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Constitutional Law Course Summary..................................................................................7 The Colonial Laws Validity Act, 1865........................................................................7 Constitution Act of 1867..............................................................................................7 The Statute of Westminster, 1931................................................................................7 The Canada Act 1982 (P174).......................................................................................7 The Constitution Act, 1982 (P174)..............................................................................7 Terms Constitutional Law, Conventions, Constitution.................................................8 Campbell v. A.G.B.C...................................................................................................8 Dicey (P1)....................................................................................................................8 Separation of Powers (P4)...........................................................................................8 Regina v. Governor of Her Majestys Prison Brockhill Ex Parte Evans.....................8 Kleinwort Benson v. Lincoln City Council, Mayor of Southwark, Birmingham City Council, Mayor of Kensington and Chelsea................................................................9 Earldom of Norfolk Peerage Claim.............................................................................9 Bentham, Jeremy..........................................................................................................9 A.G. Alberta v. A.G. Canada [1943] A.C. 356 (P35)..................................................9 B.C. Power Corp. v. B.C. Electric Co. [1962] 34 D.L.R. (2nd) 196 (P27)...............10 Amax Potash v. Government of Saskatchewan [1976] 71 D.L.R. (3rd) 1 (P29).......10 Singer v. Ministry of Community and Social Services (Handout)............................11 F. Hoffman-La Roche v. Secretary of State for Trade and Industry [1974] 2 All E.R. 1128 (P41)..................................................................................................................11 R. v. Swain [1991] 5 C.R. (4th) 253 (P57)................................................................12 R. v. Brydges [1990] 74 C.R. (3rd) 129 (P60)...........................................................12 A.G. Quebec v. Blaikie [1979] 101 D.L.R. (3rd) 394 (P353) Blaikie 1................12 A.G. Quebec v. Blaikie [1981] 123 D.L.R. (3rd) 15 (P359) Blaikie 2..................13 Manitoba....................................................................................................................13 Patriation....................................................................................................................13 Re Manitoba Language Rights [1985] 1 S.C.R. 721 (P371).....................................13 Issues related to the de facto doctrine and res judicata .............................................14 Bilodeau v. A.G. Manitoba [1986] 3 W.W.R. 673 (P389)........................................14 Severance.......................................................................................................................14 Textual Severance......................................................................................................15 Substantial Severance................................................................................................15 Severance Clause.......................................................................................................15 Pith and Substance.....................................................................................................15 Notre Dame de Bonsecours.......................................................................................15 A.G.B.C. v. A.G. Canada [1937] A.C. 377 (P89)......................................................15 A.G. Alberta v. A.G. Canada [1947] A.C. 503 (P62)................................................15 Madden v. Nelson and Fort Sheppard Ry. Co...........................................................16 A.G. Saskatchewan v. A.G. Canada [1949] A.C. 110 (P68).....................................16 Dunkley v. Evans [1981] 3 All E.R. 285 (P74).........................................................17 Daymond v. South West Water Authority [1976] 1 All E.R. 39 (P74).....................17 D.P.P. v. Hutchinson [1990] 2 All E.R. 836 (P72)....................................................17 Constitutional Exemption from Legislation...................................................................17 Canadian Charter of Rights and Freedoms, s.1 Reasonable Limits....................17 Canadian Charter of Rights and Freedoms, s.12 Cruel & Unusual.....................18
Constitutional Law
Canadian Charter of Rights and Freedoms, s.24(1) Inoperative.........................18 Constitution Act, 1982, s.52(1) Supremacy of Consitution................................18 R. v. Chief [1989] 74 C.R. (3rd) (P78) Charter s.24(1)..........................................18 Schacter v. The Queen [1992] 93 D.L.R. (4th) 1 (P92) CA 1982 s.52(1)..............18 McKay v. The Queen [1965] S.C.R. 798 (P82) Ultra Vires...................................19 NY Wine Statute Found Unconstitutional (Handout)................................................19 Ladore v. Bennett [1939] A.C. 468 (P120)................................................................19 Board of Trustees of Lethbridge v. Independent Order of Foresters [1940] A.C. 513 (P125).........................................................................................................................20 Bill of Rights Assented to on August 10, 1960......................................................20 A.G. Ontario v. Barfried Enterprises [1963] 5 C.R. 570 (P115)...............................20 Carnation Company v. Quebec Agricultural Marketing Board [1968] S.C.R. 238 (P109).........................................................................................................................20 Self-imposed restraints on legislative power.................................................................21 In Re The Initiative and Referendum Act [1919] A.C. 935 (P193)...........................21 McCawley v. The King [1920] A.C. 691 (P183).......................................................21 A.G. N.S.W. v. Trethowan [1932] A.C. 526 (P228).................................................22 Ellen Street Estates v. Minister of Health [1934] 1 K.B. 590 (P179)........................23 The Commission of Marcel Faribault [1967] (P181, 182)........................................23 Re Ontario Public Service Employees Union v. A.G. Ontario [1987] 41 D.L.R. (4th) 1 (Handout)................................................................................................................23 Re Eurig Estate [1998] 2 R.C.S. 565 (Handout)........................................................24 Amendment Considerations.......................................................................................24 Constitutional