Michael Gerstein’s Con Law Outline – 2010

Amending Formula

1. General Amending Formula – s.38-40o Amendment must be approved by

o HOCo Senate (may be dispensed with by s. 47 –HOC resolution)o Legislatures

2/3 = 7 &50o Must be absolute majority – not just members there - s.38(2)o Province can opt out – s.38(3)

o Fed must provide compensation –s.40 Citizen’s still paying tax

Eg: Education and cultural matters

2. Unanimity Formula – s.41o HOC, Senate and all Legislatureso Applies to s.41 a-eo Amendments to amending formulao Note: arguments about whether Supreme Court change requires Unanimity

or not?o Peter Hogg – no – provisions are just in Supreme Court Act, no need

to pretend like they are in Constitution unless explicitly expressedo On other side – central public institution

3. Some, but not all, Provinces Formula – s. 43o Must be approved by

o HOCo Senateo Provinces that would be affected by the amendment

Eg: From Hogg – language laws in Manitoba and Sask

4. Federal only – s.44o Initiated by parliamento Amendments dealing with Executive, HOC, senateo Subject to s. 41 and 42

5. Provinces only – s. 45o Amendments to provincial constitutiono Subject to s. 41

The Secession Reference

Reference re Secession of Quebeco Reference Question Is…

o All levels of government given power to ask questions to the courto Advisory opinion that carries huge amount of weight

o Criticism – undermines independence of the court – Australia

o Question asked in 1996o SCC Decision in 1998

o Argument 1o Should not reference power

o Supreme Court Act s. 53 – gives powero A - interpretation of the constitution actso B - Hearing and consideration on important questions of law or face

o Argument 2o The court should decline

o Will only answer about the legalityo Can decline if non-justifiable

o 1 – too theoretical or speculativeo 2 – too political in natureo 3 – not yet ripe for judicial consideration

o Quebec would not participate (despite many judges being from Quebec)o Court appointed an amicus curiae (friend of the court)

o Question 1 – Under the Constitution of Canada, can the National Assembly, legislature or government of Quebec effect the secession of Quebec from Canada unilaterally?o Do not actually answer the question, instead talk about general principles –

draw an obligation – say it is binding but the court will not enforce ito Acknowledged it would be an amendment, but only hinted at which

methodo No right to pursue secession unilaterally without negotiation

o But they could unconstitutionally declare secession, leading to a de facto secession

o Reasons for Question 1 Answer:o Court References constitutional principles that would effect an attempt of

secession

o Unwritten principles of the constitution

o Federalismo Two levels of govt – each have their own sphereo Sovereign in their own sphereso Each rely on each other

o Accommodates cultural diversityo Quebec exists due to the structure of both fed and prov powers

o Democracy

o Quebec argues – democratic supremacy in secession of Quebec by people of Quebec should be enougho Court replied – succession would affect more than just Quebec

o Must not ignore Canada – both levels depend on each othero Federalism and Democracy are closely tied together

o Constitutionalism and the Rule of Lawo Rule of law is the ultimate source of public powero Principles of law should have stability

o Government should act through its own rules, not operate in capricious fashion

o Constitutionalism emphasizes that all levels of government should operate under the Constitution

o Rule of law governs through legal institutions – supported by organized establishments

o Respect for minoritieso Constitutional structure must take into account the minority opinionso Groups within Quebec would be affected

o Eg: first nations were strongly opposed

Parliamentary Sovereignty

o Dominance of Parliament within the legal systemo Allows Parliament to do what it wants within limits of it’s authorityo Constitution Act 1982 has made Canada more of a constitutional sovereigntyo Parliament = those who can survive the popular vote in HOC

o Ministers of the crown

Democratic Decision-Making as the First Principle of Contemporary Constitutionalism - Jeremy Webber

o A constitution fashions a public voiceo Marshalls democratic opiniono Determines who should speak for majorityo Forges a pubic opinion on issues

o Representative govt – constituents voice grievances directly to MP’s

o Argues reasons to generally prefer democratic means to forge this voiceo There’s good reason to allow equalityo There’s good reason to allow participation

o Federalism is a way of defining who speaks for the provinces

Consideration on Representative Government – John Stuart Mills – 1861

o Participating in democracy has valueo Freedom existing in participation

o Today, we see freedom being insulated from government actiono Government – way for people to obtain liberty

