Canadian Constitutional Law

1. Canadian Constitutional Law October 20, 2012 Ian Greene

2. Preliminary • Assignments handed in today • Will have them graded by November 17; if sooner will send you individual comments. Please send as an unprotected Word document by email. • Error regarding Ch 13 & 14 Monahan readings • I am covering Ch 14, 439-460 today, not Nov. 17 • Presentations today • In order of presentations on sign-up sheet. After each presentation we’ll have a class discussion and I’ll also raise points I think are important. • Did you succeed in spreading out the readings over a month? • Questions from last month’s class? • We went over some of the powerpoint slides quickly. Is there anything you are unclear about from any of the slides? • French for Public Administration: will be offered to the students who signed up; dates TBA

3. THE COURTS ANDCANADIAN FEDERALISM:FROM WATERTIGHTCOMPARTMENTS TOSHARED RESPONSIBILITY(Ian Greene) Chapter 7 Constitutional Law Patrick J. Monahan

4. Monahan Ch 7 • -Patrick Monahan’s background • -reason why JCPC had difficulty with interpreting division of powers was that the notion of government activities in 1867 was very limited. • -some of the tests developed by JCPC for interpreting division of powers were “bright line” tests meant to make it easier to deal with complex subjects. It was easier to deal with very specific provincial categories than broad federal categories. • -in past 60 years government has begun to legislate in areas never contemplated in 1867 – environment eg. – so the result is that both fed and prov governments have jurisdiction over a great many matters. The key problem now is creating interjurisdictional schemes that work effectively. It’s not an excuse any more to say “we don’t have jurisdiction.” Similarly, tinkering with the division of powers through constitutional amendment is unnecessary. • -rules of interpretation developed by JCPC: watertight compartments, pith and substance, broad interpretation of property and civil rights, aspect or double aspect doctrine, exhaustiveness, exclusiveness, restricting residual power of POGG.

5. Leading Division of Powers decisions (2) • Put a bookmark in p. 553 Russell so you can remind yourself of the content of the sections we will refer to. • The Court and the Constitution: Leading Cases -Case 1, Citizens Insurance Co. v. Parsons (fed/prov powers over business, 1881) Oyunkhishig Yura • -Case 2, Russell v. The Queen (fed/prov powers over alcohol, 1882) Sikandar Jamal

6. Case 4: Local Prohibition Case, 1896 (Peony Njung’e)

7. Impugned legislation: federal Industrial Disputes Investigation Act Viscount Haldane wrote for JCPC Haldane says labour legislation clearly falls under s. 92(13) In this case, the procedure is applied to a municipal transportation agency (TEC, forerunner of TTC, 1923) Does subject-matter also fall under POGG, fed criminal power, or 91(2) (T&C)? Haldane – no. POGG can be used as residual, or emergency power. Here, can’t be residual because 92(13) applies. As well, there’s no emergency. Rule of interpretation: specific (and narrow) takes priority over general. See Haldane’s discussion of specific words, p. 60. How can this decision be squared with Russell v. Queen? Haldane: there must have been an emergency in 1878: “…evil of intemperance [was] one so great” that parliament intervened to “protect the nation from disaster” TEC v Snider (1925) Ian Greene

8. Treaty-signing power, and treaty-implementation power, are two different powers. The feds had them both until 1926, under S. 132 of the BNA Act. In 1926, Canada became equal to Great Britain in handling foreign affairs (Balfour Declaration, later confirmed by Statute of Westminster, 1931), and so S. 132 became obsolete. Aeronautics Case (1932) Canada was implementing a British Empire Treaty, but federal gov't has the power to implement a treaty on aeronautics under several heads of S. 91, such as defence, post office. Radio Case (1932) Section 132 is now obsolete. Therefore, the treaty-making and treaty-implementation powers are new, and fall under POGG. Extraterritoriality Federal Provincial Treaty-making powers Head of states Intergovernmental Exchange of notes Treaty-Making Cases (prelude to Case 9)

9. Labour Conventions Case (1937)(Ron Lucero) Case 9: AG Canada v. AG Ontario

10. Cases 12 & 13 • Case 12, AG Manitoba v. Manitoba Egg & Poultry Assoc (Chicken & Egg Reference; battle over whether feds or provinces control marketing boards, 1971): Zahar Zaidi • Case 13, Reference re Anti-Inflation Act (first case in which SCC admitted social science evidence - from economists, 1976): Anand Sivanandan

