PART I – INTRODCUTION – BASIC CONCEPTS Constitution is legal framework of state; Sets out primary rules of lawmaking/legal system: 1. How/whom are laws made; 2. How primary rules can be changed; 3. Limits on state power? 1. Elements of Constitution (a) Written vs. Unwritten • Written = ―core document/documents take precedence over all other laws AND special amendment rules.‖ Eg.: U.S. – Written, U.K. – Unwritten (no single core constitutional document) (b) Canada's Written Constitution: (see p. 161 of Monahan) U.K. Statutes CA 1867 Amendments to CA 1867 (1871, 1886, 1907, 1915, 1930, 1940, 1946, 1949, 1960, 1964) Parliament of Canada Act, 1875 ` Canada (Ontario Boundary) Act, 1889 Statute of Westminster, 1931 Canada Act 1982 Constitution Act, 1982 U.K. Orders In Council 1870 Order admitting Rupert's Land; 1871 Order admitting B.C.; 1873 Order admitting PEI 1880 Order admitting Arctic Archipelago Canadian Statutes Manitoba Act, 1870l; Alberta Act, 1905; Saskatchewan Act, 1905 Amendments to CA 1867 (1965, 1974, 1975 (no. 1), 1975 (no. 2)) Post- 1982 Constitutional Amendments Constitution Amendment Proclamation, 1983 (Re: Aboriginal Rights) Representation Act, 1985 (Re: Representation in the HoC) Constitution Amendment Proclamation, 1987 (NF Act, Re: Denominational Schools) Constitution Amendment Proclamation, 1993 ( P.E.I.; Re: Fixed Link) Constitution Amendment 1997 (NF Act, Re: Denominational Schools) (c) Canada's Unwritten Constitution: (see p. 162 of Monahan) Pre-1867 Constitutional Enactments The Royal Proclamation, 1763 Provincial Constitutions of NS, PEI, NB, NF, BC Constitutional Conventions Principles of Responsible Government Conventions Regulation Fed-Prov. Relations Judicial Decisions Interpretations of the Constitution Acts Common Law Doctrines defining powers of the Crown, Parliament, or State Officials Organic Statutes Supreme Court Act; Canada Elections Act; Financial AdministAnalysis and Dispositionn Act; Citizenship Act Prerogative Orders Letters Patent of 1947 constituting the office of the GG Aboriginal Agreements Treaties 1 to 11
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James Bay and Northern QC Agreements Inuvialuit Final Agreements Yukon First Nations Agreements
2. The Canadian Constitution—CA 1982, s.52
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Canada‘s constitution always been partly written/unwritten; however, since 1982, primarily written, as we have had definition of the ―Constitution of Canada‖ (see. s. 52 of Constitution Act, 1982) Magnet I p. 58; Appendix A-2 p. 3.
(a) Section 52, C.A. 1982 • The Constitution of Canada is the supreme law of Canada, and any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect. • The Constitution of Canada includes: o the Canada Act 1982, including this Act; o the Acts and orders referred to in the schedule [see Hogg, p. 1166; 30 items listed] o any amendment to any Act or order referred to in paragraph (a) or (b). • Amendments to the Constitution of Canada shall be made only in accordance with the authority contained in the Constitution of Canada. (b) Judicial Review Under s. 52 • S52 explicitly provides for judicial review (idea already existed in BNA Act) • c.f. to Marbury v. Madison (1803), regarding U.S. Constitution (Magnet I, p. 168): o Chief Justice Marshall: ―The Constitution is either a superior paramount law, unchangeable by ordinary means, or it is on a level with ordinary means, or it is on a level with ordinary legislative acts, and, like other acts, is alterable when the legislature shall please to alter it. If the former part of the alternative be true, then a legislative act contrary to the Constitution is not law: if the latter part be true, then written constitutions are absurd attempts, on the part of the people to limit a power in its own nature illimitable.‖ o Marbury v. Madison controversial at the time, thought by some to be aggrandizing Court‘s own power, BUT o Court is not enforcing its own rights/judicial power, but rather rights of individual citizens, AND o Courts act passively, non-coercive way; no power to impose taxes, call upon army/police. (c) ―Unwritten‖ Rules and Principles of Constitutional Significance-• Not included within s. 52 (therefore, called ―unwritten‖ although most within written documents); • May still have some for of priority over other laws (i.e. treaties explicitly protected by CA 1982, s.35); • May also have special amending procedure, although not as rigorous as applicable to elements of CC. Include: o Pre-1867 Constitutional Enactments (Royal Proclamation of 1763) o Constitutional Conventions o Judicial Decisions (i.e. common law rules regarding the Crown prerogative) o Aboriginal Treaties/Agreements o Patriation Reference
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SCC in the Secession Reference recognized four principles that also have constitutional significance: 1. Democracy 2. Federalism 3. Constitutionalism and the Rule of Law 4. Protection of minorities In the Secession Reference, SCC used principle of ―democracy‖ to establish a ―duty to negotiate secession‖ following a clear majority on a clear question voting for secession. Unclear how broadly these unwritten principles can be applied. They are potentially vague concepts, but so much of the constitution is vague. Still, although the SCC said these principles underlie constitution, were not explicitly part of original written document could be argued that SCC has amended the Constitution w/o authority to do so.
3. Responsible Government (a) Basic Principles • constitutional convention: unwritten ―political‖ rules regarded as binding • Patriation Reference (1981) citing C.J. Friedman (Manitoba) in Manitoba Reference: o ―General agreement that a convention occupies a position somewhere between a usage or custom on the one hand and a constitutional law on the other. There is general agreement that if one sought to fix that position with greater precision he would place convention nearer to law than to usage or custom. There is also general agreement that ―a convention is a rule which is regarded as obligatory by the officials to whom it applies.‖ There is, if not general agreement, at least weighty authority, that the sanction for breach of a convention will be political rather than legal.‖ • Two Main Principles: o GG (or Lt. GG) will appoint PM (Premier) who enjoys the confidence of the elected legislative chamber; o GG (or Lt. GG) will then act on advice of the PM (Premier). • Responsible Government principle reconciles appointed heads of state with democratic legitimacy of Government (b) Powers of GG • Appoints PM, Cabinet Minister, Senators, Judges (SCC and Prov. Superior Courts) [constitutional convention] • Signs bills into law • Power to ―disallow‖ provincial laws (has not been exercised for over 50 years) and to ―reserve‖ federal laws (has not been exercised for over 100 years); • Delivers Speech from the Throne announcing government policy (c) Power of Prime Minister • Responsible Government ensures all these powers exercised on advice of PM or cabinet. • However, leads to undue centralization of power in hands of PM; no ―checks and balances‖, since Prime Minister controls both legislature and executive branch; available means of controlling Power of PM o Senate reform (EEE in Charlottetown defeated in 1982); o Increase provincial powers; o Change electoral system make it more difficult to achieve a majority (e.g. ―Firstpast-the-post‖ to Prop. Rep);
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Relax party discipline. (Whereby MP can be banished for disagreeing e.g. John Nunziatta on GST; also simply groupthink competition in government btw the parties). Problem is no sitting PM likely to support proposals to decrease power. 1982: Judiciary given more power, does not take orders from PM; via Charter able to provide check on PM.
4. Constitution Act, 1867 (a) Introduction • Created Federal form of Govt: Dominion of Canada out of colonies of Canada, Nova Scotia, New Brunswick; • Ordinary statute passed by U.K. Parliament; originally titled BNA Act 1867; proclaimed into law on July 1, 1867. • British statutes applicable to colonies took precedence over local statutes (Colonial Laws of Validity Act 1865) • Priority of British law over Can. Law Court power to review statutes to ensure conformity with BNA Act. (b) Legislative Power • Parliament (Senate, HofC, w. Queen) [Part IV, ss.17-18]. All 3 constitute Parliament - all bills must pass all three to come into law. Bill can be introduced in either house, read 3 times in each, then signed by Queen‘s rep (GG). • Formal rule: Only Parliament can make laws/statutes. Rights cannot be taken away except by statute, (rule of law principle). Crown (Government) cannot legislate through exercise of royal prerogative (residual power of Crown). • However, in practice, Government often delegated broad powers to legislate, via statutes themselves. GG in council may make regulations in given areas; Courts have upheld this practice as consistent with the rule of law principle. • ss. 17 CA 1867 - There shall be One Parliament for Canada, consisting of the Queen, an Upper House styled the Senate, and the House of Commons. (c) Executive Power: CA 1867 Part III: ss.9-16 • Executive is the Government, power is extensive (Magnet I p. 154); includes PM, cabinet, also departments/ministries, police, and the military. • s. 9 vests executive power in the Queen and her rep the GG. • s. 11 establishes the Privy Council to advise the GG. • s. 12: ―power of GG in council,‖ namely advice of the PC (represented by Cabinet). Remember principle of Responsible Government establishes that executive power wielded on advice of cabinet (democratically elected reps). • HOWEVER, Executive does not have inherent power to make laws. For executive to enact laws with binding force, must be authority set out in statute or rule of c.l. Very limited power at c.l. for Government to use royal prerogative to enact binding laws (usually just foreign policy). 5. Judiciary: CA 1867 Part VII: ss.96-101 (a) Background • Prior to 1867, already had superior courts in each province; CA 1867 continued Courts, gave GG right to appoint judges; appeals to the JCPC
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1875: SCC established (SC Act based on s. 101 of CA 1867). s.96 Courts = Provincial Trial/Appeal Courts continue to be controlled via appoints of judges on advice of PM to GG. 1949: Eliminated appeals to JCPC in relation to Canada; SCC became final court of appeal. Quebec critical of this move and reluctant to give up JCPC. SCC has ‗plenary‘ jurisdiction over Provincial lower courts (unlike U.S. where SC does not hear matters of state law, only deals with federal and interstate law). Canada‘s Court structure is unitary s. 96: GG appoints judges. s. 99: Judges can only be removed by resolution of legislature. ―shall be removable by the Governor General on Address of the Senate and House of Commons‖ (mandatory retirement at 75) Provisions incomplete: Courts have supplemented by recognizing unwritten principle of judicial independence. Judicial Independence: o Individual - Each judge free to make her decisions w/o undue influence. o Collective - Separation of Powers btw orders of government. Courts are impartial umpire in disputes.
***CA 1867, Part V—s.58-90: Three branches of government are replicated at Provincial level. (b) Separation of Powers • Montesquieu (The Spirit of the Laws): saw vital connection btw liberty and separation of powers. Body that makes laws should not enforce/administer laws. Power will check power. Doctrine is at heart of the U.S. Constitution. • Canada—High degree of integration btw legislature and executive. • Government and the office of the PM control the executive and the legislature • Intentionally concentrated power to allow state to take activist measures in common interest and it is desirable to have this so (Magnet I, p. 202ff). The U.S. system of checks and balances can often lead to paralysis. • checks on power arise from strength of provincial governments and the judiciary. (c) Rule of Law Principle • Rule of law requires that all exercise of state power find its source in a legal rule. • Principle recognized in preamble to CA 1982. • CA 1982—―Whereas Canada is founded upon principles that recognize the supremacy of God and the rule of law.‖ • Recognized by SCC in the Patriation Reference (1981), (Magnet I p. 58); Manitoba Language Reference (1985), (p. 174 in Magnet I); and Secession Reference (1998), (Magnet I p. 23). • Manitoba Language Reference: Two senses of Rule of Law (p. 175): o Procedural: ―precludes the influence of arbitrary power‖ AND o Substantive: ―preserves and embodies the more general principle of normative order […] which […] is linked with basic democratic notions‖. (d) Roncarelli v. Duplessis [1959] S.C.R. 121 (Magnet p. 193)—Rand J. • Facts: Roncarelli puts up bail to help Jehovah‘s Witnesses arrested for spreading their views • Duplessis government revokes Roncarelli‘s liquor license and declares him barred forever)
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Duplessis government said that there was a general power to revoke licenses in the public interest. Analysis and Disposition Rand J.‘s opinion rejects arbitrary exercise of power; ―there is no such thing as absolute or untrammelled discretion.‖ There are inherent limits and it is up to the court to identify those limits. Principles: o Public officials must abide by rule of law. Duties granted by statute must be exercised in good faith. o Principle of validity states that every official act must be justified by law. o Only a statute could authorize the cancellation, and such a statute would not authorize Duplessis to revoke license himself. Court also awarded punitive damages ($25,000) forcing Duplessis to pay up personally! General notion of how rule of law principle imposes certain limits on government and parliamentary action, BUT rule of law itself not a basis for setting aside legislation as unconstitutional. Magnet p. 178: ―Certainly it would be an unusual case which would warrant the use of this power … allowing for the possibility that the rule of law doctrine might serve as an emergency switch to overturn legislation in such unusual circumstances may provide useful flexibility in Canada‘s constitutional system.‖
(e) R. v. Beauregard [1986] 2 S.C.R. 56. (Magnet p. 261)—Dickson C.J. • Facts QC Superior Court judge challenges federal legislation providing for contributory pension scheme for judges. • Analysis and Disposition SCC upholds legislation but recognizes judicial independence binding on Parliament and Executive. • CA 1867 s.100 stipulates Parliament shall fix and provide salaries, pensions, of judges, but w/o hint of impropriety: ―Power of Parliament to fix salaries and pensions of superior court judges not unlimited.‖ (p. 265 in Magnet I). • Sense that judicial independence was both individual and collective was novel in the latter aspect: ―[Judicial independence] connotes not merely a state of mind or attitude in the actual exercise of judicial functions, but a status or relationship to others, particularly to the executive branch of government.‖ (p. 263 in Magnet I). • Rationale for collective independence is that judiciary is protector of Constitution and fundamental values embodied in it—Rule of Law, Fundamental Justice, Equality, Democracy, etc. (f) Reference Re Provincial Judges [1997] 3 S.C.R. 3 (Magnet p. 269)—Lamer C.J. • Facts Issue is validity of provincial legislation rolling back judicial salaries as part of general restraint initiatives. • Analysis and Disposition Legislation is held to be invalid as contrary to principle of judicial independence. • Government cannot single out judges for some kind of discriminatory treatment, can only reduce their salaries as part of an across the board reduction AND they had to establish Judicial Compensation Commissions. o ―1. Independent, effective, objective commissions o 2. Government must justify decisions which depart from JCCs by a standard of simple Rationality o 3. Judiciary may never negotiate with Executive or legislature but may express concerns or make representations to governments regarding renumeration.‖ (p. 16/271 in Magnet I)
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Argument made on basis of Charter 11(d) ―to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal,‖ and preamble to CA 1867 ―similar in principle to that of the United Kingdom‖ phrase importing various values, including independence of judiciary. Preambles not legally binding, and do not have legally binding force, but do assist interpretation, serve as a guide to underlying objectives drafters of the act seeking to pursue. Requirement of JCCs imposed retroactively, (i.e. requirement always existed but Provinces unaware earlier)
6. Federalism (a) General Principles • Power (legislative and revenues) divided btw different orders [not levels] of government (central and regional). • Each sphere independent of the other • Individuals subject to laws enacted by both central and regional governments. • Constitution not unilaterally amendable by one order. • Independent umpire to rule on disputes btw the different orders of government. • Political Theorists often equate Federalism w/ limited government and conservatism; (see Dicey (p.89): Federalism characterized by weak government, tending toward status quo, change more difficult than w/ unitary system. • Theorists on political left also critical b/c strong central state required to control large private corporations,. E.g. Laski (1936, p.89): ―in age of ‗giant caplitalism‘ federal system deprives state of tools needed to regulate capital.‖ • K.C. Wheare: Only four federal systems, U.S., Canada, Australia (1901) and Switzerland (1848). • Watts: Federalism undergoing revival; pressure move power upward/downward. Globalization (transportation and technology) increases need for supranational organizations and local political units at expense of nation-states. Traditional nation-states both too small and too large serve citizens‘ needs. Federalism ideal response to pressures. • 1867: Canada was ‗quasi-federal‘ rather than truly federal. GG could disallow provincial laws; GG appoints LGs, can instruct them to ‗reserve‘ a bill (i.e. not sign it) (see CA 1867, ss.55 and 90). Powers still exist, though constitutional convention that they will not be used. Disallowance not used since 1943. Reservation not used since 1961. In The Secession Reference, SCC calls power of disallowance obsolete. • Canada today is seen to be a truly federal state, more decentralized than either the U.S. or Australia. (b) Division of Power • ss.91-92ff of CA 1867 provide for catalogue of federal and provincial division of powers. • 1867, thought powers provided for powerful central government. Two enumerated lists of powers, plus residual power for the federal government (see opening words – POGG power). • Key enumerated powers given to federal government: trade and commerce, criminal law, tariffs and customs, unlimited taxation and borrowing. 1867: most revenue came from tariffs and customs; provinces got money in form of grants from federal government. • Judicial interpretations (primarily thru the JCPC) have narrowed federal powers/expanded provincial powers.
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JCPC: POGG residual power and enumerated powers interpreted narrowly, whereas broad interpretation of ―property and civil rights‖ [92(13)], key provincial power. Any laws affecting ―rights in the province‖ are seen to be within 92(13) and beyond federal power. Provincial power also grown through aggressive ‗provincial-building‘ strategies. Federal government (since late 1950s) attempted to play social policy role using spending power; i.e. use power of money to influence/control what provinces do within their jurisdictions. Offer money to provinces (shared cost program) or directly to citizens (millennium scholarship fund). This has been criticized, particularly by the province of Quebec. In Social Union agreement (2000), the Federal Government agreed not to set up any new shared cost programs unless agreed to by two-thirds of the provinces, thereby creating a limit on their spending power.
(c) Constitutional Amendment: CA 1982 • BNA Act 1867: ordinary British statute – amendments by statutes passed by U.K. Parliament (Westminister). • Procedure developed whereby Canadian Parliament pass resolution requesting an amendment; Constitutional convention that Britain would pass requested amendment [22 times btw 1867 – 1982, firm convention by early 20th-century that Britain would only pass amendments upon request]. • 1982 Amendment: Federal Government introduced a resolution into Parliament requesting Britain to pass the Canada Act (October 1980). Trudeau conducted negotiations with Provinces but failed, so he proceeded unilaterally. (d) The Patriation Reference [1981] 1 S.C.R. 753, p. 101. Facts • Provinces brought a challenge to the unilateral attempt to amend Constitution. Analysis and Disposition • September 1981, the SCC ruled • U.K. has legal power to amend and Province‘s consent is not legally required • Consistutional convention requires substantial provincial consent prior to request. • Precedents of 1940, 1951, and 1964 established provincial consent required (in those cases it was unanimous) • ―Flaw‖ or political compromise in decision was they only required ‗substantial‘ consent of the Provinces; SCC didn‘t want to put Constitution into a straight-jacket, and so they went with the proposal from Saskatchewan. • Effect of Judgment: Both Trudeau and Provinces declare victory • further negotiations. Nov. 1981 agreement with 9/10 provinces. • Two key changes agreed to: 1. Provincial Amending Formula; 2. Notwithstanding clause in the Charter. • Quebec and Aboriginal groups objected to amendments (but later s.35 inserted, which applies to Aboriginal rights, with the addition of the word ‗existing‘ which had not been in the original draft). • April 17, 1982, passed into law by Her Majesty the Queen. (e) CA 1982, Part V, ss.38-49 and Amendments • CA 1982 abolishes Brit's power to enact law for Canada, i.e. ―the patriation‖ of Constitution. • Continuity: Everything previously existed (BNA Act 1867 etc.) continues as part of definition in CA 1982 s. 52.
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Amending formula moves from executive-based to legislative-based procedures (requires legislative resolutions by Parliament and Provincial legislatures; but executives control the legislatures). Resolution expresses legislature‘s view on particular matter; not legally binding as such, but provides direction on potential amendments/changes. ―We hereby authorize the GG to proclaim an amendment …‖ Once GG has right number of identical resolutions (i.e. from HofC and Senate and 2/3 of Provinces, constituting 50% of population) amendment can be passed. Also right to opt out of some amendments if Province chooses. Political reality is that you have to try to forge agreement prior to initiating the procedure. Even if all 10 Provinces pass a resolution, it is federal government‘s role to protect the national and minority interests.
(f) General Amending Formula—CA 1982, s. 38 • s. 38(1): 2/3 Provinces with 50% majority population required [7-50 formula] • ss. 38(2)and(3): No veto right, but province may ‗opt out‘ of amendment taking away provincial powers. • s. 39: 1-year minimum and 3-year maximum under s. 38 from time first resolution is past. • s. 40: Compensation provided to provinces that opt out of amendments related to education and cultural matters. (g) Special Matters—CA 1982, s. 41 Unanimity required for 5 classes of amendments: (a) Office of the Queen (b) Right of a Province to House of Commons members not less than number of Senators in 1982 (c) Subject to s. 43, use of English of French (d) Composition of the SCC (e) Amendment to this Part (Amending Formula itself) (h) Special Matters—CA 1982, s. 42 7-50 formula, with no ‗opt out‘, for amendments to federal institutions (i.e. Senate, HoC, SCC). (a) principle of proportionate representation of provinces in HoC prescribed by the Constitution (b) powers of the Senate and method of selecting Senators (c) number of members a province is entitled to have in Senate and residence qualification of Senators (d) subject to 41(d), the Supreme Court of Canada. (e) Extension of existing provinces into the territories; AND (f) Notwithstanding any other law or practice, the establishment of new provinces. s. (1): No opt out for the above (i) Other Matters—CA 1982, s. 43-49 s. 43: Bilateral procedure for amendments affecting certain provinces only. ss. 44 and 45: Limited federal and provincial unilateral amending powers. (s.44and45) ss. 46: Either Federal Parliament or Provincial legislature can initiate change. (s.46) s. 47: Senate cannot block changes for more than 180 days; HoC can simply pass it again after 180 days. s.48: Queen‘s Privy Council to advise GG to issue proclamation when resolutions passed.
S.49: Constitutional conference composed of PM and Premiers shall be convened within 15 years (1997?)
(j) Amendment Analysis Methodology Stage 1: Do we have an amendment to the Constitution of Canada? 1. If not, Part V doesn‘t apply – why not? 2. If yes, proceed to second stage. Stage 2: Does amendment fall within any of the ‗special cases‘(ss.41-45). 1. If yes, follow applicable rules. 2. If no, then follow general procedure under s.38. 3. Does amendment derogate from provincial powers? 4. If yes, special rules in s.38(2)-(4) and compensation in s.40 apply. 5. Time limits under 39(2) apply.
(k) Hypotheticals 1. Canada Health Act: Not one of enumerated docs in s.52 schedule; BUT, s.92(7) seems to allocate responsibility for health care to provinces; however federal government use CHA in conjunction with spending power to intervene in health care. CHA an ordinary statute, passed in 1984, and would therefore be odd if it required provincial consent to amend or change it. Nonetheless, the four principles recognized in the Secession Reference (Federalism, Democracy, Constitutionalism and the Rule of Law, and Minority Rights). 2. Elected Senate Yes, part of CA 1867 s.21ff. AND, Yes, s.42 stipulates that it is one of the special cases, whereby the 7-50 rule with no opt out would apply. Three-year time limit under s.39(2) applies. (l) Quebec and C.A. 1982 QC refused to sign on to amendments in Nov. 1981, launched separate legal challenge based on constitutional convention. Claim rejected by both the QC Court of Appeal and the SCC (December 1982) Court rules there is no ‗veto‘ for QC [n.b. in early 1981, QC had agreed to similar formula to s. 38] Constitution found to be legally binding on QC and in accordance with constitutional convention. Meech Lake Accord – 1987 Key concept was QC recognized as ‗distinct society‘; also attempted to change s. 42 to require unanimity. Trudeau opposed; came out of retirement. The accord became politically controversial and died before 3-year time limit. QC proposed sovereignty referendum in October 1992 if no renewed offers of Federalism. Charlottetown Accord - 1992 Referendum averted by signing of Charlottetown accord in 1992; however defeated in Nat‘l referendum. Referendum – 1995 1994: Parizeau elected leader in December. Holds referendum on sovereignty in fall of 1995. Guy Bertrand, QC lawyer, challenges referendum saying it is inconsistent with Constitution; Justice LeSage said he wanted to hear arguments; QC AG walks out; LeSage ruled in favour of Bertrand. Referendum proceeds; ‗No‘ wins with only 50.6% of vote.
