Constitutional Law

Constitutional Law Course Summary..................................................................................7The Colonial Laws Validity Act, 1865........................................................................7Constitution Act of 1867.............................................................................................7The Statute of Westminster, 1931...............................................................................7The Canada Act 1982 (P174)......................................................................................7The Constitution Act, 1982 (P174)..............................................................................7

Terms – Constitutional Law, Conventions, Constitution................................................8Campbell v. A.G.B.C....................................................................................................8Dicey (P1)....................................................................................................................8Bell v. Town of Burlington [1915] 34 O.L.R. 619 (P3)...............................................8Separation of Powers (P4)...........................................................................................8Regina v. Governor of Her Majesty’s Prison Brockhill Ex Parte Evans.....................8Kleinwort Benson v. Lincoln City Council, Mayor of Southwark, Birmingham City Council, Mayor of Kensington and Chelsea................................................................9Earldom of Norfolk Peerage Claim.............................................................................9Bentham, Jeremy.........................................................................................................9A.G. Alberta v. A.G. Canada [1943] A.C. 356 (P35)..................................................9B.C. Power Corp. v. B.C. Electric Co. [1962] 34 D.L.R. (2nd) 196 (P27).................10Amax Potash v. Government of Saskatchewan [1976] 71 D.L.R. (3rd) 1 (P29).........10Singer v. Ministry of Community and Social Services (Handout).............................11F. Hoffman-La Roche v. Secretary of State for Trade and Industry [1974] 2 All E.R. 1128 (P41).................................................................................................................11R. v. Swain [1991] 5 C.R. (4th) 253 (P57)..................................................................12R. v. Brydges [1990] 74 C.R. (3rd) 129 (P60).............................................................12A.G. Quebec v. Blaikie [1979] 101 D.L.R. (3rd) 394 (P353) “Blaikie 1”..................12A.G. Quebec v. Blaikie [1981] 123 D.L.R. (3rd) 15 (P359) “Blaikie 2”....................12Manitoba....................................................................................................................13Patriation....................................................................................................................13Re Manitoba Language Rights [1985] 1 S.C.R. 721 (P371).....................................13Issues related to the de facto doctrine and res judicata.............................................14Bilodeau v. A.G. Manitoba [1986] 3 W.W.R. 673 (P389)........................................14

Severance.......................................................................................................................14Textual Severance......................................................................................................14Substantial Severance................................................................................................15Severance Clause.......................................................................................................15Pith and Substance.....................................................................................................15Notre Dame de Bonsecours.......................................................................................15A.G.B.C. v. A.G. Canada [1937] A.C. 377 (P89).....................................................15A.G. Alberta v. A.G. Canada [1947] A.C. 503 (P62)................................................15Madden v. Nelson and Fort Sheppard Ry. Co...........................................................16A.G. Saskatchewan v. A.G. Canada [1949] A.C. 110 (P68).....................................16Dunkley v. Evans [1981] 3 All E.R. 285 (P74)..........................................................17Daymond v. South West Water Authority [1976] 1 All E.R. 39 (P74)......................17D.P.P. v. Hutchinson [1990] 2 All E.R. 836 (P72)....................................................17

Constitutional Exemption from Legislation..................................................................17Canadian Charter of Rights and Freedoms, s.1 – “Reasonable Limits”....................17

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Constitutional Law

Canadian Charter of Rights and Freedoms, s.12 – “Cruel & Unusual”....................17Canadian Charter of Rights and Freedoms, s.24(1) – “Inoperative”.........................18Constitution Act, 1982, s.52(1) – “Supremacy of Consitution”................................18R. v. Chief [1989] 74 C.R. (3rd) (P78) – Charter s.24(1)............................................18Schacter v. The Queen [1992] 93 D.L.R. (4th) 1 (P92) – CA 1982 s.52(1)...............18McKay v. The Queen [1965] S.C.R. 798 (P82) – Ultra Vires....................................19NY Wine Statute Found Unconstitutional (Handout)...............................................19Ladore v. Bennett [1939] A.C. 468 (P120)................................................................19Board of Trustees of Lethbridge v. Independent Order of Foresters [1940] A.C. 513 (P125)........................................................................................................................19Bill of Rights – Assented to on August 10, 1960......................................................20A.G. Ontario v. Barfried Enterprises [1963] 5 C.R. 570 (P115)...............................20Carnation Company v. Quebec Agricultural Marketing Board [1968] S.C.R. 238 (P109)........................................................................................................................20

Self-imposed restraints on legislative power.................................................................20Condition Precedent...................................................................................................21Condition Subsequent................................................................................................21In Re The Initiative and Referendum Act [1919] A.C. 935 (P193)............................21McCawley v. The King [1920] A.C. 691 (P183)........................................................21A.G. N.S.W. v. Trethowan [1932] A.C. 526 (P228)...................................................22Ellen Street Estates v. Minister of Health [1934] 1 K.B. 590 (P179)........................23The Commission of Marcel Faribault [1967] (P181, 182)........................................23Re Ontario Public Service Employees Union v. A.G. Ontario [1987] 41 D.L.R. (4th) 1 (Handout)................................................................................................................23Re Eurig Estate [1998] 2 R.C.S. 565 (Handout).......................................................24Amendment Considerations.......................................................................................24

Constitutional issues......................................................................................................24Division of Powers........................................................................................................24

Characterization: Steps of Interpretation (P215).......................................................25Morgentaler “Province does not have criminal jurisdiction”....................................25Division of Powers Doctrines....................................................................................25GM v. City National Leasing [1989] 1 SCR 641 (P225)..........................................26Multiple Access v. McCutcheon [1982] 2 SCR 161 (P232) “Double aspect”...........26McKay v. The Queen [1965] S.C.R. 798 (P82) – Ultra Vires....................................27Sante Securite du Travail v. Bell [1988] 1 SCR 749 (P246) “Inter-jurisdictional immunity, reading down”..........................................................................................27Irwin Toy....................................................................................................................27Inter-jurisdictional Immunity.....................................................................................27Classical Model of Divison of Powers......................................................................28Modern Model of Division of Powers.......................................................................28Paramountcy..............................................................................................................28Ross v. Registrar of Motor Vehicles..........................................................................28Incompatibility of Policy\Purpose.............................................................................28Bank of Montreal v. Hall (1990) 1 SCR 121 (P264).................................................29Why should federal laws prevail?..............................................................................29

Peace, Order, Good Gov't..............................................................................................29

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Constitutional Law

Concerns....................................................................................................................29Reference re Anti-Inflation Act “Inflation not a national concern”...........................29National Concerns Dimensions “Inflation not national concern”.............................31Functions of Judicial Review.....................................................................................31Philip Bobbett's Judiciary Functions.........................................................................31R. v. Crown Zellerbach Canada [1988] 1 S.C.R. 401 (P303) “Small aggregates can be single matters of national concern”.......................................................................31Le Dain J. on POGG and National Concern doctrine................................................31Brun and Tremblay (P315) “Crown Zellerbach sucks”............................................32La Forest J..................................................................................................................32

Environmental Regulation.............................................................................................32Friends of the Oldman River Society v. Canada (M. of Transport)..........................32R. v. Hydro-Québec “Federal Criminal Law Power”................................................32Ontario Hydro v. Ontario (Labor Relations Board) “Nuclear labor”.......................32

Delegation......................................................................................................................32Nova Scotia Delegation Case.....................................................................................33Delegated/subordinate legislation..............................................................................33Limitations on delegation..........................................................................................33

Economic Regulation.....................................................................................................33Objectives..................................................................................................................33Parsons “Property and civil rights reg. most local commerce”.................................33Economic reg.............................................................................................................34Home Oil...................................................................................................................34Shannon (1938)..........................................................................................................34Carnation Company v. Quebec Agricultural Marketing Board [1968] S.C.R. 238 (P109)........................................................................................................................34Manitoba Egg (1971).................................................................................................34Paul Weiler: Carnation and Manitoba Egg are the same. (P338)..............................34Burns Foods (1975) “Characterization”....................................................................35Re Agricultural Mkting Act (1978) “Good faith inter-delegation”...........................35Monahan, Patrick.......................................................................................................35

Federal Economic Regulation........................................................................................35Leading case is Citizens’ Insurance Co. v. Parsons (1881).....................................3591.2 Trade and Commerce.........................................................................................35Prof. Swinton.............................................................................................................36Labatt.........................................................................................................................36Canadian Nat'l Transport..........................................................................................36GM v. City National Leasing “National Economic Union”......................................36

Natural Resources..........................................................................................................37CIGOL v. Gov't of Saskatchewan [1978]..................................................................37Central Canada Potash v. Sask. [1979] “International price fixing bad”..................38Criminal Law.............................................................................................................38Federal.......................................................................................................................38Provincial...................................................................................................................38Board of Commerce...................................................................................................38P.A.T.A.......................................................................................................................38

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Constitutional Law

Margarine..................................................................................................................39Recent expansions under 91.27.................................................................................39MacDonald v. Canada “Health is a criminal law purpose”......................................39Arguments against validity of MacDonald................................................................39Arguments for validity of MacDonald (Majority).....................................................39R. v. Hydro-Québec (P400).......................................................................................39Firearms Act..............................................................................................................40Arguing a criminal law legislation............................................................................40Provincial reach to criminal law................................................................................40Nova Scotia Board of Censors v. McNeil (P416)......................................................41Dupont.......................................................................................................................41Westendorp v. The Queen (P421)..............................................................................41Power to enforce comes from power to legislate.......................................................41Federalism and Spending Power...............................................................................41Measures taken under spending power......................................................................41Conditions for health funding....................................................................................42Arguments against conditions....................................................................................42Pro conditions............................................................................................................421937 Unemployment insurance reference.................................................................42

Quebec Sovereignty.......................................................................................................42Quebec Secession Reference......................................................................................42Four Constitutional Principles...................................................................................43John Major (Globe and Mail)....................................................................................43The court rejected two extreme positions..................................................................43Young........................................................................................................................43Reactions....................................................................................................................44What should be the majority vote in order to negotiate?...........................................44Who else should be at the table?................................................................................44Other constitutional principles...................................................................................44

Application of Charter...................................................................................................44Offered measures of protection.................................................................................44BNA 1867..................................................................................................................44Rights and liberties were not MATTERS for which there were jurisdictional claims...................................................................................................................................45Minority Rights..........................................................................................................45All provinces have enacted human rights codes as of Ontario 1952, after WW2.....45Canadian Bill of Rights.............................................................................................45Canadian Charter of Rights and Freedoms Influenced by.........................................46Concern about legitimacy of judicial review. (Weimer?)........................................46Veterans Affairs Act “Pension Administration”........................................................461. Is right/freedom infringed?....................................................................................462. Is infringement justified?.......................................................................................47Nova Scotia Case (P752)...........................................................................................47Oakes Test (Leading case on s.1)..............................................................................47Hogg..........................................................................................................................48Ronald Dworkin.........................................................................................................48

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Constitutional Law

Dickson (P757): Factors to consider..........................................................................48Edmonton Journal Case.............................................................................................48

Charter Issues.................................................................................................................48PRO Entrenchment of Charter...................................................................................48CON Entrenchment of Charter..................................................................................48Gold...........................................................................................................................49Weinrib......................................................................................................................49Monahan....................................................................................................................49Hogg..........................................................................................................................49

S.33 Override.................................................................................................................50Ford v. Québec (AG).................................................................................................50Weinrib, Lorraine......................................................................................................50Morton.......................................................................................................................50Hogg..........................................................................................................................50

Framework of Charter....................................................................................................50Local 580 v. Dolphin Delivery (1986) (early case) “Expression”.............................50Courts struggling to understand the purpose of the charter.......................................51Pepsi Cola..................................................................................................................51Gov’t vs. Private Activity..........................................................................................51Guelph (P787) “Not subject to Charter: Independent, no coercion”.........................51Community College “Subject to Charter: Gov’t approval req”.................................52Hospital “Not subject to Charter: Day to day ops. run privately”.............................52Slaight “Private actor subject to Charter: Power of compulsion”.............................52Eldridge “Charter applies to Medicare services?”.....................................................52In the case of non-governmental actors.....................................................................52

When does the gov't's failure to act attract the charter?.................................................52Vriend : Alberta Human Rights law..........................................................................52Positive Obligations...................................................................................................53Who is protected by the charter, aside from human beings?.....................................53Sources of remedies and standing..............................................................................53

Freedom of Religion......................................................................................................53Fundamental freedoms...............................................................................................54Division of powers.....................................................................................................54Big M Drug Mart.......................................................................................................54Prof. Moon.................................................................................................................54R. v. Edwards Books and Art (1986) “Retail Business Holiday Act”.......................54Applying S.1: Day of rest..........................................................................................55Opening municipal council meeting with prayer?.....................................................56Sudbury......................................................................................................................56

Freedom of Expression: Commercial Speech (Advertising).........................................56Irwin Toy....................................................................................................................56Tobacco Act...............................................................................................................56Why is advertising included in freedom of expression?............................................56Included in Freedom of Expression...........................................................................57Test for constitutionality............................................................................................57

Freedom of Expression: Hate Speech............................................................................57

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Constitutional Law

R. v. Keegstra (1990).................................................................................................57Options.......................................................................................................................57

Equality Rights..............................................................................................................57Out with narrow Bill of Rights interpretation (P1141)..............................................57Andrews.....................................................................................................................58Law “Survivor’s pension distinction not an equality issue”......................................58Miron v. Trudel..........................................................................................................59Walsh “Marital status distinction not a violation of dignity”....................................59Goselin “Different welfare payments not a violation of dignity”..............................59M v. H “Gay spouse distinction is a violation of dignity”.........................................59

Taxation Power..............................................................................................................59Direct vs. Indirect......................................................................................................59

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Constitutional Law

Constitutional Law Course SummaryThe Colonial Laws Validity Act, 1865

S.5: Legislature of a colony has full power to make constitutional law, as long as it conforms to appropriate Manner and Form. Scott says this is declaratory of the common law.

This was the basis for deciding McCawley v. The King. The Governor had the right to appoint McCawley to the Supreme Court, even though the term was not certain.

Constitution Act of 1867 In 1949, s.91(1) was added, establishes powers of parliament over constitutional

changes, subject to certain limitations. (It later became s.44 in the Constitution Act, 1982) This section acts as a check on the broad powers provided by s.5 of the Colonial Laws Validity Act, 1865.

The Statute of Westminster, 1931 S.2(1): The Colonial Laws Validity Act, 1865, shall not apply to any law made after the

commencement of this Act by the Parliament of a Dominion. (Does this repeal the need for appropriate manner and form asserted by s.5 of that act?)

S.2(2): Parliaments of Dominion are allowed to make acts that are inconsistent with Imperial acts.

S.7(1): Nothing in this Act shall be deemed to apply to the repeal, amendment or alteration of the British North America Acts, 1867 to 1930, or any order, rule or regulation made thereunder. [So acts made under s.91(1) or s.91(2) of B.N.A., 1867 were amendments to the BNA acts?]

The Canada Act 1982 (P174)Received royal assent and came into force on March 29, 1982.

Schedule A is a French version of the Canada Act, equal to the English version. Schedule B is the bilingual Constitution Act, 1982. S.2 terminates the power of the UK Parliament to legislate for Canada.

