Académique Documents
Professionnel Documents
Culture Documents
Constitutional Law
Constitutional Law
Concerns....................................................................................................................29
Reference re Anti-Inflation Act Inflation not a national concern............................29
National Concerns Dimensions Inflation not national concern.............................31
Functions of Judicial Review.....................................................................................31
Philip Bobbett's Judiciary Functions.........................................................................31
R. v. Crown Zellerbach Canada [1988] 1 S.C.R. 401 (P303) Small aggregates can
be single matters of national concern.......................................................................31
Le Dain J. on POGG and National Concern doctrine................................................31
Brun and Tremblay (P315) Crown Zellerbach sucks.............................................32
La Forest J..................................................................................................................32
Environmental Regulation.............................................................................................32
Friends of the Oldman River Society v. Canada (M. of Transport)...........................32
R. v. Hydro-Qubec Federal Criminal Law Power.................................................32
Ontario Hydro v. Ontario (Labor Relations Board) Nuclear labor........................32
Delegation......................................................................................................................32
Nova Scotia Delegation Case.....................................................................................33
Delegated/subordinate legislation..............................................................................33
Limitations on delegation..........................................................................................33
Economic Regulation.....................................................................................................33
Objectives..................................................................................................................33
Parsons Property and civil rights reg. most local commerce.................................33
Economic reg.............................................................................................................34
Home Oil...................................................................................................................34
Shannon (1938)..........................................................................................................34
Carnation Company v. Quebec Agricultural Marketing Board [1968] S.C.R. 238
(P109)........................................................................................................................34
Manitoba Egg (1971).................................................................................................34
Paul Weiler: Carnation and Manitoba Egg are the same. (P338)..............................34
Burns Foods (1975) Characterization....................................................................35
Re Agricultural Mkting Act (1978) Good faith inter-delegation............................35
Monahan, Patrick.......................................................................................................35
Federal Economic Regulation........................................................................................35
Leading case is Citizens Insurance Co. v. Parsons (1881)......................................35
91.2 Trade and Commerce.........................................................................................35
Prof. Swinton.............................................................................................................36
Labatt.........................................................................................................................36
Canadian Nat'l Transport..........................................................................................36
GM v. City National Leasing National Economic Union......................................36
Natural Resources..........................................................................................................37
CIGOL v. Gov't of Saskatchewan [1978]...................................................................37
Central Canada Potash v. Sask. [1979] International price fixing bad...................38
Criminal Law.............................................................................................................38
Federal.......................................................................................................................38
Provincial...................................................................................................................38
Board of Commerce...................................................................................................38
P.A.T.A........................................................................................................................38
Constitutional Law
Margarine..................................................................................................................39
Recent expansions under 91.27.................................................................................39
MacDonald v. Canada Health is a criminal law purpose.......................................39
Arguments against validity of MacDonald................................................................39
Arguments for validity of MacDonald (Majority).....................................................39
R. v. Hydro-Qubec (P400)........................................................................................39
Firearms Act..............................................................................................................40
Arguing a criminal law legislation.............................................................................40
Provincial reach to criminal law................................................................................40
Nova Scotia Board of Censors v. McNeil (P416).......................................................41
Dupont.......................................................................................................................41
Westendorp v. The Queen (P421)...............................................................................41
Power to enforce comes from power to legislate.......................................................41
Federalism and Spending Power...............................................................................41
Measures taken under spending power......................................................................41
Conditions for health funding....................................................................................42
Arguments against conditions....................................................................................42
Pro conditions............................................................................................................42
1937 Unemployment insurance reference..................................................................42
Quebec Sovereignty.......................................................................................................42
Quebec Secession Reference......................................................................................42
Four Constitutional Principles...................................................................................43
John Major (Globe and Mail)....................................................................................43
The court rejected two extreme positions..................................................................43
Young.........................................................................................................................43
Reactions....................................................................................................................44
What should be the majority vote in order to negotiate?...........................................44
Who else should be at the table?................................................................................44
Other constitutional principles...................................................................................44
Application of Charter...................................................................................................44
Offered measures of protection..................................................................................44
BNA 1867..................................................................................................................44
Rights and liberties were not MATTERS for which there were jurisdictional claims
...................................................................................................................................45
Minority Rights..........................................................................................................45
All provinces have enacted human rights codes as of Ontario 1952, after WW2.....45
Canadian Bill of Rights.............................................................................................45
Canadian Charter of Rights and Freedoms Influenced by.........................................46
Concern about legitimacy of judicial review. (Weimer?).........................................46
Veterans Affairs Act Pension Administration.........................................................46
1. Is right/freedom infringed?....................................................................................46
2. Is infringement justified?.......................................................................................47
Nova Scotia Case (P752)...........................................................................................47
Oakes Test (Leading case on s.1)...............................................................................47
Hogg..........................................................................................................................48
Ronald Dworkin.........................................................................................................48
Constitutional Law
Constitutional Law
R. v. Keegstra (1990).................................................................................................57
Options.......................................................................................................................57
Equality Rights..............................................................................................................57
Out with narrow Bill of Rights interpretation (P1141)..............................................57
Andrews.....................................................................................................................58
Law Survivors pension distinction not an equality issue......................................58
Miron v. Trudel...........................................................................................................59
Walsh Marital status distinction not a violation of dignity.....................................59
Goselin Different welfare payments not a violation of dignity..............................59
M v. H Gay spouse distinction is a violation of dignity.........................................59
Taxation Power..............................................................................................................59
Direct vs. Indirect......................................................................................................59
Constitutional Law
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.