(m) Reference Re Secession of Quebec, [1998] 2 S.C.R. 217, p. 23 Facts • Federal government therefore (Allan Rock, AG), in September of 1996, referred three questions to Supreme Court of Canada. o ―Under the Constitution of Canada, can … Quebec effect secession unilaterally?‖ o ―Does international law give … Quebec the right to secede unilaterally?‖ o ―In the event of a conflict btw domestic and international law … which would take precedence?‖ Analysis and Disposition • ―Unwritten constitutional principles may in certain circumstances give rise to substantive legal obligations which constitute substantive limitations upon government action. These principles may give rise to very abstract and general obligations, or they may be more specific and precise in nature. The principles are not merely descriptive, but are also invested with a powerful normative force, and are binding upon both courts and governments. ―In other words,‖ as this Court confirmed in the Manitoba Language Rights Reference, ―in the process of Constitutional adjudication, the Court may have regard to unwritten principles which form the very foundation of the Constitution of Canada.‖ • Four Broad Principles: 1. Federalism: ―the principle of Federalism recognizes the diversity of the component parts.‖ 2. Democracy: ―The relationship between democracy and federalism means, for example, that in Canada there may be different and equally legitimate majorities in different provinces and territories and at the federal level.‖ 3. Constitutionalism and the Rule of Law: ―Simply put, the constitutionalism principle requires that all government action comply with the Constitution. The rule of law principle requires that all government action must comply with the law, including the Constitution.‖ 4. Protection of Minorities: ―The principle is clearly reflected in the Charter‘s provisions for the protection of minority rights.‖ • No right to unilateral secession (interpretation of paras 83-84); secession is a legal act (not just political), and a right to secession requires a constitutional amendment in the very least, if not something more than an amendment. • However, if a ‗clear majority‘ on a ‗clear question‘ (para 87) in favour of secession, the democratic principle would impose a duty to negotiate the terms. Duty is legal, however it is not legally enforceable as such.(para 96ff, 97-98). • Court has no supervisory role with regard to the potential negotiations. (para 100). • HOWEVER, if Canada were to be ‗intransigent‘, such actions may prompt international recognition of sovereign QC: thereby political gives rise to the legal. (Law = rules of political confrontation/dispute settlement) • 2000: Clarity Act - Before question is asked, HoC will have to issue a formal statement on whether the question is clear; if it is not then the Federal government will not be able, under the statute, to negotiate. • Furthermore, Federal government will also have to determine, after vote, if the decision constitutes a clear majority. • Less cynical view (Monahan) is that federal government is just making it clear up front. The more cynical view (mine) is that they have the power to enact another legal instrument whereby they can negotiate from a position of strength. Sask. AG: ―The threads of a thousand acts of accommodation are the fabric of a nation.‖
JUDICIAL REVIEW ON FEDERAL GROUNDS I. PRINCIPLES OF CONSTITUTIONAL INTERPRETATION 1. General Principles (a) Presumptions of Constitutionality 1. Burden of demonstration is on party who is challenging validity of the law. 2. If there is a valid interpretation and an invalid interpretation, Court should find in favour of valid law. 3. When validity of a law rests on facts, Government only needs to prove that there is Rational basis for finding. 4. Where possible, Court should read down laws to ensure validity. (b) Validity of a Law • Can be tested on two grounds: 1. Jurisdiction (Federalism Grounds): Law violates either s. 91 or s. 92, exceeds its power and encroaches on another order of government‘s class of subjects. 2. Infringement of a Right (Charter grounds): Law may/may not be ultra vires, but violates Charter right. • Law that extends beyond its authority can be: 1. Invalid: If its PITH AND SUBSTANCE comes within a class of subjects beyond jurisdiction of legislative body in question. 2. Inapplicable: If law is valid but cannot be applied to extra-jurisdictional matters. 3. Inoperable: If there is a law which is Paramount. 2. Pith and Substance Doctrine – For General Examination of ‗Ultra Vires‘ Legislation (a) General Courts developed doctrine as a way of structuring analysis under sections 91-92. Analysis has two stages: 1. Determine the pith and substance of the legislation under review; 2. Determine if the legislation can be assigned to one of the government‘s heads of legislative power. (b) Walter v. A.G. Alta. [1969] S.C.R. 383,(Magnet I, p. 283) Martland J. Facts In these actions the validity of the Communal Property Act was challenged by the plaintiffs who were acting on behalf of Hutterite colonies. These colonies held large tracts of land in the province. The legislation would restrict the colonies from purchasing additional acreage. Analysis and Disposition The purpose of the legislation was to control the use of Alberta lands as communal property. While obviously aimed at Hutterite holdings, it did not forbid existing colonies. It was not directed at their religious belief or worship, but at the practice of holding large areas of land as communal property. It was a function of a provincial legislature to enact laws which governed the holding of land within the provincial boundaries. The Communal Property Act was valid provincial legislation. Martland distinguishes btw ‗in relation to‘ and ‗affecting‘ by saying statute essentially ‗in relation to‘ s.92(13) of the CA 1867 and only effects s. 91(27) (Criminal Law). (p. 287):
(c) Munro v. National Capital Commission, [1966] S.C.R. 663, (Magnet I, p. 287) Cartwright J. Facts The National Capital Commission, with the approval of the Governor in Council, and acting under s. 13(1) of the National Capital Act, 1958 (Can.), c. 37, expropriated a farm in the township of Gloucester in the province of Ontario owned by the appellant. It was conceded that the appellant's lands were taken for the purpose of establishing the Green Belt proposed in the Master Plan (Greber) for the development of the National Capital Region. Analysis and Disposition The subject matter of the National Capital Act is the establishment of a region consisting of the seat of the Government of Canada and the defined surrounding area which are formed into a unit to be known as the National Capital Region which is to be developed, conserved and improved "in order that the nature and character of the seat of the Government of Canada may be in accordance with its national significance". That subject matter is not referred to in either s. 91 or s. 92 of the British North America Act. Consequently, the sole power rests with Parliament under the preliminary words of s. 91, relative to "laws for the peace, order and good government of Canada". It was therefore within the powers of Parliament to authorize the Commission, for the attainment of its objects and purposes as defined in the Act, to make the expropriation of the lands of the appellant. The statute is in relation to something otherwise not contemplated by CA 1867. It is ‗in relation to‘ a ‗new‘ matter of national concern (POGG); only affects 92(13) (provincial jurisdiction over property rights). PITH AND SUBSTANCE: creates overlapping areas of concern and jurisdiction. All legislation has various elements, logically overlaps Federal and Provincial concerns. Walter deals with both Property (Prov) and Religious Freedom (Federal). Court examines legislation to determine ‗dominant‘ elements. Walter, Martland looks formalistically at legislation Determine the PITH AND SUBSTANCE of a given statute or provision, look to: 1. Statute wording/title/heading; 2. Legislative history (parliamentary debate, government papers, Hansards); 3. Effect (but not efficacy) of the law; 4. Colourability Doctrine (prima facie purpose may mask real intent); 5. Singling Out: If province‘s statute has a ―federal‖ target, Court may declare this the PITH AND SUBSTANCE of the law. (d) R. v. Morgentaler, [1993] 3 S.C.R. 463 (Magnet I p. 289), Sopinka Facts 1988: The government adopted the Medical Services Act and the Medical Services Designation Regulation, which continued the prohibition of the performance of abortions outside hospitals and the denial of health insurance coverage for abortions performed in violation of the prohibition. Despite these actions, the respondent opened his clinic and performed 14 abortions. He was charged with 14 counts of violating the Medical Services Act. The trial judge held that the legislation was ultra vires the province because it was in pith and substance criminal law and acquitted the respondent. This decision was upheld by the Court of Appeal. Province relied on s.92 ss. 7 (hospitals), 13 (civil rights), and 16 (local matters). Morgentaler: act really quasi-criminal, and attempt to criminalize abortions. [Fed power in 91(27)]. Analysis and Disposition Court ruled statute invalid; was clearly motivated by desire to criminalize abortions. They looked to the debates around the initial passing of the legislation (p. 294), and the practical effects. • Courts looks to: o 1. Terms of the legislation, the ‗legal effect‘ o 2. Purposes that the statute was intended to achieve (i.e. look behind the simple legal effect); in so doing, permissable to look to: a. Extrinsic Materials, and b. Actual or practical effects.
Incidental effects will not lead to finding legislation invalid, so long as PITH AND SUBSTANCE found to be valid. Nonetheless, effects will influence finding with regard to legislative purpose. Effects could lead to a piece of legislation being struck down on Charter grounds, as opposed to Federalism or Division of Powers. In most constitutional challenges, burden is to satisfy both Federalism and Charter grounds. 3. Necessarily Incidental/Ancillary Doctrine – For Examination of ‗Ultra Vires‘ Provision within Statute
Court recently added gloss on PITH AND SUBSTANCE; applies to challenges to particular provisions (as opposed to entire statutes) Even where PITH AND SUBSTANCE in relation to a head of power outside of authority, may be upheld if necessarily incidental to a valid regulatory scheme that is found to be valid as a whole. (a) CSC v. Global Securities [2000] 1 S.C.R. 494, (Magnet I, p. 296) Iacobucci J. Facts In 1988, the British Columbia Securities Commission and the United States Securities Exchange Commission had entered into an agreement to provide mutual assistance in obtaining documents and taking oral evidence. Section 141(1)(b) was added to the British Columbia Securities Act to authorize the Commission's executive director to order a registrant to produce records for this purpose. Global resisted a 1996 order to provide information concerning all of its accounts with US addresses over a 14-month period, arguing that the Commission's involvement in a foreign securities investigation was ultra vires the province. Analysis and Disposition Iacobucci relies on Dickson‘s three-step analysis from GM Canada (1989) 1. Is PITH AND SUBSTANCE of impugned provision valid under ss.91/92? If prima facie invalid go to stage 2. 2. Is the act as a whole valid? If yes, proceed to stage 3. 3. Is the impugned provision sufficiently integrated within the overall scheme such that it can be upheld? Answer to first stage – valid under 92(13); PITH AND SUBSTANCE is to monitor those who trade securities in BC (i.e. to know if people in BC are breaking laws). BC shares info, thereby can operate own scheme more effectively, quid pro quo. stages 1 and 2 constitute the ancillary doctrine. (b) General Motors v. City National Leasing, [1989] 1 SCR 641 Facts Company alleged that GM was guilty of price discrimination because it gave preferential interest rate support to its competitors contrary to s. 34(1)(a) of the Combines Investigation Act and, utilizing s. 31.1 of the Act giving a private right of damages to persons affected by breaches of the statute, commenced an action against GM. GM brought an application the result of which was that s. 31.1 was held ultra vires the Parliament of Canada. Analysis and Disposition The appeal was dismissed. Section 31.1 created a civil cause of action and was immediately suspect since a civil cause of action was within the domain of the provinces to create. Whether the provision was constitutionally valid depended first on whether the Combines Investigation Act was valid under the federal trade and commerce power found in s. 91(2) of the Constitution Act, 1867, and, second, whether the provision was integrated in such a way with the Combines Investigation Act as to be intra vires under s. 91(2). The true test was a five-fold one. 1. First, the impugned legislation had to be part of a general regulatory scheme.
2. Second, the scheme had to be monitored by the continuing oversight of a regulatory agency. 3. Third, the legislation had to be concerned with trade as a whole rather than with a particular industry. 4. Fourth, the legislation had to be of a nature that the provinces jointly or severally were incapable of enacting. 5. Fifth, the failure to include one or more provinces or localities in a legislative scheme had to be such as would jeopardize the successful operation of the scheme in other parts of Canada. The Act constituted a well-integrated scheme of regulation designed to discourage forms of commercial behaviour viewed as detrimental to Canada and its economy. The Act was clearly concerned with trade in general, the provinces were not constitutionally capable of enacting similar legislation and the failure to include one or more provinces would jeopardize the successful operation of the Act. The result was that the Combines Investigation Act was intra vires Parliament as constituting legislation in relation to general trade and commerce. With respect to s. 31.1 itself, the provision constituted an integrated, well-conceived component of the economic regulation strategy found in the Act. It simply served to reinforce other sanctions found in the statute and was functionally related to the general objective of the legislation, and to the structure and content of the scheme contained therein. The provision was not ultra vires Parliament. 4. ―Double Aspect‖ Theory – For Provincial and Federal Laws that Overlap (a) General • Determine ―main and dominant feature‖ of legislation that is challenged. • This is the pith and substance of the legislation, the matter that is ―relation to‖ (Russell) • A law ―in relation to‖ a valid head of power may ―incidentally affect‖ other matters without being rendered invalid. (aspect doctrine) • This pith and substance doctrine permits overlapping between federal and provincial regulation. • Both federal and provincial regulation of liquor sales was upheld as valid, since both laws were in ―relation to‖ a ―valid head of power.‖ • Policy: favours upholding laws. • Hodge v. The Queen (1883) JCPC considered provincial licensing scheme for taverns. Argued this was exclusive federal matter [Russell, 1882 case upholding federal local option scheme]; JCPC rejects argument: ‗subjects which in one aspect … fall within s.92 may in another aspect and for another purpose fall within s.91.‘ • Although logic of division of powers would suggest exclusivity restricts one jurisdiction from passing laws in relation to something over which other jurisdiction had already passed laws, the DAT contradicts this. • DAT permits extensive overlapping of legislation. Therefore, both federal and provincial regulation of liquor sales is permissable, one in relation to criminal 91(27), other in relation to property and civil rights 92(13). • Other areas that have ‗double aspect‘ are: o dangerous driving, securities regulation [federally incorporated companies and property and civil rights 92(13)], Sunday/Holiday observance, etc. see page 309. (b) Bell Canada v. Quebec [1988] 1 S.C.R. 749 (Magnet, p. 312) Beetz J. (for the Court) Facts Joanne Carrière-Laniel employed by Bell, pregnant, doesn‘t want to sit at VDT (some technical station). She refused an offer of another position. Subsequently, she presented to her
superior a protective re-assignment certificate in accordance with the Act. Bell Canada challenged the protective re-assignment application and sought by evocation to have the pertinent provisions of the Act declared, inter alia, inapplicable to it as a federal undertaking. The Superior Court's judgment allowing Bell's motion was affirmed by the Court of Appeal. This appeal raises two constitutional questions: whether ss. 33, 36, 37 and 40 to 45 of the Act are constitutionally applicable to Bell Canada; and, if so, are these sections inoperative in respect of Bell Canada in that they are incompatible or conflicting with federal legislation in the same area applicable to Bell Canada? Question is whether the provincial Act Respecting Occupational Health and Safety that requires reassignment of a pregnant worker is constitutionally applicable to Bell Canada, a federal undertaking [see CA 1867, 92(10)]. Analysis and Disposition The appeal was ordered dismissed. The first constitutional question was answered in the negative and the answer to the second question was rendered unnecessary. For federal undertakings, working conditions and labour relations were matters falling within the exclusive jurisdiction of Parliament under s. 91(29) of the Constitution Act, 1867. The Occupational Health and Safety Act, in pursuing its objective to eliminate dangers to the health, safety and physical well-being of workers in the workplace, used means such as the right of refusal, protective re-assignment, detailed regulations, inspection and remedial orders, that entered directly and massively into the field of working conditions, labour relations, management and operations of undertakings. The Act, as characterized, cannot be applied to the federal undertakings mentioned in s. 91(29) and s. 92(10) (a), (b) and (c) of the Constitution Act, 1867, without regulating essential parts of those undertakings and without making the Act deal with matters that fell within the exclusive authority of Parliament. The double aspect theory could not be relied upon to support the applicability of the provincial statute to federal undertakings. The two legislators had legislated for the same purpose and in the same aspect. Yet, they did not have concurrent legislative jurisdiction in the case at bar, but, mutually exclusive jurisdictions. The Act did encroach on fields that fell within the exclusive jurisdiction of Parliament 5. Paramountcy (a) General • Possibility of overlapping legislation raises issue of potential conflict between laws. Paramountcy rules provide for manner in which such conflicts are resolved. • Only express reference to paramountcy rules in CA 1867 was in s.95, in relation to immigration and agriculture. Courts extrapolated from s.95 and developed general rule of federal paramountcy. • Where there is a conflict between valid federal and provincial laws, the federal takes precedence. Provincial law is rendered inoperative to the extent of the inconsistency (as opposed to invalid, or ultra vires). • Key issue is the definition of ‗inconsistency‘; two possible tests: • ―Occupying Field‖—where federal law deals with subject and no scope for provincial law on same subject. • ―Express Contradiction‖—inconsistency arises only where direct conflict btw federal and provincial law. Of course, Provincialists favour this test (Martland, Dickson perhaps), whereas Federalists favour former test. • Prof. Lederman (p. 310) comments on these two polar opposite views, quoting Cartwright and Martland as the two opposing views, demonstrating that there is a huge sweep establishing Federal paramountcy.
(b) Multiple Access v. McCutcheon [1982] (Magnet p. 314) Dickson J. Facts Provincial Securities Act prohibits insider trading in securities traded on TSE. Federal Canada Corporations Act (now Canadian Business Act) prohibits insider trading in shares of federally-incorporated companies. Shareholders can bring actions under BOTH Acts. Fed Act had a statute of limitations that would have prevented the action; longer statute of limitations in Provincial legislation. Shareholders, naturally, brought action under Provincial statute. Analysis and Disposition Dickson J identifies two separate issues/stages to the analysis: 1. Look at validity of statutes by applying the PITH AND SUBSTANCE doctrine to each statute. If one is found invalid, the other left to rule the day. 2. Determine whether there is an inconsistency between the statutes. (Only arises if both statutes are found valid). If there is no inconsistency, dual compliance theory allows them to co-exist. If there is, the federal will take precedence. Dickson uses pith and substance and aspect doctrine to find that both statutes are valid. Provincial law is ―in relation to‖ trading in securities which is valid under 92(13). Federal law is ―in relation‖ to incorporation of federal companies‖ Dickson adopts ―express contradiction‖ test for paramountcy purposes. There is a conflict between laws only where ―compliance with one law involves a breach of the other‖. There must be actual conflict in operation as where one enactment says ―yes‖ and the other says ―no.‖ Why are we not violating federal law? Brought under provincial law. No violation of federal law because federal law doesn‘t deal with a limitation period for provincial law. Dual compliance theory. As long as you can comply with both laws courts will allow both to operate. The fact that there was a shorter period under the federal law did not mean one had to be seen as inoperative, they can both be upheld since by complying with provincial law you could still comply with the federal law. (c) R. v. Chiasson, [1984] (NBCA) affirmed 1 S.C.R. 266 (Magnet I at 318) La Forest J.A. Multiple Access approach followed: the laws say the same thing, therefore no particular conflict. (d) Gillespie v. Gillespie N.B.C.A. (1973) (Magnet I at 324) Hughes C.J.N.B. Facts The petitioner appealed from an order dismissing her application under s. 10(b) of the Divorce Act for an order of interim custody of the only child of the marriage of the parties to the divorce action. Issue was whether the Divorce Act (federal) is paramount where there already exists a valid court order made under a provincial statute in another province with respect to custody. Analysis and Disposition Direct operational conflict, resulting in provincial order being rendered inoperative. (e) No Conflict – Distinguish between Criminal Law and Regulatory Law - Smith v. The Queen, [1960] S.C.R. 776 (Magnet at 326) Martland J. Facts Potential conflict btw Ontario Securities Act (which penalizes person who, required as he is by the Act to furnish full/detailed info, is knowingly responsible for conveying false information) and Criminal Code offence to make, circulate, or publish prospectus known to be false w/ intent to induce persons to become shareholders.
Analysis and Disposition Section 63 of Securities Act is not criminal law within head 27 of s. 91 of the British North America Act, 1867, as it is not a provision the pith and substance of which is to prohibit an act with penal consequences. It is merely incidental to the main purpose and aim of the enactment, which is to regulate the security business. The fact that both provisions prohibit certain acts w/ penal consequences not constitute conflict. Some acts might be punishable under both provisions; in this sense provisions might overlap. However, … no conflict in sense that compliance w/ one law involves breach of other. It would therefore appear they can operate concurrently. (e) No Conflict - Ross v. Reg. of Motor Vehicles, [1975] 1 S.C.R. 5 (Magnet I at 327) Pigeon J. Facts Federal CC provided that one could be suspended from driving for certain period of time if driving while impaired, whereas the Provincial law said that your license would be suspended for three months. Analysis and Disposition Since laws seem to deal with exactly same thing, multiplicity of purposes (substituted for aspects) is not real (only nominal). ―The inconsistency does not lie in the mere co-existence of two laws which are susceptible of simultaneous obedience. It depends upon the intention of the paramount legislature to express by its enactment, completely, exhaustively, or exclusively, what shall be the law governing the particular conduct or matter to which its attention is directed.‖ If two laws not directly contradict, both may be found to be valid. Pigeon J. says he can‘t drive at all b/c the Provincial law stipulates his license is suspended. The defendant can comply with both by not driving at all. ―Parliament did not purport to state exhaustively the law respecting motor driving licences, or the suspension or cancellation for driving offences.‖ But, purpose of Parliament‘s 1972 amendment effectively displaced by harsher Provincial law, rendering it nuggatory. Permits ‗policy conflict‘ btw federal and provincial laws, at least in penal context, and possibly undermines rule that federal legislation is paramount. (f) Where Conflict is Found - Bank of Montreal v. Hall [1990] 1 S.C.R. 121, (Magnet p. 331) LaForest J. Facts Federal Bank Act permits banks to immediately seize goods pledged as security (facilitates provision of loans). Provincial legislation requires provision of 21 days notice to debtor; failure to provide required notice results in termination of security interest. Bank seized piece of machinery from farmer without providing notice. Analysis and Disposition Application of the provincial law would ―displace the legislative intent of Parliament.‖ (p.219) ―Focus of inquiry must be on broader question of whether operation of provincial Act is compatible with federal legislative purpose.‖ (p. 334). Both statutes valid (application of PITH AND SUBSTANCE). PITH AND SUBSTANCE analysis of fed Bank Act shows it to be valid b/c CA 1867 s.91(15) gives jurisdiction over banking to Federal government; PITH AND SUBSTANCE part of banking, only incidentally related to property. Dual compliance theory may have analysed situation saying possible to comply w/ both simply by giving notice. LaForest finds application of the provincial law would defeat Parliament‘s policy purpose, to facilitate access to capital by producers of primary resources and manufacturers. An ―actual conflict in operation‖ btw two statutes. Parliament has enacted ‗complete code‘ therefore excluded any scope for Province. Provincial law rendered inoperative to extent it conflicts with Bank Act, but still valid and can be applied to everyone but Banks. If Parliament repealed s.178 of the Bank Act Provincial law would then apply validly to banks as well.
(g) Where Conflict is Found - M and D Farm Ltd. v. Manitoba Agricultural Credit Corp. [1999] 2 S.C.R. 961 (Magnet I at 335) Binnie J. Facts The Manitoba Agricultural Credit Corporation held a mortgage on the farm owned by M and D Farm. When the mortgage went into arrears, Agricultural Credit gave notice under the federal Farm Debt Review Act that it intended to commence proceedings to recover the outstanding amounts. M and D obtained a stay under the Act. While the stay was in effect, Agricultural Credit obtained leave to commence immediate foreclosure proceedings under the Family Farm Protection Act (Man.). The motions judge who granted leave under the provincial statute was not aware of the federal stay. Analysis and Disposition CA 1867 s. 91(21) gives Federal government power over bankruptcy and insolvency, therefore in PITH AND SUBSTANCE the law relates to Federal power; Provincial law is valid because it deals with Property and civil rights, 92(13). The purpose of the federal Act was to help farmers with the potential to be viable and remain in business. It prohibited the making of a leave application directed to the result of depriving a farmer of land or other security. A leave application under the provincial statute was so intimately connected with the proceedings in the federal legislation that, under a purposive interpretation, the leave application was prohibited during the currency of a federal stay. The order made under the provincial statute purportedly authorized the very litigation that the federal stay prohibited. Express contradiction btw the two statutes, therefore Federal law trumps the lower law with respect to areas under Federal control. Hypothetical Provincial Public Accountancy Act states that only chartered accountants may perform audits. Federal Elections Act says every candidate must appoint an auditor, defined as a ‗member in good standing of any association of professional accountants‘ See R. v. Lewis (Ont. C.A. 1997) – held that the Provincial Public Accountancy Act has to be read in light of the Federal Elections Act. Any accountant can perform election audit (in all other audits, CAs only need apply). Conclusion SCC now has broader test of conflict: Provincial legislation cannot frustrate legislative purposes of Parliament. ‗Dual compliance‘ theory cannot be applied so as to undermine legislative intent. 6. Immunity and Reading Down (a) General Courts have developed doctrine of interjurisdictional immunity as exception to PITH AND SUBSTANCE doctrine. Interjurisdictional immunity becomes relevant where a thing, person, or undertaking specifically within jurisdiction exists – a public work, an Indian, a bus service on the National battlefields, and valid provincial legislation of general application attempts to regulate the federal thing, person, or undertaking. For example – bus going around the National Battlefields displays a sign that says ―Gov‘t of Canada – National Battlefields Commission – Vive Le Canada‖ and provincial law prohibits the display of all advertising on moving vehicles. doctrine is different from paramountcy in that even where there is no contradiction or meeting of legislation, provincial legislation offers SIGNIFICANT OBSTRUCTION TO THE FEDERAL SUBJECT, affects its status, or drains off essential federal attributes which make them within federal jurisdiction doctrine applies to prevent the provincial law of general application from applying to the federal subject
court has attempted to state the doctrine by conceiving it as a ―principle that teach head of federal power possesses an essential core which the provinces are not permitted to regulate indirectly.‖ the legislation need only ―impair‖ the federal undertaking – provincial legislation may significantly invade federal subjects if they aim directly at a vital part y- provincial legislation may also significantly invade federal subjects if the legislation is of general application and significantly impairs its operation federal subjects is subject to provincial laws which incidentally affect it. Provincial laws can even harm – but they cannot significantly invade the protected constitutional sphere. Indicia of categories of invasion: 1. Does it affect a vital part of the federal undertaking? 2. Does it affect the federal undertaking‘s status? 3. Does it affect the essential capabilities of the federal undertaking? 4. Is the federal undertaking substantially modified by the provincial legislation? Doctrine has been applied to: 1. Federally-regulated undertakings/entities under 92(10) 2. Indians and lands reserved for Indians under 91(24) 3. The RCMP 4. Entities under exclusive Fed jurisdiction under POGG (aeronautics, nuclear power) or enumerated heads of power in s.91 (banks, post office, military). 5. Federally incorporated corporations.
NOTE: s.92(10)—s. 92 contains a list of provincial powers. However, 92(10) contains exceptions for interprovincial ‗works and undertakings‘. Has been interpreted broadly to cover works and undertakings in inter-provincial transportation and communication: rail, air, trucking, navigation, telephone, telecommunications, broadcasting, cable TV. Works/undertakings under 92(10) subject to federal jurisdiction by virtue 91(29), therefore courts not applied PITH AND SUBSTANCE doctrine; entities can claim immunity from application otherwise valid provincial law--‗read down‘. Standard is sometimes given to be ―Significantly invading‖ (see p.341): (b) Comm. du Sal. Min. v. Bell Telephone Co. [1966] S.C.R. 767 (Bell No. 1) (Magnet I at 342 [in OPSEU]) Facts Bell Canada is subject to exclusive federal jurisdiction under 92(10)(a). Provincial minimum wage law is found to be valid. Issue is whether it can be applied to Bell as a federal undertaking. Analysis and Disposition Martland says that all matters ‗which are a vital part of the operation of an interprovincial undertaking as a growing concern are [exclusively federal] …‘ see OPSEU case, p. 342. Regulation of the field of employer and employees' relationships in an undertaking such as that of the defendant is a "matter" coming within the class of subjects defined in s. 92(10)(a) of the B.N.A. Act and, consequently, is within the exclusive legislative jurisdiction of the Parliament of Canada. Therefore, any provincial legislation in that field, whilst valid in respect of employers not within exclusive federal legislative jurisdiction, cannot apply to employers who are within that exclusive control. Severely criticized by Hogg (p. 342), said created vacuum/‗gap‘ in regulation. Argued Paramountcy should apply. Provincial laws only overridden by federal laws. ―Theory is inconsistent with the basic pith and substance doctrine—that a law ‗in relation to‘a provincial matter may validly ‗affect‘ a federal matter.‖ Canada Labour Code does now contain provision for a minimum wage law.