11. Roncarelli v. Duplessis, 1959 (Ian Greene) • Roncarelli posted bail for Jehovah’s Witnesses charged with distributing literature without a permit (which they would never get). Roncarelli owned a restaurant in Montreal. • Premier Duplessis cancelled his restaurant liquor license, realizing that any restaurant in Montreal without a liquor license would go bankrupt. • Roncarelli sued Duplessis for violation of rule of law (Frank Scott represented Roncarelli), and won. Duplessis (even though the Premier) was found by Supreme Court to have abused his power in violation of the rule of law. (Remember Dicey’s definition of rule of law & abuse of power.) Roncarelli had not violated any of the conditions of having a liquor license. The law was being applied arbitrarily. • Quebec Union Nationale government then enacted legislation that meant Roncarelli would lose his liquor license again; by then he had gone bankrupt. • “Quiet revolution” began in 1960 with defeat of Union Nationale. • The case demonstrates how the application of the rule of law by courts can protect human rights (Dicey). It also demonstrates that enforcement of human rights through the courts is sometimes not timely.

12. Monahan Chapter 8 (Ian Greene) • -Branches of POGG: • Emergency: Developed by Viscount Haldane on JCPC; Haldane claimed it was the only interpretation of POGG; later overruled by JCPC. In Anti-inflation, the court expanded on the emergency doctrine – included “crisis.” The federal Emergencies Act would be valid federal legislation under the emergency branch. A true emergency gives the federal government the right to trench on provincial jurisdiction for a temporary period – until the emergency is over. • Residual power: weakened in late 1800s and early 1900s by JCPC because of its expansive interpretation of 92(13). However, the provinces are limited to controlling matters “within the province,” so matters falling outside of provincial boundaries are likely to fall under the residual power (eg. Canadian land or water that is not within a province), like the continental shelf, the federal Official Languages Act. The residual branch is very narrow.

13. Monahan Chapter 9: (Ian Greene)Trade and Commerce (91-2) • Parsons created 2 categories of Trade & Commerce and interpreted them narrowly. Since 1949 SCC has begun to expand these categories. • International and Interprovincial T&C • Feds can regulate any matter that is clearly international or interprovincial, but cannot interfere with local trade and provincial regulations over local business. Feds can establish a standard for “Canada Fancy No. 1 apples” and “light beer, if sold inter-provincially or internationally, but the legislation does not apply to products manufactured and sold within one province. • JCPC almost never let fed regulations incidentally affect local production & sale. However, in 1993 federal legislation creating safety standards for vehicles sold inter-provincially, and which applied optionally to vehicles sold within a province, could be validly enforced even for vehicles sold only within a province, if the vendor opted in to the scheme. • Interprovincial drivers’ licenses: a federal responsibility delegated to the provinces through joint federal-provincial licensing boards. • General Trade and Commerce: After Parsons, little valid use of power until 1980s (1937: feds allowed to approve trade marks). Then SCC approved federal use of General T&C power if the legislation truly regulated trade in general, and the regulatory scheme was effective and comprehensive.

14. Trade treaties & Economic Union • Thanks to Labour Conventions decision, feds cannot enforce international treaties that fall within provincial jurisdiction. However, international trade agreements are concerned with tariffs (fed power) & international trade, so if carefully crafted (eg NAFTA) are valid. • Economic union: 2 cases in 1990s concluded that mutual recognition of court judgments across Canada “is inherent in a federation.” S. 121 states that all goods shall be “admitted free” between provinces. Courts now seem disposed to strike down provincial laws that prevent economic integration, and to support federal legislation that prohibits such barriers.

15. Monahan, Chapter 10: Property & Civil Rights (92-13) within provinces • During JCPC era, 92(13) , not POGG, was the de facto residual clause • Federal legislation directly relating to one of the enumerated heads of power in S. 91 was upheld, even if it had an incidental effect on provincial powers; other legislation was usually declared ultra vires. The enumerated heads in s. 91 were no longer examples of federal power, but nearly the whole of federal power. • Even though the Chicken & Egg reference prevented provinces from using 92(13) to interfere with interprovincial marketing, an interprovincial egg marketing scheme with federal and provincial dovetailing legislation was later held to be constitutional. • Earlier decisions (Carnation, 1968) supported provincial regulation of trade within provinces. In later decisions in the ‘70s, the court looked into whether provincial legislation worded to control only trade within a province might be designed to impact interprovincial or international trade; if so the provincial legislation could be struck down. In reaction to these decisions, the provinces demanded that S. 92A be added to the Constitution Act, 1867 – giving provinces more control over production and export of non-renewable natural resources. (Peter Lougheed noted this as one of his most important achievements.) • Sometimes provincial laws have an incidental impact outside the province. If the pith and substance of the law is intended to have a purely provincial impact, then the SCC will uphold the law (eg. BC legislation to hold extraprovincial tobacco companies liable for health care costs in B.C. of B.C. residents made sick by tobacco - 2005). • In contrast, federal laws can have extraterritorial application if practical. It is a criminal offence to hijack a Canadian plane inside or outside of Canada, for anyone anywhere. Under Canada’s Crimes Against Humanity and War Crimes Act, anyone anywhere in the world who commits a war crime or genocide can be tried in a Canadian court – eg. Jacques Mungwarere charged in Ontario Superior Court May 2012 with genocide and crimes against humanity regarding Rwandan genocide.