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?]
Constitutional Law
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.
o
Issues
1. 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.
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
Constitutional Law
behavior by public servants? Solicitor General stood behind him, even 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 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 partys
recovery of money paid under mistake of law.
Lord Lloyd of Berwick dismisses the appeals, though he would like to do otherwise.
Bentham, Jeremy
P9 - 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.)
Constitutional Law
10
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.
B.C. Power Corp. v. B.C. Electric Co. [1962] 34 D.L.R. (2nd) 196 (P27)
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 didnt 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
Constitutional Law
11
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.
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, Brians parents
have authorized shock treatment for their son.
A new law would require a patients 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.
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.
Constitutional Law
12
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 arbitrarily
3. State trying to take profits retro.
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.
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 Quebecs 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.
Constitutional Law
13
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
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.
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.
Constitutional Law
14
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
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.
Severance
Constitutional Law
15
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.
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.
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.
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.
Constitutional Law
16
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.
Constitutional Law
17
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.
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 Ministers order was ultra vires in entirety, because textual
severance was not possible.
Ormrod L.J. held that the order would stand, because it passed the test of substantial
severance. The fact that the text doesnt lend itself to surgical textual severance does not
mean that it should fail.
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.
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 Law
18
Rights and freedoms are subject to reasonable limits prescribed by law, justified
in free and democratic society.
an individual remedy for actions taken under a valid law which violate an
individuals Charter rights
striking down of any law that is inconsistent with the provisions of the
Constitution, but only to the extent of the inconsistency.
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 (its 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.
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
Constitutional Law
19
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.
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
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.
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.
1
2
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.
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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.
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.
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.
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
Constitutional Law
21
could not come to an agreement, the QAMB used its authority to determine the price that
Carnation would pay.
As Carnation exports much of its 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.
Carnations 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.
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)
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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 powerto
make further provision.
o The Colonial Laws Validity Act, 1865 s.5 provides the Legislature full power to
make Laws respecting the Constitutionpassed 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
former court (7-year term.) As stated in s.12a of 31 Vict., No. 6 (Queensland)
expressions used in the instrument shallhave the same respective meanings
as in the Act conferring the power.
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 Queens assent until it had been voted on by a majority of
electors.) The Legislative Council becomes entrenched, but since its 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.
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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.
London County Council wants to clear out an area that includes the plaintiffs 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)
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.
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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 govt cannot interfere withthe other order of
govt), 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.)
Mary Eurig is the executor of her husbands estate and is being charged $5710 in
probate fees in order to obtain letters probate (evidence that she owns husbands
property.) The Authority behind these fees is the Administration of Justice Act s.5c and O.
Reg. 293/92 s.2(1). Eurigs case was dismissed by the Ontario Court and Court of
Appeal.
Lamer C.J. and lHeureux-Dub, 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.
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 cant be amended simply by passing inconsistent legislation.
Scott is skeptical of this decision.
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25
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
Division of Powers
Interpreting the division of powers as laid out in the constitution Act, 1867
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26
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.
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28
Sante Securite du Travail v. Bell [1988] 1 SCR 749 (P246) Interjurisdictional 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
3
4
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29
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.
Exclusive jurisdiction
Power struggle
Beetz (doesn't buy double aspect)
Paramountcy
A judge-made rule
Used only after the issues of validity (characterization) and applicability (interjurisdictional 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.
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
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30
Farmer defaults on BOM loan. Bank tries to seize machinery, pursuant to the
federal bank act. A provincial act requires notice.