(c) OPSEU v. A.G. Ont. [1987] 2 S.C.R. 2 (p. 342) Dickson C.J. Facts Provincial law regulates activities of provincial public servants during federal and provincial elections. Analysis and Disposition Dickson unprepared to extend doctrine of immunity beyond company law and federal/inter-provincial undertakings [92(10)] cases. Favours use of Paramountcy. ―Crt should be particularly cautious about invalidating a provincial law when the federal government does not contest its validity or, as in this case, actually intervenes to support it and has enacted legislation based on the same constitutional approach adopted by Ontario.‖ ―If Parliament wanted defend against prohibitions … of Ont. Pub. Serv. Act, could do so [w/ Paramountcy].‖ What of a provincial law prohibiting display of signs on private property w/o municipal authority—could it be applied to display of federal election campaign signs? Based on OPSEU, you might think that the immunity would not be applied, but in fact McKay (1965) shows that immunity could be applied. N.B. Interjurisdictional immunity is one way; grants immunity Fed. Undertaking; based on Fed Paramountcy). But they are different: Paramountcy steps in when conflict btw a legitimate Federal Law and a legitimate Provincial Law; Immunity does not depend on presence of legitimate Federal Law. (d) Nat‘l Battlefields Commission v. C.T.C.U. Quebec, [1990] 2 S.C.R. 838, (Magnet I at 344), Gonthier J. Facts Federal Commission provided free guided sightseeing bus tours in national park which it administered. Commission hired private carriers to provide that service. Carriers did not hold transport permits under the provincial Transport Act. An application for declaratory judgment that Federal Commission which offered public transport service in park had to do so through holder of a provincial transport permit was dismissed but reversed on appeal. Analysis and Disposition Federal ownership of land does not establish enclave in which provincial law does not apply—alternative would be very broad notion of immunity. Must determine if the specific nature of the federal subject, that nature which makes it a federal subject, is affected; ―specific nature affected if provincial statute touches on vital or essential aspect of its establishment, management, or operation…‖ (Bell cases) [p.346]. Nonetheless, Prov. permit system cannot be applied to service operated on behalf of Battlefields Commission. Doctrine applies most often w/ Fed. constituted agency; but, things named in CA 1867, s. 91 also included: ―Works, such as federal railways, things, such as land reserved for Indians, and persons, such as Indians, who are within the special and exclusive jurisdiction of Parliament, are still subject to provincial statutes that are general in their application, whether municipal legislation, legislation on adoption, hunting or the distribution of family property, provided however that the application of these provincial laws does not bear upon those subjects in what makes them specifically of federal jurisdiction.‖ P.346 Labour law usually Provincial, w/ regard to Fed. constituted agencies/s.91 areas fall under Fed. Labour regime. Provisions dealing w/ safety rarely affect vital or essential aspects of a service or undertaking. [Construction Montcalm, requirement by a province that workers wear a protective helmet on all construction sites]. Still, potential for a power vacuum (Dickson, p. 342 in OPSEU), BUT Monahan says we don‘t want conflicting laws; Federal government supposed to have exclusive authority over certain
things, Provincial law should not apply. If inadequacy, Parliament should fix it. Monahan thinks it is good to avoid confusion of operating under two regimes. (e) Mississauga v. Greater Toronto Airports Authority, Ont. CA 2000 (Magnet I at 348) Laskin J.A. Facts Appeal by the city of Mississauga from a judgment dismissing the city's application for compensation for costs associated with the redevelopment of Pearson Airport. The airport was located on federal Crown land in Mississauga and was operated by the Greater Toronto Airport Authority and Nav Canada. Airport Authority brought application that Ontario's building code regime did not apply to it or to Pearson. Applications judge held that Ontario's building code regime did not apply to the redevelopment because the federal government had exclusive jurisdiction over aeronautics, and that the city was not entitled to apply the National Building Code. Analysis and Disposition if a provincial law affects a valid or essential or integral part of a federally regulated enterprise, then the otherwise valid provincial law does not apply to that enterprise [from Bell, supra] Aeronautics: Exempted 92(10)(c) interprovincial undertakings; 1952, (POGG) decided aeronautics is federal jurisdiction Ontario‘s building code regime would not merely affect Pearson Airport indirectly or incidentally. The regime would control an aeronautics undertaking directly by applying the Ont building code regime to the redev‘t of the airport. Test of Irwin Toy (that did not apply in this case): if a provincial law only indirectly or incidentally affects a federal undertaking, it will apply unless it impairs, paralyzes or sterilizes the undertaking. Hypothetical Environmental assessment of publicly-funded construction projects required under provincial law. Ont. Hydro proposes to shut down 5 nuclear plants (which falls under ‗construction‘). Nuclear power excl. fed. under POGG. Does provincial law apply to shut-down? Whether operate or not goes to fundamental operation of undertaking/the vital part. Ontario Hydro (1993) (p.458): Ontario‘s ownership does not determine jurisdiction, doesn‘t extend provincial jurisdiction. Labour relations were an integral part of Parliament‘s jurisdiction over national concern (POGG clause). II. Peace, Order and Good Governemtn (POGG); CA 1867 Part VI, s. 91 Opening 1. Provision (91) It shall be lawful for the Queen, by and with the Advice and Consent of the Senate and House of Commons, to make laws for the Peace, Order, and good Government of Canada, in relation to all Matters not coming within the Classes of Subjects by this Act assigned exclusively to the Legislatures of the Provinces; and for greater Certainty, but not so as to restrict the Generality of the foregoing Terms of this Section, it is hereby declared that (notwithstanding anything in this Act) the exclusive Legislative Authority of the Parliament of Canada extends to all Matters coming within the Classes of Subjects next hereinafter enumerated; that is to say,-2. Essay by Ken Lysyk (Magnet I at 416):
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by its terms the clause constitutes a residual category of federal law-making authority. It carries the judicially assigned responsibility of providing a constitutional base for the socalled emergency doctrine, the thrust of which is that Parliament may, to meet an
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emergency, enact laws which in ordinary circumstances would be beyond its constitutional reach Introductory Clause: ―It shall be lawful for the R, by and with the advice and consent of the Senate and House of Commons, to make laws for the peace, order and good government in Canada, in relation to all matters not coming within the classes of subjects by this act assigned exlusively to the legislatures of the provinces...‖ General grant of power to make laws for the peace, order and good government of Canada in relation to all matters not coming with the classes of this act assigned exclusively to the provincial legislatures. sometimes referred to as the peace, order and good government clause Declaratory Clause: For greater certainty, but not to restrict above, exclusive legislative authority of Parliament extends to matters coming within classes of subjects enumerated. [Enumerted classes s.91 ―for greater certainty‖.] Deeming Clause: And any matter coming within any of the Classes of Subjects enumerated in this section shall not be deemed to come within the class of matters (16 provincial classes) assigned in s.92 Notion that introductory clause could have been sufficient is seen to be bogus by Lysyk, since some of the federally enumerated powers clearly needed to be enumerated [e.g. ‗Sable Island‘ reference in 91(9)]. use of power ought to be strictly confined to such matters as are unquestionably of Canadian interest and importance, and that ―great caution must be observed in distinguishing between matters that are ‗local and provincail‘ and matters that are of ‗national concern‘
3. Parsons Methodology (see p.422) for Determining Validity: 1. Look first to s.92 enumerated. If not in s. 92: then must be federal, either under POGG or s.91 enumerated. 2. If in s. 92, ―then the further question would arise, whether the subject of the Act does not also fall within one of the enumerated classes of subjects in section 91 and so does not still belong to the Dominion Parliament.‖ 3. If also in s.91, have to resolve conflict by virtue of deeming clause, which says that even if one thinks that a law in question is covered by s.92 jurisdiction, it is actually covered off by whatever is enumerated in s.91, to the extent that the law addresses issues of national scope. In 1882, the Parsons methodology was applied in Russell (1882) (a) Russell v. R. (1882) JCPC (Magnet p.421) Sir Montague E. Smith Facts • Charles Russell convicted under Canada Temperance Act, 1878 for unlawfully selling liquor in Frederiction, N.B. Russell challenged the constitutional validity of CTA. CTA Preamble: ―… desirable to promote temperance in dominion … should be uniform legislation in provinces respecting traffic in intoxicating liquors.‖ Analysis and Disposition • Looks to s.92; says although it may be argued that (9), (13), (16) give jurisdiction, does not in fact fall under these areas. • Laws of this nature designed for the promotion of public order, safety or morals, and which subject those who contravene them to criminal procedure and punsishment, belong to the subject of public wrongs rather than to that of civil rights. They are of a nature which fall within the general authority of Parliament to make laws for the order and good government of Canada, and have direct relation to criminal law...
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―Parliament deals with the subject as one of general concern to the Dominion, upon which uniformity of legislation is desirable, and the Parliament alone can so deal with it.‖ (in arguing against the notion that temperance is a local concern falling withing s. 92(16) (b) AG Ont v. AG Can, [1896] AC 348 (PC) Facts • Canada Temperance Act – gave to electors of every county or city the option of adopting or declining the provisions of the second part of the Act which make it unlawful for any person to expose or keep for sale, or sell any intoxicating liquor. • To bring the second part of the Act into operation order of Gov-Gen is required – cannot be granted until the question is put to a vote of electors in county • Governor-General in Council referred seven questions to the SCC, asking whether a provincial legislature had jurisdiction to prohibit the sale, manufacture and importation of intoxicating liquors in the province. The seventh question asked whether Ontario had jurisdiction to enact s. 18 of the Liquor Licence Act. • Section 18 empowered township councils, following approval by municipal electors, to prohibit the sale of liquor in taverns and shops. Analysis and Disposition • Consider first whether the Parliament of Canada had jurisdiction to enact the Canada Temperance Act; if so consider in the second place whether, after that Act became the law of each province, there yet remained power with the legislature of Ontario to enact the provisions of s. 18. • grant of authority to regulate traffic of alcohol stems from POGG clause • enactments in s. 91 appear to indicate that the exericise of legislative power by the Parliament of Canada, in regard to all matters not enumerated in s. 91, ought to be strictly confined to such matters as are unquestionably of Canadian importance, and ought not to trench upon provincial legislation to any of the subjects enumerated in s. 92 • if the Parliament of Canada has authority to make laws applicable to country in relation to matters which in each province are substantially of local or private interest, upon the assumption that these matters also concern the POGG of Canada, there is hardly a subject enumerated in s. 92 upon which it might not legislate, to the exclusion of the provincial legislatures. • Ontario Legislature had jurisdiction to enact s. 18 provided that its provisions are or will become inoperative in any district of the province which has already adopted or may subsequently adopt the second part of the Canada Temperance Act.
4. Emergency Doctrine (a) Re Board of Commerce Act 1919 etc. [1922] JCPC (Magnet I at 463) Viscount Haldane Facts • Parliament of Canada created ―Board of Commerce,‖ to control the distribution and sale of the necessities of life. Upon the Board‘s prohibiting profits on sales from an Ottawa clothier of more than a certain percentage of costs, the constitutional validity of the Board was attacked. The Board claimed that the controls were emergency measures. Analysis and Disposition • ― … already observed that circumstances conceivable, such as of war or famine, when peace, order and good Government of Dominion might be imperiled, under conditions so exceptional they require legislation of character in reality beyond anything provided for by enumerated heads in either s.92 or s.91.‖ (p. 464) • the law, however, was not one enacted to meet special conditions of wartime. It was enacted after peace had been declared and is not confined to any temporary purpose
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only under necessity in highly exceptional circumstances, such as cannot be assumed to exist in the present case, that property of the inhabitants of the Provinces may be restricted by the Parliament of Canada
(b) Fort Francis Pulp and Power etc. [1923] JCPC (Magnet I at 465) Viscount Haldane Facts • By an Act of the Dominion Parliament, the Canadian War Measures Act, 1914, 5 Geo. V, c. 2, the control throughout Canada for the war period of the supply and sale of newsprint was provided for. A later Act, 9 and 10 Geo. V, c. 63, provided for the extension of these controls for the reconversion period. The appellant manufacturers contended that these Acts were ultra vires the Dominion Parliament. Analysis and Disposition • Fort Francis case upheld emergency paper control legislation, but it was clear that this was exceptional, time-limited authority. Federal powers under POGG restricted to extremely narrow grounds. • Js found themselves unable to say that the federal government had no good reason for temporarily continuing the paper control after actual war had ceased, but while the effects of war condtions might still be operative • national concern doctrine, in the absence of national emergency, could not give Parliament jurisdiction with respect to matters which would otherwise fall within provincial legislative concern [as explained in R. v. Crown Zellerbach where this case was considered] 5. Matters ―Not Coming Within‖ Section 92 – National Concern Doctrine (a) AG Ont. v. Canada Temperance (1946) (Magnet p. 427) JCPC Facts • Appeal from a decision of the Ontario Court of Appeal upholding the validity of the Canada Temperance Act on a reference to it by the Lieutenant-Governor of Ontario in Council. • Objective of Ontario was to get the Russell decision (1881) overturned (since L. Haldane in Snider had criticized Russell, saying that it must have been the result of some kind of intemperance emergency at that time; p. 429). Analysis and Disposition • the ruling of the lower court was affirmed and the appeal dismissed. Legislation could be upheld if deals with matter that goes ―beyond local or provincial concern … and must from its inherent nature be of concern to the Dominion as a whole.‖ [p. 429]. Aeronautics and radio were given as examples. (b) Aeronautics - Johannesson (1952) [p. 430]: SCC relies on POGG to establish federal jurisdiction over aeronautics. Federal government given jurisdiction over all airports, whether of a local or inter-provincial nature. (c) NCC - Munro 1966 [p. 287, 430] Development of NCC is inherently a matter of National Concern and therefore falls under the POGG; uses POGG to uphold national capital commission legislation. (d) Anti-Inflation Reference [1976] 2 S.C.R. 373 (Magnet I at 431 and at 469) Laskin Facts • Federal government enacted legislation attempting to control prices, profits, and income. Legislation drafted on an assumption of invoking the national concern doctrine (explicitly referenced in the preamble). Inflation running at more than 10% annually. According to
preamble of legislation, inflation is a matter of ‗serious national concern‘. Emergency argued only as an alternative; evidence before Court strong on national concern but weak on emergency. • AG of Canada supported the Act as being a law for the POGG of Canada in relation to matters not coming within the classes of subjects assigned exclusively to the legislatures of the provs • Contended that the Act concnerd a matter which went beyond local or private or provincial concern and was of a nature which engaged vital national interests. • alternatively, AG argued that there was an economic crisis amounting to an emergency or exceptional peril to economic stability sufficient to warrant federal intervention, or at least, there was a reasonable apprehension of an impending one that justified intervention. Analysis and Disposition • Must be a Rational basis for concluding there was an emergency. Legislation ruled as a valid response to meet a temporary emergency. Majority of Court agrees with Laskin and upholds law on basis of emergency. Ritchie concurs with Beetz on the issue of national concern. majority endorses Beetz on ‗national concern‘. Laskin (p. 469ff): Wisdom or success of legislation not a matter for courts. Even though expert testimony had been tabled to show these forces were global, and that Government was acting beyond its ability, Court says it is not up to Courts to decide whether legislation is good or not. Court holds that Parliament had a Rational basis for establishing the law. Laskin also makes reference to ‗general‘ trade and commerce power, even though not argued (see p. 470) Justice Beetz (p. 472ff) Two distinct branches to POGG: national concern and emergency. Emergency is extraordinary power and must be expressly invoked, i.e. federal government has to acknowledge that they are acting in the case of an emergency, not as was the case here, where Parliament was purporting to act on national concern. Other indicia of national emergency not present, therefore Parliament can‘t use the emergency power as basis for this legislation. Emergency temporarily suspends division of powers; ‗National Concern‘ permanently adds new matters to s. 91. Beetz accepts Lederman theory—when you are recognizing new matters of national concern, they should be specific and limited. Subjects like ‗environmental protection‘ or ‗economic growth‘ are too amorphous for purposes of s. 91/92. Would lead to the disappearance of division of powers. Subjects like aeronautics or national capital are sufficiently distinct, whereas inflation is too amorphous to be a subject of national concern. Inflation is an aggregate of serveral subjects falling under provincial jurisdiction. Underlying philosophy: balance of power and incrementalism, recognition of powers in small, limited stages. Parliament has accepted Beetz view in legislation. See Emergencies Act (1988), which repeals War Measures Act. Government must precisely identify emergency. (e) Anti-Terrorism Act Can Anti-Terrorism Act be justified based on emergency branch of POGG power (as opposed to ‗national concern‘ doctrine branch)? Well, terrorism requires urgent action— ―War on Terrorism‖ potentially construed as an emergency. See if Act stipulates clearly that is temporary, and if emergency it aims to address clearly defined. In fact, Anti-terroism Act is permanent though certain measures are subject to a five-year sunset clause, unless a resolution of the HoC votes to continue these powers. Government intends these powers to be continued. Governments primary argument is actually that this is Criminal law, which is clearly under the Federal government jurisdiction.
However, as Act also allows for the seizure of property/assets, some would say it infringes on the Province‘s jurisdiction over Property and Civil Rights. If legislation upheld under Emergency doctrine, well the division of powers line is dissolved no problem, but if basis is Criminal law, have to prove validity as good Criminal Law.
(f) R. v. Hauser [1979] 1 S.C.R. 984 (Magnet at 441), Pigeon J. Facts • Accused charged with possession and moved for prohibition challenging the constitutional validity of para. (b) of the definition of "Attorney General" in s. 2 of the Criminal Code. • The constitutional issue was framed in these terms: Is it within the competence of the Parliament of Canada to enact legislation as in s. 2 of the Criminal Code to authorize the Attorney General of Canada or his agent (1) to prefer indictments for an offence under the Narcotic Control Act, (2) to have the conduct of proceedings instituted at the instance of the Government of Canada in respect of a violation or conspiracy to violate any Act of the Parliament of Canada or regulations made thereunder other than the Criminal Code? Analysis and Disposition • Per Martland, Ritchie, Pigeon and Beetz JJ.: There can be no doubt as to the existence of federal power to provide for the imposition of penalties for the violation of any federal legislation, entirely apart from the authority over criminal law. • As to whether the Narcotic Control Act is to be classified as legislation enacted under the criminal law power, the history of this legislation, as well as its general scheme, shows that it is what the English title calls it: an act for the control of narcotic drugs. • The most important consideration for classifying the Narcotic Control Act as legislation enacted under the general residual power is that this is essentially legislation adopted to deal with a genuinely new problem which did not exist at the time of Confederation and clearly cannot be put in the class of "Matters of a merely local or private nature". The subject-matter of this legislation is thus properly to be dealt with on the same footing as such other new developments as aviation (Re Aeronautics, [1932] A.C. 54) and radio communications (Re Radio Communication, [1932] A.C. 304). • Per Spence J.: Trade in the drugs both legal and illicit constantly crosses national and provincial boundaries. It was apparent that the regulation of the subject of narcotic drugs, the policy controlling their distribution, the investigation of breaches of the statute or regulations and the institution of prosecution must be carried out by federal officials. Dickson J. [dissenting] ―To revert to the ‗Peace, Order, and good Government power‘ to support the validity of the NCA in the wake of this Court‘s decision in Re Anti-Inflation Act (i.e. Beetz‘s judgment), would represent an unwarranted expansion of general power and run counter to opinions expressed in that case with reference to the ‗temperance‘ cases.‖ 6. National Concern and Emergency (a) R.v. Crown Zellerbach [1988] 1 S.C.R. 401 (Magnet at 444) Le Dain J. Facts • Federal Ocean Dumping Control Act requires permit before dumping substances into sea. Sea (p. 444) defined as including ―internal waters other than fresh water.‖ Logging company dumping wood chips into sea – water is within province. No evidence of harm to navigation, or to fish (both federal powers). Analysis and Disposition • Dumping in marine (i.e. salt) waters sufficiently distinct; matter of national concern. Main principles (p. 448):
1. Two branches to POGG (Emergency and National Concern) are separate and distinct. National emergency doctrine is the basis for what is necessarily legislation of a temporary nature. 2. National Concern applies to both ‗new‘ matters which did not exist at confederation and matters that existed as local matters in 1867 but have since become matters of national concern. 3. For a matter to qualify as a matter of national concern it must have a singleness, distinctiveness and indivisibility that clearly distinguishes it from matters of provincial concern and a scale of impact on provincial jurisdiction that is reconcilable with the fundamental distribution of legislative power under the Constitution; 4. Relevant to consider ―extra-provincial effects‖ in the event that one or more provinces failed to address the problem adequately. In other words, would such a failure have adverse effects on other provinces? • Only that aspect of the problem that is beyond federal control would fall within federal competence in such circumstances • where it would be possible to deal fully with the problem by co-operative action of two or more legislatures, the ‗national dimension‘ concerns only the risk of non-co-operation, and justifies only federal legislation addressed to that risk • ―provincial inability test‖ – provincial failure to deal effectively with the intra-provincial aspects of the matter could have an adverse effect on extra-provincial interests. Utility lies in assisting in the determination whether a matter has the requisite singleness or indivisibility from a functional as well as a conceptual point of view. • [notes] an matter is a matter of national concern involves the consequence that the matter falls within the exclusive and paramount power of Parliament and has an obvious impact on the balance of Canadian federalism • it is crucial that one be able to specify precisely what it is over which the law purports to claim jurisdiction • marine poluution, because of its predominantly extra-provincial as well as international character and implications, is clearly a matter of concern to Canada as a whole. La Forest [dissenting] • Environment too diffuse to be national concern; Ocean pollution no more precise due to many causes of phenomenon. Some commentators were of opinion that La Forest was more persuasive, and anticipated that Federal powers would be expanded as a result of this decision, but that has not been the case. (b) Ontario Hydro v. Ontario (Labour Relations Board) [1993] 3 S.C.R. 327 (Magnet I at 458) Analysis and Disposition I • Interjurisdictional immunity doctrine applies to national concern (i.e. nuclear power is an element of national concern). Atomic Energy is a matter of national concern. Labour relations is a vital aspect of that matter; therefore labour relations in Ontario Hydro‘s nuclear plants are federal (Canada Labour Code applies) and not provincial matters (that would fall under the Ontario Labour Relations Act). (c) Reference Re Anti-Inflation Act, [1976] 2 SCR 373 Facts • See Above. Analysis and Disposition • steps to determine validity of emergency legislation [notes] 1. Determine whether there was an emergency
2. Did the emergency require actions by the federal gov‘t under the POGG clause or its heads of power • in examination of step 1, court may use extrinsic information that need only go so far as to persuade the Court that there is a rational basis for the legislations which it is attributing to the head of power invoked in this case in support of its validity • the fact that there had been rising inflation at the time federal action as taken, that inflation is regarded as a monetary phenomenon and that monetary policy is admittedly within exclusive federal jurisdiction persuades me that the Parliament of Canada was entitled, in the circumstances then prevailing... to act as it did from the springboard of its jurisdiction over monetary policy... ***Subsequent SCC cases have sidestepped issue of national concern. (d) R v. Hydro-Quebec [1997] 3 S.C.R. 213 (Magnet I at 458) Analysis and Disposition • Whether regulation of PCBs matter of national concern (p. 458). Majority found valid under criminal law, therefore not necessary to justify it as a matter of national concern. However, LaForest did say in passing that it could possibly be justified under national concern (page 458); Minority (Lamer and Iacobucci) held it could not be justified under national concern branch of POGG, b/c environment not specific/distinctive enough. (e) Anti-Terrorism Act Re-considered: Could Anti-Terrorism Act be held up on the basis of national concern?. Does raise distinctive concerns that are different from ordinary criminal law? Act not really distinctive statute—simply pile of amendments to existing Federal legislation. Some provisions that may be attacked on division of powers grounds (forfeiture of property, related to Property and Civil Rights, though incidental doctrine could apply here to save these provisions). More likely to see Charter challenges. (f) Third Branch of POGG • Purely residual. Deals with gaps in division of powers. • Example: s.92(11): power to incorporate companies with provincial objects (nothing in 91 about incorporating companies with federal objects). • However, b/c 91 and 92 must encompass entire legislative authorities, one can read by implication that specified power in 92(11) implies similar residual power on part of the Federal government. Since provinces have power to incorporate companies with provincial objects, federal government must have power to incorporate federal companies.
III. TRADE and COMMERCE
Federal, enumerated power 91(2). U.S. Congress given power regulate interstate commerce. 1867 apparent intention give Parliament broader power; wording suggests anything trade and commerce can federally regulated.
1. Intra-provincial Trade and Commerce (a) Citizens Ins. Co. v. Parsons; (1881), JCPC (Magnet I at 488) Sir Montague Smith Facts • Ontario act prescribed standard conditions that had to be included in insurance K, to protect insurer. The K in question did not contain those statutory uniform conditions.
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Insured argued condition was implied as part of K, but Insurance Co. argued the Ontario act was invalid, since trade and commerce a federal matter. Analysis and Disposition • Section 91(2) is limited in scope to: 1. Interprovincial and international trade; and 2. ‗General regulation of trade affecting the whole Dominion.‘ • Specific references s.91 to banking, weights and measures, seem to indicate wider power is limited in some way (since the framers of the constitution did not mention other areas of trade and commerce) • Should not overlap w/ property and civil rights, and furthermore TRADE AND COMMERCE power did not include power to regulate contracts of particular trades (see p. 489). (b) Re: Parsons ―The Trade and Commerce Power‖ • JCPC interpreted Parsons case strictly. • Parliament could regulate transactions or trade that crossed provincial borders. However, Parliament could not regulate local or intraprovincial transactions. Even when market was predominantly export (i.e. grain) Parliament could not regulate comprehensively. • Categorical Approach: King v. Eastern Terminal Elevator (1925) (see. p. 477) illustrates categorical approach. Provinces could not regulate goods crossing provincial borders, but could regulate goods once in the province, even if the legislative scheme affected/referred to matters outside the province; see Home Oil (1940) (p.489). (c) Home Oil Distributors Ltd. v. A.G.B.C. [1940] S.C.R. 444 (Magnet I at 489) Facts • Coal and Petroleum Products Control Board Act of BC provided for a Board to regulate and control within the province ―coal and petroleum industries.‖ • the sections declared to be ultra vires the provincial legislature by the trial judge concerned the board‘s authority to price fix in various circumstances and in various ways. Analysis and Disposition • The legislation was upheld. It was confined to regulating transactions that take place wholly within the province, and are therefore within the sovereign powers granted to the provincial legislature. • Appraoch – determine the pith and substance of the legislation. Ask whether it pertains to intra provincial trade. If it does, it will be held ultra vires federal jurisdiction. Formalistic not purposive analysis. (d) Problem with Formalistic Approach to TRADE AND COMMERCE Formalistic/categorical approach meant federal power to regulate trade and commerce extremely limited. Whenever federal government would try to set up schemes (Quotas, Marketing Boards etc.), they were deemed unconstitutional, saying if any part of scheme attaches itself to provincial jurisdiction, must be unconstitutional. Why was this so? See case of Carnation v. Quebec (p. 370). Federal government attempt to regulate only milk produced for export would probably be good Constitutionally, as a matter of Constitutional law, but functionally impossible to separate the export elements out from the local elements. Extra-provincial producer would be subject to federal scheme that would set minimum prices and controls, whereas local provincial producers would not be subject to this restriction and would have an unfair advantage.