o Broad participation in govt can correct injustice in social order

Canada (House of Commons) v. Vaid

o Idea that parliamentary autonomy to govern should be protectedo Parliamentary privilege to protect autonomy

o Should be protected by law for the purposes of achieving their prescribed parliamentary roles (also applies to judiciary)

o Only applies while members are in the houseo Dimensions of this autonomy:

o Control over own processeso Discipline own memberso Immunities with respect to what is said in the house

o What is the scope of this privilege?o Not a question of if it existso Not written in constitution – key unwritten principle – court will not toucho Test – what is required for efficiency of the houseo Held: hiring/firing of employees working for the HOC is ultra vires to

parliamentary privilege

Can Parliament Bind Itself?

Reference Re Canada Assistance Plan 1991 SCC (CAP)

o Backgroundo Canada Assistance Plan (CAP) was an Act of Parliament in which government

entered into profit sharing with the provinceso BC agreed to pay for 50% of welfare paymentso Program existed for 20 yearso Mulroney amended CAP – reduced funding to wealthier provinces – BC,

Alberta, Ontarioo BC appealed

o Question 1 – Has the government of Canada any statutory, prerogative or contractual authority to limit its obligation under the Canada Assistance Plan and its agreement to pay 50%o Yeso Used an ambulatory style of interpretation – amount was not fixed

o As oppose to static – amount was decided when agreement madeo Uses s.41 of Interpretation Act – every act be so construed as to reserve to

Parliament the power of repealing or amending it… o Reflects parliamentary sovereignty

o Question 2 – Does the original agreement give rise to a legitimate expectation that no new bill will limit the obligation without the consent of BCo No

o Argument 1 o Doctrine of legitimate expectation binds the executive not parliament

o If the government conducts itself in a certain way, should not revert

o Here, it’s the legislature taking actiono Court does not meddle with the procedures of Parliament – this is a

procedural question

o Argument 2o Even though the executive is introducing the bill, they are doing so

as a member of parliament – no other way to bring money bills in

o Argument 3o Even if explicitly stated that they would not change without

permission from the province, this would be ineffective because parliament cannot bind itself in form to the accent of an outside party

o Also – executive cannot bind parliament

o Rationale – it’s essential to allow subsequent governments to make changes that hey wish

o Only repercussion to no upholding prior agreements is politicalo Max binding – 5 years (maximum duration of a parliament)

o Manner and form requirementso Executive can bind future parliaments with “manner and form” requirements

o Restrained not in substance, but in procedure which must be followed to enact future legislationo If wish to bind procedurally – must explicitly say so

o In CAP – no the caseo Court says this is “more substantial”

o In past – things like Bill of Rights and R. v. Mercure have “constitutional nature”o No here

Canadian Bill of Rights S.C. 1960 c44

o Ordinary statute of parliamento Declares a series of rightso S. 2 – Can be used to strike down future legislation

o Only do so by procedural requirement (manner and form requirement)o Can expressly declare that new legislation will operate “notwithstanding” the

Canadian Bill of Rights o This saves the bill from going too faro Does not restrain in substanceo Only manner and formo Serves to be a warning to the public when a piece of legislation should

receive extra attention

R. v. Mercure 1988 SCC

o Wants to plea to speeding ticket in Frencho Bilingualism was not constitutionally entrenched in Sask (like Mantioba)o NW Territories Act

o Parliament had intended to put French necessity manner and form requirement

o For law to be valid, but be in both languageso Sask govt argued that this requirement had lapsed because they discontinued

using ito Court says no – must expressly repel such a requiremento This is an acquired right now – court will not repelo Must follow procedure

o Principles of stability, transparency, democratic principles, etco Accordingly, Sask repelled the provision ino both English and French

o Retroactive application was allowed

Abdication/Delegation

Re: The Initiative and Referendum Act (1919)

o After WWI – Manitoba – use referendum as a means of enacting legislationo Some might view as more democratico Case highlighted the coordination between fed and province

o Province o Question: Is this a valid was to adopt legislation

o Answer: No. Invalid.o S.92 – cannot create a new and endow a new legislative power not

created by the act to which it owes it’s own existence

o Analysiso 1 – this is a bypass of LGG – cannot do this according to constitution