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 cant they comply with both laws by giving notice? Purpose. See p269#4
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
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.
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31
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
Ontarios 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.
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.
Beetz
o 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.
Laskin
o 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.
Ritchie
o Opponents have to show clearly that there was no emergency.
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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,
etc. Inflation is an aggregate of subjects, pervasive, far reaching, with no unity or
specificity.
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.
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33
La Forest J.
Environmental Regulation
Friends of the Oldman River Society v. Canada (M. of Transport)
Building dam on Albertas 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.
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.
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Delegation
Conflict where federal and provincial efforts clash.
Delegated/subordinate legislation
Limitations on delegation
Economic Regulation
Property 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
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35
Economic reg
Laskin
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36
Paul Weiler: Carnation and Manitoba Egg are the same. (P338)
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.
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
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
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37
Prof. Swinton
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 local
o 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.
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38
Natural Resources
What are the roles of provinces and parliament?
Rise in oil prices in '73 caused problems. As oil revenues increased, crisis occurred,
equalization programs responded.
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
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39
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.
Consequences
o S.92a had given jurisdiction to provinces of natural resource prices outside
the province, subject to paramountcy. 94a protects provincial laws.
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.
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 Law
Where 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
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40
Board of Commerce
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 act
o Penalty
o Criminal law purpose
POGG
General Trade and Commerce
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41
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-Qubec (P400)
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42
Firearms Act
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 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 laws pith and
substance is the regulation of local trade, not criminal.
Dupont
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43
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.
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?)
Accessibility
Comprehensiveness
Universality (all residents)
Portability (temporarily absent)
Non-profit public administration
Pro conditions
National standards
Redistribution of wealth
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.)
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44
Quebec Sovereignty
Quebec 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
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.
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?
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.)
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45
Young
Likes judgment for maintaining court's legitimacy, preserving political space for
discussion.
Reactions
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?
Parties of confederation?
Quebec and Canada?
The federal government?
Provinces, Territories, 1st Nations?
Independence of judiciary
o Financial security
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46
o Security of tenure
o Institutional independence
Role of Superior Courts
o s.96 of CA.
o Core jurisdiction that comprises powers and rule of law.
Powers
o To determine whether a lower court acted within jurisdiction.
o To pronounce on constitutionality of provincial legislation.
o To punish contempt.
Application of Charter
Protection of rights in Canada before the Charter.
notions of democracy
independence of judiciary
principles (mens rea, presumption of innocence, reasonable doubt, statutory
interpretation, rule of law)
BNA 1867
Rights and liberties were not MATTERS for which there were
jurisdictional claims
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47
Minority Rights
Quebec felt abandoned when other provinces signed on. Process was flawed.
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48
1. Is right/freedom infringed?
2. Is infringement justified?
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49
Hogg
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50
Dignity
Equality
Beliefs
Culture
Institutions
Rights and Freedoms
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.
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.
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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?
Law is indeterminate, decisions are ideological. Judges are the naked purveyors of
power? No limits?
Hart?
Dworkin?
Weinrib
Monahan
Process oriented theory. Tainted, flawed process that shuts out a social group.
Hogg
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
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S.33 Override
Notwithstanding clause routinely added to legislation.
Parliament had to decide whether Qubecs 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.
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
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To constrain gov't?
To force gov't to act?
Pepsi Cola
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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.
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...)
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
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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
Freedom of Religion
Preamble of charter: Supremacy of god and rule of law.
Fundamental freedoms
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Division of powers
Early charter case about selling goods on Sunday. The Lords 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?
Dickson
o 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.
Close business on 'holidays' (xmas, good friday, new years, labor day)
Close Sunday except:
o Corner stores, pharmacies, municipal law exemptions for tourists
o if closed on previous Saturday
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Sufficiently important
Retail vs. other industries
Claiming religious exemption requires that
o A religious principle is at stake
o There is a sincere belief in that principle
o The law conflicts with that principle, in that it is impossible to comply
with both and adhering to the principle is obligatory
o The objection is reasonable.
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.
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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.
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.)
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
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
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diversity
US protects speech more for only democratic reasons and not the others.
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.
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 laws objective to be pressing and substantial.
Options
Equality Rights
S.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.
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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
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
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.
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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
Younger people got less welfare payments unless they had job retraining. S.15
and 7 rejected. Disadvantage but - No discrimination, no violation of dignity.
Taxation Power
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Provincial limited power (92.2), reflecting less need to tax. Direct taxation for
provincial purposes.