(e) Reference Re. Farm Products Marketing Act [1957] S.C.R. 198 (Magnet I at 491) Kerwin C.J. ~First signs of a new approach. Facts • Ont. FPM Act purports to regulate only intra-provincial trade, but also purports to set up a marketing scheme. • Impugned provision: ―The purpose and intent of this Act is to provide for the control and regulation in any or all respects of the marketing within the Province of farm products including the prohibition of such marketing in whole or part.‖ Analysis and Disposition • ―Flow of trade‘ concept (p. 493): ―The concept of trade and commerce, the regulation of which is confided to Parliament, is entirely separate and distinct from the regulation of mere sale and purchase agreements. Once an article enters into the flow of interprovincial or external trade, the subject-matter and all its attendant circumstances cease to be a mere matter of local concern.‖ Nonetheless, Court finds it intra vires. Rand J. [concurring in the result, p. 494] ―If in a trade activity, including manufacture or production, there is involved a matter of extraprovincial interest or concern its regulation thereafter in the aspect of trade is by that fact put beyond Provincial power.‖ Locke J. [concurring in the result, p. 497] • control and regulation in any or all respect of the marketing within the province including the prohibition of such marketing in whole or in part... are considered within the powers of the province. Had potential to significantly expand scope of federal authority. Klassen (1959 Manitoba Court of Appeal case): Necessarily incidental doctrine used to analyze TRADE AND COMMERCE. (f) Reference Re Agricultural Products Marketing Act (1978) (p. 499) Facts • Federal Agricultural Products Marketing Act established a comprehensive supply-managed marketing scheme which placed quotas on production in intra-provincial, inter-provincial and international trade in eggs. • although the court upheld the general scheme, s. 2 ran into particular difficulty, as it empowered the Governor-in-Council by order to authorize provincial boards to impose expense and adjustment levies in both intra-provincial and interprovincail trade. 1971: SCC struck down Manitoba marketing scheme, saying it was attempt to regulate interprovincial trade of eggs and poultry. Federal government and Provinces comlicated joint scheme after numerous attempts by Federal government and Provinces to regulate agricultural products had been ruled invalid. Depended on co-operative scheme: Single board delegated power by Federal government and Provinces to establish quotas for producers and to impose levies on producers to finance scheme. Both Federal and Provincial (10) statues passed delegating authority to Federal Agency. Analysis and Disposition • Court upholds scheme (with exception of one aspect of levies). Pigeon J. refers to argument that Federal government cannot regulate the ‗production or manufacture‘ of a product in a province even if it is destined for export (p. 502). Reversion to a formalistic approach. • in the instant case, the provincial regulation is not aimed at controlling the extra-provincial trade. It is only complementary to the regulations established under federal authority; otherwise, it would mean that our Constitution kmakes in impossible by federal-provincial
cooperative action to arrive at any practical scheme for the orderly and efficient production and marketing of a commodity... which requires regulation in both intraprovincial and extraprovincial trade. • Since 1978, there have been no more cases dealing with Agricultural and Division of powers. • Klassen (1959) raised idea of necessarily incidental doctrine, but not picked up in Agri Prod. Mkting Act case. Monahan thinks it is unsatisfactory, because it forces the governments to get together, negotiate, agree, etc. • SCC moved beyond from formalistic approach, and given broader scope to federal jurisdiction over local matters. • Judicial review (via previous cases striking down various schemes) useful for setting parameters for subsequent political discussions, encouraging compromise btw orders of government. 3. Inter-provincial Trade and Commerce (a) Caloil Inc. v. A.G. Can (No. 2) [1971] S.C.R. 543 (Magnet I at 508) Pigeon J. Facts • National Energy Board regulations conferred upon the Board the power to regulate the importation of oil into certain parts of Canada. • The Board refused applications for licences to import gasoline into certain areas of Ontario. Appellant challenged the validity of the legislation and the decisions of the Board requiring him to make the declaration [that gasoline imported would be consumed in the areas in which is was imported]. • Attempt to protect domestic market in western Canada. Analysis and Disposition • Regulation is incidental to a valid scheme of importing. • Where goods are being imported, Parliament can regulate subsequent dealings in product through import licensing. • Once goods have been imported into Canada, they ordinarily fall into the same category as goods produced in Canada, and fall to be regulated by Parliament or the legislatures depending on whether they find their way into paths leading to destinations in or outside the province where they situate. • the regulations clearly show that the policy to be implemented by the impugned Act is a control of imports to foster the dev‘t and utilization of Canadian oil resources. • the interference with local trade restricted as it is to an imported commodity, is an integral part of the control of imports in furtherance of an extraprovincial trade policy... • Parliament given power to regulate local transactions within province, where necessarily incidental to valid scheme of import regulation. Perhaps should have been found unconstitutional on basis of Manitoba Egg below. (b) Macdonald v. Vapour Canada Ltd. [1977] 2 S.C.R. 134 (Magnet I at 510) Laskin C.J. Facts • Federal Trade Marks Act s.7 provides civil remedies argued to be in relation to property and civil rights [92(13)] or local matters [92(16)] • Federal government argument is in relation to TRADE AND COMMERCE [91(2)], supportable as legislation arising from a treaty convention and thus falling within s. 92 POGG, and legislation in relation to criminal law [92(27)]. Analysis and Disposition
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Parliament has, by statute , either overlaid or extended known civil causes of action, cognizable in the provincial courts and reflecting issues falling within provincial legislative competence. Cannot find any basis in federal power to sustain the unqualified validity of s. 7... • The relevant questions here are whether the liability imposed in connection with an enterprise or activity is expressly within federal legislative power; or, if not, whether the liability is dealt with in such manners as to bring it within the scope of some head of federal legislative power. • Since section 7(e) is not a trade mark provision, its inclusion in the Trade Marks Act does not stamp it with validity...the Parliament of Canada can no more acquire legislative jurisdiction by supplementing existing tort liability... than the provincial legislatures can acquire jurisdiction by supplementing the federal criminal law. (c) A.G. Manitoba v. Man. Egg and Poultry Assoc. [1971] S.C.R. 689 (Magnet I at 514) Martland J. Facts • Flipside to Cal Oil: Ont. farmers export eggs; Quebec farmers export chickens. Each province sets up mkt‘ing scheme designed to limit products from other provinces. Manitoba hurt by both schemes, refers ‗phantom marketing scheme‘ (identical to Quebec‘s scheme) to CA and lost (Dickson J.A.; appointed SCC in 1973); appealed to SCC. Issue is whether the Manitoba scheme is ultra vires the Manitoba legislature because it trespasses upon the exclusive legislative authority of the Parliament of Canada to legislate in matters of trade and commerce. Analysis and Disposition • Plan now in issue not only affects interprovincial trade in eggs, but... it aims at the regulation of such trade. It is designed to restrict or limit the free flow of trade between provinces... Test is to look at the purpose of the regulations and who is affected by the regulations – if other provinces or actors are affected, then the regulations may fall under trade and commerce federal jursidction. • if arguing on basis of legislative purpose, cite to legislative debate, government statements, etc. to show real purpose of legislation. (d) Burns Foods Ltd. v. A.G. Man. [1975] 1 S.C.R. 494 (Magnet I at 521) Pigeon J. Facts • Appeal concerning injunction restraining packers from slaughtering hogs in Manitoba unless purchased from the Manitoba Hog Producers‘ Marketing Board. Argument Natural Products Marketing Act is ultra vires MB. Question is whether, as an incident of its authority over the local matter of hog slaughter by the Packers in Manitoba, province can regulate buying of hogs from producers in another province. Analysis and Disposition • SCC followed Manitoba Egg, struck down marketing scheme, though may have been incidental to production of hogs in the province of Manitoba. ―If Parliament cannot regulate local trade simply b/c it would be more efficient to regulate it together w/ extra-provincial trade, a fortiori provincial legislature cannot regulate inter-provincial trade in a given product b/c this appears desirable for effective control of intra-provincial trade.‖ Natural Resource Regulation 1970s saw federal-provincial conflict over natural resources. s.109 CA 1867 gave provinces ownership of natural resources in each province. (p. 23 of Appendix I). With price increases for oil in 1970s, issue was who would appropriate increased revenue. (e) Can. Industrial Gas and Oil Ltd. v. Sask. (CIGOL) [1978] 2 S.C.R. 545 (Magnet I at 524/574), Martland J. Facts
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SK enacts tax on 100% of difference btw price at well-head and ‗basic well-head price‘ (essentially diff. in price of oil after 1973). 98% of oil exported. • Tax on producers attempt to subsidize purchase of imported oil. • Legislation includes power for minister to fix price where oil disposed of at less than fmv. • Effect of legislation to set floor price for SK oil purchased for export by appropriation of potential incremental value in inter-provincial/international markets, or to ensure incremental value not appropriated by persons outside SK. Analysis and Disposition • the regulations and orders enacted and made relating to the imposition of the mineral income tax and the royalty surcharge were ultra vires of the Legislature. The tax was essentially an export tax imposed upon oil production. The taxation provisions comprising the mineral income tax and the royalty surcharge Legislation also held to be regulation of TRADE AND COMMERCE; Martland tries to distinguish case from Carnation. Focuses on fact that Minister may fix price for product. The minister is empowered to determine the value of oil which is produced which will govern the price at which the producer is compelled to sell while he produces and to fixt the price receivable by Saskatchewan oil producers on their export sales of a commodity that has almost no local marken in Saskatchewan. The analysis seems weak, since this is an anti-avoidance measure. Glenn‘s point: Formalistic analysis; no discussion of underlying values, and fact that it is arguably people of SK who own rights to resources. Court at that time was not into discussing values, though today Court likely would. Aftermath Provinces outraged by CIGOL case and by Central Canada Potash (1979) case. SK enacts retroactive direct tax scheme, which is not challenged (usually Government enact proactive tax, not retroactive). Provinces also press for constitutional amendment to overturn decisions and provincialize appointments to SCC. PM Trudeau agrees to s. 92A (Non-Renewable Natural Resources, Forestry Resources and Electrical Energy) in 1982, get Blakney (SK Premier) and Federal NDP Broadbent on side w/ the Patriation proposals. SEE P. 530. Section 92A: The indirect tax power in 92A(4) would have likely made the result in CIGOL go the other way. 92A also gives: exclusive provincial power in relation to nonrenenwable natural resources in electricity sites; provinces given power to enact laws in relation to export to other provinces; such laws are subject to federal laws; provinces given power to enact indirect taxes in limited areas. National Energy Program: Federal government levied extra high taxes on oil; when Mulroney came in, in 1984, he repealed Trudeau‘s National Energy Program. 1970s SCC jurisprudence on interprovincial TRADE AND COMMERCE broadens Fed‘s power, narrows Provincial powers; still fairly formalistic (using PITH AND SUBSTANCE and NI doctrines). Provinces narrowing power on ―local and private‖ matters. Prior to this time, entirely transaction-based theory, in that any local transaction was considered Provincial concern. 3. General Trade and Commerce
Parsons (1881) had suggested general trade power as second branch of Trade and Commerce; different from interprovincial trade power, would authorize regulation of local trade if part of general regulation of trade. Laskin revived this power in Anti-Inflation (1976) and in Vapour Canada (1977).
(a) Labatt‘s Breweries of Can. Ltd. v. A.G. Can. [1980] 1 S.C.R. 91, (Magnet I at 531), Estey J. Facts • Labatt‘s challenged Food and Drug Act ss. 6 and 25 regulations regarding labelling food products. Analysis and Disposition • FDA labelling provisions ruled ultra vires of Parliament • as Parsons made clear, ―minute rules for regulating particular trades‖ are not within the trade and commerce competence. Control of production is held to be a prima facie local matter of provincial jurisdiction (local undertaking under s.92(10) of CA 1867). • The impugned regulations were not concerned with the control and guidance of the flow of articles of commerce through the distribution channels, but rather with the production and local sale of the specified products of the brewing industry. • Nowhere are the impugned regulations concerned with the control or regulation of the extra-provincial distribution of these products or their movement through any channels of trade. t heir purpose is the regulation of the brewing process itself by means of a ‗legal recipe‘... Laskin (dissent) ―It appears to me that if Parliament can set up standards for required returns for statistic purposes, it should be able to fix standards common to all manufacturers of foods, including beer, drugs, cosmetics and therapeutic devices, at least to equalize competitive advantages in the carrying on of businesses concerned with such products. I find some reinforcement in this view of the scope of the federal trade and commerce power in s. 121 of CA 1982 which precludes interprovincial tariffs, marking Canada as a whole as an economic union.‖ Result in case strongly criticized; Beer industry is national/international (b) A.G. Can v. C.N. Transport [1983] 2 S.C.R. 206 (Magnet I at 536) Dickson J. Facts • Considers Combines Investigaton Act (Competition Act) in relation to CN and CP who were charged with ‗unlawful conspiracy to prevent or lessen unduly competition.‘ Analysis and Disposition • Several indicia for valid exercise of General TRADE AND COMMERCE power: • 1. National regulatory scheme • 2. Oversight of a regulatory agency • 3. Concern w/ trade in general rather than aspect of particular business (from Laskin‘s judgment in Vapour) AND o i. Fact that provinces jointly or severally would be constitutionally incapable of passing such an enactment and o ii. Failure to include one or more provinces/localities would jeopardize successful operation in other parts of the country. [not an exhaustive list] • court found that the provision was regulatory in nature. It then proceeded to determine whether the scheme was valid under the second branch of s. 91(2). Test: does the scheme meet one of the indicia of for valid exercise, above. If so, is it a valid scheme under s. 91(2)? If not, rule it out of order with s. 91(2). • A scheme aimed at the regulation of competition is in my view an example of the genre of legislation that could not practically or constitutionally be enacted by a provincial government. Given the free flow of trade across provincial borders guaranteed by s. 121 of the CA 1867, Canada is, for economic purposes, a single huge marketplace.‖ Note on Characteristics of Regulatory Scheme
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the party being regulated has caused the need for regulation and receives some benefit from the regulation o in Ref. Re: Agricultural Products Marketing, it was the appellants‘ economic activities that caused chaos in the markets, and it was also the appellants who benefited from the introduction of order into these markets • the challenged statute delineates certain required or prohibited conduct, creates an investigatory procedure supervised by public regulators, and establishes remedial or punitive mechanisms. • major elements of the regulatory scheme should be statutory • the scheme must be a ‗national‘ regulatory scheme (c) General Motors of Canada Ltd. v. City National Leasing Facts • ―The essential question …is whether s.31.1 [which creates a civil cause of action, and is therefore a prima facie regulation of property and civil rights] can be upheld as constitutionally valid by virtue of its relationship with the Combines Investigation Act. …two issues: first, is the Act valid under the federal trade and commerce power, expressed in s.91(2) of CA 1867; and second, is s.31.1 integrated with the Act in such a way that it too is intra vires under s. 91(2). Analysis and Disposition • Two aspects of case important: Necessarily Incidental doctrine and development of ‗general trade‘ power; Dickson proposes three-step test: 1. Does impugned provision intrude on s.92? 2. Is it part of a valid regulatory scheme? (If so, assess w/ the other 2 Vapour and 2 CN Transport factors) 3. Is impugned provision sufficiently integrated in valid scheme to be upheld? (Is it necessarily incidental to the valid scheme?) • First issue – evident that 31.1 is prima facie intrusion on provincial powers, but provision is only a remedial one, and federal encroachment in this manner is not unprecedented. • Second issue – Competition Act upheld as valid ‗general trade‘. Five indicia of general trade power applied to CIA: 1. ―well orchestrated scheme of economics regulation‖; 2. ―watchful gaze‖ of a regulatory agency; 3. regulates trade in general; 4 and 5. provinces could not regulate competition effectively on their own. • Section 31.1 is ―functionally related‖—survives a ―necessarily incidental‖ test. Provision is therefore valid (d) General Trade Powers • Could general trade be used to implement international trade agreements? Consider 1994 agreement on International Trade. Used in 1998 to force Fed govt to withdraw legislation banning interprovincial transport or gasoline additive MMT. Argued that scientific evidence inconclusive (e) International Trade Agreements • Canada has entered into FTA and NAFTA; Generally provide for ‗national treatment‘ (nondiscrimination) against American and Mexican goods; Treaties require implementing legislation; Powers to enact such legislation follows division of powers. • Provincial laws regulating sale of alcoholic beverages cannot discriminate against US and Mexican products • Could Federal Government rely on Caloil and necessarily incidental doctrine to justify legislation implementing this obligation under treaty? (see sample problem in hand-out).
(f) BCSC v. Global Securities [2000] 1 S.C.R. 494, (Magnet I, p. 296) Iacobucci J. (see above) Facts • BC Securities Act s.141.1(b): Exec. Director may make an order to assist in administAnalysis and Dispositionn of securities of another jurisdiction. U.S. SEC investigating Ms. Gadoy (unlawful trading in U.S.). Analysis and Disposition Iacobucci relies on Dickson‘s three-step analysis from GM Canada (1989) 1. Is PITH AND SUBSTANCE of impugned provision valid under ss.91/92? If prima facie invalid go to stage 2. 2. Is the act as a whole valid? If yes, proceed to stage 3. 3. Is the impugned provision sufficiently integrated within the overall scheme such that it can be upheld? Answer to first stage – valid under 92(13); PITH AND SUBSTANCE is to monitor those who trade securities in BC (i.e. to know if people in BC are breaking laws). BC shares info, thereby can operate own scheme more effectively, quid pro quo. (g) The National Market and the Division of Powers • conceptual notion of the Canadian ‗national market‘ runs through various areas of constitutional law - reasoning behind courts‘ invalidation of provincial regulatory schemes • addition al provisions secure the national market – s. 121 of the Constitution Act, 1867, provides ―all articles for the Growth, Produce or Manufacture of any one of the Provinces shall... be admitted free into each of the other provinces.‖ Early cases read s. 121 narrowly. • free movement of people is guaranteed by s. 6(2) of the CCRF – also read narrowly – ―the objective of s. 6 should not be interpreted in terms of a right to engage in any specific type of economic activity.‖ (Canadian Egg Marketing Agency v. Richardson). No similar provisions for the free movement of capital in the Charter. • free movemebt of capital is secured by carous provisions of the CA 1867 – Parliament‘s exclusive authority over current coinage s. 91(14), banking, incorporation of banks and the issue of paper money s. 91(15), savings banks s. 91(16), legal tender s. 91(20), and authority or borrow money on the public credit s. 91(4) • Barriers to the free movement of goods have persisted in Canada (h) K. Swinton ―Courting Our Way to Economic Integration: Judicial Review and the Economic Union‖ • efforts to strengthen the Canadian economic union have been an important part of the public policy agenda since the late 1970s – evidenced by the many attempts at constitutional consensus reform made by federal and provincial governments. • federal, provincial and territorial negotiators reached agreement on the reduction of internal trade barriers in July 1994 • agreement contains lengthy set of commitments for the removal of trade barriers and include a complex set of dispute settlement mechanisms, including a clear signal that the obligations are not subject to judicial oversight • significant degree of confusion remains about what constitutes an unacceptable barrier • goal of barrier elimination would be based on an equal treatment model that would forbid distrinctions on the basis of provincial residence. Sometimes described in literature as ‗negative integration‘- end to arbitrary and purposeful discrimination • at the same time, even those committed to maximum mobility would concede that there can be some legitimate limitations on movement – in our pursuit of equal treatment in the economic union, there may be persuasive reasons for treating provincial residents and nonresidents differently in some circumstances
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difficulty is in reaching consensus on which limitations are reasonable and which are arbitrary need to develop concept of acceptable barriers becomes even more compelling if the definition of trade barriers also incorporates indirect burdens on mobility whether on operates from community models or certain economic models, federalism is valued because ti theoretically provides a better opportunity for gov‘ts at the regional/provincial level to respond to citizens‘ preferences, because of the greater homogeneity that comes with smaller jurisdictions or because of the ensuing competition between jurisdictions decision makers must weigh a number of competing concerns that include not only the value of freedom of movement in the Canadian common market and the justifications or limiting mobility in such a market in general, but also the particular values of federalism one must ask how integration will most feasible and legitimately result: through judicial prohibitions of practice; unilateral federal action; intergovernmental cooperation and negotiations; institutional reforms, or through formal constitutional challenge Agreement on Internal Trade: o objective is to promote an open, efficient and stable domestic market and to reduce and eliminate, to the greatest extent possible, barriers to the free movement of persons, goods, services, and investments within Canada. o commitment to further processes, either to harmonize standards and regulations or to increase frequency of recognition of another jurisdiction‘s satandards o agreement is enforced through consensual arbitration rather than a binding form of adjudication is problematic for those wanting sterner obligations imposed on gov‘ts o uncertain legal status is cause for concern – principles of parliamentary sovereignty dictate that the agreement cannot bind a future legislature since it is the result of executive action o is there an expanded role for the Supreme Court of Canada to play in the regulation of internal trade barriers to supplement the agreement? those seeking greater judicial activism see deficiencies in the present jurisprudence (1) doctrine developed does not adequately oversee gov‘t spending practices (2) narrow definition of ‗trade and commerce‘ within s. 91(2) emphasizes trade in goods. Allows the provinces wide scope to regulate land ownership and use and labour policy since these have not been seen as elements of trade nor have they come within the scope of the common market clause in s. 121. (3) need for greater sensitivity to the spillover effects of provincial jurisdiction on those in other jurisdictions and to their overall impact on the national economy with judges deciding the magnitude of unacceptable burdens of commerce weighed against policy justifications put forward by provincial gov‘ts. (burden of commerce doctrine) ABORIGINAL PEOPLES AND THE CONSTITUTION
1. Introduction (a) General • CA 1867 contained no guarantee for aboriginal rights. One of enumerated powers in s.91, giving Federal government jurisdiction over ‗Indians and lands reserved for Indians‘ [91(24)] • Key Breakthrough was Calder case (1973) which recognized Aboriginal right to title at common law. • CA 1982 included guarantee of aboriginal and treaty rights (s.35); has been interpreted broadly by Courts. Federal or provincial laws that limit existing aboriginal rights must be
justified (according to SCC test). It is likely that the Courts will interpret s.35 as including an inherent right to self-government. Treaty rights now protected (Marshall). (b) Aboriginal Rights pre-1982 Prior to 1982, three sources of aboriginal rights. (i) Royal Proclamation of 1763 (p.780) King George III: issued to constitute governance in colonies Britain had in North America (i.e. Canada, U.S. and Grenada), upon conclusion of seven-years war w/ France (which ceded its lands in 1763 Treaty of Paris). Stipulated lands not already settled to be reserved for use of aboriginal peoples. (see 78081)—essential that the Aboriginal peoples not be disturbed, seeing as they were a military force to be reckoned with in relation to the relatively small number of colonists. Crown asserts sovereignty and then grants reserved lands to Indians. Only crown (fed and provincial) could accept cession of lands from aboriginal peoples through public meeting w/ aboriginal peoples concerned. No private individual could purchase or take those lands. Crown poses itself btw Aboriginal peoples and settlers (i.e. ―to prevent these frauds and abuses‖). (ii) Common Law of Aboriginal Title: Common law has recognized that there is a legal interest that arises in favour of Aboriginal peoples, from their use and occupation of land prior to the arrival of Europeans etc. from North America. Courts have recognized this as source of legal right/legal title. Often characterized as an inherent right—it does not depend on Crown grant. Common law right-―Aboriginal Title‖ first recognized by JCPC St. Catherines Milling (1888): ―a personal and usufructory right‖ in lands which they had traditionally occupied (p. 797). Also, Calder (1973), where SCC recognized Aboriginal title at common law. (iii) Treaties with Crown: Historic treaties covered most of Ontario and prairies; no treaties in B.C. and northern Quebec (1975-modern QC treaty); modern treaties involve both Federal government and Provs (more political practice than constitutional/legal necessity). Most of treaties provided for surrender of Aboriginal lands for entirely insufficient, minimal consideration. Treaties would sometimes provide for continued aboriginal use. HOWEVER, prior to 1982, treaty rights could be subjected to legislative extinguishment by federal (but not provincial) statute (see below on ―distribution of legislative power‖ in CA 1867). Crown committed to act in good faith, and not to dishonour the name of the Crown, but …; obviously, this was a defect in the situation. Contemporary jurisprudence interpreted treaties more generously. Monahan thinks Marshall decision a departure, a rather generous treatment of treaty rights. Treaty rights are now included in s. 35 of CA 1982; s. 35 also protects ‗aboriginal rights‘ or common law rights as defined above; therefore, it changed the rule as it had been prior to 1982. (c) Distribution of Legislative Power CA 1867 gave Parliament exclusive legislative power over ―Indians and lands reserved for Indians‖ (see s. 91 (24)); Only Parliament could pass laws dealing directly with aboriginal rights. Provincial laws attempting to single out aboriginal peoples for particular regulation would be invalid. Provincial laws of general application could ‗incidentally affect‘ aboriginal peoples – but could not override treaty rights. Under the PITH AND SUBSTANCE doctrine, a law may incidentally affect someone outside the jurisdiction.
Doctrine of interjurisdictional immunity applies to Indians and lands reserved for Indians (i.e. certain entities or persons specifically within Fed jurisdiction, have special status; provincial laws cannot affect specifically federal/vital aspects of the entity/persons). Provincial laws cannot affect aboriginal peoples in their essential aspects, i.e. status as Aboriginal peoples, or law affecting rights granted to them (hunting, fishing, etc.) by the Federal government and which are integral to their lives and status.
(d) Interjurisdictional Immunity and s. 88 of the Indian Act (Magnet I at 794) • Federal government decided to enact a specific section, to say that a provincial law of general application can apply to Aboriginal peoples with the following qualifications:. i. the law must be to be one of general application. ii. the law will be subject to treaties, which will override provincial law in areas of conflict. iii. the law will be subject to any other federal law, including the Indian Act, which will prevail over provincial law • qualifications – section makes provincial laws applicable to ‗Indians‘ but does not refer to ‗lands reserved for the Indians‘ – two distinct heads of power • s. 88 does not referentially incorporate provincial laws that affect the possession and use of lands reserved for Indians. This is consistent with the fiduciary responsibility of the federal R to protect lands. • Prof. Slattery summarizes all of the above principles in pp. 792-794 (e) Calder Case (1973) Major breakthrough for aboriginal rights; 3 judges held that aboriginal title derived from historic use and occupation of land. ―Inherent rights‖ theory Prompted Federal government to begin land claims negotiations. (f) Constitution Act 1982: s.35(1)-(4) and s.25 • 35(1) ‗recognizes and affirms‘ existing aboriginal and treaty rights (see p. 780); word ‗existing‘ added following November 1981 constitutional conference. Aboriginal peoples objected to word ‗existing‘; brought appeal to England; Denning waxed eloquently but ultimately said enactment of CA 1982 was valid. • 35(2) Defines ‗aboriginal peoples of Canada‘ as including ‗the Indian, Inuit and Métis peoples of Canada.‘ • 35(3) Added 1983: ―For greater certainty, s.(1) ―treaty rights‖ includes rights that now exist by way of land claims agreements or may be so acquired.‖ Future agreements constitutionally protected (e.g. 1988 Nisga‘a treaty). • 35(4) Guarantees gender equality along lines of Charter s. 8? • Insulates aboriginal rights from Charter override (see p. 779). • Requires aboriginal participation in constitutional amendments (Elijah Harper, Meech Lake Accord) 2. The Law of Aboriginal Title (a) Guerin v. the Queen [1984] 2 S.C.R. 335, (Magnet I at 795), Dickson J. Facts • Case began prior to 1982; trial decision not under Charter regime; based on c.l, not s. 35. • The Musqueam Indian Band surrendered valuable surplus reserve lands to the R for lease to a golf club. • The terms obtained by the R were much less favourable than those presented to and agreed upon by the Band council. Indian Affairs branch officials did not return to the Band for its approval of the less favourable, revised terms, not would it disclose the terms to the
Band or an appraiser assessing the adequacy of the proposed rent. The Band was unable to obtain a copy of the lease until March 1970. Analysis and Disposition • Dickson reviews cases on aboriginal title, Calder, St. Catherine‘s Milling • confirms Aboriginal title arises from historic use and occupation. • concludes that aboriginal interest in land is sui generis: o 1. Can only be transferred to Crown o 2. Upon surrender of title Crown under fiduciary obligation towards aboriginal people. The nature of Indian title and the framework of the statutory scheme places upon the R an equitable obligation to deal with the land for the benefit of the Indians. This obligation... is... a fiduciary duty. the fiduciary relationship between the R and the Indians has its roots in the concept of aboriginal, native or Indian title. St. Catharine‘s Milling Indians had a personal and usufructary right – qualification of or burden on the radical or final title of the R. The R has a pure legal estate, but on which could be qualified by a right of ‗beneficial use‘ that did not necessarily take the form of an estate in land. purpose of the surrender to the R requirement imposed on the Indians is to interpose between the latter and prospective purchasers or lessees of their land to preven the Indians from being exploited – the jurisdiction of the courts to regulate the relationship between the R and the Indians ahs the effect of transforming the R‘s obligation into a fiduciary one. obligation is one where by statute, agreement or unilateral undertaking, one party has an obligation to act for the benefit of another, and that obligation carries with it a discretionary power, the party thus empowered becomes a fiduciary Dickson finds oral representations about rent and manner of implementing increases, though not formal surrender terms, part of Crowns fiduciary obligation. Lease not rendered void, but rather damages paid by Crown/society generally for violation of fiduciary duty. Limitations on Guerin • Lower courts have attempted to limit the scope of the fiduciary relationship between the R and aboriginals. See p. 802-805, Vol. 1 for details.