16. Monahan, Constitutional Law, Ch 11: Criminal Law (Ian Greene) • In contrast to U.S., criminal law is a federal power in Canada (91[27]); in U.S. – state law. But in Canada, provinces control enforcement (most police & prosecutions) • Case law: a criminal law prohibits with a penalty, and is for a “criminal … public purpose” including “peace, order, security, health, morality.” (Margarine ref, 1949 – defined criminal law. Prohibition of margarine not a criminal law, but a valid law under Trace & Commerce) • 1993: Tobacco Products Control Act within federal criminal power • 1997: Can Environmental Protection act valid criminal law • 2000: Federal Firearms Act valid criminal law • 1980: Federal regulation of “light beer” not valid criminal law

17. Monahan, Constitutional Law, Ch 11: Criminal Law (Ian Greene) – slide 2 • Provincial power to enact penal laws • S. 92(15) gives provinces the power to impost “punishment by fine, penalty or imprisonment” for enforcing provincial laws. “Quasi-criminal” legislation. (Provincial laws – imprisonment up to 2 years; federal criminal law – up to life. Prov laws – prosecuted by way of summary conviction (relaxed procedures); fed criminal law – prosecution by either summary conviction or indictment (full procedure; harsher sentences). Provinces build jails for offenders sentenced to less than 2 years; feds build penitentiaries for long-term prisoners.) Issue of current govt’s mandatory minimum sentences & cost. • SCC case law separating criminal law from valid provincial law is contradictory and confusing – eg cases about criminal law and municipal bylaws regulating strip joints. • Police functions under the criminal code are provincial jurisdiction under 92(14). RCMP has the power to enforce federal laws other than the criminal law. Eight provinces “rent” (not Ontario or Quebec) the RCMP from the federal gov’t for provincial police services; the RCMP in these provinces is under the control of the provincial Attorney General. But investigation of complaints is a federal responsibility for the RCMP. • SCC has held that the federal government can prosecute drug cases; thus, a confusing array of federal prosecutors, at first appointed for patronage reasons. Monahan claims that the federal government could extend the role of federal prosecutors into criminal cases (Greene – would be a disaster).

18. Monahan, Constitutional Law, Ch 12: The Constitution and Transportation: Ian Greene • Feds: interprovincial & international transportaion; beacons, buoys, lighthouses, navigation & shipping, ferries outside one province; Sable Island. Criminal power affects motor vehicles, ships and aircraft. • Provinces: transportation within the province • 92(10): Local works & undertakings provincial EXCEPT for those in (a) and (b), & (c) those declared by the Parliament to be for the general advantage of Canada (“declaratory power” used ~ 500 times up to 25 years ago [grain elevators, nuclear plants]). • 1989: SCC ruled that local and provincial telephone companies fall under federal authority. • The internet is subject to both federal regulations (92-10 exemption – “telegraphs”) and provincial regulation (92 -13). • POGG: most litigation relates to air travel & related matters • Navigation & Shipping (91-10): broad source of power interpreted expansively by courts. (eg. new Canadian boating license) • Provinces began to license motor vehicle drivers; feds had no interest. JCPC declared that those who cross provincial borders require a federal license. The feds then delegated to the provincial licensing boards the power to grant interprovincial licenses! That’s why our licenses state Ontario and Canada.

19. Aboriginal Issues and Federalism • Monahan, Constitutional Law, Part Five, 439-460 (Ian Greene) • Royal Proclamation of 1763: aboriginal lands recognized and lands for settlers would need to be purchased by British government. (One of the grievances of the 13 colonies that rebelled a few years later) • Treaties were signed with some native bands. However, the treaties were often treated by courts as “international law,” not recognized by courts unless enacted into domestic (federal or provincial) law. Thus, many treaty rights were abrogated or ignored. • 1973 in Calder case: SCC for the first time recognized some aboriginal rights at least to the use of traditional lands where treaties had not been signed. • Marshall case (1999): SCC accepted evidence of the aboriginal understanding of a treaty, rather than relying simply on the official British/Canadian interpretation. • 91(24): federal jurisdiction over “Indians, and lands reserved for the Indians.” • Provincial legislation applies on Indian reserves unless federal legislation supersedes it. If working with Indian bands, find out what applies. This includes health, education, and social welfare legislation, unless there is a federal substitute.