The Constitution Act, 1982 (P174) Separated into 7 parts.

o Part 1 is the Canadian Charter of Rights and Freedoms. o Part 2 recognizes aboriginal and treaty rights.o Part 3 is a federal and provincial commitment to regional equality.o Part 4 provides for constitutional conference.o Part 5 is the “Procedure for Amending Constitution of Canada”, replacing s.91(1)

and s.92(1) of the British North America Act, 1867 (B.N.A., 1867) with s.44 and s.45.

o Part 6 amended the B.N.A., 1867 (Constitution Act, 1867) by adding a new provincial legislative power under s.92.

o Part 7 includes s.52 (Supremacy and ‘Definition’ of Constitution) Subject to s.58 and s.59, came into force April 17, 1982, when the Queen proclaimed it

so and was announced in the Canada Gazette. The equality guarantees (s.15) did not come into force until April 17, 1985, in accordance

with s.32(2). S.53(1) and Schedule, Item 17 repealed:

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Constitutional Law

o S.4 of the Statute of Westminster , 1931 as it related to Canada. From then on, no act of the UK Parliament passed after April 17, 1982 shall extend to Canada as part of its law, regardless of Canadian request/consent.

o S.7(1) of the Statute of Westminster , 1931 as it related to Canada. (Does this means that s.5 of the Colonial Laws Validity Act is gone? Was s.7 necessary?)

The Constitution Acts are protected from repeal by s.7(3) of the Statute of Westminster, 1931 and by s.52(1) and s.52(3) of the Constitution Act, 1982.

Terms – Constitutional Law, Conventions, Constitution

Campbell v. A.G.B.C.Aboriginal Rights - Is the Nisga'a treaty constitutionally valid?

Constitution Act 1982 s. 35 establishes rights for Aboriginals. Constitution Act 1867 s. 91(24) gives parliament powers over Indians and lands reserved

for Indians.

Issues1. Parliament gives powers to Nisga'a government which prevail over laws of Canada in case of conflict.2. If treaty becomes entrenched in constitution, it cannot be changed except by amending the constitution through part five (sections 38, 47.1) of Constitution Act 1982.3. Constitution Act 1867 s. 91(12) gives parliament powers over all fishing, which conflicts with giving those powers to the Nisga'a.4. It is not in Canada's best interests to have hundreds of self-governing 'mini-states' all independent of federal law.

Dicey (P1) A.V. Dicey provides broad definition of what makes up constitutional law, including pretty

much all laws. Practical use necessitates a narrower view. Dicey makes distinction between laws and conventions. Questions are either of law or

fact. Conventions: Rules of custom or behavior that are not legally enforceable, but still adhered to.

Bell v. Town of Burlington [1915] 34 O.L.R. 619 (P3)Supreme Court of Ontario

Taxation without representation argued unconstitutional. Answer- there is no legal rule for representation.

Separation of Powers (P4) There is no perfect separation of executive, legislative and judicial powers. If judicial

decisions are declaratory of the law, then judges make legislative decisions.

Regina v. Governor of Her Majesty’s Prison Brockhill Ex Parte EvansHouse of Lords

Prisoner disagrees with release date set by Governor of prison, applies for habeas corpus, judicial review. On 15 November the Queen's Bench division orders her immediate release, agreeing that her release should have been 17 September.

Damages Awarded: £5000 for 59 extra days imprisonment. Tort of false imprisonment is one of strict liability. Should the crown be responsible for

the Governor, as parents are for their children, or would that encourage more irresponsible behavior by public servants? Solicitor General stood behind him, even

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Constitutional Law

though the treasury paid damages, because he wants to retain the image that the law has been followed where relevant. After the decision, the law is applied retrospectively, as in Earl of Norfolk, and Governor of the prison is liable, even though he was following procedure.

Kleinwort Benson v. Lincoln City Council, Mayor of Southwark, Birmingham City Council, Mayor of Kensington and ChelseaHouse of Lords

Kleinwort Benson is a bank that engaged in a series of interest rate swaps with the respondents. The appellant argued that money was paid under mistake of law and, though contrary to prevailing law, should be recoverable.

Lord Goff of Chieveley allowed the appeal holding that: o There is a general right to recover money paid under a mistake, whether of fact

or law, subject to defenses available in the law of restitution. The basis is that of unjust enrichment.

o The claim that one honestly believed they were entitled to the money received cannot be used as a defense for keeping the money.

o Fulfilling a contract that turns out to be void does not preclude the other party’s recovery of money paid under mistake of law.

Lord Lloyd of Berwick dismisses the appeals, though he would like to do otherwise.

Earldom of Norfolk Peerage Claim Peerage surrendered in 1302 and re-granted in 1312. In 1906, the law was declared such that peerage could not and could never have been

surrendered. The surrender was bad; the re-grant was bad, 600 years later. More commonly, you can't bring an action after certain time has passed, 6 years in many cases. This redefinition of the law is not done very often, because precedent is a necessary stabilizer of law.

Bentham, JeremyP9 - “When your dog does anything you want to break him of, you wait till he does it, and then beat him for it. This is the way you make laws for your dog: and this is the way the judges make law for you and me.” (Open civil code portrayed to be better than secretive common case law, in his opinion.)

Constitution Act 1867 s. 91.27 Criminal law under federal jurisdiction. 1892 Canadian Criminal Code established, but did not abolish common law crimes. It

was influenced by English Draft Code 1955 Canadian Criminal Code established which abolished common law crimes.

A.G. Alberta v. A.G. Canada [1943] A.C. 356 (P35)Privy Council

Depression, drought in western N.A. Province steps in with the Debt Adjustment Act, 1937 and rules that no one can bring suits or executions against Alberta resident debtors. Those wishing to sue debtors must apply for permits, subject to veto by juries.

Constitution Act s. 92(13) Property and civil rights lie under provincial jurisdiction. Constitution Act s. 91(21) Bankruptcy and insolvency are federally governed. Does the Act relate to property or bankruptcy? Is the province trying to protect people

who can't pay? Of course, and so it is ultra vires and invalid. The “Catch-22”: S.11 of Debt Adjustment Act includes an extension on the statute of

limitations to bring suit (if a creditor can't get a permit), so theoretically creditors can sue when the dust settles. In reality, if the Debt Adjustment Act is deemed to have been invalid, so is s.11 protection, and those who haven't been able to sue are out of luck.

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Constitutional Law

B.C. Power Corp. v. B.C. Electric Co. [1962] 34 D.L.R. (2nd) 196 (P27)Supreme Court of Canada

Parliament creates BC Power, which is holding company for BC Electric. BC decides to expropriate Hydro operations. Shares of BC Electric would belong to Queen in right of BC. All assets of BC Electric go to BC Hydro.

The main issue in this decision is that shares of B.C. Electric would be mixed with those of Hydro during litigation, transformed like ‘an omelet which cannot be unmade'. B.C. Power is asking for an order of receivership to protect assets it does not own, pending determination of the case. A receiver can appoint directors. The Crown contended that such an order cannot be made because it would affect the property and interests of the Crown.

Kerwin C.J.C held that the Crown could not claim immunity based on an interest in property that was established through legislation which may be invalid. To do so would “achieve the same results as if the legislation were valid.”

Abbott J. dissented with the opinion that such an order was outside court jurisdiction.

Amax Potash v. Government of Saskatchewan [1976] 71 D.L.R. (3rd) 1 (P29)Supreme Court of Canada

The appellants, including Amax, produce potash for national and international sale. In 1974, Saskatchewan passed “an Act to Amend The Mineral Taxation Act”, 1973-74

(Sask.), c.65, which gave powers to the Lt. Governor in Council to make orders for the taxation of potash producers (s.25a). Shortly thereafter, the Lt. Governor made Potash Reserve Tax Regulations, 1974, imposing a quarterly tax on potash, based on a percentage of the value of production. The tax could amount to $120,000,000 annually.

If companies didn’t pay tax, they would be subject to fines and seizures, even though the validity of the tax was in litigation as it may have been indirect. Percentage taxes are indirect because they tend to be passed on. If it were a property tax, it would be direct and therefore valid for a province to levy.

Direct Tax : Tax whose natural tendency is to be borne by the person who first pays it. Indirect Tax : Tax intended to be shifted to others. In correspondence with the Minister of Natural Resources of Saskatchewan, Amax

established their intent to pay the tax under protest, and requested an assurance that the money would be returned in the event that the tax was declared ultra vires. Their argument is that money paid under mistake of law is treated as money paid under mistake of fact, which is recoverable. The Minister refused that assurance and threatened unspecified action if the money were not paid.

The appellants had requested that the money be paid pursuant to a court order and not the statute, so that it might be recoverable. This motion was dismissed by Johnson J.

Amax requested that the action be declared ultra vires and that they get back their cash. The province argued that s.5(7) of the Proceedings Against the Crown Act prohibits legal action and retrieval of cash paid, pursuant to s.92(1), (13), (14) and (16) of the British North America Act, 1867. Amax suggested that s.5(7) may be ultra vires.

Dickson J. agreed with the appellants with regard to s.5(7). He stated that the provision would give both parliament and provincial legislatures the right to act in violation of the constitution and then make their actions constitutionally valid, doing indirectly what they could not do directly. "If a state cannot take by unconstitutional means, it cannot retain by unconstitutional means." He referenced B.C. Electric and held the s.5(7) is ultra vires .

Though Amax succeeded in having s.5(7) declared ultra vires, they were denied their motion for an order of interim preservation of property. The money would have to be paid to the province and repayment would be decided when the litigation is completed.

Problem Set related to Amax:

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Constitutional Law

Q: If s.5(7) is cured by removing the parts which bar recovery of taxes, is the section still bad? After all, there needs to be some sort of indemnity for the Crown. If the crown required civil servants to be subject to legal action, no one would work for the government.

A: S.5(7) would need to be valid outside the sphere of taxes as well, otherwise the section could prevent action for all kinds of colorable acts.

Singer v. Ministry of Community and Social Services (Handout)Ontario Divisional Court 184-95

Brian Singer is 26 years old but functions at the level of a 2 year-old, due to a severe mental handicap. He also displays self-injurious behavior typical of autism. In order to combat this behavior and maintain a positive quality of life for their son, Brian’s parents have authorized shock treatment for their son.

A new law would require a patient’s informed consent for such treatment, which Brian cannot provide. To allow the treatment without consent would be contrary to the personal security assurances of s.7 of the Charter.

White J. allowed the treatment, after hearing that it was the only one that Brian has responded to. The legislation was deemed to be invalid in this case because the patient would be worse off without the treatment. Not treated in same way as F Hoffman-La Roche.

F. Hoffman-La Roche v. Secretary of State for Trade and Industry [1974] 2 All E.R. 1128 (P41)House of Lords

The Roche Group manufactures and holds patents for Librium and Valium. They are allowed to calculate their prices to recoup research costs and make a fair profit, but such calculations are sometimes skewed by inflating research costs to justify higher prices. One advantage of inflating research costs is that a company can force the public to build unnecessarily expensive facilities which will be reused for other projects.

The Secretary of State for Trade and Industry initiated an investigation, the Monopolies Commission wrote a report, and it was decided that monopoly prices for the 2 tranquilizers exist contrary to public best interest. The Secretary of State put forth the Regulation of Prices (Tranquillising Drugs)(No 3) Order, 1973, subject to approval of each house of Parliament. The Crown requested an interlocutory injunction to enforce lower prices pending that order.

The Roche Group appealed the injunction on the ground that it was ultra vires. There are competing interests here.

o The state pays for Medicare, and has a vested interest in lowering prices on two particular drugs manufactured by HL.

o If the injunction is granted and the order that forms its basis is declared invalid, the Roche Group will have unfairly lost an estimated £8 million.

o If the injunction is not granted, the current law will be undermined for as long as it takes to grant a decision on the larger issue. The Roche Group, physicians, pharmacists, and even the Crown (for paying Medicare costs) will all have contributed to a breach of law for paying the illegal prices.

Defense:1. Commission (quasi-judicial) acted against natural justice (fair hearing and lack of bias).

audi alteram partem = hear both sides. 1137d - Commission decides who shall be heard, and are obliged to hear those

who are sufficiently interested. Lord Diplock believes HL has a right to a hearing. nemo judex un sau causa = nobody may be the judge in his own cause.

2. Prices were calculated arbitrarily3. State trying to take profits retro.

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Constitutional Law

R. v. Swain [1991] 5 C.R. (4th) 253 (P57)Supreme Court of Canada

Man attacked wife and kids, got committed to Penetanguishene Mental Health Center, improved, and was released for trial. He did not plead insanity, but the crown did so for him and he was held indefinitely at Queen Street Mental Health Center, in accordance with s.542(2) of criminal code, subject to release by Lt. Governor. No hearing, no time limit, no criteria for invoking s.542(2).

Court struck down the provisions of Criminal Code that required psychiatric detention for those who have been acquitted on ground of insanity, as contrary to ss.7 and 9 of the Charter. Because of the possible danger involved in releasing all insanity acquittees, the court granted 6 months of temporary validity to allow preparation of new procedures.

The downside of temporary validity is that it weakens law by promoting bad legislation which will be cleaned up when problems invariably result.

R. v. Brydges [1990] 74 C.R. (3rd) 129 (P60)Supreme Court of Canada

Bridges, accused of murder, asked about free legal aid when interrogated by police. Police talked him out of seeing a lawyer by asking him is he had any reason to do so (i.e. guilt) Brydges made damaging statements that were later used against him in court.

Trial judge found for Brydges, appellate court reversed decision, appellate court reversed reversal.

Lamer J. held that police have a constitutional duty to advise persons under arrest of legal aid, but adds 30 days of temporary validity in order to allow time for the changeover.

A.G. Quebec v. Blaikie [1979] 101 D.L.R. (3rd) 394 (P353) “Blaikie 1”Supreme Court of Canada

Held that Quebec’s Charter of the French Language (Bill 101), 1977 was in conflict with s.133 of the Constitution Act, 1867 because it purported to:

o Introduce bills in the legislature in French only.o Enact statutes in French only.

S.133 says acts must be PASSED and ASSENTED to in both English and French. Quebec has a history of making changes and adding translations to acts after they've been passed. Quebec argued that language falls under their jurisdiction through s.92(1) of the Constitution Act, 1867, but the protection of minority rights prevailed.

The day after this decision, the legislature of Quebec re-enacted in both languages all of the statutes that had only been enacted in French. Quebec was only 2 years in default and already had bilingual texts of the acts. One overnight session was sufficient to fix the problem. (Hogg P1114)

S.133 of the Constitution Act requires:o Simultaneous enactment of delegated legislation and statutes in both English

and French.o Equal authority and status for both the English and French versions.

A.G. Quebec v. Blaikie [1981] 123 D.L.R. (3rd) 15 (P359) “Blaikie 2”Supreme Court of Canada

Held that only regulations made by the courts, the government (Lt. Governor, Executive Council and Ministers, as an extension of the legislature) or subject to government approval were subject to s.133 of the Constitution Act, 1867.

Manitoba How did parliament obtain power to create Manitoba in 1870 with the Manitoba Act?

They didn't have the power until Constitution Act 1871. See s. 4, regulating powers over

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land that is part of Canada but not a province. S. 5 declares retroactively valid the Manitoba Act. s. 23 Manitoba Act. C.A 133.

Patriation Once patriation takes place, Imperial law can no longer simply declare Colonial laws (i.e.

Manitoba laws) to be valid. S.43 allows amendment of the constitution by proclamation of the Governor General and

approval of two federal houses and the assembly of the province in question (of course the assembly of Manitoba is in this case invalid).

An amendment was worked out such that future legislation would be bilingual but the previous legislation would be valid retroactively (temporary validity) without having to be translated. Circularly, this made the provincial assembly valid, which allows for use of section 43(45?).

Case had to be heard by the Supreme Court directly from the Provincial Magistrate, because the Court of Appeal did not exist prior to 1908. Case had to be argued without using any unilingual acts.