3. Aboriginal Peoples and CA 1982 (a) Slattery, ―Making Sense of Aboriginal and Treaty Rights‖ • (1) Doctrine of Aboriginal Rights o body of common law that defines the constitutional links between aboriginal peoples and the R and governs the interplay between indigenous systems of law, rights and gov‘t o regulates relations between aboriginal communities and other communities that make up Canad and determines the way in which their respective legal institutions interact] o operates uniformly in Canada • two main sources of doctrine o (a) body of custom generated through relationsh between indigenous peoples and the R in the 17th and 18th centuries doctrine provides that the local customary laws of the indigenous peoples would presumptively continue in force, except insofar as they were unconscionable or incompatible with the R‘s suzerainty Guerin – aboriginal title is a right derived from the indigenous people‘s hitsoric occupation of their lands, and that title predates and survives that claims to soverignty made by European nations. See also the Royal Proclamation. Guerin – statutes and other acts concering aboriginal peoples should be read in the light of the common law of aboriginal rights. o (b) basic principles of justice influcence of this source has been enhanced by s. 35(1) of the CA, 1982, which recognizes and affrims existing aborigianal and treaty rights in ascertaining the existence of aboriginal rights under s. 35(1), the SC has indicated that it will ensure the the inquiry is informed by basic considerations of justice. It will not allow s. 35(1) to be interpreted in a manner that simply perpetuates historical injustices visited on aboriginal people in colonial times. • (2) Historic Treaties o ‗treaty‘ encompasses all engagements made to aboriginal peoples by representatives of the R or other persons in authority o seems clear that historic treaties are governed by a unitque body of treaty law that forms a branch of the doctrine of aboriginal rights o body was generated by long-standing customary relations between aborigianl peoples and the R and is informed by basic principles of justices which engage the R‘s honour o treates were normally oral rather than written agreements influenced by Indian concepts, procedures and ceremonies o many historic treaties are best understood as constitutional agreements which establish or reaffirm a fundamental relationship between the R and an aboriginal people o SCC has held that treaty temrs should be interpreted generously in a manner that is favourable to the aborigianl parties and takes full account of their concenrs and perspectives o prior to 1982, treateis could be infringed by statute enacted by a competent legislature o post-1982,a court may strike down legislation inconsistent with treaty rights under s. 35(1) of the Constitution Act, 1982
o What is the rleationshop between treaty rights and aboriginal rights – where a treaty
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expressly recognises and guarantees aboriginal rights, it provides an extra layer of security o what does this layer of protection entail? R forfeits power when it gurantees aborigianl rights in a treaty Gives rise to particular fiduciary obligations to honour those undertakings obligations that represent concrete instances of the R‘s more general fidiciary duties regarding aboriginal peoples (3) Classes of Aborignal Rights o 1. Generic Rights v. Sepcific Rights generic right is a right of a standarized character held by all aborignal groups that satisfy certain criteria – borad dimensions of the right are identical in all groups where the right arises, even if certain concrete features of the right may vary. Aboriginal title for exclusive use and occupation of land for various purposes is a good example. o Specific Rights: (i) site specific rights – rights that relate to a definite tract of land but do not amount to aborignal title. Hunting without occupation of land is example. (ii) floating rights – rights that are not tied to any particular tract of land but are land-based. Right to engage in certain land-related activities on any lands to which members of the group have access, whether as aboriginal people or as ordinary members of the public. Gathering of wild plants for medicinal purposes is example. (iii) cultural rights – not linked to land at all. Group may have an aborignal right t perform certain traditional dances tha tare not connected with any particular location and do no involve ‗using‘ the land in a way that transcends the normal effects of human activity. o Test for Specific Right (Van der Peet) (i) the practice, custom, or tradition must have been integral to the culture of the aborignal group. Must have been a ‗central and signficant‘ part of the culture, one of the things that made the society what it was. Must have been ‗defining and central attributes‘ of the society. (ii) the practice, custom or tradition must have been integral to the aborignal society in the period prior to European contact. Must have pre-colonial continuity. Contact date is the time of R soverignty rather than contact (Deglamuukw) o Suggested alternative for Test of Specific Right (i) historical evidence showing that the right was a recognised strand in the fiduciary relationship established at the time when the R assumed gov‘tal resonsibility for the particular aborignal people in question (ii) proof that the right is grounded in practices, customs or traditions that were integral to the distrinctive culture of the specific aborignal group at the transition date. If it can be proven that an activity was integral to the cutlrue of the aborignal gorup, it is presume to have formed an incident in the fiduciary burden assumed by the R, even in absence of specific historical evidene to this effect. o 2. Exclusive v. Non-Exclusive Rights exclusive rights – holders of the right are th only ones entitled to exexrcise it, and they can maintain the right against the entire world. Title to a tract of land is example.
non-exclusive rights – do not give the group the sole benefit of the right or the capacity to prevent otehrs from exercising corresponding rights. Right to hold potlaches is non-exclusive, in that members of the general public can also hold them. these rights could take precedence over the corresponding right held by non-aborignals. o Co-existence of Exclusive and Non-Exclusive Rights exclusive right to pick barries in a certain area may overlap with the exclusive right of another‘s ownership of land the rights co-exist and overlap – as long as the occupier does not occupy in a manner that precludes barry picking exclusive right to fish in an area is met with another band‘s exclusive right to fish. These rights co-exist, and one band cannot preclude another from fishing. o 3. Depelateable and Non-Delpletable Rights depletable rights – exercise tends to use up some portion of a finite material resource limited depletable rights – built-in restrictions that help conserve the material resoruce or to safeguard the rights of other user-groups unlimited depleatable rights – do not have built-in legal restrictions and so in primciple may be exercised so as to exhaust the material resource in question. non-depletable rights – such as the right to speak an aborignal language, does not involve consumption of finite material.
(b) R. v. Sparrow [1990] 1 S.C.R. 1075 (Magnet I at 822) Dickson CJ and LaForest Facts • First major case using s. 35, again involving a member of Musqueam Band. • Sparrow used a net larger than what was allowed by license granted under Federal Fisheries Act. • He was charged by Fisheries official for acting in breach of his license. • He argues license is invalid b/c the requirements of the statute limits his right to fish. • He further argued that a historic right to fish arises from historic use and occupation of area and fishing of his ancestors prior to arrival of Europeans. Analysis and Disposition • Defines ‗existing‘ as meaning ‗unextinguished‘, i.e. it is possible to extinguish a right that existed prior to 1982, and if so extinguished s. 35 does not revive those rights. However, Dickson says there is very strict test to determine if right extinguished prior to 1982. Even a right regulated in minute detail not extinguished. Only total elimination of right constitutes extinguishment. Must be ‗clear and plain‘ intention to extinguish. • Fishing right found not extinguished; therefore, the right was defined by historic use, not contemporary regulation. AG argued ‗existing‘ = existing regime (regulatory etc.) in 1982 was okay, that no existing law could be attacked. • No ruling on commercial fishing given in the case (because Mr. Sparrow was fishing for food!) • Words ‗recognized and affirmed‘ incorporate fiduciary obligation into s. 35. However, rights are not absolute. Court proposes compromise. Proposes a ‗justificatory scheme‘ for s. 35 claims (see p. 830). • Question: Why didn‘t Court use s. 1? Balancing test of limitations in s. 1 of Charter says that Charter guaranteed rights are subject to limitations; s. 35 is strictly speaking not subject to limitations as per s. 1, b/c s. 34 of Charter says that provisions 1 – 34 are included in Charter. Also, s. 25 stipulates that Charter cannot derogate from aboriginal
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rights. (Charter rights protect individuals, whereas s. 35 and aboriginal rights are community-based). In the result, Sparrow has in fact established a FOUR-PART TEST: o Is there an aboriginal right (protected under Constitution, s. 35)? Use Van der Peet Test, supra o Has that right been extinguished prior to 1982? (i.e. is it ―existing‖ as per s. 35. Onus on R to make demonstration of exstinguishment). o Has there been a prima facie infringement of the right? (whether purpose/effect of net length restriction infringes unnecessarily on interests protected by the fishing rt) Onus on challenger to estab infringt Does the regulatn impose undue hardship ? (signif limitatn on exercise of the rt) Does the regulatn deny rts-holders their preferred means of exercising that rt? o Can an infringement be justified? court must be satisfied that the asserted legislative objective is ―compelling and substantial‖ if a valid legislative objective is found, court must examine whether the infringement unduly restricts the aboriginal right in question, and whether the restriction cam be accommodated with the R‘s special fiduciary relationship with First Nations. [these two subtests were enunciated in Cote, infra]
(c) R. v. Van der Peet [1996] 2 S.C.R. 507 (Magnet I at 849) Lamer C.J. Facts • Claimant w/ food-fishing license sells fish contrary to regulations. R agreed aboriginal people had right to fish for food in area; issue is whether this right extends to commercial sale. Key case defining aboriginal rights (1st stage Sparrow test). Analysis and Disposition • Courts must take ‗generous approach‘ to s. 35. Aboriginal rights arise from historic use and occupation (p.851: the simple fact: they ―were already here‖). Court must take into account perspective of aboriginal peoples, and be aware that aboriginal rights ‗exist within the general legal system of Canada‘. Test for s. 35 right is ―practices, traditions and customs central to the aboriginal societies that existed … prior to contact …‖ Activity must be ―integral to distinctive culture of the aboriginal group …‖(p.853). Must be something that made the society ‗distinctive‘ – a defining feature. Relevant timeframe is prior to contact with Europeans cultures. Could be established through evidence of continuing significance of activity; evidentiary rules should be relaxed. Case-by-case approach favoured. Practice must be ‗distinctive‘ not ‗distinct‘ or unique. Aboriginal title (claim to the land itself) is a subset of aboriginal rights (claims to use of land or other rights). Commercial fishing in this case not aboriginal right; effect of case is to limit potential scope of aboriginal rights; and encourage litigation. More litigation has followed, test various situations specific to diff. aboriginal groups. Criticism of Van der Peet requirement practice must have existed prior to contact w/ Europeans (perhaps should be moment Crown asserted sovereignty); argued this is a ‗frozen rights approach‘ (see dissent of L‘HD, p. 859). N.B. Van der Peet does not apply in case of treaty right, b/c would be unfair to apply high standard of distinctiveness to something agreed to in legally enforceable agreement. Prior to 1982, Government could, by statute, limit/extinguish treaty rights; after 1982, subject to s. 35 and process of justification that is not Van der Peet test.
(d) R. v. Gladstone [1996] 2 S.C.R. 723 Facts • Accused convicted under s.61(1) of Fisheries Act with attempting to sell herring spawn on kelp w/o licence required under s.20(3) of the Pacific Herring Fishery Regulations. Is PHFR unconstitutional wrt s. 35. Analysis and Disposition • Commercial fishing right established in this case, and the right had not been extinguished; also found that the impugned legislation constituted a prima facie infringement of the aboriginal right. The case then turned on the issue of justification under the fourth branch of the Sparrow test. • Crown provided adequate justification for limitation on catch to 20% of herring stock caught in particular year. However, evidence on allocation of 40,000 lbs to aboriginal people not justified. New trial ordered on this issue. (e) R. v. Delgamuukw [1997] 3 S.C.R. 1010 (Magnet I at 834) Lamer C.J. Facts • Claim by Gitskan and Wet‘sutet‘en people to ownership of 58,000 square kilometres in BC interior. NO treaty was ever concluded respecting land (although the groups had tried 100 years earlier in coming to Victoria). • Trial 374 days; judgment nearly 400 pages. Trial judge (McEachern) holds aboriginal peoples had aboriginal rights to certain lands, however, extinguished by claim of British sovereignty (1846-1858 when BC established). • Assertion of sovereignty inconsistent with rights/title to lands. Provincial government changes (NDP) and changes counsel for appeal; takes new position that aboriginal rights not extinguished, but that rights did not extend to land itself. BC Court of Appeal agrees and states aboriginal peoples have non-exclusive rights to lands. Analysis and Disposition • Lamer holds trial judge erred in approach to use of oral histories. Trial judge found no exclusive right to land, relying in part on fact he gave no ‗independent weight‘ to oral histories. Lamer says oral histories are to be given ‗due weight‘. New trial ordered; Lamer goes on, technically obiter, elaborates doctrine of aboriginal title. • re: Aboriginal Title o rt to exclusive use & occupatn of the land o rt to choose what uses land can be put, subject to ultimate limit that those uses can‘t destroy ability of land to sustain future generatns of aborig peoples o if title estabd, current uses not limd to tradit uses Internal limitatn imposed by Crt - uses of land may not be incompatible w/tradit uses - ―strip mining‖ not permitted on lands used as hunting grds - this is strange reasoning; illustrates difficulty in crts going beyond what they have to decide; when crts do that & it‘s not necess, crt can go down a road that might cause probs elsewhere - Lamer saying a future generatn might want to use land in tradit way and that type of developt wld prevent this Test for proof of title: 1. land must have been occupied prior to assertion of sovereignty (diff from Van Der Peet) 2. if present occupatn is relied on, must be continuity w/pre-sov occupatn & present 3. occupatn at sov must have been exclusive; see below Test for exclusivity (#3 of title test): ‗must rely on both perspective of common law and the aborig perspective, placing equal weight on each‘
exclusivity is consis w/other grps being present on land (but one grp must have sought to exclude others) or ‗shared exclusivity‘ (1 grp permits others to be on land) Van der Peet test of ‗centrality‘ or ‗defining feature‘ applies, but requirement will be automatically satisfied by exclusivity test. Provinces cannot extinguish aboriginal title; only Federal government can (see p.847). Infringements of Title: Adopts test from Gladstone—broad range of acceptable purposes for infringements; general social and economic development a legitimate basis for infringement (p.845). Must be an attempt to accommodate aboriginal interests – including consultation and payment of compensation (see p. 846). Aftermath of Delgamuukw: SCC encourages negotiation rather than litigation. Recent signing of Nisga‘a Treaty resolves land claims of Nisga‘a people in BC. Also establishes self-government rights. Treaty subject of an unsuccessful court challenge. New B.C. Liberal government has promised referendum on land claims and self-government (f) R. v. Adams, [1996] 2 SCR 101, Magnet 1 at 873 Facts • Mr. Adams, a Mohawk, was charged with fishing without a licence on Lake St. Francis, Quebec, contrary to s. 4(1) of the Quebec Fishery Regulations. A licence was unavailable under those regulations. A special licence issued under ministerial permit authorizing native persons to fish for food may have been available under s. 5(9) but appellant did not apply for such permission. The appellant was convicted at trial and the conviction was upheld by the Que. Sup. Ct. and the QCOA. Analysis and Disposition • Question of whether aboriginal rights are necessarily based in aboriginal title to land, so that the fundamental claim that must be made in any aboriginal rights case is to aboriginal title, or whether title is instead one subset of larger category of rights • while claims to title fall within the conceptual framework of rights, rights do not exist solely where a claim to title has been made • where an ab group has shown that a practices, custom or tradition taking place on the land was integral to the distinctive culture of that group then, even if they have not shown that their occupation and use of the land was sufficient to support a claim of title to the land, they will have demonstrated that they have an aboriginal right to engage in that practice, custom or tradition. • do not need to demonstrate title • fishing for food in the St. Lawrence River and in Lake St. Francis was a significant part of the life of the Mohawks from a time dating from at least 1603 and the arrival of Samuel de Champlain into the area (1st question of Sparrow test answered – right exists) • (2nd question of Sparrow test answered – right was not extinguished) • under the regulatory scheme as it currently exists, the appellant‘s exercise of his aboriginal right to fish for food is exercisable only at the discretion of the Minister. This constitutes an infringement of that right. (3rd question of Sparrow test answered – right was infringed) • Scheme imposes undue hardship on the appellant and interferes with his preferred means of exercising his rights (4th question of Sparrow answered – right was unjustly infringed) (g) R. v. Cote, [1996] 3 SCR 139, Magnet 1 at 879 Facts • Appellants were members of an expedition to teach traditional fishing methods. All were convicted under Quebec regulation for failing to pay the required fee for motor vehicle access. Zone was located within traditional hunting and fishing grounds. Also convicted for
fishing without a licence. Convictions challenged on basis that the appellants were exercising an aboriginal right and a concurrent treaty right to fish Analysis and Disposition • court had to address whether aboriginal fishing or other right must be necessarily incident to a claim of aboriginal title in land, or whether an aboriginal right may exist independently of a claim of title • court applied the Sparrow Test. In determination of question 1 of Sparrow, the Van der Peet test was used. • court found that the R had failed to meet the test for justification. The scheme appeared to be driven by the desire to facilitate sport fishing; without any evidence of a meaningful economic dimension to that sport fishing, it could not be said to have been based on a compelling and substantial objective. 4. Treaty Rights
Ca 1982 s.35 protects aboriginal and treaty rights. Difference between aboriginal rights and treaty rights: Aboriginal rights arise from historic use and occupation Treaty rights arise through agreement or mutual consent. Treaties can include existing treaties as well as new treaties (see s. 35(3) p780). It is on this basis that rights under the Nisga‘a Treaty are constitutionally protected. Sparrow test can be used for treaties
(a) R. v. Badger, [1996] 1 S.C.R. 771 (Magnet I at 890) Cory J. Facts • Badger, Kiyawasew and Ominayak charged w/ hunting violations of Wildlife Act. Status under Treaty No. 8 [(1899), modified by Natural Resources Transfer Agreement 1930], hunting for food on lands falling in tracts surrendered to Canada by treaty. Analysis and Disposition • Cory J. summarizes interpretive principles applicable to treaties (p. 894-95): 1. Words in written doc must not be interpreted technically but, in sense would have been understood by aboriginal people 2. The honour of the R is always at stake when dealing with Indian people. Interpretations of treaties and statutory provisions which have an impact upon treaty or aboriginal rights must be approached in a manner which maintains the integrity of the R. It is always assumed that the R intends to fulfill its promises. 3. Ambiguities in wording resolved in favour of aboriginal peoples; corollary: limits narrowly construed. Treaty 8 recognized right to hunt, subject to regulations and subject to lands ―taken up‖ for other purposes (p.891). CA 1930 (NRTA): Transferred natural resources from Canada to provinces (AB, SK, MB). Para. 12 of NRTA modified right to hunt granted in Treaty 8. How can treaty be modified by agreement btw two other parties? Prior 1982, treaty rights not constitutionally protected, could be modified by legislation. Basis of NRTA modifying agreement were British and Canadian (and Provincial) statutes. Court says there had to have been clear intention to modify agreement; para. 12 satisfies requirement. Treaty 8 hunting right for commercial use narrowed, but expanded/strengthened right for hunting for food. Court interprets s. 12 as allowing hunting on private lands that do not appear to be occupied. ―Where lands privately owned, must be determined on caseby-case basis … if privately owned land is unoccupied and not put to visible use, Indians, pursuant to Treaty No. 8 will have a right of access in order to hunt for food.‖
Badger and Kiyawasew on lands visibly in use, but Ominayak on an uncleared muskege with no fences or signs. Application of the Sparrow test (for Ominayak): 1. Is there a right? Yes (see above). 2. Is it existing or has it been extinguished? (Food right strengthened, see above). 3. Has there been prima facie infringment? Court finds can be no limitation on method, timing and extent of Indian hunting under Treaty; licensing scheme has no provision for foodhunting licenses: prima facie infringement. 4. Justification? No evidence submitted on this question, therefore orders new trial on issue of justification alone. Significance of Badger 1. Oral agreement is the agreement reached, and the treaty is the writing down of the agreement. 2. Sparrow framework applies to treaty rights as well as aboriginal rights. (b) R. v. Marshall [1999] 3 S.C.R. 456 (Magnet I at 902) Binnie J. Facts • Donald Marshall Jr. charged with offences under federal fisher regulations. Caught 463 lbs of eel w/o a license, and sold them for about $800.00; did not rely on c.l. aboriginal right to fish, but rather on treaty right. • Treaty of Friendship signed March, 1760 btw British Governor and Mi‘kmaq. Included ‗truckhouse‘ clause. Negative covenant: we won‘t trade with anyone else (i.e. the French); only trade with truckhouses est. by Brits. • Minutes of meeting at time of treaty: Indians assumed the treaty protected the securing of ‗necessaries.‘ Marshall‘s theory: If there is a right to sell fish to the truckhouses, there must be a right to fish. Officious bystander test – ―Here, if the ubiquitous officious bystander had said, ―this talk about truckhouses is all very well, but if the Mi‘kmaq are to make these promises, will they have the right to hunt and fish to catch something to trade at the truckhouses?‖, the answer would have to be, having regard to the honour of the R, ―of course‖. Analysis and Disposition • Binnie J. holds that treaty must be interpreted in light of context, including the Feb. 11 minutes/record of negotiations. These minutes of meetings btw parties had indicated that Mi‘kmaq requested the truckhouses. • Written terms did not record entire agreement; look to intention of parties and ‗honour of the Crown‘ as context. • Binnie implies term granting Mi‘kmaq right to hunt/fish to trade at truckhouses. Right to sustain ‗necessaries‘ – Binnie defines as ‗moderate livelihood‘ – see para. 59 where he references Van der Peet. Marshall acquitted. (c) Marshall v. The Queen (Marshall II) [1999] 3 S.C.R. 533 (Magnet at 909)—The Court Facts • Motion brought for a rehearing by one of intervenors to define scope of rights (to what resources they could be applied? mining? logging?). Parties themselves do not seek rehearing. did these rts apply to mining, logging ? Also aborig lobster fishers (don‘t need license) clashing w/non-aborig ones at Burnt Church. Re-hearing denied but crt issues detailed reasons w/no evidence. Appropriate? No new evidence, what justifies decision? Analysis and Disposition • Court emphasizes the narrowness of original reasons o Government has the power to regulate the right. o Right is only infringed if regulation denies appellant right to fish for necessaries.
o o o
Government may regulate through licensing/other forms of regulation; schemes not necessarily infringement of right. Paramount concern is conservation (of course there is a fishery, so conservation not exactly ultimate priority). Right does not extend to other resources, depends on case-by-case interpretation (difficult to see how you can fish for eel, not lobster?). Right limited to hunting/gathering activities similar to those engaged in at time of treaty.
(d) Significance of Marshall Decisions Second decision seems to have ―calmed the waters‖, so to speak. Implied terms: If followed in later cases, Marshall ‗implied term‘ could lead significant expansion of treaty rights. If minutes/negotiations refer to promises not incorporated in written terms, Courts may imply terms into agreement. Issues: 1. Honour of Crown; and 2. Evidentiary difficulty in proving intentions of parties at the time of the treaty. (e) Hypothetical Treaty 8 negotiations, Government commissioners reported assurance made that Treaty ―not open way imposition of tax‖. However, written terms made no reference to taxation. In Badger, Court felt the treaty survived the 1930 NRTA. Under the Indian Act, tax exemption for income earned by status Indians on a reserve. How would you argue the case for a broader tax exemption? 1. Look back to situation/statements arising from original negotiations. 2. Badger and Marshall: oral agreement that is treaty after all; look to minutes of meetings. Commissioner‘s Report suggested assurances part of original negotiations. Suggests Indian Act could not apply. 3. Government Argument: Try to justify lack of an exemption as being in keeping with fair treatment of all (i.e. refusing an exemption/benefit for some that comes at expense/detriment of others). Perhaps subsequent versions of Indian Act part of treaty; perhaps could try to connect it to argument that potential right only in conjunction with traditional income earning activities of time, or reconciliation better served treating people on equal basis. Benoit v. Canada (Fed. Court., March 8, 2002): A.G. argued had not been negotiation on this point. Court found that the Indians of Treaty 8 were tax exempt. (f) How to argue for an implied term of something: - estab aborig rt - find evidence of an oral promise that = pt of treaty itself - as in Badger and Marshall, look to minutes of discussions and written treaty (= reflectn of agreet b/c of lang barriers, etc.) - apply Sparrow to show rt hasn‘t been extingd and that it‘s unjustifiable to infringe upon it (g) How to counter an argt for an implied term: - disting Badger and Marshall somehow - cld arg some justificatn for limg the rt (e.g. consis w/honour of Crown) - or cld arg no consensus (even though aborigs might have thought that this was what was being promised) 5. Self-Government
Right to govern and regulate activities or practices, as opposed simply to right to engage in activities or practices. 1987 and again in 1992, proposals to amend s. 35 to included explicit recognition of selfgovernment as protected aboriginal right. Charlottetown Accord used the term ―inherent right‖ arising form historic occupation and use. However, has been argued that s. 35 already includes protection for self-government, on basis that this is part of the inherent rights of aboriginal peoples arising from their historic use and occupation of land. SCC, so far avoided direct comment on whether self-government included in s. 35. Not fully argued Delgamuukw at SCC (BCCA ruled against self-gov‘t). R. v. Pamajewon (1996), SCC rejected claim that regulation of high stakes gaming an aboriginal was a right under s. 35: didn‘t meet Van der Peet test for distinctiveness/integral. In Van der Peet, SCC refers to fact that aboriginal peoples were ―living and participating in distinctive cultures‖ (p. 851). Implies some form of communal right (i.e. a right to regulate or legislate). Based on case trends, likely recognition of form of self-government, subject to Sparrow. But, Van der Peet test require case-by-case analysis to determine if regulation of matter at issue is ‗integral‘ to culture of aboriginal group. This ‗integral‘ hurdle significant for selfgovernment claims to overcome. If self-government recognized, have to consider relationship btw aboriginal and nonaboriginal laws: difficult task. Self Government Agreements: Possible to enter into self-government agreements; preferable to judicial interpretation as provides greater certainty. Delgamuukw indicated court‘s preference for negotiated solution. Self-government rights in Nisga‘a Treaty were upheld as valid by BCSC. Rights entrenched under s. 35, which allows future agreements/rights to be consitutionalized. See also 35(4) for some sort of extra wrinkle. Does the Charter apply to the exercise of self-government? Interesting future ahead.
Section 25 of the Charter of Rights and Freedoms provides that the Charter is not to be construed ―so as to abrogate or derogate from any aboriginal, treaty or other rights or freedoms that pertain to the aboriginals of Canada.‖ main purpose is to make clear that the prohibition of racial discrimination in s. 15 of the Charter is not to be interpreted as abrogating aboriginal treaty rights that are possessed by a class of people defined by culture or race designed to guard against diminishing aboriginal and treaty rights in situations where nonaboriginal peoples might challenge the special status and rights of aboriginal peoples as contrary to equality guarantees unlikely that a court would regard s. 25 as providing a blanket immunity from the Charter to aboriginal gov‘ts application of Charter s. 25 should not mean that Aboriginal gov‘ts must follow the policies and emulate the style of gov‘t of the federal and provincial gov‘ts allows an Aboriginal gov‘t to design programs and laws which are different, for legitimate cultural reasons, and have these sections considered as relevant should such differences invite judicial review under the Charter Corbiere v. Canada (Minister of Indian and Northern Affairs) s. 25 is triggered when s. 35 Aboriginal or treaty rights are in question, or when the relief requested under a Charter challenge would abrogate or derogate from ―other rights or freedoms that pertain to the aboriginal peoples of Canada. latter phrase indicates that the rights included in s.25 are borader than those in s. 35 and may include statutory rights
however, the fact that legislation relates to aboriginal people cannot along bring it within the scope of the ―other rights and freedoms‖ included in s. 25. THE CANADIAN CHARTER OF RIGHTS AND FREEDOMS
I. Introduction to the Charter
CA 1867 did not contain general guarantees of individual rights; Canadian Bill of Rights (1960) enacted as a federal statute, but interpreted very narrowly; only about 35 cases that made it to the SCC over 22 years. prior to the enactment of the Charter, Canadian court encountered legislation that imposed disabilities on different groups – cases seemed strange to the modern legal imagination, conditioned as it was by concepts of non-discrimination and equality Implied Bill of Rights Reference Re: Alberta Statutes (1938), Switzman v. Elbling (1957) and Sumur v. The City of Quebec (1953) – impact of these cases suggested that there are certain civil liberties implicit in Canada‘s constitution – a package of freedoms somewhat similar to that of the later Canadian Bill of Rights and the CCRF attention was drawn to the BNA Act 1867, which provided that the Dominion would have a Constitution ―similar in principle‘ to that of the UK view was taken that those words meant that there was to be a parliamentary system of gov‘t, acting under the influence of public opinion, free press and free speech legislation which destroyed the citizen‘s ability to debate, assemble, or associate freely would be contrary to Canada‘s democratic parliamentary system of Canada Canada (AG) v. City of Montreal (1978) – curtailed any application of unwritten constitutional norms by stating that the rights were not above the reach of competent legislation bill of rights theory was revisited and upheld in successive cases Bill of Rights is only relevant to federal jurisdiction; federal statute could be amended by ordinary legislation, and additionally as a statute it was provided with a ―precedence provision‖ but did not have force of trump over other laws, practically speaking. In 22 years, SCC only used Bill of Rights on one occasion to render law inoperative. quasi-constitutional in nature – provided for special rules of statutory interpretation to govern conflicts between itself and ordinary statutues – an ordinary statute shall no be ―construed or applied‖ so as to create conflict with the Canadian Bill of Rights. If the statute can be constructed in two ways, one of which does not conflict with the Bill, the Bill directs the courts to adopt that latter construction. Provincial Human Rights Codes (Ont. 1947); ordinary statutes, only apply to provincial laws, not federal laws. Enactment of Charter controversial—argued it would shift power from elected politicians to unelected judges. Initially argued Charter would prevent government from regulating business corporations, redistributing wealth, or protecting the environment. More recently, argued that Charter allows guilty criminals to go free, or to advance politically unpopular interests of minority groups.