o Powerless, but integral part of the systemo Could imagine the act still working

o 2 – Cannot go so far that it essentially delegates its authority to an equal power body – can delegate authority, but not too faro Against Argument – keep power in elites - people could make laws

directly. Judicial conservatismo For Arguments – If happened, popularist vote could do anything eg: set

up dictatorshipo This would upkeep Parliamentary sovereignty

o Cannot set up an institution that would be equal in power – could lose controlo Executive normally controls regulation process

o Would lose control

Reference Re: Regulations in Relation to Chemicals (1943)

o WWII, Parliament delegated huge amount of power to the executive

o Pretty much adopt any legislation they wanted by Executive Act, by way of order in councilo Even could amend legislation adopted by parliament

o Question: Was this an abdication of power?o NO - the power was delegated to the executive, but parliament still controls

the War Measures Act, so it can revoke the powers and change executive orders in councilo This retention of authority may distinguish from Initiative and

Referendum Acto OK to delegate authority to a subordinate body

o Equal – stepping over the lineo BUT – Executive did not have proper authority to delegate as much power to

the Controller of Chemicalso Struck down part of what Controller did

o Executive Authorityo Crown Prerogative

o Executive still hold some inherent powerso Eg: internal relations – declare war, enter into treaties

o Privileges and Immunitieso Immunity from application of statues – unless clearly expressedo Immunity from suits – eg: Calder case – had to get permission – now

abolishedo Crown privilege – internal documents of cabinet can not be disclosed

during proceedings

The Case of Proclamations (1610)

o The king hath no prerogative but that which the law of the land allows him

Considerations on Representative Government – John Stuart Mills o Ultimate controlling power is through electing people

o Legislature as a means for airing argumentso Political morality – executive subject to everything parliament does

o Constitutional conventions not enforced by courts – done through the political process

o Executive must still get approval of legislature to pass laws

Executive Authority

Roncarelli v. Duplessis 1959 SCC

o Duplessis = both Premier and AG of provinceo Roncarelli = owned restaurant – been providing bail for members of Jehovah’s

Witnesso Duplessis revoked R’s liquor license (told would never get one again)

o D ran strictly conservative govt associated with Catholic faitho R cannot sue liquor commission without permission from AG

o 1st problem – D sued without permissiono Court answer – this is in relation to a decision outside the scope of

power given by statute. This is a personal act. Can sue him.o 2nd problem – no authority in this court to review this decision – all that

has happened is that the liquor board has exercised their authorityo Court – actions were “turning power to unintended ends”o Significant for human rights and constitutional reasons

o Held: for Roncarelli, D was violating Civil Codeo Court looked at statute – liquor commission

o Cannot cancel with absolute authority o Public duty to exercise authority in “good faith” – rule of law issueo Public officials cannot act beyond their dutieso Executive must remain in statutory constraintso Executive is under parliamentary control, delegation, framed by

legislationo Government power does need to be restricted

The Judiciary

The Judiciary in the Constitution CA 1867

Creationo s. 92 (14) – Province jurisdiction over the creation and maintenance at both civil

and criminalo s. 101 – Fed have jurisdiction to create a general court of appeal, courts for

better admin of the law

Appointmento s. 96 – fed appointmento s. 97/98 – selected from bar in the province it is situatedo s 92(14) – provinces choose their judges

Procedure

o 92(14) – Provinces over civilo 92(15) – Provinces over non-crim penal matterso 91(27) – Fed over crimo 101 – fed over all federally constituted courts

Tenureo s.99, 101, 92(14), 11(d) of the charter

Salaryo s.99, 101, 92(14), 11(d) of the charter

o 11(d) – the be presumed innocent until proven guilty according to the law in a fair and public hearing by an independent and impartial tribunal

Four types of Courts:o 92(14) - Prov established and appointed

o Includes inferior courts – traffic courts, small claims, provincial admin tribunals

o 96 & 92(14)– Prov established, fed appointedo Courts of general jurisdiction – Superior Courts

o Eg: BC Supreme Court and BC Court of Appeal

o S. 101 – Fed established and appointedo For federal laws

o S. 101 – Fed established and appointedo Supreme Court – Special role as superintendent of all courts – ultimate

authority

Superior/Supreme/Court of Queens Bench – Provincially established under 92(14) but federally appointed

o Tribunals – fall under s.92(14) or s.101o S.101 eg: Tax Court

The Case of Prohibitions (1607)o Judges are delegates of the Kingo BUT the law is founded upon learned reason

o King has not studied the law and he is under the law

The Act of Settlement (1701)

o Judges should serve on “good behavior” rather than “at the pleasure of the crown”

o This is now seen in s. 99 and s. 100o Establishes further independence of judiciary