Re Manitoba Language Rights [1985] 1 S.C.R. 721 (P371)Supreme Court of Canada

Constitution Act, 1867 s.133: Acts of the legislature shall be printed and published in both English and French.

Manitoba Act, 1870 s.23: Almost same wording as the Constitution Act, 1867 s.133. Entrenches s.133, creating manner and form requirements for future legislation.

Manitoba enacted the Official Language Act, 1890: Notwithstanding any statutes or laws, Manitoba is going to use only English in their Acts and records.

An Act Respecting the Operation of s.23 of the Manitoba Act in Regard to Statutes, 1980 (ARO23MA) s.4(1): Legislation introduced in one Official language would be translated into the other language after enactment and the translation would have the same force and effect.

Questions put to the court: Are the requirements of s.23 and s.133 mandatory? (A: Yes) Are statutes and regulations not printed and published bilingually invalid because of

s.23? (A: Yes, but they are temporarily valid until translated.) If invalid, do they have any force or effect? (A: Yes, because of temp. validity) Are any provisions of ARO23MA inconsistent with s.23, and of no force or effect? (A: If

ARO23MA was not printed and published bilingually, it is completely invalid and of no force or effect. Either way, ss.1-5 are invalid and of no force or effect because they are at odds with s.23 in purporting to authorize:

o Unilingual enactment, with translation later.o Enactment of a translation by certification and deposit with a clerk of the house,

giving force of law without royal assent by Lt. Governor.o Resolution of ambiguities by reference to text in one language, while texts are

supposed to be equally authoritative. Even though Manitoba laws were deemed to be of no force and effect, they were saved

by the de facto doctrine and rule of law, and given temporary validity. The de facto doctrine gives effect to expectations of those who relied upon invalid laws. Rule of law allows for measures, such as temporary validity, to be taken in order to avoid legal chaos.

Issues related to the de facto doctrine and res judicata The doctrine implies that if someone took control over all or part of the legislative process

(happened in Spanish parliament), then their laws might be relied upon and the consequences protected by the de facto doctrine.

Fraud may be grounds to set aside contracts, but if acts were to be treated as void all the time then there would be little stability. The rules in this respect must be applied narrowly

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to acts. What happens if a bunch of students take parliament and start enacting laws? Courts may have to apply them. (Vice de Consentement?)

Divorces, name changes used to have to be done through private legislative acts. In DuBoulay v. DuBouley on the French island of St. Lucia, a convict took on the last name of a prominent family and got to keep it.

Bilodeau v. A.G. Manitoba [1986] 3 W.W.R. 673 (P389)Supreme Court of Canada

Appellant was charged with speeding contrary to the Highway Traffic Act, C.C.S.M., c.1160, received a summons to appear in court pursuant to Summary Convictions Act, C.C.S.M., c.S230. Appellant argued that both acts were ultra vires the legislature of Manitoba because they were not bilingually printed and published as required by s.23 of the Manitoba Act, 1870.

Dickson C.J.C delivered the judgment that:o The Summary Convictions Act is invalid because it contravenes s.23 of the

Manitoba Act by being printed and published only in English. The summons issued under the act is not subject to challenge, however, because of the de facto doctrine (gives effect to expectations of those who relied upon invalid laws.)

o The summons itself is also not subject to challenge for being printed in English only, because this is not required by s.23.

o The Highway Traffic Act is invalid because it contravenes s.23 of the Manitoba Act by being printed and published only in English. This act is not saved by the de facto doctrine; the doctrine does not preserve a conviction under an invalid statute when the validity of the statute was raised in defense. The conviction is instead saved by the rule of law principle, which provides temporary validity to laws not been saved by the de facto doctrine, res judicata, or mistake of law in order to avoid madness of colossal proportions.

Wilson J. agreed with the others, but felt that the unilingual summons violated s.23. The court recognized that the appellant successfully challenged the two statutes and was

only convicted in order to avoid legal chaos. His costs were awarded. The de facto doctrine and rule of law principle were referenced from Re Man. Language

Rights [1985] 1 S.C.R. 721.

Severance If a part of legislation or contract is invalid then the whole thing might be bad. Criminals

could then claim that all laws are invalid because some unrelated section of the code (license renewal) happens to be invalid. The concept of severance is that the bad sections of a piece of legislation are removed from the good parts, which can ideally stand on their own legal footing.

Textual Severance Used to preserve the rest of an act, when one part is invalid. Courts may modify text but

must preserve the intention of the original text.

Substantial Severance Used where textual severance may be impossible. An application of the law is severed.

Does the law stand in relation to all other applications?

Severance Clause Placed into statutes to indicate an intention that each section stand independently, in a

case of severance. In theory, it reverses the presumption against severance.

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Pith and Substance A statute and all its parts collaborate to support one intention. In cases where severance

of one portion is contemplated, it is most often found that the remaining portion would not by itself further the pith and substance of the whole statute and the whole statute must fall as invalid.

According to Hogg (P375), the Privy Council and the Supreme Court of Canada rarely consider severance to be appropriate (except in Charter infringement cases), largely because of this pith and substance consideration.

Notre Dame de Bonsecours 91.29 gives to federal jurisdiction covering anything not in the provincial enumeration.

Specific provisions overrule more general ones. Notre Dame de Bonsecours municipal law ordering that ditches be cleaned does apply to federal railways?

In cases where the railway (federal) clashes with municipal/provincial laws, the railway tends to win. Railway declared to be for the advantage of Canada.

A.G.B.C. v. A.G. Canada [1937] A.C. 377 (P89)Privy Council, on appeal from the Supreme Court of Canada

The Natural Products Marketing Act, 1934 (NPMA), as amended by the Natural Products Marketing Act Amendment Act, 1935, created a Dominion Marketing Board, which has the power to regulate all aspects of natural products trade. That these powers extend for no reason in areas of trade that solely concern commerce within the province, is ultra vires the Dominion Parliament.

Lord Atkin delivered the judgment that the powers of the board were far ultra vires the jurisdiction allowed by s.91(2) of the Constitution Act, 1867. The power to control internally marketed goods interfered with the powers of the province to do so, under the category s.92(13). If local goods are controlled, they may be at a competitive disadvantage to foreign products. The NPMA screws local farmers.

S.26 of the act directs that in the event that a section is found ultra vires or inoperative, that section should be severed and the rest of the act should stand independently. Notwithstanding a severance clause which indicated the intention that each section stand independently, the Privy Council held that the texture of the act is inextricably interwoven; that the only intra vires sections are s.9 and part 2, both of which are ancillary to the others and can not stand on their own.

A.G. Alberta v. A.G. Canada [1947] A.C. 503 (P62)Privy Council, on appeal from the Supreme Court of Alberta

This was a leading case on severance in Canada. Certain radical statutes are born out of the depression and drought, notably the Alberta

Bill of Rights Act. The preamble of the act discusses rights of Alberta citizenship, such as employment,

pension, education and medical care. It positions these rights as the product of two world wars, and charges Alberta with the duty of ensuring these rights are made available to Alberta citizens and the duty of those citizens to enjoy them (the substance of Part 1.) To this end, it mandates Alberta to use the resources at its disposal, including control over the creation of credit as outlined in Part 2.

Banks lend the same money over and over, such that $1000 in deposits can be created out of an initial $100 deposit @ a 10% reserve rate. If there were a run on the bank, the central bank would have to step in. Part 2 requires that credit institutions of Alberta carry Alberta Credit Certificates to maintain a 100% reserve on deposits, in essence managing their credit expansion. Are they trying to create enough money to equal total transactions, forgetting that money is reused and should not be multi-counted? Part 2

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also authorizes a provincial Board of Credit Commissioners to enforce its rules with fines, license suspension and imprisonment.

The Supreme Court of Alberta found Part 2 of the act to be ultra vires the legislature of Alberta because it was in pith and substance related to banking, which is federally regulated under s.91(15) of the Constitution Act, 1982. The A.G. for Alberta claimed that the section was not related to banking, but property and civil rights in the province, which falls under provincial jurisdiction in s.92(13). Part 1 was found to be intra vires, valid and severable from the rest of the act.

In this appeal, the A.G. for Alberta wants Part 2 declared intra vires and in a cross appeal the A.G. for Canada wants Part 1 declared inseverable, so that the entire act falls. Are the civil rights sections severable (able to stand on their own and be valid) if the other parts are declared invalid?

Privy Council says Part 1 is inseverable and useless. The whole act falls. Scott says the first part was put in the act as 'Bill of Rights' decoration, but that alone

does not necessarily make them useless. He thinks s.3-8 may be valid. Where the effects of invalidity are expected to be considerable, there is a certificate of

validity in play.

Madden v. Nelson and Fort Sheppard Ry. Co. Case held that CP rail does not have to put up fences along its route to prevent hitting

cattle. Province does not have jurisdiction. Lord Halsbury - You can't do indirectly what you can't do directly. BUT you may be able

to do it under another power.

A.G. Saskatchewan v. A.G. Canada [1949] A.C. 110 (P68)Privy Council, on appeal from the Supreme Court of Canada

Re Farm Security Act of Saskatchewan In the case of a crop failure, s.6 of the Saskatchewan Farm Security Act, 1944 declares:

1) Purchaser does not have to make principal payments during the period of suspension.

2) Such payments are automatically postponed for one year.3) The principle will shrink to the extent that interest is charged, effectively nullifying

interest charges. This legislation is favorable to debtors (farmers with votes), with risk and responsibility

falling on creditors. Viscount Simon delivers the judgment. While property transfer falls under provincial

control, interest does not. Paragraph 3 of s.6(2) is ultra vires the provincial legislature and very colorable, in that it clearly seeks to circumvent interest payments, which fall under federal powers through s.91(19) of the Constitution Act, 1867. All three paragraphs are inextricably intertwined and s.6(2) should collapse in its entirety. The pith and substance of s.6 reveals that it is largely concerned with interest. The appeal is dismissed.

Should the whole farm security act collapse, according to the severability test? What about the sections that let people to live on their land after it has been repossessed? Scott thinks the rest of the provisions are valid and stand independently of the severed portions.

Dunkley v. Evans [1981] 3 All E.R. 285 (P74) The West Coast Herring Order, 1978 prohibited fishing for herring in certain areas,

including a very small portion of water (0.8% of the total area) that was not within the power of the Minister of Agriculture, Fisheries and Food to prohibit under the Sea Fish Act, 1967. The appellant was convicted of fishing in an area to which the jurisdiction did extend, but argued that the Minister’s order was ultra vires in entirety, because textual severance was not possible.

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Ormrod L.J. held that the order would stand, because it passed the test of substantial severance. The fact that the text doesn’t lend itself to surgical textual severance does not mean that it should fail.

Daymond v. South West Water Authority [1976] 1 All E.R. 39 (P74) S.30(1) of the Water Act 1973 gave power to water authorities to collect fees. When it

came time to collect a general services charge for sewerage services, there was protest on the part of a man whose property was not connected to a sewer. The law clearly did not apply to him, although it did not say so.

The House of Lords held, 3 to 2, that there was no authority to charge those who are not connected to sewers. Though there was no discussion of severability, the text satisfied the test of substantial severability, should the invalid portions be removed.

D.P.P. v. Hutchinson [1990] 2 All E.R. 836 (P72)Privy Council

Jean Emily Hutchinson and Georgina Smith entered a military airbase that was set up on Greenham Common land under the authority of the Military Lands Act 1892, which allowed the Secretary of State and Defense to make byelaws appropriating and regulating land for military purposes. The byelaws were valid unless they interfered with rights of common. In this case, there are 61 parties that had rights of common to the Greenham lands and were being kept out for security reasons. The appellants did not have rights of common, but appeal on basis that the byelaws were invalid nonetheless.

Collateral challenge to the validity of an instrument. Is the byelaw severable? There was unanimous agreement that the appeal should be

allowed on the grounds that the offending portions of the byelaw cannot be severed textually or substantially. If they were to allow access to anyone having rights of common, the security of the airbase would disappear and the byelaw would substantially change. The whole byelaw is invalid, and cannot be enforced against trespassers.

Appeal allowed.

Constitutional Exemption from Legislation

Canadian Charter of Rights and Freedoms, s.1 – “Reasonable Limits” Rights and freedoms are subject to reasonable limits prescribed by law, justified

in free and democratic society.

Canadian Charter of Rights and Freedoms, s.12 – “Cruel & Unusual” Right to not be subject to cruel and unusual treatment or punishment.

Canadian Charter of Rights and Freedoms, s.24(1) – “Inoperative” “an individual remedy for actions taken under a valid law which violate an

individual’s Charter rights”

Constitution Act, 1982, s.52(1) – “Supremacy of Consitution” “striking down of any law that is inconsistent with the provisions of the

Constitution, but only ‘to the extent of the inconsistency.’”

R. v. Chief [1989] 74 C.R. (3rd) (P78) – Charter s.24(1)Yukon Territory Court of Appeal

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Trapper sentenced to 21 days imprisonment after domestic dispute. The Criminal Code s.100 required that the defendant be prohibited from possessing firearms for 5 years, however since the defendant depended on hunting for his livelihood and family sustenance, the code contradicts s.12 of the Canadian Charter of Rights and Freedoms. The trial judge “read down” the code and, instead of imposing a five year prohibition on possession of firearms, he restricted the defendant from possessing them on his residential property. The crown appealed.

McEachern C.J.Y.T. dismissed the appeal, agreeing that s. 100 is cruel and unusual and does not treat all defendants equally, though it does apply fairly in most cases (it’s not contrary to s.1 of Charter) and should not be struck down. He also says that the remedy must conform to s. 24(1), and the trial judge was inappropriate in “reading down” the offensive s.100. Esson J.A. concurs. They say s.100 should be declared inoperative for the defendant and the probation order should be amended to include a reduced prohibition on firearms.

Section was too broad, applied to too many cases. The law can continue to apply to the majority of people.

Schacter v. The Queen [1992] 93 D.L.R. (4th) 1 (P92) – CA 1982 s.52(1)Supreme Court of Canada

Contrary to the principles of Charter s.15 (equality rights), Schacter did not get paternity benefits when his wife gave birth, even though s. 30 of Unemployment Insurance Act 1971 provides 15 weeks for maternity benefits and s. 32 provides 15 weeks for Adoptive parents. The law was discriminating between natural and adoptive parents.

Trial judge used s.24.1 of Charter to grant declaratory relief and gave natural parents the same benefits as adoptive parents got. Remedy was appealed to Supreme Court.

Lamer C.J.C., Sopinka, Gonthier, Cory and McLachlin JJ. hold that:o s.52 of the Constitution Act, 1982 requires that the offending section of the

Unemployment Insurance Act (s.32, because it was so narrow) eventually be struck down, and have no force or effect, and that such action be suspended until the legislature has a chance to fill the resulting void.

In this case, the legislation had been changed during the proceedings of this case, so there is no need to invalidate s.32. New proposal reduces adoptive benefits to 10 weeks and expands it to include natural fathers. Benefits for adoptive fathers only apply if you are living in the province where the adoption took place.

Striking down the benefit would not help anyone, but hurt others. “Reading in” the deprived group is not feasible because that may not

have been the intent of the legislation, because that would interfere with budgetary decisions, because the excluded group vastly outnumbers the included group such that the nature of the scheme would be changed.

o s.24.1 of the Charter does not give court power to make such wide remedies and should only be used for individual exemptions.

Whether striking down, reading down, or reading in, the courts must choose the least intrusive solution.

