surrender their land to Crown who then is under fiduciary duty to deal with land in best interest of aboriginal)
4. A.T can only be held communally by aboriginals as members of aboriginal nation
5. A.t is constitutionally protected (s.35) and s.35 must satisfy the Sparrow test of justification
(e) Extinguishment of Aboriginal Rights
o Aboriginal rights, including title, can be distinguished in 2 ways:
1) By surrender: voluntarily surrender their aboriginal rights to the crown
2) By constitutional amendment: it would be in breach of the Crown’s fiduciary duty to aboriginal people to proceed with an amendment affecting aboriginal people and rights without their active participation)
TREATY RIGHTS
(a) Introduction
(b) History
(c) Definition of treaty
o It is an agreement between the Crown and an aboriginal nation with the following characteristics:
(1) Parties
(2) Agency
(3) Intention to create legal relations
(4) Consideration
(5) Formality
Simon v The Queen (1985)
o Issue: whether the legal recognition should be given to a “peace and friendship” treaty signed in 1752 by the governor of Nova Scotia and the Chief of the Micmac Indians. The document purported to guarantee to the Indians “free liberty of hunting and fishing as usual” in the treaty area. Thus, does the “treaty” fall within the meaning f s.88 of Indian Act?
o SCC Held: this was a valid treaty, which, by virtue of s.88 of the Indian Act, exempted the Micmac defendant from the game laws of Nova Scotia.
o A treaty MUST have an intention to creatE obligations that are mutually binding. Therefore, the surrender of aboriginal rights is NOT a requirement of a valid treaty. THERE MUST BE CONSIDERATION MOVING FROM INDIAN SIDE AND THE CROWN SHOULD BE HELD TO ITS SIDE OF THE BARGAIN
Nowegijick v The Queen (1983) – It is a well established principle of interpretation that “treaties and statutes relating to Indians should be liberally construed and doubtful expression resolved in favour of the Indians”.
o Because the Indians were not in a position to fully understand the Treaty, unequal bargaining rights between the Crown and the aboriginal people.
(d) Interpretation of Treating Rights
o Between the Crown and the aboriginal nation, they should be liberally construed and doubtful expressions resolved in favour of Indians
o Marshall 1 à Marshall 2 à Marshall 3
Marshall 3 (2005) – Logging was not a traditional Mi’Kmaq activity in 1760. And, while treaty rights are not frozen in time, modern logging activity could not be characterized as the natural evolution of the minor trade in wood products. The defendants had no treaty right to cut down trees for commercial purposes without a licence.
HELD: while modern eel fishing was a logical evolution of trading activity, logging was not a traditional activity for Mi’Kmaq activity. Therefore, NO TREATY RIGHTS to cut down trees for commercial purposes without a licence
SEE Morris
o Progressive interpretation of an Indian treaty:
R v Morris (2006) – SCC held “the use of guns, spotlights and motor vehicles is the current state of the evolution of the Tsartlip’s historic hunting practices”: these modern ways of hunting “do not change the essential character of the practice, namely, night hunting with illumination”. The practice was protected by the treaty, and the two accused were free.
(e) Extinguishment of rights
o Treaty rights and aboriginal rights may be extinguished in two ways:
(1) by voluntary surrender to the Crown, and
(2) by constitutional amendment.
o Evidence of longstanding non-exercise of treaty rights does not cause an extinguishment.