Canadian Constitutional Law October 29 Supplemental

1. Canadian Constitutional LawOctober 29 Supplemental Ian Greene

2. Monahan Ch 7 • -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.

3. First major 92(13) case. Impugned: Ontario Fire Insurance Policy Act. Fire in Parsons’ warehouse. Parsons wanted insurance payment Ins Co: you didn’t observe the fine print. Parsons: the fine print didn’t conform to the Ontario Act. Ins Co: The act is ultra vires Ontario. Sir Montague Smith discusses how s. 91 & 92 overlap. JCPC will interpret the BNA Act as an ordinary statute, applying similar rules of interpretation. -Smith Invokes presumption that specific takes precedence over general. “Property & Civil Rights” more specific than “Trade & Commerce”. “cubby hole” doctrine. S. 92(13)? Yes. Also S. 91(2)-T&C? No. Feds can incorporate Co’s with national objective, but this doesn’t prevent provinces from regulating intraprovincial transactions Three aspects of T&C: international, interprovincial and general. He doesn’t define these categories. Left for later cases. What is holding;? What is obiter? Citizens Insurance Co. v. Parsons, 1881

4. Impugned legislation: Canada Temperance Act, 1878 Certiorari; rule nisi ¼ of electors in a “county or city” may petition for a plebiscite on prohibition. Fredericton went dry Charles Russell: Fredericton pub owner, sold anyway; convicted Previous SCC decision: City of Fr. v. Queen: Can Temp Act intra vires under T&C (91-2) JCPC decision: Sir Montague Smith. Russell’s lawyer: delegation argument – Parliament can’t delegate its powers. Legislation says GG “may,” not “shall.” “cubby hole” doctrine Is subject-matter of impugned legislation in s.92? If so, is it also in 91? If not in s. 92, it must be in s. 91 Russell’s lawyer: argued legis. Falls in s. 92: 9, 13 or 16 “pith and substance” Smith: Nearly anything could fall under 92(13); what is p&s? Central subject matter is public order & safety, not T&C Not local because of local option. (eg. contageous disease orders with greater impact in some areas) Therefore, not under s.92. No comment on SCC’s decision in Fredericton re s. 91(2), but seems to emphasize POGG Eg of Gap (residual) branch of POGG Russell v. The Queen, 1882

5. Impugned: Ont’s Local Prohibition Act (1890) Townships, towns, villages (& cities) Appeal from SCC reference re validity of Ont Local Proh. Act Lord Watson Feds (under POGG) can trench on s.92 only if incidental to a legitimate fed purpose; otherwise, all of s.92 would fall under s. 91. s.94 issue (power to unify common law in anglophone provs): meaningless if POGG interpreted broadly. Ontario argued that legis. falls under 92(8): (municipalities). Watson: not a convincing argument Pith & substance: vice of intemperance at local level 92(16): (local) yes. 92(13): no; the law prohibits rather than regulates if conflict: fed. law is paramount conflict of laws: no conflict if strictest obeyed “aspect” (or double aspect) doctrine: a legislative subject-matter can fall under s. 91 for one purpose, and s. 92 for another. National dimension or national concern doctrine of POGG hinted at: a subject matter can become a matter of national concern and then feds can regulate under POGG. Local Prohibition Case, 1896

6. 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 takes precedence over general. See Haldane’s discussion of specific words, p. 76. 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)

7. 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. Treaty-Making Cases

8. Lord Atkin - wrote decision Distinguished Aeronautics and Radio cases. He said that the Radio case decided that power to regulate radio transmissions is new, and therefore falls under POGG. (Is that what you think was decided?) The treaty-signing power falls to the feds under POGG, but the treaty-implementation power depends on the subject-matter of the treaty. Matters that fall under S. 92 can only be implemented by the provinces. Extraterritoriality Federal Provincial Treaty-making powers Head of states Intergovernmental Exchange of notes Labour Conventions Case (1937)

9. Trudeau campaigned against wage & price controls during 1974 election. After his election victory, he reversed his position. 1975: federal Anti-Inflation Act enacted. All prov's cooperated. Ont public employee unions challenged in court, so the feds sent a ref question to the SCC to settle the issue. AG of Canada defended Act under nat concern branch of POGG, and also argued that an economic crisis equals an emergency. There were two decisions for the majority, by Laskin and Ritchie. However, the dissenters agreed with Ritchie’s interpretation of POGG, leaving the Court’s interpretation of POGG unclear. Laskin (+3 judges): Laskin had been a law prof, and wrote the leading text (before Hogg) on Can. const. law. Reviewed history of POGG Const must adapt to change. If judges can defend as crisis, not nec to look at national concern argument. Evidence shows there is a rational basis for believing a crisis exists (Stats Can) Lipsey & 39 economists in an affidavit argued that 1975 inflation is not a crisis. Laskin: there is disagreement amongst economists, and it’s not up to SCC to decide. (Beginning of use of soc sci evidence in court.) Fed power supported by 91 (14‑21 except 17), & T&C, so it’s intra vires. Ont. order-in-council is ultra vires; needs primary legislation. Ref re Anti‑Inflation Act (1976)

10. Ritchie (+2 judges), separate concurring decision: Rejects Laskin's crisis doctrine. There is evidence of an emergency (white paper). An emergency can occur in peace time. Therefore, impugned anti‑inflation act intra vires. Beetz (+1 judge), dissenting: Anti‑inflation act invades 92(13). Parliament has not declared an emergency, so there's no emergency. Stick with Haldane’s emergency doctrine. Inflation is not a matter of national concern. Legislation is ultra vires. Anti-Inflation Reference continued

11. Monahan Chapter 8 • -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.

12. Monahan Chapter 9:Trade and Commerce (91-2) • Parsons created 2 categories of T&C & 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 interprovincially 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 interprovincially, and which applied optionally to vehicles sold within a province, could validly enforce federal regulations even for vehicles sold provincially if the vendor opted in to the scheme. • 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.

13. 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 FTA & 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.

14. Monahan, Chapter 10: Property & Civil Rights (92-13) within provinces • During JCPC era, 92(13) 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 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. • 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.)

15. Aboriginal Issues and Federalism • Monahan, Constitutional Law, Part Five, 439-460 • 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. This includes health, education, and social welfare legislation, unless there is a federal substitute.

16. Roncarelli v. Duplessis, 1959 • 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 Ron.), and won. Duplessis (even though the Premier) was found by Supreme Court to have abused his power in violation of the rule of law. Roncarelli had not violated any of the conditions of having a liquor license. The law was being applied arbitrarily. • Quebec government then enacted legislation that meant Roncarelli would lose his liquor license again; by then he had gone bankrupt. • The case demonstrates how the application of the rule of law by courts can protect human rights. It also demonstrates that enforcement of human rights through the courts is sometimes not timely.