McKay v. The Queen [1965] S.C.R. 798 (P82) – Ultra ViresSupreme Court of Canada

Zoning bylaws permit certain signs on premises, but do not list federal election signs. Moses and Sarah McKay were convicted of putting up such signs on their property.

5 to 4 division. Taschereau C.J. and Cartwright, Abbott, Judson and Spence JJ. read down by severing the appropriate section. Under s.92 of the B.N.A. act, provinces were not given jurisdiction over federal election proceedings, and were not empowered to make laws concerning that subject, so the meaning of the municipal law could not have

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intended to prohibit federal election signs. Such intention would not fall under permissible incidental effects, but impermissible intrusion.

Fauteux, Martland, Ritchie and Hall JJ. dissented, arguing that s.91 of the B.N.A. act does not address this issue through federal powers, and that the pith and substance of the zoning law is in relation to property and civil rights in the province, which is under provincial power in s.92(13).

Note: Hogg agrees with the dissent1, as does Dickson C.J.C2, emphasizing pith and substance doctrine.

NY Wine Statute Found Unconstitutional (Handout) Out of state wines cannot be shipped directly to the consumer, but must be purchased

through wholesalers. NY state produced wine can be shipped within the state to final consumer. This protectionist measure is ultra vires the state.

Solution: Sever the part about NY? Sever everything? Scott says refusing the exception transforms the law too much (NY being much worse off), and that the whole thing should fall.

Ladore v. Bennett [1939] A.C. 468 (P120)Privy Council, on appeal from the Court of Appeal for Ontario

The municipalities of Windsor, East Windsor, Sandwich and Walkerville were on the verge of insolvency, and so they were all merged into The Corporation of the City of Windsor. The Amalgamation Acts, Municipal Board Act, 1932 and the Municipal Affairs Act, 1935 all contributed to consolidating and managing the debts of the new municipality, including postponement of payment and variations in terms, including interest.

Lord Atkin says that the acts are, in pith and substance, of relation to Ontario municipal institutions and justified under s.92(8). If these acts interfere with bankruptcy and insolvency provisions (s.91(21)) or interest (s.91(19)), then that should be considered an incidental effect. Appeal dismissed.

Board of Trustees of Lethbridge v. Independent Order of Foresters [1940] A.C. 513 (P125)Privy Council, on appeal from the Supreme Court of Alberta

Government cuts interest on bonds, so the provinces cut interest on provincially guaranteed bonds in an effort to save money, using the following acts:

o S.3 of the Provincially Guaranteed Securities Proceedings Act, c.11 of 1937 (Prohibits action for the recovery of money payable under guaranteed securities.)

o S.3 of the Provincial Guaranteed Securities Interest Act, c.12 of 1937 (Reduces rate of interest on securities guaranteed by Alberta.)

o The Provincial Securities Interest Act, c.13 of 1937 (Reduces rate of interest on securities issued by province.)

Viscount Caldecote L.C. delivered the judgment. The Privy Council was not convinced by the arguments brought forth by the appellant (Lethbridge.) The pith and substance of these acts is clearly interest, which falls under s.91(19) of the Constitution Act, 1867. There can be no question that the Interest Act of 1927 already deals with this subject.

Here, the province has altered liability on bonds and then prevents recoverable action with c.11. That provision was struck down as being colorable. If it were allowed, the province could recover interest through the courts that could not be contested, doing indirectly what they could not do directly.

1 Peter Hogg, Constitutional Law of Canada, Carswell, 2002, p385-386.2 O.P.S.E.U v. A.G. Ont. [1987] 41 D.L.R. (4th) 15

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This case is distinguished from Ledore v. Bennett, where intrusion into the federal sphere was deemed incidental. (See Amex, BC Electric for similar examples of recovery denied.)

Bill of Rights – Assented to on August 10, 1960 S.2: “Every law of Canada shall, unless it is expressly declared by an Act of the

Parliament of Canada that it shall operate notwithstanding the Canadian Bill of Rights…” is subject to it. Laws must expressly mention the bill in order to be inconsistent with it.

Manner and form issue. Law which dictates how other laws are to be made.

A.G. Ontario v. Barfried Enterprises [1963] 5 C.R. 570 (P115)Supreme Court of Canada

The Unconscionable Transactions Relief Act gives provincial judges power to reform loans with harsh and unconscionable costs, including interest costs.

Taschereau C.J. and Cartwright, Fauteux, Judson, and Hall JJ. held that the act is in pith and substance of relation to provincial matters (s.92(13)), and should it interfere incidentally with s.2 of the Interest Act, R.S.C. 1952, c.156 (federal under s.91(19)), then that would be permissible. The Relief Act is intra vires the province of Ontario.

Martland and Ritchie JJ. dissented, arguing that the interference was not just incidental, but in direct conflict and that legislation of Parliament must prevail.

Carnation Company v. Quebec Agricultural Marketing Board [1968] S.C.R. 238 (P109)Supreme Court of Canada, on appeal from the Queen’s Bench, QC

The Quebec Agricultural Marketing Board (QAMB) was created by the Quebec Agricultural Marketing Act, 1955-56 (Que.), c.37. It authorized a Producers’ Board to negotiate with Carnation on behalf of its farmers a trade price for their milk. When they could not come to an agreement, the QAMB used its authority to determine the price that Carnation would pay.

As Carnation exports much of it’s production outside the province, they claimed that the QAMB was ultra vires in setting the price and interfering with the regulation of trade and commerce, under federal jurisdiction pursuant to s.91(2) of the Constitution Act, 1867.

Carnation’s appeal was dismissed, delivered by Martland J., because the pith and substance of the orders was to regulate only a specific relationship between the producers and Carnation. There is no evidence that they either tried, or succeeded to control trade and commerce outside that sphere. Any intrusion to that effect is incidental.

Self-imposed restraints on legislative powerRestraints as to the substance of future laws:

Condition Precedent must be fulfilled before a contract will become effective. Condition Subsequent is one which dissolves a contract.

In Re The Initiative and Referendum Act [1919] A.C. 935 (P193)Privy Council, on appeal from the Court of Appeal of Manitoba

The Initiative and Referendum Act (6 Geo. 5) c.59, Manitoba, s.7 confers upon electors of that province the power to make law by voting on proposals, subject to veto and disallowance of the Lt. Governor in Council. S.11 of the same act allows the population so repeal laws and acts through the same voting mechanism.

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Lt. Governor argued that this leaves his out of the loop. The first hearing held that the act was intra vires, but the Court of Appeal disagreed. The case was taken straight to the Privy Council without stopping at the Supreme Court of Canada.

Viscount Haldane delivered the judgment, declaring the act ultra vires because:o The Legislature of a province cannot confer its powers upon a body other than

itself.o The power to amend the constitution of the province, s.92(1) of the Constitution

Act, 1867 specifically excepts the office of the Lt. Governor. Historically, the Lt. Governor is as much an independent representative of the Queen as is the Governor General, and is outside the jurisdiction of the province.

o S.7 of the act dispensed with the assent of the Lt. Governor for proposed bills, “renders him powerless to prevent it from becoming an actual law”. The Lt. Governor is “wholly excluded”. Canada does not have the same veto rules that you see in U.S. Royal assent is the issue here, and is not provided for.

The Privy Council found the offending provisions to be “so interwoven into the scheme that they are not severable.”

Note: Legislature can alter the constitution with s.92(1)/s.45 subject to certain constraints:o Only refers to the internal constitution of the province. (see A.G. Quebec v.

Blaikie [1979] 2 S.C.R. 1016)o Must respect the offices of the crown.o Since s.92(1)/s.45 are not amendable by the province, there must always exist a

legislature of some form in the province. (Manitoba CA inferred this case to be an attempt to replace the provincial legislature with direct legislation not understood by s.92(1).)

McCawley v. The King [1920] A.C. 691 (P183)Privy Council, on appeal from the High Court of Australia

Industrial Arbitration Act, 1916 s.6 allows for creation of Court of Industrial Arbitration (CIA) presided over by 3 judges who sit for 7-year terms until reappointment. S.6(5) indicates declares this court to be a branch of the Supreme Court. S.6(6) says Governor in Council can appoint any CIA judge to be a Supreme Court judge (an appointment that lasts during good behavior.)

In 1917, McCawley was appointed CIA judge and then commissioned by the Governor to be a Supreme Court judge. The commission is objected to by Feez and Stumm (relators?), who challenge the quo warranto (right by which someone holds judicial office) behind it on the basis that:

o Industrial Arbitration Act s.6(6) is contrary to Constitution Act of Queensland, 1867 and is therefore ultra vires.

o Governor has no authority to appoint Supreme Court judges for life The majority of the court agreed. The only dissent was from Real J. saying that s.6 is a

legal modification of the provisions of the Constitution Act, even if they are inconsistent. McCawley appealed unsuccessfully to the High Court of Australia, in a 4 to 3 decision.

Lord Birkenhead and the Privy Council decided to allow the appeal, overturning the decisions of the High Court of Australia and the Supreme Court of Queensland on the basis that:

o The Constitution Act of Queensland is not controlled, not is it uncontrolled. IT can be modified by acts respecting the required manner and form.

o The Imperial Act, s.7 provides the Legislature of Queensland “Full power…to make further provision”.

o The Colonial Laws Validity Act, 1865 s.5 provides the Legislature “full power to make Laws respecting the Constitution…passed in such Manner and Form”.

o The Industrial Arbitration Act s.6(6) is not ultra vires and, even if it were, the language of the commission is interpreted to mean that the Supreme Court appointment would end as soon as a CIA judge were to step down from his

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former court (7-year term.) As stated in s.12a of 31 Vict., No. 6 (Queensland) “expressions used in the instrument shall…have the same respective meanings as in the Act conferring the power.”

Construe condition so that it survives rather than perishes. The difference between serving during good behavior and serving for 7 years is reconciled by 'reading down'.

A.G. N.S.W. v. Trethowan [1932] A.C. 526 (P228)Privy Council, on appeal from the High Court of Australia

Constitution Act, 1902 enacted by legislature of N.S.W was amended in 1929 by adding s.7a (“no bill for abolishing the Legislative Council or repealing this section should be presented to Governor for Queen’s assent until it had been voted on by a majority of electors.”) The Legislative Council becomes entrenched, but since it’s conservative and retards change, people want it gone.

In 1930, both houses of the legislature passed bills to repeal s.7a and to abolish the Legislative Council, without the bills having been approved by referendum. Members of the Legislative Council sued John Peden and the AG for trying to sidestep s.7a and won injunctions preventing the bills from being presented for assent. Injunctions preventing law from passing are difficult to get, because if the law eventually gets passed but has been delayed, there is irreparable time lost where the law should have been effective. Validating the need for injunctions sometimes requires symbolic action, such as getting booted off the high court train. The defendants appealed unsuccessfully to the High Court of Australia, before pleading their case to the Privy Council.

Held that the legislature was within its rights to add s.7a to the Constitution Act, 1902, based on s.5 of the Colonial Laws Validity Act, 1865, and that the two bills cannot be presented to the Governor for Royal assent until voted for by the majority.

“colonial legislature shall have…full power…to make laws respecting the constitution, powers and procedure of such legislature…passed in such manner and form...” A referendum as specified in s.7a fits into the meaning of “manner and form” described in the CLVA, 1865. The bills were not lawfully presented.” – s.5 Colonial Laws Validity Act, 1865

There are inherent limits on legislative sovereignty. Ferguson J. of the lower court says (P202) parliament can't bind itself in UK, does not mean it is beyond the power of the king to do so, but you can't pass a law today which can't be repealed by whatever power structure exists tomorrow. (Middle P203 lists crazy changes that might be made.) 7a may be valid, but 7a(6) goes a little far in preventing 7a from being repealed. If the effect is to make the law unrepealable, then it runs contrary to the constitution.

Ellen Street Estates v. Minister of Health [1934] 1 K.B. 590 (P179)Court of Appeal London County Council wants to clear out an area that includes the plaintiff’s house, and

compensate him through compulsory acquisition (expropriation.) Plaintiff objects under the Housing Act 1930, and complains that the purchase price was calculated by an arbitrator using the Housing Act 1925, which is inconsistent with the Acquisition of Land Act 1919 and restricted by s.7(1) of that same act.

Ellen Street Estates wants the earlier act to prevail over the later acts. Scrutton L.J. says that is “contrary to the constitutional position that Parliament can alter an act previously passed.” If Parliament could declare its statutes unrepealable, then a government could entrench its policies even after a new party has been elected. Maugham L.J. and Talbot J. agree. They read the ALA 1919 as not having the appropriate manner and form instructions ("must expressly state notwithstanding") to control later acts. (See Trethowan case)

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The Commission of Marcel Faribault [1967] (P181, 182) Commission appoints Faribeau to be Legislative Councillor for the Division of Repentigny

until 'pleasure' dictates his dismissal. Normal appointment to the Quebec upper house is until age of 75.

Is this valid? No, the commission can't do that. What are the remedies?o The commission is good and Faribault gets to stay until he is 75.o Commission is bad.

Difference between this and McCawley is that the term would have to be INCREASED in this case, giving MORE than what was intended. (Bought the tires, gets the whole car.)

Re Ontario Public Service Employees Union v. A.G. Ontario [1987] 41 D.L.R. (4th) 1 (Handout)Supreme Court of Canada

Three members of the union (crown employees and civil servants) want to engage in political activities prohibited by the Public Service Act, R.S.O. 1980, c.418 (PSA) of Ontario. These activities include running for election to Parliament without leave of absence, soliciting funds, and publicly expressing opinions on federal issues.

The Ontario PSA restricts activities in the following ways:o S.12 restricts crown employees from running while working and, should they get

elected, requires that they resign from their former position.o S.13 forbids canvassing on behalf of candidates.o S.14 requires a leave of absence for those who want to express political views

that support a provincial or federal party.o S.15 restricts any assistance to political parties to non-working hours.o S.16 threatens dismissal for failure to respect any of the above restrictions.

Before the Charter of Rights and Freedoms, the Supreme Court of Ontario decided (for the defendant) based on distribution of powers by the Constitution Act, 1867.

o Plaintiffs argued that Ontario could not interfere with federal elections.o Defendant says 92(1), (4), and (13) support the PSA. Labrosse J. agreed that

the pith and substance of the Act was labor relations, provincial jurisdiction valid under 92(13) (Property and Civil Rights?) The incidental effects on federal elections could be forgiven for ensuring impartiality and protecting civil rights.

Dickson J. declines to allow Charter arguments, because they had not been discussed in the previous hearings. He denied the appellants’ assertion of interjurisdictional immunity (“legislation enacted by one order of gov’t cannot interfere with…the other order of gov’t”), based on pith and substance doctrine (“a law ‘in relation to’ a provincial matter may validly ‘affect’ a federal matter.”) and the federal legislative ability to protect itself.

Beetz J. says the provisions are constitutional in nature and “constitute an ordinary legislative amendment of the constitution of Ontario, within the meaning of s.92(1) of the Constitution Act, 1867.” He also supported his conclusion with s.92(4), which allows provinces to appoint provincial officers (operating in harmony with the federal equivalent.)

Note: 92(1) is now s.45 of the Constitution Act, 1982. 92.4.

Re Eurig Estate [1998] 2 R.C.S. 565 (Handout)Supreme Court of Canada

Mary Eurig is the executor of her husband’s estate and is being charged $5710 in “probate fees” in order to obtain letters probate (evidence that she owns husband’s property.) The Authority behind these fees is the Administration of Justice Act s.5c and O. Reg. 293/92 s.2(1). Eurig’s case was dismissed by the Ontario Court and Court of Appeal.