1. Overview of the Charter (Magnet II at 6-7) Guarantee of & limitatns on rts: s.1 can be limd if limits are reas, prescribed by law, demonstrably justified in free & democ society; certain rts immune from limitatns under s.1 Enforcement : s.24(1) remedies for rts infringts, s.24(2) exclusion of evidence as remedy fori illegally obtained evidence Application : s.32(1) Charter applies to Parl, prov legislatures and fed & prov govs Legislative Override: s.33 can only be used for legislatn which violates ss.2 and 7-15; rarely used, never been used by fed gov Interpretive Provisns: s.16(3): legis extension of lang rts beyond constitu basis s.26: upholds prev. accrued rts s.27: Charter must be interpreted in manner consis w/Cda‘as multicult heritage s.28: Charter equally applicable to males & females Non-derogation/non-abrogation clauses: s.21: protects constitu official lang rts s.22: protects heritage lang rts s.25: protects aborig rts (see above) s.29: protects constitu rts of denom or sep schools s. 31: affirms jurisdic boundaries estabd prior to 1982 SPECIFIC RTS: SS.2-15 Fundal Freedoms (s.2): conscience, relig, expression, press, assembly, assocn Democ rts (ss.3-5): voting rts, min. # sittings of Parl & legislatures, etc. Legal rts (ss.7-14): rt to be protected from unreas search and seizure, rt to be presumed innocent, rt to be tried w/in a reas time Equality rts (s.15(1)): protects from discrimn, s.15(2) exempts affirmative actions programs from s.15(1) Mobility rts (s.6): rt to enter & leave Cda, to move freely w/in it, etc. s.6(3) allows certain limits on these rts Lang rts (ss.16-22): Fr & Eng official langs, access when dealing w/fed gov, etc. Minority Lang Educational Rts (s.23): Eng & Fr minorities guaranteed access to schooling in own lang in certain circumstances 2. The SCC and the Charter (Kelly article pp. 8ff): slightly less than one-half of SCC Charter cases involve statutes— majority involve challenges to government actions, i.e. police activities. Could challenge actions without challenging statute. Higher success rate for Charter claims in challenges to government actions than in challenges to statutes; not surprising, because Court not being asked to overturn decision of democratically elected legislature. 2/3 of SCC Charter cases involve interpretation of legal rights, ss. 7-14. SCC unanimous in 70% of its Charter decisions (of course, in our casebook, we read the 30%). U.S. Supreme Court only unanimous approx. 40% of time. SCC operates under high degree of consensus. Wilson J., in her new biography, says there is lot of horsetrading to achieve unanimity. Monahan thinks SCC thereby more effective than U.S.S.C.; but, diversity of views (never mind fact that SCC is not diverse) always good for long term.
3. Interpretation Theories
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Interpretivism: role of crts in reviewing legislatn shldn‘t go beyond interpretatn of txt Non-interpretivism: txt so vague that crts must apply stds not found in text (e.g. moral values) Progressive approach: framers expected Constitu wld be shaped by jud interpretatn, that it wld evolve over time (wds don‘t have to be frozen); this approach can be just as unfaithful to Constitu txt as noninterpretive approach; but is more faithful than interpretivism, so shld be adopted Edwards v. Cda 1929: (―Persons‖ case; whether women can be apptd to Senate) evolution of our understding indicates that we shld interpret 1867 CA as including women as eligible for appt to Senate = progressive interpretatn Hogg (pp. 108-112) reviews debate in U.S. on interpretivism vs. non-interpretivism (whether judges bound by text). Hogg in his eminently sensible approach, on p. 112: ―Interpretation of the Constitution has to be based on the text, but the text is not going to resolve all our contemporary problems—you have to look to the larger purposes, of the particular provision and the document as a whole, and Courts should adopt a progressive interpretation, so that interpretation is not frozen in time.‖ (c.f. Originalist approach to framers‘ intentions). Framers expected Constitution would be interpreted and shaped over time. E.g.: Edwards v. Canada (Person‘s Case); although not anticipated in 1867, evolution of our understanding should reflect progress in time. 1982: Real debate about Charter and use of judicial review. Ultimate outcome of that debate was to adopt Charter, because people thought it was a good thing on the whole that government power be limited. Monahan thinks it is particularly appropriate in Canada, because we don‘t have the same kinds of checks and balances on executive power; stronger case for this in Canada than even in the U.S.
II. Application of the Charter: s. 32
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Provisions of Charter speak in general terms (―every individual is equal before and under the law.‖); however, Charter values are not universally applicable—i.e. to purely private actors Application of Charter defined in s. 32: legislatures and government only bound, b/c gov‘t power to enforce rules that impinge freedoms; private power, though unequal in many circumstances, governed by legal/statutory regimes. Statutes subject to Charter (incl. subordinate legislation, such as regulations, enacted pursuant to statutes) if individual is acting pursuant to statutory authority, they too are bound by Charter (i.e. because power/authority is constituted by legislature)—Slaight Communications (cited at page 20 in McKinney; case of an arbitrator in a labour dispute exercising a discretionary power created by statute).
1. Application to Government (a) McKinney v. University of Guelph et al. [1990] 3 S.C.R. 229 (Magnet II at 17) La Forest J. Facts • Appellants, eight professors and a librarian at respondent universities applied for declaration that policies of universities, which required appellants to retire at age 65, violate
s.15 of Charter [and that s.9(a) of the Ontario Human Rights Code, by not treating persons who attain the age of 65 equally with others, also violates s.15]. • University argued that s. 15 would not apply to universities. However, universities in the case were in fact established by a statute, e.g. the York University Act, and received most of their funding from government. • However, Universities had significant autonomy; decision in question made by universities, not gov‘t. In most of the cases, most of the members of the BoG were not appointed by the Government Analysis and Disposition • Universities are not part of government, for purposes of s. 32(1). Collective Agreement is challenged on the basis of age discrimination. Court endorses the Slaight principle: those exercising statutory power are subject to Charter, AND those under control of government also subject to Charter. However, if the statute is merely passed to facilitate private decisions, it will not qualify as government. • gov‘t has no legal power to control universities; the Act incorporates a university and does not alter traditional nature of such an institution as community of scholars and students enjoying substantial internal autonomy. (b) Lavigne v. OPSEU, [1991] 2 S.C.R. 211 (Magnet II at 29) LaForest J. Facts • Automatic decution of union dues and allocation to trade union even though those being charged were not union members; some of those funds were being used for political purposes that he disagreed w/; he tried to argue violation of freedom of assocn (forcing him to assoc w/union); government had significant control over decisions of College (employer) • Ont. Council of Regents est‘d by s.5(2) Ministry of Colleges and Univ. Act; Lt. Gov. in Council appoints members. • Colleges Collective Bargaining Agreement designates Ontario Council of Regents as bargaining agent for college‘s employers; they entered into an agreement with OPSEU. OPSEU collects union dues from all employees, even non-union members. OPSEU gives $ to NUPGE, which pays dues to CLC and OFL - s union-related causes. • Lavigne, teaching master at Haileybury School of Mines, challenged certain expenditures. Analysis and Disposition • Council of Regents subject to Charter b/c Government found to have direct control over community colleges. Charter engaged not b/c of statute, but because government exercised significant control over community colleges. Lavigne actually ended up losing his case on the merits, but had right to go to Court under the Charter. 2. Application to Private Action (a) R.W.D.S.U. v. Dolphin Delivery, [1986] 2 S.C.R. 573. Facts • Company applies for injunction to restrain secondary picketing; strike at Purolator; union decided to picket at Dolphin. Dolphin sought injunction on the basis of common law, whereby secondary picketing was considered tortious (recent Pepsi Cola case: secondary picketing not unlawful at common law). One issue was whether secondary picketing in a labour dispute is protected as freedom of expression under s. 2(b) of the Charter and accordingly not the proper subject of an injunction to restrain it. Analysis and Disposition • Charter does apply to common law (based on s. 52 of CA 1982; any law that is inconsistent with Charter is of no force and effect; on this basis that Pepsi Cola and Hill v. Church of Scientology were decided).
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However, Charter does not apply to private litigation, even if party seeks to invoke Court in that private litigation. Court says have to have government involvement for Charter to apply. need a more direct and precisely defd connectn b/w gov action and claim Courts not part of government per se. Absence of any direct governmental involvement meant that the Charter did not apply. Dolphin was very controversial, severely criticized: Monahan seems to think all of this is just a waste of trees. Charter not intended to apply to private action, however Court criticized for arbitrariness of line it drew. (b) Eldridge v. AGBC, [1997] 3 SCR 624 (Magnet II at 48) Facts Application for a declaration that the failure to provide sign language interpreters as an insured benefit under the Medical Services Plan of BC violated s. 15(1) of the CCRF. Appellants assert that because of the communication barrier that exists between deaf persons and health care providers, they receive a lesser quality of medical services than hearing persons. Analysis and Disposition Hospitals held to be subject to Charter in implementing specific government policy; [c.f. Stoffman, hospitals found not to be government, b/c they have autonomy and are not under government control]. Hospitals found to have violated Charter in not providing sign-language facilities. It was really government policy not to provide funds to make sign-language interpretation available that violated the Charter. Despite the fact that there wasn‘t an explicit ―policy,‖ the failure to provide constituted implicit policy decision. hospital insurance and medicare programs in force in this country come within the exclusive jurisdiction of the provinces under ss. 92(7) (hospitals), 92(13) (property and civil rights) and 92(16) (matters of a merely local or private nature) The act does not expressly forbid the use or provision of sign language facilities. Therefore, it was the discretion of delegated decision-makers, not the legislation, that was in question. Although the benefits of medical services are delivered and administered through private institutions – hospitals – it is the gov‘t, and not the hospitals, that is responsible for defining both the content of that service and the persons entitled to receive it. Hospitals are required to furnish the general hospital services specified in the Act The alleged discrimination is intimately connected to the medical services delivery system instituted by the legislation Thus, while hospitals may be autonomous in their day-to-day operations, they act as agents for the gov‘t in providing specific medical services set out in the Act. Legislature cannot evade its obligations under s. 15(1) of the Charter to provide those services without discrimination by appointing hospitals to carry out that objective. Two types of Charter violations: (i) Legislation may be found to be unconstitutional on its face because it violates a Charter right and is not saved by s. 1. In such cases, the legislation will be found invalid and the Court compelled to declare it of no force or effect pursuan to s. 52(1) of the CA 1982 (ii) Charter my be infringe by actions of a delegated decision-maker in applying it. In such cases, the legislation remains valid, but a remedy for the unconstitutional action may be sought pursuant to s. 24(1) of the Charter. [when addressing Charter question, determine which type of violation is present] (c) Magnet Research Note--Three Situations Open to Charter Review (p. 71ff)
1. Government itself interacts w/ individuals or entities. 2. Private individuals interact with each other through medium of private law system of torts, contracts, property and trusts. Private law system is one of rules, some common law, some statutory. Rules/laws but NOT relationship subject to Charter; complications: R.B. v. Children‘s Aid Society: (parens patriae allows parental rights to be overridden. 3. Private individuals interact with each other without the legal system. Charter does not apply. N.B.: Vriend found that an omission or gap in a piece of legislation is also open to Charter review. (d) Application of Constitutional Rights to Private Actions: Comparative Survey • in some countries, the view has been taken that gov‘t inaction (as well as action) amounts to gov‘t conduct • implication of this position is that there is really no private act untouched by gov‘t action, since gov‘ts can make acts illegal • applying constitutional protections to all areas of private conduct would have a profound impact on citizens‘ interest in being left alone by the state • general consensus is that a line must be drawn dividing private from gov‘tal acts • American Approach: State Action: ‗Gov‘t Function‘ and ‗Nexus‘ Doctrines o state action doctrine goes back to civil rights cases of the 19th c US o developed as a limitation to congressional law-making power - Congress was not found to have jurisdiction to make anti-discrmination laws, as those interfered with the freedom of private individuals to discriminate on the basis of race o state action doctrine in 20th c has focused on two different objectives: (i) limit the effect of the Constitution and prevent it from preempting individual liberties and (ii) limit the power of the courts in order to maintain the freedom of the state and federal legislatures to choose in which areas they wish to regulate o problems of doctrine stem from competing goals – maximum personal freedom and maximum legislative freedom tend to be mutually exclusive o no straightforward test has evolved for deciding whether an act constitutes gov‘t action o language such as ―to some significant extent‘ or ‗nexus‘ between private and gov‘t action indicates a direction of inquiry at best o public function first line of cases revolved around company towns [list of cases omitted]. In Marsh the owners of a company town were to be subject to the 1st amendment, as the town was in all aspects other than land ownership indistinguishable from other towns. o idea was not extended to shopping centres [Logan] but was applied to parks – park ownership placed constitutional duties on the trustees o nexus second line of cases deals with the issue of state involvement through endorsement or encouragement of private actions. Court orders, like public funding or licencing, may be seen as state endorsement or support of private actions. German Approach o German constitution expressly applies to the judiciary, making all judicial decisions reviewable by the constitutional court o where a law forms the relevant basis for a judicial act, the law is the primary object of constitutional review, and not the court order o third party effect guarantees of the Basic Law are considered to indirectly influence private disputes, because court orders are constitutionally reviewable. o Traditional liberal position that constitutional guarantees have no impact on private law has now all but disappeared. o Critics initially warned that the third party approach would open the floodgates of litigation – this has not occurred
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third party effects are taken most seriously where there is a strong power imbalance between the litigants. In these cases the Constitutional Court has been more readily prepared to review judicial orders. o protection of citizens from powerful groups or individuals is seen as analogous to state interference o Constitutional Court has made it clear that a review of private law court orders is limited to cases of clear and grievous infringements of constitutional guarantees South Africa: The New Constitution o review of judicial decisions of private sphere actions is expressly provided for. but this provision has yet to be interpreted by the courts.
III. Limitations on Rights: Section 1 1. Introduction and Legislative History
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U.S. Constitution has no limitations clause; post-1945 human rights instruments typically contain limitation clause. Recognition that rights are not absolute, but must be balanced against rights of others and collective interests. 1971 Victoria Charter—had a limitations clause. • Earlier versions of s. 1 had been more deferential to legislative choices, i.e. limits that were ‗reasonable‘ and ‗generally accepted in free and democratic societies‘ were acceptable. • Section 1 was made more stringent in Parliamentary hearings, resulting in concept of ‗demonstrable justification‘ which signaled high standard of justification for limits on rights. Also introduced notion of ‗guaranteed‘ rights. • Analysis of substantive rights distinct from consideration of limitations under s. 1 (see note p. 220): Stage One—Analysis of Substantive Rights • Burden lies on person challenging to show there has been prima facie violation of fundamental right. • Court construes Charter rights ‗purposively‘ and interprets ‗generously‘ rather than legalistically. • Look to purpose of particular right, as well as of Charter as a whole (Hunter v. Southam; R. v. Big M Drug Mart). Imagery of constitution as a ―living tree‖ (borrowed from Edwards, 1929) as part of this purposive approach. • Court has tended to construe Charter rights broadly–i.e. freedom of expression (but see equality rights cases). • Either the purpose OR the effect of a law may be found to infringe Charter. (c.f. Division of Powers analysis, e.g. PITH AND SUBSTANCE where we look at the purpose of the law). Stage Two-Consideration of Limitations • s. 1 stage of analysis: burden shifts to the Government to justify impugned law. • Grammatical elements: reasonable limit, prescribed by law, demonstrably justified in free and democratic society. 2. The Oakes Test and its Evolution (a) R. v. Oakes, [1986] 1 SCR 103 (Magnet II at 243) • Provides framework for analysis of what is demonstrably justifiable; Oakes was culmination of early cases that had taken a stringent view of s. 1; rejected ‗utilitarian‘ arguments relating to costs or efficiency as basis for limiting rights.
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Standard of proof is civil standard, BoP; high standard of justification, premised on the understanding the measure infringes protected right. Four-part test 1. Purpose: Must relate to concerns that are ―pressing and substantial in a free and democratic society.‖ • Objective must be sufficiently important (pressing and substantial) • Rarely struck down legislation on basis of purpose: E.g. Big M Drug Mart, where purpose, to guarantee Christian religious holiday, was inherently contrary to the Charter; Vriend, purpose of excluding sexual orientation from H.R. code found to be inimical to Charter/section 1. 2. Means Analysis: ―Proportionality‖ test: Must be a Rational connection o Must not be ―arbitrary, unfair, or based on irrational considerations.‖ Relatively few laws have failed rational connection test; laws may be unjust, but usually are rational. (So, Monahan thinks Oakes was decided wrong?). Minimal impairment of rights o Most frequent basis striking down laws; requires consideration alternative means of achieving objective. Could legislature have achieved objective through less drastic measures? Oakes spoke of impairing rights ―as little as possible.‖ Minimal impairment is core of Oakes test. • Proportionality o btw deleterious effects and objective of law (including a proportionality btw deleterious effects and salutary effects). • Hard to see that it adds anything to other elements, but Dagenais found have to consider deleterious effects and salutary effects (i.e. even though the law is rational and intends its objective, it may achieve so little may not be worth the impact on rights). Really aspect of Rational connection, and that what is really shown here is whether the Rational connection is strong enough to bring about the salutary effects intended as the objective *Subsequent Approaches—Courts have backed away from stringent application of the Oakes test* (b) R. v. Edwards Books and Art Ltd. [1986] 2 S.C.R. 713 (Magnet II at 251) Dickson C.J. Facts • Ontario retailers were charged in 1983 with failing to ensure that no goods were sold or offered for sale by retail on a Sunday contrary to the Retail Business Holidays Act. • They challenged the constitutionality of the Retail Business Holidays Act. Under s. 3(4), stores could open on Sunday if they had been closed on Saturday, and had no more than seven employees and had less than 5,000 square feet of retail space to serve the public. Analysis and Disposition • The Act was not a surreptitious attempt to encourage religious worship but rather was enacted for the secular purpose of providing uniform holidays for retail workers. The title and text of the Act, the legislative debates and the Report on Sunday Observance Legislation all point to its secular purposes. • ―There exists to some degree a trade-off …‖; • ―principles articulated in Oakes make it incumbent on legislature which enacts Sunday closing laws to attempt very seriously to alleviate effects of those laws on Saturday observers‖; • ―not the role of this court to devise legislation that is constitutionally valid, or to pass on the validity of schemes not directly before it, or to consider what legislation might be the most desirable.‖
(c) Irwin Toy Ltd. v. Quebec [1989] 1 S.C.R. 927 (Magnet II at 259) Dickson C.J.: Facts • Sections 248 and 249 of the Quebec Consumer Protection Act prohibited most forms of commercial advertising at children. Court held that the consumer protection provisions did violate s.2(b) of the Charter. Analysis and Disposition • The provincial legislation was not ultra vires the Province of Quebec nor was it of no force and effect by virtue of the Broadcasting Act. The legislation was not subject to a valid and subsisting override provision. Finally, while the legislation did infringe s. 2(b) of the Canadian Charter of Rights and Freedoms and s. 3 of the Quebec Charter, the infringement was justified under s. 1 of the federal Charter and s. 9.1 of the Quebec Charter. The respondent was not entitled to invoke s. 7 of the federal Charter. • Introduces concept of laws that balance interests of competing groups. • Where the government is mediating between different social groups, the court should show deference to the legislature. • Such laws need only be ―reasonable‖ case called Edward Bocks - legislation re stores closing on Sunday upheld. Very little evidence… but said as long as the line drawing exercise is reasonable we will accept what legislation has done. • Irwin Toy softening of requirements - making it easier to uphold legislation. • Irwin Toy introduced new concept - balancing interests of competing groups. • Main evidence was study of effects on children aged 2-6. • But this law banned advertising up to 13. • Says they can extend study to 7 to 13 because at some age children become more critical and can understand. This happens sometime between the ages of 7 and 13. Court says if legislature wants to put limit at 13 it will let them. • Response to concerns of Charter critics. • Irwin introduces concept of social and economic legislation. The courts are saying to legislature: don‘t worry about the Charter when you are making laws of social and economic justice. • Idea of laws protecting ―competing groups‖ seen as distinct from criminal law. • However, criminal law also protects competing groups, • In criminal law we have entire community against one individual. In these cases the rigorous Oakes test is appropriate. • Monahan: This is a false distinction because criminal matters are also matters of competing interest. Parliament is still mediating between interests of accused and victims. It is not a singular antagonist situation. • Therefore extreme deference may be appropriate in any case. • Even if no evidence, if ―reasonable apprehension‖ of harm, Courts give ―margin of appreciation‖ to the legislature. (d) Thomson Newspapers v. Canada (A.G.) [1998] 1 S.C.R. 877 (Magnet II at 296) Bastarache J. ~SCC‘s current approach to s.1; attempt to reconcile cases since Irwin Toy; ―contextual‖ or ―Oakes Plus‖ approach. Facts • Issue is the validity of ban on publication of polls in 72-hour period prior to elections. Analysis and Disposition • Bastarache rejects the deferential approach. Emphasizes the need for a contextual approach in the application of s. 1.
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Certain factors may suggest deference, ―but no one factor is determinative.‖ o Vulnerability of Group protected—―Presumption in this Court should be that Canadian voter is a rational actor who can learn from experience …‖(p. 307). o Inability to measure the harm scientifically. o Nature of activity which is limited. (Here, political free speech, c.f. R. v. Sharpe, where it was free speech but child pornography). In this case, none of above factors are present or pressing, thus no need to adopt a deferential standard under s. 1. Finds that there is a pressing and substantial purpose and a rational connection. However, fails minimal impairment test; an alternative available: public of polls w/ methodological information. Legislation also failed the final stage of the Oakes test – the ‗general proportionality‘ test. Dissent of Gonthier: cites Irwin Toy (p. 299): Parliament simply needs reasonable basis, which they have here. Parliament has now re-enacted a 48 hour ban on poll publication, which has been challenged—what is the likely result? SVS thinks it will be struck down. Monahan, being almost as smart as SVS, agrees. DoJ must have thought that this option would be a lessor impairment, w/ fewer deleterious effects; risks are greater in the final few days
3. Prescribed by Law (a) General • Requirement serves gatekeeper function; any Charter limit must be clearly set out in statute/regulation/c.l. rule. • Often applied in context of police investigations, where there is no express statutory authorization for police action. If no limit is prescribed by law, limit automatically fails section 1 test (e.g. Therens, 1985, LeDain J.). • However a law may limit a right by necessary implication; c.f. Therens to Thomsen, 1988, LeDain J.: different results? Thomsen provision satisfied proscribed by law provision, because the use of ‗forthwith‘ made it clear. • Laws providing for administrative discretion are consistent with ‗prescribed by law‘–see Little Sisters (p. 325). • Some cases suggested ‗prescribed by law‘ requirement imports ‗vagueness‘ analysis: See Ontario Film, (322). ―Law must be sufficiently precise to qualify as law.‖ c.f. N. S. Phramaceutical Society, 1992, Gontheir J., (326). • Later cases, Court says preferable to consider vagueness as aspect of demonstrable justification analysis, b/c allows more thorough test (i.e. Oakes), whereas ―prescribed by law‖ approach is more categorical and less nuanced. • As a result, the ‗prescribed by law‘ requirement has rarely been determinative in s. 1 cases. • test: ask whether the impugned provision is an express limitation, or is implied (a question of implication can be answered by determining whether the impugned provision is incompatible with the right in question). If the impugned provision is an express or implied limitation, use Oakes test. If it is not expressly or implicitly prescribed, then it cannot be justified under s. 1. (b) R v. Therens, [1985] 1 SCR 613 (Magnet II at 317) Facts • Accused was involved in a motor vehicle accident. • A police officer at the scene made a demand on the accused under s. 235(1) of the CC requiring the accused to accompany him for the purpose of obtaining samples of the accused‘s breath.
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Accused was not informed of his rights to retain and instruct counsel. Analysis and Disposition • The court held that a person upon whom a demand is made to accompany a police officer and submit to a breathalyzer test is ―detained‖ within the meaning of s. 10(b) of the Charter and therefore has a right to counsel • Section 1 requires that the limit be prescribed by law • this requirement is chiefly concerned with the distinction between a limit imposed by law and one that is arbitrary • a limit is prescribed by law if it is expressly provided for by statute or regulation, or results by necessary implication from the terms of a statute or regulation or from its operating requirements or from a common law rule. • S. 235(1) and the related breathalyzer provisions of the CC do not expressly purport to limit the right to counsel. Such a limit if it exists, must result by implication from their terms or operating requirements. • the requirement that a demand under s. 235(1) be made ―forthwith or as soon as possible‖ does not preclude any contact at all with counsel prior to the breathalyzer test. The right to retain and instruct counsel without delay is not, therefore, subject to a limit prescribed by law within the meaning of s. 1 (c) Thomsen v. R., [1988] 1 SCR 640 (Magnet II at 319) Facts • Police officer stopped accused‘s vehicle. Officer detected an odour of alcohol on the accused‘s breath and made a formal demand that he provide a breath sample. • The accused refused. The officer gave him two more opportunities to comply. The accused again refused. • At no time did the officer inform the accused of the right to retain and instruct counsel without delay. Analysis and Disposition • Court looked at provision in question – s. 234.1(1) • it is evident that the section, as drafted, does not permit a detained person, subject to a demand, to retain and instruct counsel before complying with such demand. • The right to retain counsel is incompatible with the effective use of this device on a random basis with the purpose of demonstrating a police presence to convince the driving public that there is a high probability of detection in the event that they drive after drinking. IV. Override--Notwithstanding Clause, s.33 (a) General • Section 33 is not about balancing rights, it is about a legislature passing a law that is known to be in conflict with the Charter. It makes the law immune from any Charter challenge. • Not included in original draft of Charter; inserted in November 1981, as a compromise— seen as a protection against rogue judges. (E.g. Lochner in N.Y.: 1905 U.S. case striking down maximum hours of work legislation). • Argued ‗political cost‘ would be paid, since must be express declaration in statute (i.e. not by implication, not in a regulation, c.f. ‗prescribed by law‘) that Charter is being overridden. Specific requirements: • Only sections 2 and 7 – 15 may be overridden • Democratic, mobility, and language rights and s. 28 NOT subject to override
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Declaration expires after 5 years, but may be re-enacted for a subsequent five-year period, as long as legislature continues to expressly declare that a Charter right has been overridden. S. 33 used in SK in 1985 to shield back-to-work legislation. Proved unnecessary since SCC ruled that the right to strike is not constitutionally protected. S. 33 used in QC as a means of protesting the Charter itself; Quebec began regularly inserting notwithstanding clauses in all its statutes, and also inserted it in all existing statutes through an ‗omnibus‘ amendment.