issues......................................................................................................25 Division of Powers.........................................................................................................25 Characterization: Steps of Interpretation (P215).......................................................25 Morgentaler Province does not have criminal jurisdiction....................................25 Division of Powers Doctrines....................................................................................26 GM v. City National Leasing [1989] 1 SCR 641 (P225)...........................................26 Multiple Access v. McCutcheon [1982] 2 SCR 161 (P232) Double aspect..........26 McKay v. The Queen [1965] S.C.R. 798 (P82) Ultra Vires...................................27 Sante Securite du Travail v. Bell [1988] 1 SCR 749 (P246) Inter-jurisdictional immunity, reading down..........................................................................................27 Irwin Toy...................................................................................................................27 Inter-jurisdictional Immunity.....................................................................................27 Classical Model of Divison of Powers.......................................................................28 Modern Model of Division of Powers.......................................................................28 Paramountcy..............................................................................................................28 Ross v. Registrar of Motor Vehicles..........................................................................28 Incompatibility of Policy\Purpose.............................................................................28 Bank of Montreal v. Hall (1990) 1 SCR 121 (P264).................................................29 Why should federal laws prevail?..............................................................................29 Peace, Order, Good Gov't..............................................................................................29 Concerns....................................................................................................................29 Reference re Anti-Inflation Act Inflation not a national concern..........................29 National Concerns Dimensions Inflation not national concern..............................31
Constitutional Law
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................................................32 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......................................................................................................................33 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.................................34 Economic reg.............................................................................................................34 Carnation Company v. Quebec Agricultural Marketing Board [1968] S.C.R. 238 (P109).........................................................................................................................34 Paul Weiler: Carnation and Manitoba Egg are the same. (P338)..............................35 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.........................................................................................36 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...................................................................................................39 P.A.T.A......................................................................................................................39 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).......................................................................................40
Constitutional Law
Firearms Act...............................................................................................................41 Arguing a criminal law legislation.............................................................................41 Provincial reach to criminal law................................................................................41 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.......................................................42 Federalism and Spending Power................................................................................42 Measures taken under spending power......................................................................42 Conditions for health funding....................................................................................42 Arguments against conditions....................................................................................42 Pro conditions............................................................................................................42 1937 Unemployment insurance reference.................................................................42 Quebec Sovereignty.......................................................................................................43 Quebec Secession Reference.....................................................................................43 Four Constitutional Principles...................................................................................43 John Major (Globe and Mail)....................................................................................44 The court rejected two extreme positions..................................................................44 Young.........................................................................................................................44 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...................................................................................................45 Offered measures of protection..................................................................................45 BNA 1867..................................................................................................................45 Rights and liberties were not MATTERS for which there were jurisdictional claims ....................................................................................................................................45 Minority Rights..........................................................................................................46 All provinces have enacted human rights codes as of Ontario 1952, after WW2.....46 Canadian Bill of Rights..............................................................................................46 Canadian Charter of Rights and Freedoms Influenced by.........................................46 Concern about legitimacy of judicial review. (Weimer?).........................................46 Veterans Affairs Act Pension Administration........................................................47 1. Is right/freedom infringed?....................................................................................47 2. Is infringement justified?.......................................................................................47 Nova Scotia Case (P752)...........................................................................................47 Oakes Test (Leading case on s.1)..............................................................................48 Hogg...........................................................................................................................48 Dickson (P757): Factors to consider..........................................................................48 Edmonton Journal Case.............................................................................................49 Charter Issues.................................................................................................................49 PRO Entrenchment of Charter...................................................................................49 CON Entrenchment of Charter..................................................................................49 Gold............................................................................................................................49 Weinrib......................................................................................................................50
