Canadian Constitutional Law October 20 Supplemental

1. Canadian Constitutional LawOctober 20 Supplemental Ian Greene

2. 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

3. 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

4. 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. Case 4: Local Prohibition Case, 1896 (Ian Greene)

5. 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 Case 9, AG Canada v. AG Ontario, Labour Conventions Case (restriction of federal power over international affairs,1937) Ian Greene

6. In 1970, Que gov’t authorized Que egg marketing agency to restrict import of eggs from out of province Ont and Man were suppliers of eggs to Que Que supplied chickens to other provinces; they restricted Quebec chickens Man passed egg marketing legis identical to Quebec’s and referred it to Mn CAp Man legis. struck down; appealed to SCC (What if leg upheld?) 9 judges on panel: 6 + 2 + 1 (all agreed ultra vires) Martland: Pith and substance: interprovincial T&C. Chicken & Egg Reference - 1971 (Ian Greene)

7. Chicken & Egg (2) • Laskin’s first major decision. • Annoyed that case is fabricated. Why? • Obiter since Parsons led to attenuation of literal interp of T&C. • Prov. Marketing legislation OK if producers in other provinces treated the same a local producers • Purpose of this legislation: to control the import of eggs. Therefore it is ultra vires; trenches in fed control over interprovincial T&C • Scholarly analysis both of case law and realities of trade in eggs & other goods • Not necessary to invoke s. 121

8. 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)

9. 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.)

10. 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) • 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

11. 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; fed criminal law – prosecution by either summary conviction or indictment. Provinces build jails for offenders sentenced to less than 2 years; feds build penitentiaries.) • SCC case law separating criminal law from valid provincial law is contradictory and confusion – 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” 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.