(b) Ford v. QC [1988] 2 S.C.R. 712 (Magnet II at 207) The Court Facts • The immediate issue was whether ss. 58 and 69 of QC Charter of the French Language infringed Charter guarantee of freedom of expression. • The fundamental issue was the standard override provision that QC had passed following its unsuccessful participation in the Constitutional patriation negotiations. • The standard override provision read: ―This Act shall operate notwithstanding the provisions of s.2, 7-15 of CA 1982.‖ The issue was whether there was a sufficient degree of specificity in this provision. • QC CA struck down the omnibus and standard use of override on basis that it lacked the specificity required. Specificity required since it was the only way to impose a political cost. Analysis and Disposition • Necessary to specify Charter provision being overridden – all that is necessary is to state precisely legislative provisions that are to take precedence, and specific provisions of Charter being overridden. • Court also upholds omnibus insertion of the override. Court essentially says that they will not review the override. Recently, use of the override has attracted considerable political attention. • 1998, Alberta government inserted override (p. 219) in statute limiting compensation to persons who had been forcibly sterilized; provision subsequently withdrawn when the Bill went to 2nd reading. • Alberta debated the use of s. 33 after the Vriend decision. • Active debate over Sharpe case on child pornography. • Existence of s. 33 allows for political debate over rights and freedoms. Provides a ‗safety valve‘ to ensure judges do not stray too far from public opinion. • However, use of override in some situations may not involve a political cost, at least in the short-term. E.g. QC used the override to limit English on signs. In some places discrimination may be popular, which seems pretty inconsistent with the purpose of having a Charter. (c) Whyte, ―On Not Standing for Notwithstanding‖ • some claim that the legislative override is a uniquely Canadian feature of our Constitution • by this observation, there are four other elements of our Constitution – other constitutional arrangements that reveal fundamental commitments – that fit well with permitting legislative override of Charter protections • in arguing against its repeal – Russell and Weiler – ―nothing in our Constitution is so distinctively Canadian as this manner of reconciling the British tradition of responsible democratic gov‘t with the American tradition of judicially enforced constitutional rights • another justification – Hogg – ―a concession to Canada‘s long tradition of parliamentary sovereignty‖
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justifications are wrong – first, the principles at work in the design of he Canadian state support not allowing any legislative exemptions from the court-enforced rights at least as powerfully as they support including such a power in the Constitution second – must pay attention to the actual social goods and bads that are likely to be produced by the practice of exercising legislative power to override Charter rights unfortunate aspect of the description of the override as a restrained tool, instrument of thoughtful response and balancer of constitutional ideologies is that its use is simply not likely to be restricted to instances that match this description primary reason for doing away with the override is that the anxiety that produced the political demand for entrenched rights cannot rationally be calmed in the face of legislative power granted by s. 33 anxiety is this: political authority will, at some point, be exercised oppressively. It will be exercised to impose very serious burdens on groups of people when there is no rational justification for doing so. the more we succeed in marginalizing s. 33 by pointing to its rare use and its deployment in extraordinary circumstances only, the more will it become associated with intense political moments that produce political oppression
(d) Russell, ―Standing Up For Notwithstanding‖ • arguments in support of legislative override: • (i) judges are not infallible – they make decision about the limits and nature of rights and freedoms which are extremely questionable. Legislative override provides a process through which the justice and wisdom of these decisions can be publicly discussed. • our constitution-makers in 1982 through the override clause provided for a partnership between legislatures and the courts • ―under this approach judges will be on the front lines – at the same time however the Charter reserves for the legislature a final say to be used sparingly in the exceptional case where the judiciary has gone awry • occasionally situations will arise in which the citizenry through a responsible and accountable process concludes that a judicial resolution of a rights issue is seriously flawed and seeks to reverse it • other options – constitutional amendment – in most democratic countries, this is an extraordinarily difficult process; US – change the composition of judicial bodies • options seem less appropriate devices than legislative debate and discussion for challenging judicial decisions • author qualified support of the override by arguing for its superiority ―when properly used‖, when it is invoked only after a reasoned debate in the legislature [author considers Ford decision, supra, wrong] • primary purpose of the override is to provide an opportunity for responsible and accountable public discussion of rights issues, a purpose that may be seriously undermined if legislatures are free to use the override without discussion and deliberation • (ii) override subjects questions of political and social justice raised by the Charter to a process of wide public discussion so that the politically active citizenry participate in and share responsibility for the outcome • through parliamentary institutions we move closer to experiencing a form of democratic gov‘t that is not simply rule of the greater number but that ―elicit and enlists... a gov‘t depending on mutual interchange or ideas.‖ • we have less change of realizing democratic ideals if we give judges final word on rights issues
(e) Canada, Shaping Canada‘s Future Together: Proposals (1991) • proposal that the votes necessary for Parliament or provincial legislature to invoke the override clause of the Charter be changed from a simple majority to 60 per cent of the members of Parliament or the legislature Jusitification and Dangers of the Legislative Override (see Magnet II at 217)
V. Equality Rights: Charter s. 15 I. Section 15 Equality Rights 15(1) [Equality before and under law and equal protection and benefit of law] Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability. 15(2) [Affirmative action programs] Subsection (1) does not preclude any law, program or activity that has as its object the amelioration of conditions of disadvantaged individuals or groups including those that are disadvantaged because of race, national or ethnic origin, colour, religion, sex, age or mental or physical disability. II. The Idea of Equality L‘Heureux-Dube, ―Coversations on Equality‖ • it is unjust to treat people as less worth or less deserving because of inherent personal characteristics, circumstances in which they find themselves, or fundamental choices they have made • it is unjust for those who have historically held advantages and privileges in society to continue those privileges at the expense of others • JS Mill – once inequality is clothed in the legitimizing language of rights and law, it receives the sanction of society • CCRF was proclaimed in force in 1982, but implementation of section 15 was delayed until 1985 – allowed for the profound re-examination of Canada‘s basic laws and institutions that the recognition of such a right required – disturbing indictment of our past • benchmarks o 1929 – JCPC finally recognized women as ‗persons‘ o 1940 – women gained right to vote in Quebec o 1948 – Japanese Canadians gained federal right to vote o 1960 – status Indians gained franchise o 1960 – Candian Bill of Rights – although, it was a statute like any other and was interpreted narrowly because it lacked the authority of a constitutional document; court interpretation guaranteed equality to the extend that people were the same. Women, minorities, and the disable were fully ‗equal‘ within their individual groups • Unlike US Constitution, Charter speaks of equality without discrimination • Charter was enacted nearly 200 years after the US Bill of Rights – reflects dev‘ts in human rights law of the latter half of the 20th c • equality continues to be a comparative concept – does not always require that we terat people in the same way – sometimes requires that we treat them differently • with the Charter, we have gone from requiring that laws be applied in the same way to everyone, to the stage of requiring that the law, themselves, treat individuals as substantive equals • language of substantive equality • task is to revisit our underlying assumptions about people and social structure, to look beyond the four corners of our respective legal and social institutions, and to contemplate change when our examination reveals that the languages [of equality] are inconsistent
Patricia Hughes, ―Substantive Equality, Social Ordering and Constitutional Recognition‖ • If people were to enjoy commonly recognized needs and were to realize an equal opportunity for self-development which was at the heart of the evolving liberalism, some account must be taken of different needs. • think of the difference between formal and substantive equality in this way: although they both address the goal of eliminating the gap between the powerful and the powerless or between the rich and the poor, formal equality does so by curtailing the power of the rich (by requiring that they have no special privilege before the law), substantive equality does so by curtailing the disadvantage of the poor. • Meiorin case (brought under British Columbia's Human Rights Act), o the Government required forest firefighters to meet an aerobics standard which most women could not meet; although the same test applied to everyone, it had a disparate impact on women. o Since meeting the standard was unnecessary for safety and efficiency, the standard was discriminatory. More significantly, the Supreme Court decided in this case that the distinction between direct and adverse impact discrimination was detrimental to achieving equality. o Rather, the focus should be on the effect of the law or policy, as it is under section 15 of the Charter. • Corbiere, o the Supreme Court of Canada held that the requirement in the Indian Act that voters in band elections be "ordinarily resident" on the reserve contravened the equality of off-reserve band members, not only because they are affected by band council decisions, but also because it leaves the impression that they are more assimilated than are on-reserve members of the band. o Although most of the equality cases have involved (in rough terms) a minoritymajority comparison, Corbiere involved a comparison between members of a disadvantaged group, highlighting the relative nature of inequality. • contrast the Court's assessment in Corbiere with its decision in Lovelace. o In Lovelace the Court ruled that section 15 of the Charter was not contravened by excluding non-registered aboriginal groups from the profits of a casino project between the Ontario government and registered bands, even though there was no dispute that the non-registered bands were generally at a greater economic disadvantage. o Relative disadvantage is not the issue, but rather whether the distinction is, among other factors, a function of stereotyping. While in many respects the Supreme Court's equality analysis has been developing a more fluid and contextual approach, Lovelace hints at a retrenchment which will require complainants to satisfy a "checklist" of criteria to determine whether their dignity has been undermined. • These developments reflect the core element of contemporary substantive equality, the recognition of difference instead of homogeneity. • substantive equality - an appreciation of the flexibility and overlapping nature of identity and of the distinction between an externally imposed and an internally derived identity. • recognize the legitimacy of different views or approaches, needs or experiences. • acknowledges that mainstream ("majority" or "dominant") values, institutions and experiences are not always the appropriate way to organize the society or to organize it for all its members. • the inquiry necessary to determine whether there is substantive inequality must be undertaken from more than one viewpoint.
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The test of whether persons are being treated equally is whether they are being treated as if they are of equal moral worth, recognizing that equal moral worth may mean that it will be necessary to treat people differently from each other in order to respect their specific needs and experiences. substantive equality requires consideration of the impact of government policy and decisions on the various communities subject to them. requires a determination of how decisions affect members of society because of unexamined beliefs about their needs, behaviours and experiences.
Gerald Gunther, ―Individual Rights in Constitutional Law‖ [US Perspecitive] • 14th Amendment was ratified in 1868 – designed to sustain the Civil Rights Act of 1866 to advance rights of former slaves • Amendment‘s language is not limited to the problems of race, colour or previous conditions of servitude • question of the inherent content of equal protection continues to be a subject of debate • widest agreement concerns the notion that equal protection imposes that a classification must be reasonably related to the purpose of the legislation • usually that rational classification requirements was readily satisfied – courts did not demand a tight fit between classification and purpose – perfect congruence between means and ends was not required Notes
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‗Equality‘ is a comparative concept; but people use it different ways, b/c always involves one person/group comparing treatment to another person/group and arguing inequality of treatment. Courts accept idea. Comparative aspect not way that rest of Charter works. Remember Thomson (newspaper polls) argued law was violating a right, that all persons/groups are entitled to. Equality claim involves comparison of treatments: o Differential treatment that is not justified; or o Lack of attempt to treat differentially where differential treatment warranted. Artistotle defined equality (Nichomachean Ethics) ―Treating Likes Alike, and treating unalikes differently in proportion to their unalikeness‖ – a ‗similarly situated‘ test. To degree people are similarly situated, they should be treated similar; to degree that they are differently situated, they should be treated different. Notion has been criticized by SCC b/c interpreted it to mean everyone should be treated the same, which Aristotle clearly did not suggest. SCC rejects the Aristotelian test but is driven to what … Real problem is that Aristotle did not provide the criteria for determining whether someone was similarly situated or not. In other words, is the fact that someone is taller or shorter a relevant factor in determining similarly situated? We don‘t determine criminal crime sentences with a regard to height, though we do with regard to age.
―Rule Formalism‖ or ―Formal Equality‖ • Rule Formalism: Treat all cases governed by the terms of a valid rule in accordance with the terms of the rule‖. C.f. and contrast ―Substantive Equality‖ • Sometimes, Rule Formalism called ―Formal Equality‖: ‗no-one is above the law‘ (A.V.Dicey, English author, jurist in 19th cent. England: 1885-The great genius of the English system is that no citizen is above the law). • Not trivial requirement; consider Jones v. Clinton (U.S. S.C. 1997). Compare to undemocratic regimes around the world. Clinton said as president he was immune from a lawsuit until after out of office, but USSC said, NO.
Substantive Equality The Debate - Formal Equality is said to require treating everyone the same, whereas substantive equality requires that ‗appropriate differences‘ be taken into account— see L‘H-D (p.737) and Hughes (745). • Eldridge hospital case (p. 48 and 845): whether hospital should require sign-language facilities for hearing impaired. In such a case, have to take account of differences so you can put various individuals in same position. • Formal Equality, the desire to treat everyone the same, would not allow for these so-called ‗exceptions‘. • Approach to Substantive Equality: • (i) Deciding Appropriate Differences • Prof. Hughes p. 750, 3rd para: The key of the concept becomes ―When is it appropriate to take into account the differences? Which differences are appropriate?‖ ―Individuals should not be disadvantaged based on irrelevant personal characteristics.‖ Monahan thinks this is a good statement of the crux of the issue. • Edwards v. Canada (1929), o only men can be appointed to Senate: surely contradictory to this rule, since being man had nothing to do w/ being Senator; esp. when based on something beyond capacity of individual to change. • BUT, o rule saying airline pilots must have 20-20 vision, although based on personal characteristics, might not be inconsistent with equality. Characteristics relevant to task involved. • Compare fit between law‘s categories and purpose; discriminatory purpose not allowed, but will allow category to ‗fit‘ purpose. May in some sense discriminate; rule regarding airline pilots is not passed w/ discriminatory purpose, but to establish airline safety. Discrimination as such may survive Charter challenge. • Law v. Canada: People under 35 not entitled to CPP; appropriate to deny person a pension when they are under 35 because these people are differently situated. • (ii) Key is Defining the Purpose • Key becomes way in which we define purpose of law; Courts have found you have to describe purpose wrt the discriminatory aspect/effect of law; has to be nondiscriminatory purpose, and purpose itself has to be justifiable. • Furthermore, if effect of the law (notwithstanding its purpose) is discriminatory, we might analyse the law to assess the necessity of the provision that leads to the discriminatory effect. • In a liberal-democratic society, we are committed to the premise that every citizen has equal moral worth, and as a consequence is entitled to equal consideration in way society is organized and structured. (749). • Focus on fit btw category of discrimination and purpose; e.g. Firefighter height requirement: discriminatory effect on Asians/women; height not reasonable category in support of purpose of having qualified firefighters. • Remember s. 15 is also subject to s. 32 (Charter applies to government); see Andrews case. • Debate about Equality is really about when it is appropriate/relevant to take account of difference. • (iii) Legal Approaches • Tarnopolsky: former Osgoode prof., advocated for Charter. Classic articles (1970s) showing SCC had no concept of equality under Bill of Rights; BoR jurisprudence ultimately
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rule formalism. Charter drafted in an effort to take this jurisprudence into account; Tarnopolsky was instrumental in his testimony and recommendations at the time. Dry Bones (1970, p. 758): o Provision of Indian Act, making it offence for Indians to be intoxicated off reserve, against Equality provision of BoR, no offence for non-natives. Ritchie: ―race-based offences violated equality.‖ Lavell, (1974) o Court (Ritchie again) upheld provisions of Indian Act, providing that native women, had to lose Indian status by marrying non-natives (see p. 983). Court interpreted ―equality before the law‖ as importing rule formalism—equal application of law, even if law is unjust. Bliss (1979) o pregnant woman seeking U.I. benefits; legislation at time required pregnant women to work two more weeks than others for benefits. Court distinguished btw ―equal benefit of law‖ and ―equality before law.‖ Charter drafters attempted to prevent these approaches to s. 15: In addition to ―equality before the law‖ added: equality ―under the law‖ as well as ―equal protection and equal benefit of the law.‖ Ss. 15 and 28: Tried to prevent American cases restricting affirmative action programs from being followed in Canada. Additionally, the Charter cannot derogate from aboriginal rights (s. 25). S. 28: The use of ‗notwithstanding‘ anything in this Charter, signals it cannot be overridden by s. 33. S. 15 worded as a general guarantee, followed by ‗in particular‘. General guarantee followed by specific enumerations. What would be the effect of removing words ―in particular‖ from s. 15? I think removing it would broaden the meaning; the inclusion makes it more narrow. Drafters also added ―disability‖ to enumerations. Also, used word ―individual‖ as opposed to ―everyone‖ (s. 2, 7), ―every citizen‖ (s. 3, 6, 23) or ―every person‖ (s. 11). Actually, s. 11 is ―any person.‖ The use of ―individual‖ is intended to exclude community rights claims under s. 15, and also claims by Corporations. S. 11 includes legal persons, both individuals and corporations. Individual and everyone basically same thing, though ‗everyone‘ in s.2b interpreted as including corporations.
III. Equality Under the Charter (a) Law Society of BC v. Andrews, [1989] 1 S.C.R. 143, (Magnet II at 759) McIntyre J. Facts • Challenged law that said you have to be a Cdn citizen to be eligible for the B.C. bar; citizenship is not enumerated in s.15 as an inappropriate ground for discrimination Analysis and Disposition • McIntyre J. makes preliminary observations: 1. Equality is a comparative concept 2. Law should not classify based on irrelevant personal characteristics (how relevance judged in context?) 3. Rejects ‗similarly situated test‘ (of Aristotle) which he equates w/ Rule Formalism. [Rejection has led to confusion in later cases.] 4. All laws make classifications; the question is which are acceptable and which are not. • Adopts a three-part ‗enumerated and analogous grounds‘ test for s. 15. • Enumerated or Analogous Ground Test o Focus on the alleged ground of discrimination, and ask whether or not it is an enumerated or analogous ground to those contained in s. 15(1).
problem with what is considered an ‗analogous ground.‘ Citizenship held to be analogous, perhaps because non-citizens are a ‗discrete and insular minority.‘ o Does the law impose a burden not imposed (or grant a benefit not granted) on others? o Is the legislative impact discriminatory? But what do we mean by discrimination? discriminatory = categorizes not on basis of merits, but on distinctions which involve prejudice or disadvantage complainant must show that the law has a differential impact on him in protectn or benefit accorded by law ―bars entire class of people from certain kind of employt solely on grds of citizenship status…‖ and fails to consider the merits or qualifications of applicants. It uses ‗irrelevant characteristics‘. If found to be an enumerated/analogous, go to s.1 (Oakes test) to determine if violatn is justified. ***Ultimately, the justification of a law has to be considered under s. 1. Key innovation of Andrews: s. 15 limited to laws that classify on specific enumerated or analogous grounds. Concern had been expressed that there were ‗too many‘ section 15 cases being brought (specifically criminal cases saying that law was making a distinction against them)— Andrews narrowed scope of s. 15.
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(b) Law v. Canada (Minister of HRDC) [1999] 1 S.C.R. 497 (Magnet II at 775) Iacobucci J. Facts • Case considers CPP - imposes a limitation of benefits based on the age of applicant. • Questions is whether such limit is constitutionally valid. • Surviving spouses who are under 35 and not disabled are unable to claim survivorship pension until s/he reaches the age of 65. • Argued restriction violated s. 15. • Court attempts to unify analysis under s. 15 in unanimous judgment with guidelines. Analysis and Disposition • Iacobucci gets unanimity by putting together a single test that includes all previous three theories in one way or another (Constitutional buffet) no one factor determinative. • Test: o Does the impugned law (a) draw a formal distinction between the claimant and others on the basis of one or more personal characteristics or (b) fail to take into account the claimant‘s already disadvantaged position within Canadian society resulting in substantively differential treatment between the claimant and others on the basis of one or more personal characteristics? o Is the claimant subject to differential treatment based on one or more of the enumerated and analogous grounds? o Does the differential treatment discriminate, by imposing a burden upon or withholding a benefit from the claimant in a manner that reflects the stereotypical application of presumed group or personal characteristics, or which otherwise has the effect of perpetuating or promoting the view that the individual is less capable or worthy of recognition or value as a human being or as a member of Canadian society, equally deserving of concern, respect, and consideration?
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Application to Nancy Law o Court says provision reflects the fact that younger persons are generally better able to find employment after death of spouse. The law functions ‗not by the device of stereotype‘ but by distinctions corresponding to actual situation. o Age is found to be a reasonable proxy for long-term need; also points out that Ms. Law is not completely excluded from a benefit, but must wait until age 65. o Are these not more relevant to s. 1 than s. 15. Law test criticized for its complexity and cumbersome nature. o Granovsky p. 789; Lavoie March 15, 2002—again Law test applied and affirmed by a Majority. Analysis of fit btw purpose and classification in the law, i.e. law classifies in a way that is consistent w/ purpose. Government has to justify limitation/cut off. In effect, s. 15 analysis has own s.1 analysis of purpose and proportionality. Objection could be made to the way the law is discriminatory toward women (who were predominantly surviving spouses). However, n.b. at the s. 15 stage, the burden is on the one bringing the challenge to the law. Monahan thinks that s. 15 infringement should just go to s. 1 analysis. Thinks problem comes out of the Andrews case. 1995 Mirone (McL, discussing marital status as an analogous ground) put forward Monahan‘s simpler view.
(c) Vriend v. Alberta [1998] 1 S.C.R. 493 (Magnet II at 804) Cory J. Facts • Alberta human rights legislation (IRPA) prohibits discrimination on certain grounds; includes all enumerated grounds s. 15 of Charter; also includes analogous grounds of marital status, and other grounds not enumerated (i.e. source of income), but sexual orientation not included. • Previous reports had recommended inclusion of sexual orientation. • Government indicated litigation would resolve issues. • Delwin Vriend dismissed from Kings College b/c of his sexual orientation. • Filed complaint with human rights commission – complaint dismissed. • Case raises significant questions as to responsibility of government to remedy private discrimination. • Courts have held that Charter does not apply to private sector (i.e. Dolphin Delivery) • can Government be compelled to take positive action to remedy discrimination on s. 15 grounds? • Alta. C.A. had said that there was no obligation on Government to remedy private discrimination. • McClung J.A. quotes the ―internationally recognized jurist L‘Heureux-Dube‖ quoting her words in McKinney where she said that if government failed to prohibit age discrimination, no remedy would lie. (mandatory retirement provisions case). • LHD had made obiter comment that legislation that was solely focused on one ground, would not be held invalid for excluding other grounds, BUT Cory lays this aside quickly (see p. 809). Analysis and Disposition • Cory rejects argument that legislative omission cannot be reviewed. Argues s. 32 applies to ‗matters within the authority of the legislature‘ – not only to positive actions by the legislature. • Under-inclusiveness is subject to review – yet it too is a form of omission. • Cory argues what is being reviewed is legislation, not private activity as such.
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The ‗deliberate choice not to legislate‘ engages Charter and leaves open the possibility that total failure to act may also engage Charter (para 64). But, idea is unclear w/ regard to implications of this analysis for future cases. Could one use litigation to add via judicial review analogous grounds to Human Rights legislation? On s. 15, Cory refines analysis from Egan and subsequent cases. Two-step analysis: o Denial of equality before or under the law, or equal protection or benefit of the law? Does law create distinction based on personal characteristic? Does it deny benefit or impose burden based on that distinction? o Denial must constitute discrimination on enumerated or analogous ground? LAW TEST TAKES PRECEDENCE OVER VRIEND
IV. Equality Rights: Analogous Grounds (a) Corbierre v. Canada [1999] 2 S.C.R. 203 (Magnet II at 824), McL and Bastarache Facts • Indian Act requires that a person be ‗ordinarily resident‘ on reserve in order to vote in band elections. Analysis and Disposition • Court unanimously strikes down provision. McL and Bastarache distinguish btw second and third stage of the Law test; an analogous ground, once established will always be analogous. • Analogous grounds are, like enumerated grounds, ―those often used as basis for stereotypical decisions not on the basis of merit but on the basis of a personal characteristic that is immutable or changeable only at unacceptable cost to personal identity.‖ AND ―Characteristics are either actually immutable [race] or constructively immutable [religion].‖ • Thrust of identification of analogous grounds at the second stage of Law analysis is to reveal grounds based on characteristics we cannot change or that government has no legitimate interest expecting us to change to receive equal treatment under law. • Off-reserve status is analogous ground; Aboriginality-residence personal characteristics essential to personal identity. • LHD [dissent]: analogous grounds tied to treatment in ‗specific ways of specific groups.‘ Off-reserve band membership is analogous in any future case ‗involving this combination of traits.‘ V. Systemic Discrimination (a) General • Direct discrimination: law makes distinction on its face (expressly) on enumerated or analogous ground (e.g. only men can be appointed to the Senate). • Indirect or Adverse Effects Discrimination: refers to law which is neutral on its face but has disproportionate impact on s. 15 grounds. Occurs where a rule, without any intent, disproportionately affects a particular class of people. The adverse effect doctrine provides the court with a method to correct prejudice to a group which results from seemingly neutral rules • Simpson Sears o employer had genuine business reasons for requiring employees to work on Saturdays
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Court held the employer to a duty to take reasonable steps to accommodate the religious freedoms of its workforce o because Simpson Sears failed to do so, it was held to have discriminated against the complainant o where there was direct discrimination, employer was required to show that the distinction was based on a ―bona fide occupational requirement‖ o where there was adverse discrimination, employer was required to show that it complied with the ―reasonable duty to accommodate‖ for determining whether a prima facie discriminatory standard is a BFOR. An employer may justify the impugned provision by establishing the balance of probabilities using Meiorin test.