Lamer C.J. and l’Heureux-Dubé, Cory, Iacobucci and Major JJ allow the appeal because:o Based on the decision of Duff J. in Lawson, the probate levy is a tax, not a fee.

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It is enforceable by law, levied by a public body, intended for a public purpose, and there is no reasonable nexus between the amount charged and the cost of the service provided.

o Although direct taxes are intra vires the province, pursuant to s.92(2) of the Constitution Act, 1867, s. 53 (through s.90) requires that provincial bills for taxes shall originate in the legislature. S.53 has not been expressly amended so it is still the law and the law as such prevents obscure and unfair taxing.

o S.5 of the Administration of Justice Act allows the Lieutenant Governor in Council to impose fees, but not taxes. This tax is therefore ultra vires s.5.

McLachlin and Binnie JJ. disagree with Major J. on the issue of s.53. They say it does not apply here because Reg. 293/92 is not a bill. Lt. Governor can be authorized to tax, but must be given that authority in clear and unambiguous language.

Gonthier and Bastarache JJ. (dissenting) argue that:o With the abolition of bicameral legislature at the provincial level, the intention of

s.53 no longer applies. Even if it does apply, the Administration of Justice Act was introduced in the Legislative Assembly of Ontario and is simply delegating taxing powers to the Lt. Governor in Council. They argue that the “fees” described in s.5 is broad enough to include direct taxes.

Note: As of the Constitution Act, 1982, the Constitution is no longer a Dog Act, and requires express repeal. It can’t be amended simply by passing inconsistent legislation.

Scott is skeptical of this decision.

Amendment Considerations S.41 laws are highly entrenched, whereas those that require special mention are sort of

'low level' entrenchment. Is s.41 is so broad that it can be used to create a nazi state? Is it possible to pass an amendment by normal process to delete a provision causing you

trouble, then proceed to do what you wanted to do in the first place?

Constitutional issues Legitimacy of judicial review. Values, interests advanced or compromised by con law. Perspectives of evaluation (w. other disciplines)

Division of PowersInterpreting the division of powers as laid out in the constitution Act, 1867

Characterization: Steps of Interpretation (P215)1) Identify matter (pith) of law.2) Place it in 91 or 92.

See Casebook P205-212

Morgentaler “Province does not have criminal jurisdiction” Turned on how the law was characterized. Dr. Morgentaler wanted to open an abortion clinic in Nova Scotia, and was

charged under the Medical Services Act. Argues that the law is invalid because it was ultra vires the province and violated s.7 of Charter.

Purpose outlined in the text (on its face)

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o 'Purpose' clause: Province has jurisdiction over health regulation, limiting privatization, property and civil rights.

Actual purpose of law was to shut down abortion clinico Evidence of duplication

Criminal had code already provided structure relating to abortion, banning private clinic abortion. Duplication, however, can be excused if it is incidental and necessary to an otherwise valid provincial law. Here the duplication was colorable and used as evidence.

Penalties are very severe ($50k/offense?), but not when considering the lucrative nature of the clinics. Here, penalties are used as more evidence of duplication.

o The smoking gun: Legislative history indicates that the law was created to punish Dr. Morgentaler, enacted as soon as he set up his practice. In addition, statements made by politicians (Hansard evidence) support that conclusion. Are they admissible? Yes (P217)

o Although the legislature does not need to show studies to back up all laws created, the absence of study results here supports the idea that this law is not economically based. In fact, later Royal Commission results were in favor of clinics.

o Judges won't usually question the efficacy of laws, but will look at the actual effect of those laws. Here, privatization would not be accomplished effectively by this under-inclusive legislation. Not key, but supporting argument.

o Severance not possible, since the law would not have been passed without the abortion section. Sopinka argues that services are unrelated to each other, that the law is not colorable.

o Though not argued as such, this is a case about charter rights, morality.

Division of Powers Doctrines Pith and Substance: Laws upheld even if they have an incidental effect outside

jurisdiction. (ex: Carnation) Necessary incidental/ancillary effects. Double aspect: It is possible for fed and provincial laws to coexist even if they

seem similar, if they are roughly equivalent in importance. (Lederman) Inter-jurisdictional Immunity: Exception to incidental effect, limits application

of provincial legislation, even when no federal legislation exists.

GM v. City National Leasing [1989] 1 SCR 641 (P225)Supreme Court

Dickson CJC. argues for judicial restraint i applying tests for incidental effects. GM's finance dept. arranged rates that were unfair to its competition, under the

Combines Investigation Act. City National Leasing brought a civil action through s.33.1 of the act. GM argued that that civil suits are provincial under "Property and Civil Rights".

Test the degree of encroachment.

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o s.31.1 is a remedial provision.o s.31.1 is limited in its scope.o Feds can and have initiated civil actions in the past.

Encroachment not excessive here. 91(2) Functional relation test. Is s. 31.1 integral, or at least rational? It is rational in

this case, as necessarily incidental to the main purpose of the act.

Multiple Access v. McCutcheon [1982] 2 SCR 161 (P232) “Double aspect”Supreme Court

Canada Corporations Act and Ontario Securities Act both prohibit insider trading. Multiple Access was accused of insider trading, but argued that because they are

federally incorporated they can't be touched by the provincial law. Statute of limitations on the federal law had lapsed.

Dickson J. characterized the federal law as in relation to the raising of capital and other activities, falling under the regulation of federally incorporated companies, and not primarily in relation to provincial securities. The provincial law was likewise valid, in its different aspect. Double Aspect.

Beetz disagrees w. Dickson, arguing that the purposes of the laws are the same.

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McKay v. The Queen [1965] S.C.R. 798 (P82) – Ultra ViresSupreme Court of Canada

Zoning bylaws permit certain signs on premises, but do not list federal election signs. Moses and Sarah McKay were convicted of putting up such signs on their property.

Taschereau C.J. (w. Cartwright, Abbott, Judson and Spence JJ.) sever the appropriate section by reading down. Under s.92 of the B.N.A. act, provinces were not given jurisdiction over federal election proceedings, and were not empowered to make laws concerning that subject, so the meaning of the municipal law could not have intended to prohibit federal election signs. Such intention would not fall under permissible incidental effects, but impermissible intrusion.

Fauteux, Martland, Ritchie and Hall JJ. (dissent): S.91 of the B.N.A. act does not address this issue through federal powers, and that the pith and substance of the zoning law is in relation to property and civil rights in the province, which is under provincial power in s.92(13).

Note: Hogg agrees with the dissent3, as does Dickson C.J.C4, emphasizing pith and substance doctrine.

Sante Securite du Travail v. Bell [1988] 1 SCR 749 (P246) “Inter-jurisdictional immunity, reading down”

Pregnant woman claims settlement from Bell through Quebec scheme. Bell appeals, says provincial law does not apply to federally regulated companies.

Here, the law is obviously health and safety (provincial) but not applicable because it affects a vital part of the operation of a federal undertaking. The law is read down to allow for inter-jurisdictional Immunity.

Irwin Toy Held that provincial law prohibiting advertising to children under 13 does apply to

television.

Inter-jurisdictional Immunity Hogg criticizes inter-jurisdictional Immunity (P241).

o Inconsistent with pith and substance doctrine, which by its nature allows laws in relation to provincial matters to “affect” a federal matter.

o Immunity of federal undertakings is unnecessary. Federal parliament can protect undertakings by enacting laws which trump provincial laws.

Beetz disagrees because more laws would simply complicate things & fed law will prevail anyway. Force better legislation.

Provincial workers compensation schemes have been upheld in federal companies, arguing that it does not affect the management of the company.

3 Peter Hogg, Constitutional Law of Canada, Carswell, 2002, p385-386.4 O.P.S.E.U v. A.G. Ont. [1987] 41 D.L.R. (4th) 15

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Provincial adoption laws, family laws do not apply to native peoples because of potential infringement.

A band-owned business was held by Beetz to be subject to provincial labor laws, since it was not a core Indian-related business.

Classical Model of Divison of Powers Exclusive jurisdiction Power struggle Beetz (doesn't buy double aspect)

Modern Model of Division of Powers Overlapping, concurrent jurisdiction Necessarily incidental, double aspect used more often. Negotiation, inter-delegation Dickson CJC (after Laskin, who usually dissented)

In Multiple Access, Dickson & Beetz agreed. Why? Doctrine? Attitude?

Paramountcy A judge-made rule Used only after the issues of validity (characterization) and applicability (inter-

jurisdictional immunity) have been determined. If valid federal & provincial laws conflict, the provincial law is inoperative. Negative Implication doctrine (“occupying the field” test)

o Parliament has prepared legislation to be complete in a particular area. Conflicting provincial laws are therefore unnecessary and inoperative.

o This doctrine was favored in older cases. Express Conflict test (both laws operative unless it is impossible to obey them

both)o This approach has been used to uphold provincial driving offenses (see

Ross) as well as the leading case, Multiple Access v. McCutcheon.

Ross v. Registrar of Motor Vehicles Criminal code punished drunk driver, but allowed him to keep his driving license

for work purposes. The provincial registrar suspended his license anyway. The court found no express conflict here, because obeying the stricter law

(provincial) covers both laws.

Incompatibility of Policy\Purpose Dickson doesn't think identical laws are incompatible. (See Multiple Access) For an example of incompatible laws, see Bank of Montreal v. Hall

Bank of Montreal v. Hall (1990) 1 SCR 121 (P264) Farmer defaults on BOM loan. Bank tries to seize machinery, pursuant to the

federal bank act. A provincial act requires notice.

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The purposes of the two acts are different. The bank act facilitates lending for debtors, while the Saskatchewan act protects creditors.

La Forest J. held that Fed. Bank Act prevails as a complete code. Why can’t they comply with both laws by giving notice? Purpose. See p269#4

Why should federal laws prevail? Structure of constitution, federal system. Broad democratic representation Gaps in coverage, P.O.G.G.

Peace, Order, Good Gov't

Concerns federal jurisdiction over anything not covered in 91, 92. emergency powers. national concern doctrine.

Viscount Simon: POGG could be used in emergency as well as for national concern. (Bank of Commerce, Fort Francis, Snyder)

Russell v. The Queen (1882): Legislation prohibiting sale of diseased cattle allowed opting in & out by provinces.

Canada Temperance Act upheld in 1927 through national concern. The Aeronautics case (1932) and Radio case (1932) established that some

legislation can go beyond local or provincial concern and fall under POGG. 1937 - SWITCH back to emergency only view. (Labour Conventions,

Employment insurance.) Attempts of parliament to intervene in the economy are struck down as ultra-vires.

P185 Scott poem 1946 - Post war, Nat'l concern, POGG make comeback for temperance. 1949 - Appeal to Privy Council abolished. SCC is last resort. 1952 - Johannesson (aeronautics established as federal concern) 1956 - Monroe v. Nat'l Capital case

Reference re Anti-Inflation Act “Inflation not a national concern” Salaries, profit margins, dividends, wages, prices controlled for certain companies

in private and public sector (applicable to provincial sector only through agreement.) The act was challenged by public sector unions. Property and civil rights argument.

By the device of REFERENCE, the Governor in Council sent this case directly to the SCC to determine whether or not the act was ultra vires and whether or not Ontario’s agreement to it was valid.

Majority (7-2) led by Laskin CJC held that the act was supportable under emergency legislation. A different majority (Beetz, 5-4) held that the existence of an emergency was essential to the validity and rejected the possibility of using national dimensions argument.

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o National concern only applies to matters not provincial. (supported by 91) A matter of concern must be ‘single’, not an aggregate of matters.

Was there intention to invoke the emergency power? The court was divided, but upheld the act. Courts need not find an emergency exists, but only that there is a “rational basis” for believing there to be one.

Beetzo An invocation of emergency power must be clear, either in title or content.

Such dramatic legislation requires an unmistakable signal that emergency power is to be used.

o Preamble talks about serious national concern, not emergency. Extrinsic evidence was introduced from both sides.

Lipsey says inflation is not an emergency, and legislation won't solve the problem.

The fact that the legislation didn't apply to everyone also makes it seem like less of a crisis.

Standard of Review Scope (wide but not total) Preamble (ambiguous at best) Extrinsic evidence (ambiguous)

o Test for invoking national concern The matter must have “a degree of unity which makes it

indivisible,” preventing it from being so broad that it effectively renders meaningless a head of provincial jurisdiction.

There must be a provincial inability to deal with the matter.o Believes POGG is secondary to the division of powers.

Laskino The legislation did cover many industries, and that the provinces were left

open as a courtesy. "Courts should not consider the wisdom of legislation" (i.e. whether it works or not.) Beetz agrees with this point, having used scope simply as evidence.

o POGG covers national concern which may or may not be brought about by emergency.

o Recognized that “national dimensions” was not a winning argument.o Looked to rational basis for legislators believing in emergency. o Believes POGG is primary, and div. of powers (91) only explanatory.

Ritchieo Opponents have to show clearly that there was no emergency.

National Concerns Dimensions “Inflation not national concern” Beetz: Inflation may concern everything local, education, rent controls, etc... If

inflation is deemed a national concern, why not other things? Slippery slope of federal control.

Inflation as opposed to aeronautics is not clearly defined. Inflation, as opposed to property, is not on a list in 91/92. Controlling inflation was not the subject matter of the legislation. The subject matter was the control of wages, prices,

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etc. Inflation is an aggregate of subjects, pervasive, far reaching, with no unity or specificity.

Functions of Judicial Review Keeping the legislature in check Advising on constitutional intention.

Philip Bobbett's Judiciary Functions(Robin Elliot borrows his material)

Checking function Legitimating function Cueing function (to government, to other courts, to the legal community, to the

population.) Expressive function (telling us who Canada is)

R. v. Crown Zellerbach Canada [1988] 1 S.C.R. 401 (P303) “Small aggregates can be single matters of national concern”

Federal Act prohibits dumping at sea except with permit. Sea is all waters of Canada except inland and provincial waters.

The defendant dumped non-polluting wood-waste into provincial waters and was charged under s.4(1). The trial and appeal courts rejected the charge.

Should Parliament have the power to prevent dumping of ANY substance into provincial waters without proof of pollution? Seacoast and inland fisheries (s.91)?

Le Dain J. upheld the validity of the act under the national concern doctrine of POGG. Proper authorities must have the chance to determine, through permit application, whether something can be dumped. Cites UN convention that distinguishes pollution from marine pollution. (distinctive matter)

La Forest J. (dissent): This is not pollution but simple local works and undertakings. Should all of the businesses inland be subject to federal regulation, since they may add some pollution to waters? There is no evidence that permit and inspections are necessary to prevent pollution. (i.e. necessarily incidental)

This case is the most recent one of significance, but does not provide valuable criteria for determining its applicability.

Le Dain J. on POGG and National Concern doctrine Distinguish between Nat'l concern and POGG emergency. Applies to both new and old matters. National concern tests

o Matter of national concern must be single, distinct, and indivisible, on scale with division of powers.

o Provincial inability test.

Brun and Tremblay (P315) “Crown Zellerbach sucks” Court went well beyond their role of custodian of federalism.

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Surprising that the case turned because it is visually difficult to differentiate between federal and provincial waters.

La Forest J. Leading judgment writer on federalism in the Lamer court.

Environmental Regulation

Friends of the Oldman River Society v. Canada (M. of Transport) Building dam on Alberta’s Oldman River (local project) did not submit to federal

environmental assessment. The environment is not a head of power assigned to a level of government in the Constitution Act, 1867.