Constitutional Law
Monahan....................................................................................................................50 Hogg...........................................................................................................................50 S.33 Override.................................................................................................................51 Ford v. Qubec (AG).................................................................................................51 Weinrib, Lorraine.......................................................................................................51 Morton........................................................................................................................51 Hogg...........................................................................................................................51 Framework of Charter....................................................................................................51 Local 580 v. Dolphin Delivery (1986) (early case) Expression.............................51 Courts struggling to understand the purpose of the charter.......................................52 Pepsi Cola..................................................................................................................52 Govt vs. Private Activity..........................................................................................52 Guelph (P787) Not subject to Charter: Independent, no coercion.........................52 Community College Subject to Charter: Govt approval req.................................52 Hospital Not subject to Charter: Day to day ops. run privately.............................53 Slaight Private actor subject to Charter: Power of compulsion..............................53 Eldridge Charter applies to Medicare services?.....................................................53 In the case of non-governmental actors.....................................................................53 When does the gov't's failure to act attract the charter?.................................................53 Vriend : Alberta Human Rights law .........................................................................53 Positive Obligations...................................................................................................54 Who is protected by the charter, aside from human beings?.....................................54 Sources of remedies and standing..............................................................................54 Freedom of Religion......................................................................................................54 Fundamental freedoms...............................................................................................54 Division of powers.....................................................................................................55 Big M Drug Mart.......................................................................................................55 R. v. Edwards Books and Art (1986) Retail Business Holiday Act.......................55 Applying S.1: Day of rest..........................................................................................56 Opening municipal council meeting with prayer?.....................................................57 Sudbury......................................................................................................................57 Freedom of Expression: Commercial Speech (Advertising).........................................57 Irwin Toy...................................................................................................................57 Tobacco Act...............................................................................................................57 Why is advertising included in freedom of expression?............................................57 Included in Freedom of Expression...........................................................................58 Test for constitutionality............................................................................................58 Freedom of Expression: Hate Speech............................................................................58 R. v. Keegstra (1990).................................................................................................58 Options.......................................................................................................................58 Equality Rights...............................................................................................................58 Out with narrow Bill of Rights interpretation (P1141)..............................................59 Andrews.....................................................................................................................59 Law Survivors pension distinction not an equality issue......................................59 Miron v. Trudel..........................................................................................................60 Walsh Marital status distinction not a violation of dignity....................................60
Constitutional Law
Goselin Different welfare payments not a violation of dignity..............................60 M v. H Gay spouse distinction is a violation of dignity.........................................60 Taxation Power..............................................................................................................60 Direct vs. Indirect.......................................................................................................61
Constitutional Law
Constitutional Law
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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.
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.
Constitutional Law
irresponsible 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 v. Lincoln City Council, Mayor of Southwark, Birmingham City Council, Mayor of Kensington and Chelsea
House 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 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.) 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.