(b) ―Meiorin‖ BC (PSERC) v. BCGSEU, [1999] 3 S.C.R. 3 (Magnet II at 838), McLachlin J. Facts • BC established physical fitness requirements for firefighters. • Standards based on average aerobic capacity of existing firefighters, most of whom were men. • It was demonstrated that these requirements were unnecessarily high Analysis and Disposition • McLachlin proposes a three-part test o (Pre) Did claimant demonstrate a prima facie infringement? o (1) Did the employer adopt the standard for a purpose rationally connected to the performance of the job? o (2) Did the employer adopt the particular standard in an honest and good faith belief that it was necessary to the fulfillment of that legitimate work-related purpose? o (3) Is the standard reasonably necessary to the accomplishment of that legitimate work-related purpose? To show that the standard is reasonably necessary, it must be demonstrated that it is impossible to accommodate individual employees sharing the characteristics of the claimant without imposing undue hardship upon the employer. • Could require developing a different standard entirely, or providing exemptions for employees partic. affected. • passing aerobic std has not been shown to be reas necess to safe & efficient performance of wk of a forest firefighter (fails pt 3); (Meiorin reinstated & compensated) (c) Eldridge v. AG BC, [1997] 3 SCR 624 (Magnet II at 845) Facts • Application for a declaration that the failure to provide sign language interpreters as an insured benefit under the Medical Services Plan of BC violated s. 15(1) of the CCRF. • Appellants assert that because of the communication barrier that exists between deaf persons and health care providers, they receive a lesser quality of medical services than hearing persons. Analysis and Disposition • failure to provide sign-language interpreters violates rights of hearing impaired. Extends s. 15 analysis to design of government benefit programs. • failure to provide sign language interpreters (which facially neutral) violates rts of hearing impaired; has adverse effect on hearing impaired patients • is total denial of any sign language interpretation under any circumstances; no attempt to accommodate hearing impaired patients; no government justification other than budgetary
(d) Affirmative Action • S.15(2) shield affirmative action programs from s.15(1) scrutiny. Could such legislation be attacked on grounds that it is under inclusive? This was the argument raised and rejected in Lovelace v. Ontario (p.816). VI. S. 7: ―Life, Liberty, and Security of the Person‖ I. General (a) Components to the Claim of Violation • Three components: o ―Everyone has the right‖ o ―to life, liberty, and security of the person‖ o ―and the right not to be deprived thereof except in accordance with the principles of fundamental justice.‖ • To make out a s. 7 claim you have to show two things: o that the right (life, liberty, and security of the person) has been violated AND o that such a violation is not in accordance with the principles of fundamental justice. • Although ―everyone‖ could include natural and legal persons, Courts have held does not apply to corporations. • Life, liberty, and security of the person are 3 distinct interests; violation of any one can give rise to a s.7 claim. • LaForest (p. 661): s. 7 contemplates internal balancing process, a balancing of individual and community/public interest rights. If deprivation is in accordance with principles of fundamental justice, s. 7 right not been violated. • LaForest says that s. 7 and s. 8 are similar (s. 8 refers to reasonable search and seizure); ―reasonableness‖ or balancing achieved in s. 7 through the use of the term ―principles of fundamental justice.‖ (b) Fundamental Justice • Drafters used phrase ―principles of fundamental justice‖ to exclude ‗substantive due process‘ in U.S. constitutional law; Barry Streyer (now with Fed Court) said we only want Courts to review procedural justice. • Difference btw procedure and substance: procedural rights sometimes called ―natural justice‖ or ―duty of fairness.‖ Substantive rights consider substantive fairness. • Example: Extradition - Burns: ―In cases where the country to which the individual may be extradited, the Minister of Justice should receive assurances from the other country that s/he will not be executed.‖ There are two claims here: 1. Procedural Right—individual has the right to a fair trial in Canada etc.; 2. Substantive Right—individual has the right not to be executed Drafters thought they were importing natural justice doctrine only, but the testimony of Streyer was given ‗minimal weight‘ in Motor Vehicle Reference (1985). Court said that if they had only wanted to protect procedure, they could have used a phrase like ―due process.‖ • Fundamental justice requires substantive justice – not merely procedural analysis. See p. 664: distinction is ill-conceived—drafters must be held to a standard of internal consistency. • However, SCC has had a great deal of difficulty in defining meaning of term ―principles of fundamental justice.‖ • Fundamental justice requires system of administration of justice founded upon belief in ―dignity and worth of human person.‖
(c) R. v. Morgentaler, [1988] 1 S.C.R. 30, (Magnet II at 664) Dickson C.J. Facts • Criminal Code makes it an offence to obtain an abortion, then creates limited exceptions (a defence): accredited hospital, therapeutic abortion committee must provide certificate stating pregnancy endangers life or health, abortion must be performed by qualified doctor who is not on T.A.C. • Dr. Morgentaler opened free-standing clinic (not accredited, no TAC, no investigation to determine if pregnancy endangers life or health). Analysis and Disposition 5-2 decision; three decisions on majority side (Dickson/Lamer, Beetz/Estey and Wilson; DisMcIntyre/LaForest) Dickson C.J. (and Lamer): Considers whether there is deprivation of ―security of person.‖ Law interferes with bodily integrity of a woman; forcers her to carry foetus to term unless she meets criteria ―unrelated to her own priorities and aspirations‖ Violation of ―purely physical aspect‖ of ―security of the person.‖ Also imposes severe psychological stress – law imposes delay and uncertainty, coupled with criminal sanctions. Therefore, necessary to consider whether the law is consistent with ―principles of fundamental justice.‖ No need to consider foetal rights in this case, because Parliament itself has determined that foetal rights must yield when life/health of mother in danger (i.e. law itself admits balance tips in favour of mother). Question is whether procedure is fair. Notes many practical obstacles; many hospitals not accredited, or no TACs Therefore, for many women the exception in s. 251 is ‗illusory‘; women who would prima facie qualify under section cannot take advantage of it. This violates fundamental justice on procedural grounds. Can't be justified under s. 1 b/c means chosen arbitrary and fail all three elements of Oakes proportionality test. ―Parliament has failed to establish either a standard or a procedure whereby any such interests might prevail over those of the woman in a fair and nonarbitrary fashion.‖ Beetz (and Estey) Finds breach of security of person in delay occasioned by law. Delay creates additional danger to women‘s health – and must be justified. Parliament could be justified in requiring medical opinions as to danger posed by pregnancy but this law goes beyond what is necessary. Requirement that abortions be performed in hospitals, that there be more then 3 members on TAC, and exclusion of doctors whom perform abortions from TAC unnecessary. Therefore law violates s. 7 and cannot be justified under s. 1 Wilson Agrees on right to ―security of the person‖ but goes beyond to rely on the right to ―liberty‖ (Monahan says that her reliance on liberty is a substantive rights argument) Liberty includes right to make fundamental personal decisions w/o interference from state. Underlying theory of Charter is that state will respect choices made by individuals and to greatest extent possible, will avoid subordinating these choices to any one conception of the good life. (p. 681) Right to terminate pregnancy falls within class of protected decisions. Therefore s. 251 necessarily limits liberty. That theory of liberty (p. 681) has been endorsed by the majority of SCC in Blencoe (see below).
Wilson J. also finds violation of fundamental justice in a substantive sense. Finds that violations of s. 7 cannot be justified under s. 1 (p. 684). Dissent—McIntyre (and LaForest) Relies on the fact that legislative debate suggests that right to abortion was not included in s. 7. Aftermath of Morgentaler Federal government introduced legislation that would restrict right to abortion except in cases of danger to health or life of mother. Amendment deletes some of requirements that had attracted criticism (accredited hospitals; therapeutic abortions) Legislation also made it more difficult to obtain abortion in later stages of pregnancy. SCC had left fairly wide scope for legislation. However, bill failed to pass Senate on tie vote. Even though s. 251 was invalid and Monahan thinks there was lots of room to put in a new law, there is no law. Subsequently, Joseph Borowski had challenged s. 251 because it failed to protect life of foetus (took him 8 years to get standing). Obtained standing from SCC. Lower courts said foetus was not within s. 7 definition of ―everyone‖ BUT when it got to SCC dismissed case on grounds of mootness in 1989 (s. 251 had been declared unconstitutional)–Magnet vol I, p. 946. One of very few cases turned back b/c of mootness. Daigle v. Tremblay—man sought to obtain an injunction to prevent girlfriend from obtaining an abortion. Court said that foetus was not protected under Quebec Charter. Provincial laws attempting to re-impose Criminal Code restriction through medical insurance are ruled unconstitutional on federalism grounds Invasion of federal criminal law power (see Morgentaler, 1993, Magnet Vol. I, p. 289); Monahan thinks Morgentaler supports s. 7 claims for medical procedural delays. (d) Rodriquez v. British Columbia [1993] 3 S.C.R. 519, (Magnet II at 688) Sopinka J. Facts • CC s. 241 prohibits assisted suicide (distinguished from passive euthanasia) • Sue Rodriquez brings challenge on basis of s. 7, security of the person. • Argues that it limits her right to deal w/ her body as she wishes Analysis and Disposition • SCC unanimously agrees that s. 241 is an infringement of her right to ―security of the person.‖ • Disagreement in case is whether s. 241 is consistent with principles of fundamental justice. • Sopinka thinks it is consistent. • Relies on Morgentaler reasoning: security of person includes right to make choices concerning one‘s own body. Here the effect of s. 241 is to prevent Rodriguez from making choice about her own bodily integrity Focuses on distinction btw passive and active forms of assisting/hastening death. Notes that historically, law has distinguished between passive and active forms euthanasia. Frames issue as one of arbitrariness by asking the following Q: Is the potential arbitrariness consistent with principles of fundamental justice? Does law further its objective, protection of rights of vulnerable in a non-arbitrary way? Someone could take advantage of the disadvantaged, or act out an earlier made wish after a person had changed their mind. Argues that there is no consensus that passive/active distinction is arbitrary. Physicians have no choice but to accept a patient‘s decision to withhold treatment. ―Nothing approaching unanimity with respect to issue before me.‖ (692-93). Founds his judgment on lack of a societal consensus. [!!!!]
McLachlin [dissent] (LHD concurring) Focuses on distinction between suicide and assisted suicide. She agrees that the key question is whether this distinction is arbitrary. Again arbitrary is defined by its Rational connection to objective behind the legislation. Turns case into a s. 15 case. Argues there is no justification other than floodgates argument. Fear is that disabled persons will be murdered, or pressured to agree to end their lives, and that really this is therefore a s. 1 argument. Sue Rodriguez is asked to bear the burden of the chance that other people may act criminally in similar situations. She is asked to serve as a scapegoat. (695) It is a utilitarian argument, where Rodriguez is a means to an end, and therefore this should be a s. 1 consideration, NOT a s. 7 analysis. • Also rejects the passive/active distinction—since the end result of death is the same. • Criticizes Sopinka‘s consensus argument—Courts are not in position to determine this; Parliament‘s job. Courts are supposed to find decisions on principle. • Case leaves us with an unclear sense of what is meant by principles of fundamental justice, other than arbitrariness concept that requires rationality/fit between purpose and means. • Motor Vehicle Ref: If a law violates s. 7, it can only be justified under s. 1 in the most exceptional circumstances. There may have been a single case—what about the Asani case??? The Oakes test would only be used in the most exceptional circumstances. • S.7 protects you not only from actual pain/suffering, but also threat of having actual/pain or suffering inflicted on you (especially if it is absolutely certain). One should not have to wait until one actually experiences/suffers the infringment. See Morgentaler, where Dickson said threat of complications w/ pregnancy was itself s. 7 violation. (e) Scope of Protected Interests in s. 7 Debate over whether s. 7 extends to ‗economic‘ rights. Courts tended to reject argument s. 7 can be used to protect ‗purely economic‘ rights. E.g. challenges to rent controls rejected, or Walker v. PEI where C.A.s brought challenge, also unsuccessful; challenge to reduction in welfare rates(Masse v. Ont), leave to appeal was denied. At the end of October 2001, case of Gosselin v. Quebec challenged Quebec law (s. 15 and 7 arguments) - Quebec rules for social assistance meant Ms. Gosselin was deprived of resources needed to have ‗necessaries of life‘ and that s. 7 security of person includes access to resources necessary to live one‘s life. Case is now under reserve. Challenges to social welfare schemes have been brought under s. 15 (i.e. that the structure is unequal), but no successful challenges under s. 7 for a positive right to economic resources. Lamer has attempted to argue that s. 7 liberty interest is limited to ‗physical liberty‘; see Re B (Magnet 704). However, there is a broader view of what is meant by liberty on SCC. (f) R.B. v. C.A.S. [1995] 1 S.C.R. 315 (Magnet II at 698) LaForest Facts • The appellants' child required a blood transfusion to which they objected on religious grounds. • The Children's Aid Society was granted temporary wardship so that the child could receive the required medical treatment. • The order was then terminated and the child was returned to her parents. The parents argued that provisions of the Child Welfare Act were contrary to sections 7 and 2(a) of the Canadian Charter of Rights and Freedoms. • In Re. B. parents argue a violation of their liberty interest to make parental choices. Analysis and Disposition
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Lamer: no threat to physical liberty, parents physical liberty not being threatened, therefore no liberty argument; LaForest (Gonthier, McLachlin—LHD concurred on s. 7 issue): Must first consider whether there has been a s. 7 violation. If so, decide whether it can be justified through principles of fundamental justice argued that liberty includes rights to make decisions that are fundamental personal importance. Section 7 does apply [Negative liberty argument: freedom from state intervening, as opposed to positive liberty, right to call upon the state to enforce/support a conception of how I want to live]. Relies on Wilson J‘s reasoning from Morgentaler – ‗privacy right‘ issue. Decisions about raising children are within this protected sphere (Iacobucci and Major disagree in part, saying that such a liberty can never apply to a decision to deny medically necessary procedure to child). BUT finds that violation of liberty is in accordance with fundamental justice, b/c procedure was fair—order was made pursuant to procedure in accordance with principles of fundamental justice. Balancing of child‘s and parents‘ interests; state has a parens patriae interest in protecting rights of child; ultimately, s. 7 analysis has a component of balancing.
(g) Godbout v. Longueuil [1997] 3 S.C.R. 844 (Magnet II at 707) La Forest J. Facts • The City passed a resolution requiring all new permanent employees to reside within City limits. Godbout, a former City employee, had signed a declaration agreeing to live in the City during her employment. Failure to do so was grounds for dismissal. One year later, she moved to Chambly. She was fired after refusing to move back to the City. The Quebec Superior Court dismissed her action for reinstatement and damages against the City on the basis that the residency requirement did not violate the Quebec Charter, and the Canadian Charter of Rights and Freedoms did not apply. • Issue whether Charter applies to municipalities. Court unanimously of the view that it does. Analysis and Disposition • LaForest (w/ LHD and McL): applies analysis from Re B (6 justices agreed on s. 7 liberty analysis – only Lamer disagreed); and Morgentaler decision also supports liberty and its relationship to fundamental choices. [Majority found their judgment on Quebec Charter] • Says decision of where to live is a decision of ―fundamental personal importance.‖ • Also violates principles of fundamental justice. Requires a balancing of objectives against limits. Interests of the claimant balanced against interests of state. Balancing process will necessarily be contextual, i.e. have to look to particular context, to the particular interests at stake, namely: the particular circumstances of the claimant, as well as the particular interests/circumstances of the state claiming a limitation. Case-by-case analysis. • What are the objectives that the state is relying on? 1. IF you live in the city, be better acquainted and therefore better able to serve; that‘s a nice goal, but is not justification for violating s. 7. Benefits (being so intangible) are less (c.f. to clearly felt restrictions) than the harms in LaForest‘s view. 2. Municipality might have economic interests; again, LaForest not persuaded. 3. Residence requirements justified when employee‘s function is urgent, and requires them to respond quickly. LaForest thinks this is close, BUT law applies to all employees so this justification is also not satisfactory. Goals do not justify limit on rights: fairly quick analysis here, less rigorous than Oakes. Hogg: criticized reasoning b/c principles of fundamental justice balancing seems import legislative role to Courts.
(h) Blencoe v. BC (HRC) [2000] 2 S.C.R. 307 (Magnet at 726) Bastarache Facts • Prominent BC cabinet minister, Robin Blencoe, accused of sexual harassment against assistants; they filed complaints w/ BCHRC. • Blencoe dismissed from cabinet, unemployed, had to be put under doctor‘s care, moved to Ontario, tried to get work here, could not. • Hearing scheduled 30 months after complaint filed. Blencoe alleges violation of s. 7 rights. Analysis and Disposition • Majority (Bastarache, McL, LHD, Gonthier, Major) affirms broader conception of ‗liberty‘ (Wilson in Morgentaler, and LaForest in Re. B and Godbout) as including right to make ‗fundamental personal choices‘ – but no violation on facts of this case. Right to make fundamental choice not infringed by suffering allegations. • On ‗security of person‘, affirms that severe psychological stress may involve breach of security of person. However, deprivation must be caused by state action; here delay was not primary cause of stress, the allegations themselves and accompanying media coverage (much of which occurred before delay) was real cause. • Blencoe argues that delay exacerbated his stress, but Court says that psychological stress can only involve breach of security if it involves interference with fundamental personal choices. Only in exceptional cases (Rodriguez, Morgentaler, Re. B—decisions about one‘s body or custody of one‘s children) but stress, anxiety, and stigma that result from administrative civil procedure are not included. • Fundamental choices are under Wilson‘s definition of liberty, but in terms of security of the person, stress is also affected by a limiting of fundamental choices. (i) Two Limits to Claims Based on Psycho Stress: • (1) Deprivation must be caused by state action –here the delay was not the cause of the stress (allegations were the cause; wasn‘t induced by the state) • [Blencoe then argued the delay exacerbated his stress] • (2) Psycho stress can only involve breach of sec if it involves interference w/ fundamental personal choices. It‘s only in exceptional cases where state interferes w/certain personal choices of an individual that state-caused delay in HR proceedings cld trigger the s.7 sec of person int Hypothetical Can delays in providing access to medically-necessary services (i.e. cancer treatment) be attacked on basis of violation of s. 7? Consider recent Ontario case of Ralph Smith, diagnosed with prostate cancer, who was told he would have to wait 3-4 months for surgery (even though the medical community says it should be done within 3-4 weeks). Smith forced to go to U.K. for surgery (which did in the sense that he is still alive, save his life). He wanted to get reimbursed by OHIP, but they said no because we don‘t think 3-4 months is too long to wait. He brought a claim before an administrative tribunal. Could he have raised a s. 7 claim? How would it be structured? VI. Freedom of Expression 1. The Court‘s Approach (a) Irwin Toy Ltd. v. Quebec (AG), [1989] 1 SCR 927 (Magnet II at 435)
Facts
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S. 248 and 249 of the Quebec Consumer Protection Act prohibited commercial advertising directed at children under 13, subject to exceptions provided for in the regulations. • At issue was whether the relevant provisions offended s. 2(b) of the Charter. • The Court had the occasion to consider the degree of protection afforded commercial expression under s. 2(b). Analysis and Disposition • Dickson (Lamer and Wilson JJ concurring): First step – was the Ps activity within the sphere of conduct protected by freedom of expression • not all activity is protected by freedom of expression – for example, does not include the right to strike • expression has a contact and a form – activity is expressive if it attempts to convey meaning. The meaning is its content • cannot exclude human activity from the scope of guaranteed free expression – if it has expressive content, it falls prima facie within the scope of the guarantee • content of expression can be conveyed through an infinite variety of forms • the advertising amis to convey a meaning and cannot be excluded as having no expressive content. Nor is there any basis for excluding the form of expression chosen from the sphere of protected activity. • second step – does the purpose or effect of the impugned gov‘tal action control attempts to convey meaning through that activity (does it infringe s. 2 of the Charter)? o (a) look at purpose – if the purpose is to restrict a form of expression in order to control access to the meaning being conveyed, it also limits the guarantee o where the gov‘t aims to control only the phys consesquences of certain human activity, regardless of the meaning being conveyed, its purpose is not to control expression o (b) look at effects – even if the gov‘t‘s purpose was not to control or restrict conveyance of meaning, Court must still decide whether the effect of the gov‘t action was to restrict the P‘s free expression. Principles include (i) seeking and attaining the truth is an inherently good activity (ii) participation in social and political decision-making should be fostered and encouraged (iii) diversity in forms of individual self-fulfillment and human flourishing outght to be cultivated in an essentially tolerant, welcoming environment, not only for the sake of those who convey the meaning, but for those who receive it. • no question that the purpose of the impugned sections was to restrict both a particular range of content and certain forms of expression in the name of children. • Third Step - Such a prohibition can only be justified if it meets the test under s. 1 of the CCRF and s. 9.1 of the Quebec Charter. (b) R. v. Keegstra, [1990] 3 SCR 697 Facts • Keegstra was high school teacher until dismissal in 1984. Charged with unlawfully promoting hatred against an identifiable group by communicating anti-semitic statements to his students • Teachings attributed various evil qualities to Jews. Described as treacherous, subversive, sadistic, money-loving, power hungry and child killers who seek to destroy Christianity and are responsible for depressions, anarchy, chaos, wars, and rev‘n, and created Holocaust to gain sympathy.
Analysis and Disposition • Applied Irwin Toy test. First stage of Irwin Toy satisfied - The meaning Keegstra conveyed fell within the realm of s. 7 • Second stage of Irwin Toy satisfied – s. 319(2) (under which K was charged) seeks to prevent communication of expression and hence meets the second requirement of the test • Suppression must be justified under s. 1 - Section 319(2) of the Criminal Code infringed section 2(b) of the Charter; and section 319(3)(a) infringed section 11(d). However, they were justified under section 1. The statutory infringement served a sufficiently important legislative objective; it was proportional, and rationally connected, to the objective; and the impairment was not excessive (Oakes test). (c) R v. Zundel, [1992] 2 SCR 731 (Magnet II at 452) Facts • accused was convicted of knowingly publishing a false statement which was likely to cause injury to a public interest contrary to s. 177 of the CC. • accused circulated pamphlet which denied the existence of the Holocaust Analysis and Disposition • The court applied the test in Irwin Toy and found that the expression did meet both tests. Court turned to examination of justification under s. 1 using the Oakes test and found that the law was unconstitutional. • Per La Forest, L'Heureux-Dubé, Sopinka and McLachlin JJ.: Section 181 of the Code infringes the guarantee of freedom of expression. Section 2(b) of the Charter protects the right of a minority to express its view, however unpopular it may be. • All communications which convey or attempt to convey meaning are protected by s. 2(b), unless the physical form by which the communication is made (for example, a violent act) excludes protection. The content of the communication is irrelevant. • Section 181, which may subject a person to criminal conviction and potential imprisonment because of words he published, has undeniably the effect of restricting freedom of expression and, therefore, imposes a limit on s. 2(b). • those who deliberately publish falsehoods are not, for that reason alone, precluded from claiming the benefit of the constitutional guarantees of free speech. • Section 181 of the Code, unlike s. 319 at issue in Keegstra, is not justifiable under s. 1 of the Charter. • Although the application and interpretation of objectives may vary over time, new and altogether different purposes should not be devised. • Here, while s. 181 may be capable of serving legitimate purposes, Parliament has identified no social problem, much less one of pressing concern, justifying it. • The provision originally focused on the prevention of deliberate slanderous statements against the nobles of the realm to preserve political harmony in the state. • Even if the Court were to attribute to s. 181 the objective of promoting racial and social tolerance and to conclude that such objective was so pressing and substantial as to be capable of overriding a fundamental freedom, s. 181 would still fail to meet the proportionality test which prevailed in Keegstra. (d) Butler v. the Queen [1992] 1 SCR 452 (Magnet II at 475) Facts • The appellant owned a store which sold and rented hard-core pornographic videotapes and magazines. • He was charged with several counts of selling obscene material and possessing obscene material for the purpose of distribution. • At trial, the appellant was convicted on some of the charges and acquitted on others.
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The trial judge held that the obscene material was protected by section 2(b) of the Canadian Charter of Rights and Freedoms. • He held that only materials which contained violence or cruelty intermingled with sexual activity or which were otherwise dehumanizing were legitimately proscribed under section 1 of the Charter. Analysis and Disposition • The definition of obscenity contained in section 163(8) of the Criminal Code provides an exhaustive test of obscenity with respect to publications and objects which exploit sex as a dominant characteristic. • In order to determine whether the exploitation was "undue", the court must apply the community standard of tolerance test and determine what Canadians would not tolerate other Canadians being exposed to on the basis of harm that may flow from such exposure • The court held that section 163 of the Code which prohibited certain activities infringed section 2(b) of the Charter. The infringement, however, was justified under section 1 of the Charter. Court applied the Oakes test. • The definition of obscene in section 163(8) of the Code prescribed an intelligible standard. Avoidance of harm to society which was the objective of section 163 was a sufficiently pressing and substantial concern to warrant an infringement on section 2(b) of the Charter. • There was a sufficiently rational connection between the criminal sanction and the objective. • The provision only prohibited the distribution and exhibition of sexually explicit material that was violent, and degrading or dehumanizing. • There was no alternative measure to protect the societal values at stake. (e) Little Sisters Book and Art Emporium v. Canada (Minister of Justice), [2000] 2 SCR 1120 (Magnet II at 487) Facts • Appeal by the federal Crown from a finding that seizure by Canada Customs of materials sent to Little Sisters Book and Art Emporium infringed the Canadian Charter of Rights and Freedoms. • Little Sisters imported gay and lesbian erotica. • The material was detained pursuant to the Customs Tariff, which prohibited importation of obscene materials as defined in Criminal Code. • Section 152(3) of the Customs Act placed a reverse onus on Little Sisters to establish its compliance with the Act and regulations. • The trial judge found that Customs officials had wrongly delayed, damaged, prohibited or misclassified Little Sisters's materials in a systemic targeting of the store's importations. • He declared that the Customs Act had at times been applied in a manner contrary to Charter sections 2(b) and 15(1). • He also found that the Customs Act infringed section 2(b) of the Charter, but was justified under section 1. The Crown appealed to the British Columbia Court of Appeal, and then to the Supreme Court of Canada. Analysis and Disposition • Appeal allowed, in part. • Little Sisters had the right to receive expressive material unless the state could justify a denial of that right. • While it is true that under s. 163(8) the "community standard" is identified by a jury or a judge sitting alone, a concern for minority expression is one of the principal
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factors that led to adoption of the national community test in Butler in the first place. The Canadian community specifically recognized in the Charter that equality (and with it, the protection of sexual minorities) is one of the fundamental values of Canadian society. The standard of tolerance of this same Canadian community for obscenity cannot reasonably be interpreted as seeking to suppress sexual expression in the gay and lesbian community in a discriminatory way. Butler validates a broad range of sexually explicit expression as non-harmful. It was clearly open to the trial judge to find, as he did, that the appellants suffered differential treatment when compared to importers of heterosexually explicit material, let alone more general bookstores that carried at least some of the same titles as the appellant bookstore. Moreover, while sexual orientation is not mentioned explicitly in s. 15 of the Charter, it is clearly an analogous ground to the listed personal characteristics. The appellants were entitled to the equal benefit of a fair and open customs procedure, and because they imported gay and lesbian erotica, which was and is perfectly lawful, they were adversely affected in comparison to other individuals importing comparable publications of a heterosexual [page1125] nature. On a more general level, there was no evidence that homosexual erotica is proportionately more likely to be obscene than heterosexual erotica. However, the Constitution did not prohibit border inspections. Parliament could create government machinery to detain obscene materials that were the subject of criminal penalties. Customs legislation, on its face and in its effects, did not contemplate differential treatment based on sexual orientation. A failure at the implementation level, which clearly existed here, could be addressed administratively, and did not render the Customs Act unconstitutional. With the exception of the reverse onus provision in section 152(3), which violated section 2(b) of the Charter, the Customs Act was justified under section 1.
(f) R v. Sharpe, [2001] 1 SCR 45 (Magnet II at 499) Facts • Appeal by the Crown from a decision of the British Columbia Court of Appeal that section 163.1(4) of the Criminal Code, which prohibited possession of child pornography, was unconstitutional. • The accused Sharpe was charged under section 163.1(4). Prior to his trial, Sharpe brought a motion challenging section 163.1(4) on the basis that it violated his freedom of expression guaranteed by section 2(b) of the Canadian Charter of Rights and Freedoms. • The Crown conceded that the provision violated section 2(b) but argued that it was saved by section 1 of the Charter. • The trial judge and the majority of the British Columbia Court of Appeal held that the provision was unconstitutional. Analysis and Disposition • The possession of child pornography was a form of expression protected by s. 2(b) of the Charter. Criminalizing the possession of child pornography that posed a reasoned risk of harm to children was a pressing and substantial objective. • The means chosen by Parliament were rationally connected to this objective. • However, the provision did not constitute minimal impairment insofar as it applied to written materials or visual representations created by the accused alone and held exclusively for personal use, or visual recordings created by or depicting the accused that did not depict unlawful sexual activity and that were held by the accused exclusively for personal use.
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These two categories of material would not be generally considered child pornography and posed little or no risk of harm to children. Therefore, these categories were to be read in as exceptions to the definition of child pornography in s. 163.1.