La Forest: Environmental control, as a subject matter, does not meet the distinctiveness criteria laid out in Crown Zellerbach, therefore national concern doctrine is not applicable. Conversely, the argument of a provincial undertaking is not valid, because there is no inter-jurisdictional immunity here. To the extent that the dam impacts many federal interests, it must comply with federal law.

R. v. Hydro-Québec “Federal Criminal Law Power” La Forest J. (majority): Valid exercise of federal criminal law power, and it was

not even necessary to deal with national concern doctrine. Lamer CJC (dissent): The act cannot be supported under criminal law power. It

fails the tests of singleness, distinctiveness, indivisibility required by Crown Zellerbach by not being confined to toxic chemicals like PCBs.

Ontario Hydro v. Ontario (Labor Relations Board) “Nuclear labor” Labor relations in Ontario Hydro nuclear stations found to be under federal

jurisdiction through national concern over nuclear energy. The topic was deemed extra-provincial, international and has the distinct and separate characteristics to fit under federal residual power.

Ref: Anti-Inflation, Crown Zellerbach

DelegationConflict where federal and provincial efforts clash.

Nova Scotia Delegation Case EI, pensions by fed struck down. Provinces passed law delegating responsibility to parliament. Parliament delegated to the provinces the ability to finance through indirect taxes. Courts struck this down

Delegated/subordinate legislation Hodge (1883?) example of legislative sovereignty. Parliament can't delegate to legislature (1951 NS Nat'l Del Case), but

o Parliament can delegate to provincial delegates (Kaufman P447)

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o Provincial legislatures can delegate to federal boards. (administrative delegation) (i.e. A regulatory scheme administered by a federal agency can do things federal laws cannot.)

Joint boardo Ex: Parliament gives power to Ontario trucking board to regulate inter-

provincial transport. Ontario can change trucking rules. Incorporation by reference of federal law. Apply law as it may change from time to time.

Conditional legislationo Ex: Parliamentary temperance laws which won't come into effect until

accepted by province.) Legislature of Ontario had not given Gov't of Ont. the power to accept the anti-

inflation act.

Limitations on delegation Taxation (S.53, 54 – Eurig) Judicial powers (s.96 of CA, 1867) can't be delegated if the powers are analogous

to other powers. Initiative and referendum act

Economic RegulationProperty and Civil rights vs. Trade and commerce, among other heads that conflict.

After confederation, more powers given to prov. for economic reg. (92.13, 91.2, pogg)

Barriers prevent full economic union. (P327) Parsons case 1881 (p90) division of powers interpretation.

Objectives Create a national economy

Parsons “Property and civil rights reg. most local commerce” Ontario statute requires insurance policies to include certain provisions and to

emphasize any changes to those provisions. When Parsons' hardware store burned down, their insurance claim was denied because Parsons had not complied w. the conditions. Parsons argued the conditions were not suitably emphasized.

Property and civil rights wins. Ont. statute is good, because property and civil rights was intended in constitution and because of textual considerations.

o S. 94 provides for uniformity in prop. and civil rights across provinces pending agreement (not incl. Quebec)

o S. 91(2) extends to insurance, contracts and specifies banking, weights and measures, etc. implying a narrow interpretation.

Economic reg Marketing agricultural products Natural resources Trade and Commerce power

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Home Oil: BC co. regulated gas and fuel from everywhere

Shannon (1938): All milk in BC goes through board.

Carnation Company v. Quebec Agricultural Marketing Board [1968] S.C.R. 238 (P109)Supreme Court of Canada, on appeal from the Queen’s Bench, QC

The Quebec Agricultural Marketing Board (QAMB) was created by the Quebec Agricultural Marketing Act, 1955-56 (Que.), c.37. It authorized a Producers’ Board to negotiate with Carnation on behalf of its farmers a trade price for their milk. When they could not come to an agreement, the QAMB used its authority to determine the price that Carnation would pay.

As Carnation exports much of it’s production outside the province, they claimed that the QAMB was ultra vires in setting the price and interfering with the regulation of trade and commerce, under federal jurisdiction pursuant to s.91(2) of the Constitution Act, 1867.

Carnation’s appeal was dismissed, delivered by Martland J., because the pith and substance of the orders was to regulate only a specific relationship between the producers and Carnation. There is no evidence that they either tried, or succeeded to control trade and commerce outside that sphere. Any intrusion to that effect is incidental.

Manitoba Egg (1971): All eggs to be marketed by Manitoba board. Aimed at regulation of inter-provincial trade (import of eggs) and was struck down. Laskin comments on the lack of evidence of anything. Phony case, intention to lose?

Paul Weiler: Carnation and Manitoba Egg are the same. (P338) Does it matter if control is at production vs. marketing? However there seems to be discrimination in Manitoba but not Carnation.

(though the judges didn't base their arguments on discrimination. no evidence of that.) Discrimination is contrary to the economic union of Canada, but was not a defense here. What's the rule?

Burns Foods (1975) “Characterization” All hogs slaughtered in Manitoba must be bought from marketing board of Man.

Board can't discriminate. Struck down by Supreme Court. Manitoba egg distinguished, but not overruled. Categorical reasoning: 91, 92, conclusions, not functional reasoning.

Re Agricultural Mkting Act (1978) “Good faith inter-delegation” Administrative inter-delegation Canada created egg board (CEMA) presided over by provincial reps. No federal

appointees. They set quotas of production based on demand. Provinces also created boards that set quotas. Egg quota divided among provincial and national

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marketing for each producer. Province affects inter-provincial trade and fed affects local production.

Dealing with inconvenience of separation of powers required the creation of schemes of cooperation. As a good faith effort, cooperation will be allowed.

Pigean J. upholds this scheme. Laskin J. says the pith is intra-provincial.

Monahan, Patrick Says there is no functional reasoning in Re Agr Mkt. Scheme could be upheld on

functional grounds.

Federal Economic Regulation Expansion of Necessarily Incidental doctrine in trade and commerce General trade and commerce (91.2)

Leading case is Citizens’ Insurance Co. v. Parsons (1881)Privy Council

At the end of the day, there is a case by case analysis, dependent on characterization of legislature.

Section 91(2) has been interpreted as meaning o International and inter-provincial trade and commerce and o General regulation of all trade and commerce, as opposed to a specific

industry.

91.2 Trade and Commerce Watertight compartments would ordinarily protect local transactions.

o Eastern Terminal Elevator - struck down leg.o Haldane said 91.2 is not enough on it's own, needs POGG. Others

disagree.o Dominion Stores (1980) - Court struck down Agricultural Products

Standards Act. If one were to use federal standard names for local transactions, one must comply with federal standards. Some guy didn't comply, argued property and civil rights and won. Badly decided, it seems. Judge didn't cite any modern cases, and even says that he may not be right. Runs counter to pith and substance and necessarily incidental doctrines.

In certain cases, local transactions are controlled by federal lawo Klassen - local transaction regulated by wheat board act because it was

necessarily incidental.o Caloil - Federal rule prohibiting transportation and sale of oil west of

Ontario to protect western Canada was upheld.

Prof. Swinton Unavoidable that judges will balance competing interests when deciding Territorial characterization not helpful

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Labatt Regulation of alcohol level in beer. Lite beer has higher alcohol level than the

federal recipe. Food and Drug Act struck down.o Beer is localo This was not regulation of trade, like in Parsons, but regulation of a

specific industry.o No criminal law.o No POGG, no nat'l concern.

Canadian Nat'l Transport Dickson tries to make sense of Privy Council. Regulation of single trade/industry

is property and civil rights. Lies at the very heart of provincial autonomy provided by constitution. Vision of federalism.

In general legislation aimed at the national economy, the jurisdiction would be federal.

GM v. City National Leasing “National Economic Union” GM challenges Combines Investigation Act, which prohibits giving preferential

rates to certain dealers buying cars (as is GM practice.) Free market values vs. provincial monopoly-building.

The law met the 3 criteria laid out in the case lawo It provided for a general regulatory scheme. (Laskin: Trademarks P373)o It established a regulatory agency to oversee the scheme.o It dealt with trade and commerce in general (as opposed to specific

industries.) It also met 2 new criteria

o It was “of a nature that the provinces … would be constitutionally incapable of enacting” it (jointly or severally.)

o The failure of a single province to participate in the scheme would endanger its effectiveness.

Apply the GM test to impugned law. If it passes, the law falls under trade and commerce; otherwise, it falls under property and civil rights. This is not a determinative test. The proper approach is still Parsons.

Goods flow freely between provinces, so competition is not simply a local matter, but rather a matter of industry. Federal regulation is necessary to balance out regional disparity. Provinces can still regulate, but only from a provincial perspective.

Federal competition regulation gives effect to national economic union. (P379) o Functional efficiency, Canada-building. Role of state, economy,

federalism, policy and other concepts are often more persuasive than doctrine.

o Earlier generations of judges would not have used such arguments, stuck in watertight compartments.

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o Even if provinces have competition regulation, paramountcy would favor federal law.

o Prof. John White advocates provincial paramountcy in such cases. Province building, provincial entitlement to protect their citizens.

Natural ResourcesWhat are the roles of provinces and parliament?

Rise in oil prices in '73 caused problems. As oil revenues increased, crisis occurred, equalization programs responded.

CIGOL v. Gov't of Saskatchewan [1978] Oil produced on private and crown land in Sask. Natural resources (s.109) are

owned by the province. Royalty surcharge for crown land was calculated the same as Mineral Income tax, preventing Sask. from undercutting the world price.

o Provincial Mineral Income Tax = 100% Well Head Price (Market price) - Basic Well Head price (Fixed Pre-OPEC price). Extra charge would be paid by tax on private land.

Province can do things as OWNER that it can not do as legislator. (Owners can charge royalties in contracts.

Martland J. (majority): The provincial minister cannot set prices for goods in the export market (trade and commerce). "If the company sold at less than market price, the minister was empowered to set the well head price." Categorical argument.

Dickson J. (dissent): Presumption that the provinces are acting constitutionally. The province has and needs control over natural resources. Transactions were local. There is no evidence of impact on extra-provincial trade. Consumer price does not change. The market, not the minister, sets prices and therefore taxes, which are functions of the prices. Weighing and balancing: Provincial interests outweigh the burden on trade and commerce.

Both taxes were struck down. MIT was indirect and unconstitutional. Royal surcharge contracts already included royalties and could not impose more. Saskatchewan was ordered to pay back CIGOL from the tax date onward. To recoup the loss, they passed an income tax on oil revenues earned after that date.

Consequenceso S.92a had given jurisdiction to provinces of natural resource prices outside

the province, subject to paramountcy. 94a protects provincial laws.

Central Canada Potash v. Sask. [1979] “International price fixing bad” 1969 - Sask. set up ABC scheme to regulate potash production, control prices and

protect the industry. 1972 - ABC replaced by FP scheme, upping the percentage. CCP could not honor a contract under the new scheme. Feds joined CCP as plaintiff, accusing Saskatchewan of undercutting New Mexico competitors (dumping) and helped strike down the provincial scheme.

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The legislation was designed to protect and conserve the potash industry (92.13), and that the impact on trade and commerce was incidental.

Laskin CJC. agreed with the economic ends, but not the price fixing means. The legal and practical effect is to regulate export price.

Is reducing production to meet demand and save the industry a bad thing? Ruling had no appreciable impact on economy or potash market. Would 92a change this result? Not clear. 92a(1b) allows rationing production and

conservation, but does that include economic conservation? No mention of destination (export) of products aside from other provinces.

Criminal LawWhere does federal power end and provincial power begin?

Here criminal law is used only in the narrow definition of those powers granted to one source or another.

Federal 91.28 Penitentiaries

Provincial 92.15 Punishments for provincial laws 92.6 Prisons 92.14 Administration of justice in province (courts, police, etc.)

Board of Commerce 1922 Haldane struck down anti-hoarding competition law, refused to uphold it

under criminal law. Scope of criminal law explored.

P.A.T.A 1931 Lord Atkin: Is the act punished with penal sanction? If so, it's criminal. Scope of crim. law too wide.

Margarine Criminal law must be to some purpose (public peace, order, health, security,

morality) Scope of criminal law

o Prohibited acto Penaltyo Criminal law purpose

Recent expansions under 91.27 POGG General Trade and Commerce

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Constitutional Law

MacDonald v. Canada “Health is a criminal law purpose” Health warnings must be displayed, ban of advertising of domestic cigarettes. Preamble hints at POGG - substantial and pressing concern. S.1 - to infringe on freedoms concern must be pressing.

Arguments against validity of MacDonald This law is about advertising, not tobacco, which is provincial in power.

Tobacco is not criminal. If they were so concerned with health, they would have gone much further and prohibited tobacco.

If you can't advertise cigarettes, why not prohibit ads about fast food, or beer? If criminal prohibition is so important, why the exception for foreign

periodicals? How can this be taken seriously? 65% of the mags will still have ads in them.

Arguments for validity of MacDonald (Majority) Criminal law is not frozen in time, and can include health. It's not practical to prohibit cigarettes, and it has been shown effective to limit

in the area of advertising. La Forest: Discouragement is a valid move when prohibition not practical.

Characterization: Act is aimed at detrimental health effects caused by tobacco. (therefore criminal)

Criminal law routinely has exemptions. Foreign periodicals are a small segment (1%)

Advocacy: Find legal and non-legal sources and package an argument comprehensively. Gov't role, prov role, court role, morality, principles, code, etc.

R. v. Hydro-Québec (P400) Canadian Environmental Protection Act provides regulations for toxic substances.

(definitions, lists, consequences) Can regulation of PCBs be upheld under criminal legislation, given its form? The act is in relation to environment, not under any power. Federal and

provincial levels both have a role to play in the environment. (Crown Zellerbach) Both sides agree that protecting the environment is a criminal purpose. The court

is divided on form. (Is it prohibition or regulation?) Majority (La Forest J.) uses criminal law language.

o Criminal law is broad, created to protect and promote (P404) our fundamental values. It is limited when colorable.

o There is less impact on provincial powers under criminal law than if we were to apply it under POGG. (No double aspect under POGG and national concern doctrine would be strictly federal, but upheld under criminal law, provinces can still regulate in all kinds of ways, subject to paramountcy.

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o In Crown Zellerbach, La Forest dissented, worried about impact on provincial powers. Here, as majority (P407) he expressed a concern for the effectiveness of parliament. Explicit balancing of powers.

o P412 - Jean Leclair Good decision, leaving room for provinces to regulate. POGG no

good. Legitimating of state, expression (creation?) of our national

identity. (A purpose of judicial review) Dissent

o This is a regulatory scheme with no broad-based prohibitions. (P408) The law cannot be self applied. This must be regulatory and not criminal law, since provinces seem to be exempt from this act if they have similar laws.

o P411 - David Beatty (rule of law) Too much potential power to feds Criminal scope has been stretched by ignoring how regulatory the

Hydro case was. Should have been POGG. Precedent has been ignored.

Firearms Act upheld in criminal interest of public safety, other aspects incidental.

91.27 is growing in scope, must cut back eventually.

Arguing a criminal law legislation Fundamentals of social value of the law to the nation as a whole. Anchored in a traditional criminal law concern. Framework of prohibitions and penalties in the legislation. Address explicitly the effect on provincial bounds of power.

Provincial reach to criminal law 92.15 Punishment for breach of provincial law. Provinces have right to legislate

those matters within their powers. 92.14 Prosecutorial discretion. Federal criminal law is sometimes dependent on the opting in or out of provinces.

(video poker) Double aspect sometimes ends in both provincial and federal laws standing

together.

Nova Scotia Board of Censors v. McNeil (P416) Nova Scotia law required all films to be submitted to a board of censors which

had the power to require changes to be made or prevent the film from being shown. Was the law criminal in nature and therefore ultra vires the province?