Constitutional Law
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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
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.
Constitutional Law
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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: 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.
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.
Constitutional Law
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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.
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
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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.
Constitutional Law
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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.
Severance
If a part of legislation or contract is invalid then the whole could then claim that all laws are invalid because some (license renewal) happens to be invalid. The concept sections of a piece of legislation are removed from the stand on their own legal footing. thing might be bad. Criminals unrelated section of the code of severance is that the bad good parts, which can ideally
Constitutional Law
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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.
Constitutional Law
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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 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.
Constitutional Law
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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.
Constitutional Law
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Constitutional Law
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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.
1 2
Peter Hogg, Constitutional Law of Canada, Carswell, 2002, p385-386. O.P.S.E.U v. A.G. Ont. [1987] 41 D.L.R. (4th) 15
Constitutional Law
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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. 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.)
Carnation Company v. Quebec Agricultural Marketing Board [1968] S.C.R. 238 (P109)
Supreme Court of Canada, on appeal from the Queens 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 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.
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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.
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. 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).)
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(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.
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'.
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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.
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.
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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.)
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?
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Constitutional issues
Legitimacy of judicial review. Values, interests advanced or compromised by con law. Perspectives of evaluation (w. other disciplines)
Division of Powers
Interpreting the division of powers as laid out in the constitution Act, 1867
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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.
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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
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 4
Peter Hogg, Constitutional Law of Canada, Carswell, 2002, p385-386. 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.
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.
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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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
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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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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.
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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 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.
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Delegation
Conflict where federal and provincial efforts clash.
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) 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 board o Ex: Parliament gives power to Ontario trucking board to regulate interprovincial transport. Ontario can change trucking rules. Incorporation by reference of federal law. Apply law as it may change from time to time. Conditional legislation o 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 antiinflation 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 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
Create a national economy
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Economic reg
Marketing agricultural products Natural resources Trade and Commerce power
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 Queens 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 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.
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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?
Monahan, Patrick
Says there is no functional reasoning in Re Agr Mkt. Scheme could be upheld on functional grounds.
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Prof. Swinton
Unavoidable that judges will balance competing interests when deciding Territorial characterization not helpful
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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o 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. 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 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.
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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.
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
92.15 Punishments for provincial laws 92.6 Prisons
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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 act o Penalty o Criminal law purpose
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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-Qubec (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. 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.
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Firearms Act
upheld in criminal interest of public safety, other aspects incidental.
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.
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Pro conditions
National standards Redistribution of wealth
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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.
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Rule of Law (P23 Why is a constitution entrenched? Safeguard fundamental rights, ensure minority resources, federalism)
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 if one party operated in bad faith? Would the court then intervene?
Constitutional Law 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.
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Application of Charter
Protection of rights in Canada before the Charter.
BNA 1867
s.93 rights of schools s.133 English and French protection No protection from discrimination against minorities. (Ontario Catholics, French Manitobans)
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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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.
Quebec felt abandoned when other provinces signed on. Process was flawed.
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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.
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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.
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
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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
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
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S.33 Override
Notwithstanding clause routinely added to legislation.
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
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.
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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)
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.
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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)
Freedom of Religion
Preamble of charter: Supremacy of god and rule of law.
Fundamental freedoms
Religion (among the first freedoms)
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Division of powers
Formerly federal criminal power o Lord's Day Act o Implied bill of rights Religion is not a 'matter' says Dickson, and does not fall exclusively in either provincial or federal.
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o 7 or fewer employees on Sunday o 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.
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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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
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.
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diversity
US protects speech more for only democratic reasons and not the others.
Options
Override the charter Redefine the kind of speech protected under the charter
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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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.
Constitutional Law
60
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.
Taxation Power
Parliament has plenary taxation power (91.3) raising of $ by any mode.
Constitutional Law
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Provincial limited power (92.2), reflecting less need to tax. Direct taxation for provincial purposes.