The court held that the penalties included in the act are not punitive, but rather are aimed at ensuring compliance with the regulatory scheme. The law’s pith and substance is the regulation of local trade, not criminal.

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Constitutional Law

Dupont Bylaw banning gatherings (parades, assemblies, political rallies, protests) was

upheld under provincial power to regulate domain. Held to be preventative, non-discriminatory and not criminal.

Westendorp v. The Queen (P421) Criminal laws had made it difficult to control prostitution so Calgary passed a

bylaw prohibiting prostitution on streets. The law was struck down as being criminal in nature, designed to control

prostitution and not to prevent nuisance. Opposite reaction than Dupont because the legislation was too specific. Had it been broader, it might have passed.

Power to enforce comes from power to legislate It was thought that the provinces had exclusive jurisdiction to enforce criminal

law through s. 92(14). It is now clear that that is not the case. Dickson J.: Power to enforce criminal law is concurrent with power to legislate it.

Feds could step in by legislating differently and invoking paramountcy.

Federalism and Spending Power Spending power (P428) allows federal influence over matters such as health care,

even though listed as provincial. Parliament regulates indirectly areas they can't constitutionally regulate directly. Constitutional status of spending power is unclear. Nothing in text. (S. 91(3), 106?)

Measures taken under spending powerCan attach conditions to money and therefore influence decisions outside jurisdiction.

Providing benefits directly to citizens. Federal shared cost programs (health, education) Equalization grants to provinces.

Conditions for health funding Accessibility Comprehensiveness Universality (all residents) Portability (temporarily absent) Non-profit public administration

Arguments against conditions Undermines federal system by removing accountability of local gov't for its

decisions.

Pro conditions National standards Redistribution of wealth

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Constitutional Law

1937 Unemployment insurance reference Held that Parliament cannot use spending to invade civil rights in province. There's no other case law in this area, though spending programs that invade

provincial powers have increased. Disincentive for provinces to complain. Quebec can often opt out and be

compensated. (The failed Meech Lake, Charlottetown accords made references to the spending power. Provided that if a province were to opt out and provide equivalent programs, parliament would pay reasonable compensation.)

Quebec SovereigntyQuebec is bound in law to the constitution, even if they don't agree with it.

Meech Lake would have to go through amending procedure, get unanimous consent, and it failed to do so.

Charlottetown '92 was also defeated. 1994 PQ, 1995 Referendum PQ assumed that Quebec could separate unilaterally if the people voted that way. Quebec Superior Court said that Quebec could not separate unilaterally. 50.6%, 49.4% Referendum

Quebec Secession Reference Court asked if Quebec has a legal right to secede unilaterally. Secession would require many amendments to the constitution. There is no legal

right to secede. International law does not offer that right. In case of conflict between international and Canadian law, in Canada the

domestic law would prevail. Constitutionalism and democracy work together, support each other. The court could have refused to answer some of these questions, but did not. Quebec gov't called it an illegitimate process. Would not sent their lawyer to

argue it. Would feds not talk to Que? Where there is a clear majority to a clear question, federalism and democracy

would be obliged to negotiate constitutional change, not subject to judicial decision or sanction.

From history, other systems, doctrine, cases, we find governing principles that help to interpret rules.

A rule is discrete, a principle is more general and is to be weighed against other principles. Principles function in symbiosis, not trumping each other, but helping to define each other.

Four Constitutional Principles Protection of Minorities (Canada does not have a great record of this, but it

should still be a goal.) Expressive function - what values SHOULD we be governed by?

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Constitutional Law

Cueing function - sending a message to political actors and lawyers about secession. What happens to minorities if Quebec secedes? These principles must be taken into account.

Democracy (Voting, dignity, Oaks, identity. Process of discussion, expression, opinion. Marketplace of ideas. Moral Values.)

Federalism (Elliott: provincial diversity + integrity of state.) Rule of Law (P23 Why is a constitution entrenched? Safeguard fundamental

rights, ensure minority resources, federalism)

John Major (Globe and Mail) The judgment was written to be accessible to ordinary Canadians and withstand

the test of time. Quebec reacted positively to the judgment, because it validated their classical

position.

The court rejected two extreme positions To Parizeau: No, Québec does not have a constitutional right to secede. To Chretien: No, Parliament cannot ignore the democratic expression of a clear

majority in a referendum, indicating a wish to secede. Court finds duty to negotiate, but does not find its role to go much further. The

rest are political questions, not legal ones. Is the role of the court to be an arbitrator?

Young Likes judgment for maintaining court's legitimacy, preserving political space for

discussion.

Reactions Anti-sovereignists consider this a victory for Quebec. Sovereignists consider it a straightjacket for Quebec, giving parliament blunt

instruments to beat down separation.

What should be the majority vote in order to negotiate? Clarity Act (P464) Parliament will make up its mind after the fact whether there

was a clear majority, taking into account any and all circumstances of the vote. Fundamental Rights Act - 50+1.

What if one party operated in bad faith? Would the court then intervene?

Who else should be at the table? Parties of confederation? Quebec and Canada? The federal government? Provinces, Territories, 1st Nations?

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Other constitutional principles Independence of judiciary

o Financial securityo Security of tenureo Institutional independence

Role of Superior Courtso s.96 of CA.o Core jurisdiction that comprises powers and rule of law.

Powerso To determine whether a lower court acted within jurisdiction.o To pronounce on constitutionality of provincial legislation.o To punish contempt.

Application of CharterProtection of rights in Canada before the Charter.

Offered measures of protection notions of democracy independence of judiciary principles (mens rea, presumption of innocence, reasonable doubt, statutory

interpretation, rule of law)

However, subject to change by statute or legislation, and is unstable as protection.

BNA 1867 s.93 rights of schools s.133 English and French protection No protection from discrimination against minorities. (Ontario Catholics, French

Manitobans)

Idea of parliament supremacy took precedence over rights.

Rights and liberties were not MATTERS for which there were jurisdictional claims

RE Alberta Statutes - Alberta Social Credit (required newspapers to publish in support of social credit.)

1957 Switzman v. Eldling (Quebec padlock law authorized closing of bolshevik house, struck down.)

1978 (Montreal bylaw to ban all demonstrations upheld by Beetz p163?) Structure of democracy Secession reference Implied bill of rights theory? Certain things that no government can do. S.33

invocation may require this argument.

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Constitutional Law

Minority Rights BC Coal Mining Regulation Act (prevented employment of children, women,

Chinese in mines.) Province said it was a valid law. Feds argued jurisdiction over naturalization. Feds won in pith and substance.

BC passed law preventing Japanese people from voting. Upheld as law regarding voting, not naturalization because it included citizens.

Law prohibiting white women from working for Japanese businesses upheld as regarding employment. (92.13)

All provinces have enacted human rights codes as of Ontario 1952, after WW2.

Prohibiting discrimination in hiring employment, accommodations, etc. on race, religion, etc.

Provide structure for investigation and adjudication by human rights tribunals. Applies to private sector, as well as gov't activities.

Canadian Bill of Rights 1st bill of rights passed by Saskatchewan 1960 Canadian Bill of Rights

o passed by conservative Diefenbaker gov't.o only applies to federal lawo is not entrenched, could be repealed by majority of parliamento disappointing in results and doctrine.o Frozen rights theory (protects rights that existed as of 1960)o Bliss case (Supreme Court said equality is satisfied when objective is

valid. Narrow interpretation, could not be used to strike down legislation.) Interpretation influenced Trudeau and others to entrench a Charter.

1975 Quebec Charter of rights and freedoms.

Canadian Charter of Rights and Freedoms Influenced by Equal rights unifying Canada Balance provincial identity movements. Erosion of identification with things British.

Concern about legitimacy of judicial review. (Weimer?) s.1 Gov'ts to be accountable, and to be advised of the rules. s.33 Allows gov't to pass laws notwithstanding Charter. Concession to opponents

of Charter. Give legislature final word.

Quebec felt abandoned when other provinces signed on. Process was flawed.

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Constitutional Law

Veterans Affairs Act “Pension Administration” WW2 Soldiers entitled to pensions, some of them not competent to administrate

pensions themselves, administration designated for them. Funds were never invested or credited with interest until 1990.

Passed a provision that no claim should be made for interest prior to 1990. Trial judge found that the Veterans Affairs Act violated property rights, protected

by the bill of rights. CA agreed. SCC?

1. Is right/freedom infringed? SCC def. of right/freedom

o Purposive interpretation (purpose or values sought to be protected by right.)

Hunter [1984] (Early charter case. Define unreasonable, reasonable expectation of privacy determined. Law struck down)

Big M Drug Mart (Dickson: unremitting protection, broad role of charter, generous purposive interpretation, but shouldn't overshot the purpose. Canadian Bill of rights not relevant. Int'l law a little relevant. Canadian jurisprudence very relevant. Text, history, purpose.)

o Generous: Any utterance is covered by freedom of expression.o Purpose: Protect statements dealing with public life? Public figures?

Applied by courts largely as generous.o The broader interpretation of a right, the more likely it is that the law will

infringe upon it. S. 1 working overtime. analysis of law/action

o Burden of establishing violation lies on the person alleging the allegation. Once the court concludes infringement, the burden shifts to the defense to justify the infringement through s.1..

2. Is infringement justified? Is limitation prescribed by law? There must be legal authority behind s.1

infringement. o Ex: Little Sisters (P980) Customs official seized homosexual literature

even though the law did not distinguish between hetero and homosexual literature.

Law must be accessible, intelligible, subject to accountability. Includes statutes, regulations, common law rules,

o Ex: Statute: Must do breathalyzer "forthwith", implies no right to counsel.

Nova Scotia Case (P752) Gonthier (conservative): As long as there is some standard/guide for discretion,

vagueness is not an issue. Charged with preventing competition "unduly". Here, "unduly" not deemed

vague. State must pursue (P756) legitimate social objectives. (P755) role of judiciary is always present, but may vary.

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Constitutional Law

Oakes Test (Leading case on s.1) Sufficiently important objective

o Higher generality, the more important it seems, but the more problematic it is at the other stages.

o P759 Courts rarely strike down on this ground, but did so in Big M Drug Mart (leading case)

o If the purpose directly contradicts a charter right, it is inadmissible. (Lord's Day Act)

o If the purpose would make the law ultra vires on federalism grounds, it is inadmissible.

o Cannot have a shifting purpose over time. Butler

Obscenity (sex is bad, prohibit sexual materials) Sopinka upheld obscenity provisions, generalizing purpose as protecting society from harm caused by obscene materials, because the def. of obscene changes over time. (P975)

Harm-based test was criticized in Little Sisters for being hetero-centered, though it was used by Binnie J.

Rational connectiono between law and means.o rarely the test relied upon, because laws aren't usually completely

arbitrary. Scientific evidence not required. Common sense accepted.o Ex: No rational connection between possession of small amounts of pot

and intent to traffic. Depends on how objective is framed. Least drastic means (MINIMAL IMPAIRMENT)

o Impair rights as little as possible.o Pivotal element

Proportionality (in effect)o balance between interference with rights and benefits obtained.o P761 include salutory effects.o Rarely used to strike down law.

Hogg Oakes test is brilliant, character of a holy writ. What's the point of a freedom is it can be limited easily by a reasonable purpose?

Ronald Dworkin: Some reasons aren't good enough.

Dickson (P757): Factors to consider Dignity Equality Beliefs Culture Institutions

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Constitutional Law

Rights and Freedoms

Edmonton Journal Case Cory: Abstract: Ex: Freedom of expression in general terms, democracy, truth Wilson: Contextual: Focuses on particular issues of case.

Is an appeal to context one that gives lower weight to rights and demands less of government?

Balance competing groups Vulnerable group Remedy whose effectiveness cannot be measured scientifically Suppress an activity whose social or moral value is low.

Each part of Oakes test contains the whole test, in a way.

Charter Issues

PRO Entrenchment of Charter Protects rights Impacts social/political attitudes Protects interests of under-represented groups Empowers individuals/groups Democracy, more than just majority rule Unifying, equal.

CON Entrenchment of Charter Costs/time of litigation & impact Illusory effect? Court view of rights Anti-democratic State-centered solutions

Gold In favour of the charter, but not overwhelmingly so. He likes rights, reasonable

role of state, agrees with Hogg, but recognizes the con arguments. Legislature intruduced workers rights, human rights, social welfare, while the

courts were obstructionist. Can we pit 'evil' legislatures against 'enlightened' judges?

Focus on rights and entitlements may have consequences, such as individualism and less community focus.

Do judges have a better chance of getting at the right answer than gov't? Is there a difference between legal and political reasoning?

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Constitutional Law

Law is indeterminate, decisions are ideological. Judges are the naked purveyors of power? No limits?

Hart?Dworkin?

Weinrib Supremacy of rights, deontological theory. Coherent theory of rights to guide judges. Judges are trained, ideally situated to decide.

Monahan Process oriented theory. Tainted, flawed process that shuts out a social group.

Other others recognize a greater degree of indeterminance. Competing theories

Elliott - Bobitt - Legitimate modes of argument, within historical functions. Are judges within their limits?

Hogg Judges should be modest and restrained.

How courts decide charter cases influences the pros and cons of the charter. Courts are responding to concerns about deference to legislature, context.

Critics of the charter came from the left (charter favors businesses) and now from the right (charter favors gays).

Gold thinks the real divide is between liberals (rights over general will) and the left/right conservatives (majority imposes good society vision).

••Religion: OMIT CCL868-887••••Section 7: OMIT CCL1109-1128••

S.33 OverrideNotwithstanding clause routinely added to legislation.

Ford v. Québec (AG) Parliament had to decide whether Québec’s vast use of the clause was valid. Held that the enumeration of the overridden provisions was sufficient form, but

that retroactivity was not a valid interpretation of the word “shall”.

S.2, 7-15 can be overridden. By keeping language rights (16-22) and minority education safe from override, you did not have to trust provinces with bad historical records of protecting rights.

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Constitutional Law

Weinrib, Lorraine Supports s. 33 Judicial review is not anti-democratic, because the Charter decision-making will

take place in the legislature, where it belongs.

Morton S.33 is useless and ineffective because no legislature would have the guts to

reintroduce something that has been found to infringe on rights.

Hogg Are there right answers? Judicial decisions are not always right. Judges are often

biased or ill-informed. When elected officials are convinced that choices have been badly made, then the population can participate in the introduction to a new solution (introducing an override bill)

Who is bound by the charter? Who bears the burden of the rights?

Framework of Charter

Local 580 v. Dolphin Delivery (1986) (early case) “Expression” Judge initiated injunction against secondary picketers. Nothing in the Canada

Labor Code against secondary picketing. A BC court found that the common law tort of inducing breach of contract prohibited secondary picketing. The union appealed on the basis of freedom of expression.

McIntyre J (majority):o The Charter binds legislature and parliament. Applies to delegated and

other legislation, municipal by-laws (because of the coercive power given to municipalities.).

o The Charter applies to gov't actors.o The Charter applies to the courts.

Specific provisions apply directly to the judiciary (ex: speedy trial) P810 Injunction issued by CJBC was rejected by charter. Common law to be interpreted according to charter values, even in

private disputes.o While picking does deserve protection, Dolphin Delivery is not related

to Purolator, which was the target of the protest, so limiting freedom in this respect is justified under s. 1 as being minimal infringement.

o The Charter does not apply to litigation between private parties. (s. 32) Post Dolphin: Gov't interaction with statute and common law is subject to charter,

but private common law issues are not (though common law interpreted to charter values)

Courts struggling to understand the purpose of the charter. To constrain gov't? To force gov't to act?

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Constitutional Law

Pepsi Cola Lawful strike against Pepsi. Secondary picketing at houses of managers an

retailers of Pepsi. Assume picketing is lawful unless it amounts to a tort. Here, picketing the

deps. was lawful, but picketing the residences was not.

Gov’t vs. Private Activity Gov't activity attracts the charter, regardless of the actor

o Private actors (Eldridge, Slaight) Private Activity attracts the charter only for gov't actors

o (Douglas, Kwantlen)o But not for private actors (McKinney, Dolphin)

Guelph (P787) “Not subject to Charter: Independent, no coercion” Mandatory retirement at 65. Age discrimination protected from 18-65. LaForest: Charter not applicable directly, because the university is private.

Human rights act does infringe equality rights, saved under s.1. University not subject to the Charter because

o Governance of the university was independent of the gov't. o Mandatory retirement policy was created by the university, not at

instigation of the gov't. o University lacks coercive power to make laws binding on the public.

Even though the university dido Perform an important public service. o Receive public $. o Have powers and the attributes of a person.

Community College “Subject to Charter: Gov’t approval req” Everything had to be approved by the gov't, and so is subject to charter. However, the public chooses to be under this control...

Hospital “Not subject to Charter: Day to day ops. run privately” All regulations of hospital had to be approved, but the day to day of the hospital

was private and the retirement policy was not dictated by gov't.

Slaight “Private actor subject to Charter: Power of compulsion” Private individual employed as an arbitrator under Canada Labor Code

ordered that an employer who wrongfully dismissed an employee had to write that employee a reference. Clear violation of freedom of expression.

Charter does apply to private individual, who had the power of compulsion granted by statute.

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Constitutional Law

Eldridge “Charter applies to Medicare services?” Medical and Health Care Services Act of BC delegated to assess the cost of

services decided not to allow coverage for sign language interpreters. The court held that the Charter applied (this had to do with Medicare, Medical

Services Act as part of a gov't program), equality infringed and not justified under s.1. Conflicts w. other hospital cases?

Stoffman (mandatory retirement of doctors was allowed) distinguished, the charter applies for government actors as well as private actors in government programs/policies.

Hogg things this one is wrong. The real test is: Does the entity have a statutory power of coercion? (Power to tax, to compel a witness, etc...)

In the case of non-governmental actors Wilson (dissenting in McKinney): Broad view of charter, 3 part test.

o Control test (level of control that gov't has.)o Gov't function test (does the entity perform a traditional gov't function, or

take on gov't responsibility?)o Statutory Authority/Public Interest test (Does the entity further an

objective that the gov't seeks to promote in the broader public interest?)

When does the gov't's failure to act attract the charter?

Vriend : Alberta Human Rights law Charter prohibited discrimination, but did not include sexual orientation, though

the courts read in SO by analogizing it to other characteristics. Cory held that the charter applied and the omission of SO from the charter was

itself a charter issue. Must avoid a situation where the legislation can 'forget' a class of people. To

what degree does the charter impose a positive duty on government or other parties to act, as opposed to a negative duty to refrain from acting? Language rights are positive (s.23).

In most cases, court have interpreted charter rights in negative obligations, but there are exceptions.

Positive Obligations Vriend (Sexual orientation) Dunsmore (Gov't obligation to protect right of bargaining) Gosselin (Arbour found positive right to welfare) Ford (Override carries an obligation only of form)

Who is protected by the charter, aside from human beings?Depends on the interpretation of the right/freedom, and how the beneficiary is defined.

S.2 is granted to everyone. Prima facie, this includes corporations. S.15 Equality: Every individual. Excludes corporations.

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Constitutional Law

Is the particular right capable of being enjoyed by a corporation? Yes to freedom of expression (tobacco ads), but no to religion.

S.7 EVERYONE has the right...to security of the PERSON... (not capable of being enjoyed by corporations.)

Sources of remedies and standing S.52 Supremacy clause. Any law inconsistent w. constitution (charter) is of no

force or effect. S.24 Application to court of competent jurisdiction for remedies deemed just and

appropriate. In defense to a criminal charge, you can raise that the law is unconstitutional,

even if you cannot invoke a personal right to that law (Big M) BUT you cannot bring an action in anticipation of that law.

Different than in federalism (division of powers) cases. There, a private individual or corporation will have standing to go to court if its interests are directly affected by that law, on division of powers grounds.

Public interest standing. (P47)o Affected by it directly.o No other reasonable and effective manner in which the issue may be

brought before the court.o Hogg thinks these rules should also apply to the Charter.

Freedom of ReligionPreamble of charter: Supremacy of god and rule of law.

Fundamental freedoms Religion (among the first freedoms)

Division of powers Formerly federal criminal power

o Lord's Day Acto Implied bill of rights

Religion is not a 'matter' says Dickson, and does not fall exclusively in either provincial or federal.

Big M Drug Mart Early charter case about selling goods on Sunday. The Lord’s Day Act prohibited

working commercial activities, games where fees are charged, pleasure transportation where fees charged, except where provincial (property and civil rights) or municipal law allows. The court noted groceries and cups were bought at Big M, showing that striking down the law would not be the end of the world.

Supreme Court struck down the Lord's Day Act as invalid criminal law. Protect morality by ensuring that the Sabbath was observed. Even if the purpose of the Act was religious, the effects are what matter. Does the Act infringe S.2a of the Charter?

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Constitutional Law

Dicksono Both purpose and effect are relevant. If the purpose is unconstitutional,

effects need not be looked at. (P824) Where the object is improper, the court has discretion to discourage litigation. Ensures rights by obviating the plaintiff's need to prove effects.

Nature of a truly free society P825:o Absence of coercion (direct or indirect) or constraints.o Concern for minorities, beliefs, diversity.o Equality wrt. freedoms, inherent. Complex, controversial, intrusive.o Respect for dignity, rights of others.o Ability to hold and profess beliefs.

Attempts to compel belief of any kind in inappropriate. P827 Democratic political tradition. Constitutionally incompetent for the Canadian gov't to give preference to one religion over another.

Communicates that this is not a rejection of religion or the Sunday, Dickson being a religious man.

Prof. Moon: Freedom of religion also means freedom from religion.

Hunter ... Southam: Purposive approach to interpretation.

R. v. Edwards Books and Art (1986) “Retail Business Holiday Act” Close business on 'holidays' (xmas, good friday, new years, labor day) Close Sunday except:

o Corner stores, pharmacies, municipal law exemptions for touristso if closed on previous Saturdayo 7 or fewer employees on Sundayo 5000sq. ft. max to serve public

Majority: The EFFECT is coercion, economic pressure to make you abandon religious beliefs. Saved by s. 1 – (see Applying S. 1: Day of rest.)

Beetz (dissent): If there was no legislation, observers might not open store on Saturday and suffer costs because of religion, not the state. The coercion follows from religious beliefs. S.15 (discrimination) not in force.

Gold: Embedded in a notion of freedom of religion is equality.

Applying S.1: Day of rest Sufficiently important Retail vs. other industries Claiming religious exemption requires that

o A religious principle is at stakeo There is a sincere belief in that principleo The law conflicts with that principle, in that it is impossible to comply

with both and adhering to the principle is obligatoryo The objection is reasonable.

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Constitutional Law

Dickson:o Violates freedom of religion, but saved by s. 1. o Accomplishes legitimate purpose with minimal infringement on rights.

Assumes that exemptions make sense that way, with no evidence. Balance of probabilities? (Oakes)

o Drawing the line, exemptions allows us to avoid looking too deeply into the religious preferences and reasons of others. It's a distasteful inquiry.

o Be cautious about rolling back legislation that has the object of improving... Wary of using the charter as a regressive instrument. (P838)

La Forest would have upheld the law even without exceptions. Wilson would have struck it down.

o Draws distinction between big and small businesses, with no evidence that large businesses would significantly affect industry if they were allowed to stay open.

Quebec allows opening on Sunday with less restrictions. 3 Years later, Ontario amended the law, permitting any store to open on Sunday if

they were closed on any other day for a religious reason. (Wilson)

The broader freedom of religion is defined the more work S.1 has to do.

Other rights have grown, equality has shrunk and fewer cases get through the equality tests.

Opening municipal council meeting with prayer? S.2a protects Canadians from religious coercion. (Though you don't need to

participate in the prayer.) S.27 Multicultural

Sudbury Leaving during a school service forces one to make a religious statement and

stigmatizes young people.

History and traditions conflict with freedom of religion.

Freedom of Expression: Commercial Speech (Advertising)S.2(b): thought, belief, opinion, expression, including the press and other mediums.

Irwin Toy Law prohibiting advertising directed at persons under the age of 13 valid under

consumer protection legislation. Arguing s.7 not valid because a corporation cannot enjoy the right of life,

liberty and security of the person. Purpose is important. Studies were weak for the relevant age range, so

reasonable judgment was required. (P912) (Dissent: McIntyre & Beetz not impressed by case.)

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Constitutional Law

Minimal impairment. There is a reasonable basis for believing that the ban on ads impairs as little as possible. (weaker standard than Oakes) Less intrusive alternatives to ban (codes of conduct, etc.) not mandatory.

McLachlin (dissent): We should treat all speech the same, whether ads or political debate. (P913)

Tobacco Act Federal legislation banning certain forms of ads (requiring health warnings,

regulating information on packages) was upheld under the criminal law power,. Gov't conceded that the legislation infringed freedom of expression. The

tobacco company conceded that protecting Canadians is pressing and substantial. (Don't argue lost causes and frustrate the bench. Fight the fights you can win and lead with the best arguments.)

5-4 decision turned on whether rights were infringed as little as possible. Gov't commissioned a study of alternatives to a ban and did not submit the study.

Why is advertising included in freedom of expression? truth finding, dialog, reinforcing personal views. Advertising helps us build true

views in a very commercial society, or at least engages us in critical dialog. autonomy democratic participation diversity

US protects speech more for only democratic reasons and not the others.

Included in Freedom of Expression A statement or an act intended to communicate or express meaning. (Dolphin

Delivery) False statements (Zundel) Threats of violence, subject to S.1. (Keegstra, contra Dolphin Delivery)

Test for constitutionality1) Does a law violate constitutional rights?2) Does the law impose reasonable limits?

Are all forms of speech (ads vs. political debate) worthy of equal protection?

Freedom of Expression: Hate Speech

R. v. Keegstra (1990) Keegstra (teacher) was charged under the hate propaganda provisions of the

Criminal Code for making anti-semitic statements to students. Did the law violate Section 2(b)?

The court held that the restriction was a violation, justified under Section 1.

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Why does willful promotion of hatred fall under protection? Section 2(b) does not allow content-based restrictions because of the offensive nature of speech. Its ambit could not be narrowed by reference to other Charter values such as equality and multiculturalism. However, those values could inform the Section 1 analysis, and help to find the law’s objective to be “pressing and substantial.”

Options Override the charter Redefine the kind of speech protected under the charter

Should we be fine-tuning the criminal code or repealing it?

Equality RightsS.15 came into force 3 years after the rest of the charter by s.32(2), to give gov't a chance to change laws.

Sometimes you need to treat people differently to treat them equally.

Out with narrow Bill of Rights interpretation (P1141) S.15 says the narrow bill of rights interpretation is not to continue w. charter.

Charter should apply to the content and application of legislation.

Andrews BC law required Canadian citizenship before passing the bar. Former Hogg: Any legal distinction violates s.15, subject to s.1. (Could

overwhelm the legal system) Other Doctrine: S.1 not applied unless distinction causes disadvantage and is

unreasonable unjustified. (Is there any role left for s.1?) McIntyre wants a middle ground. Violation of s.15 causes disadvantage, go to

s.1 for reasonableness.

Law “Survivor’s pension distinction not an equality issue” Age based distinction in survivor's pension calculation does not reflect a lack of

equal concern or respect. It has an ameliorative purpose, using age as a proxy for need. Never got to S.1.

S.15 has been defined very narrowly, such that it is now rare to get to s.1. Prevent the violation of essential human dignity or freedom... (P1174) Iacobucci 3 Part test on the part of the complainant

o Distinctions that trigger equality review: Does the law draw a distinction based on PERSONAL characteristics (Andrews: incl. citizenship) or fail to take into account an already disadvantaged situation (Vriend, Eldridge)...? (or be listed?) Must show actual disadvantage.

o Enumerated or analogous grounds: Where the constitution permits infringement on enumerated grounds, those laws are sheltered. (Age of

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judges, CA1867 91.24 laws for aboriginals, s.93 religion-based school systems, 16-23 language rights.)

o Analogous to enumerated items: Identify the group Has the group been historically disadvantaged? Immutability (Can the status be changed easily or without great

personal/emotional cost?) Is the characteristic relevant for gov't legislative purposes. Powerlessness of the group in the political process. Look at underlying characteristics of listed grounds that make

them listed. P1154 Andrews, La Forest. *Workers comp does not fit. We can discriminate between

work and non-work injuries. *Something can be analogous but not discriminatory.

McIntyre in Andrews (P1152)o A distinction (intentional or not) that fulfills #1 and #2 deserves scrutiny.

Nothing added. Written before Law case. Innocent purpose does not save law from its effects. Discriminative purpose

will make laws even more vulnerable. If purpose is hidden behind a made-up reason, the new reason can be attacked for not being pressing. The strict standard of review in Oakes smokes out the bad reasons.

Definition of discrimination: That which makes people feel less capable or worthy, less of a human being, member of society. Concern for respect, consideration. (P1166) HUMAN DIGNITY - self respect, empowerment. Does the law treat unfairly? (P1173-4)

o Discriminatory if it offends human dignity? 4 non-exhaustive factors (P1174)

o Does group suffer pre-existing disadvantage?o Is the discrimininating factor relevant, correlated?o Is the law trying to remedy a disadvantaged group? (Lovelace: Allowing

only band members to share in profits from casino was ok because it was trying to ameliorate the situation of the disadvantaged native americans.)

o Would a reasonable person think that human dignity is being infringed? Characterization. The more fundamental the right, the more likely is a law to be struck down.

Substantive inequality (P1172)

Miron v. Trudel 5-4 Denial of automobile accident benefits to an unmarried opposite-sex couple

held to be discrimination on basis of marital status, contrary to s. 15. Not justified by s. 1.

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Walsh “Marital status distinction not a violation of dignity” Marital status (cohabitation without marriage). Presumption of equal division of

property for divorced parties. Walsh had cohabitated for 10 years - application for support.

Supreme Court found no violation of human dignity.

Goselin “Different welfare payments not a violation of dignity” Younger people got less welfare payments unless they had job retraining. S.15

and 7 rejected. Disadvantage but - No discrimination, no violation of dignity.

S.15 is a very tough test to satisfy.

M v. H “Gay spouse distinction is a violation of dignity” Same sex couples. Successfully argued that definition of spouse discriminated.

Taxation Power Parliament has plenary taxation power (91.3) raising of $ by any mode. Provincial limited power (92.2), reflecting less need to tax. Direct taxation for

provincial purposes.

Direct vs. Indirect s.121, 125 limit taxation and exempt public lands. Provinces getting more power John Stuart Mill

o Direct - Demanded from the person who pays is.o Indirect - Understood that it will be passed on to ultimate consumer.

SCCo Look at tax in its general tendencyo Once a tax is decided dir or indirect, that's the last word. Ex: Land, Sales

tax is a direct tax. Customs, Excise (manufacture and distribution of goods) taxes are indirect.

Division of powers issues come before charter issues.

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