Protection of s.96 Courts

o Court wants to distinguish between a provincial tribunal and a s.96 courto Develops a three part testo Not about independence of the court, but recognizing when something is a

court, and when it is an administrative tribunalo Administrative tribunals may have experts from the area making

important decisions that appear judicialo When will these people have too much authority and be making

decision that are too much like the function of a s.96 courto This is a functional testo Issue – these courts are suppose to have federally appointed judges

Reference Re Residential Tenancies Act (1981) SCCo Questions:

o 1) Is it within the provincial authority to empower Residential Tenancy Commission to make an order evicting a tenant by way of the Residential Tenancies Act.

o 2) Is it within provincial authority to empower the Commission to make orders requiring landlords and tenants to comply with obligations imposed under the Act?

o Need to determine if tribunal is acting as a s.96 court – that’s a no noo Used the 3 step test

o 1. Historical test – does the jurisdictional power broadly conform to the power given to s.96 courts at the time of confederation?o If no- test is over.

o 2. Is the tribunal exercising a “judicial function”o Judicial – dispute between private parties, through an application of

recognized rules consistent with fairness and impartiality.o Might look judicial in procedure, but not really be judicial

o Might be dealing with issues among a whole bunch of individuals – not private parties.

o Might be dealing with policy consideration – going beyond private dispute realm, becomes political, economic matter.

o 3. Contextual consideration – is the judicial power part of a broader function that is not judicialo Judicial function cannot be sole or central function of tribunal

o Ok if just part of a broader mandate – merely subsidiary or ancillary to general administrative functions.o Are they trying to achieve a broader policy goal?

o Eg: Tomko – ok to order cease and desist order as part of a broader legislative scheme.

o Also note: some s.96 powers are so inherent to superior court that you cannot remove them

o Held: Residential Tenancy Commission is charged with impugned powers to enforce contractual rights and interpret contracts – too much like a s.96 court – invalid.

Nova Scotia (A.G.) v. Sobey’s Stores Ltd (1989) SCCo Facts – Direct of labour standards reinstated a dismissed employee.o Three step test

o 1 – Historical test – Look to 4 original provinces – ON, QB, NS, NB – if tie look to UKo If power always existed with inferior courts – OK

o If solely belonged in superior court - failo Here – SCC – should be a functional test – need to adopt powers of

superior courts narrowlyo Here – this is a historical s.96 function

o 2- Making a judicial like decisiono 3 – Power to reinstate employees is a necessarily incidental function to a

broader social policy goal of providing minimum standards of protection to non-union workers.

Classic Problemso Issuing injunctions or special remedies – superior court functiono Power of review that superior courts have over other tribunalso Establishing new tribunalso Some function that were shared but so inherent to superior courts that you

can(**not) remove them

McEvoy v. A.G. and A.G. Can [1983] SCCo NB tried to set up unified crim court to deal with both summary and

indictable offenseo Indictable offense – obviously s.96 powero Invalid whether jurisdiction was exclusive or concurrento “Parliament can no more give away federal constitutional power, that a

province can usurp them”o Federal courts must be federally appointed

Reference Re Provincial Judges (1997) SCCo Question – whether s.11(d) of charter guarantees judicial independence?o Lamar (maj)

o Uses the preamble – foundation for an implied guaranteeo “With a constitution similar to that of the United Kingdom”o Implied principles in constitution

o Full faith and audit – respect for judgment in other jurisdictionso Fed paramouncyo Rule of Lawo Parliamentary Privilegeo Implied bill of rights – implied guarantee of freedom of expression

even prior to the adoption of the charter but hesitant in judgmentso Looks at broader objective

o Believes protection should be extended to all courtso Held: PEI and Alberta salary reductions programs infringed on s.11(d)

o But, there are certain circumstances that prov can reduce salaryo Need to ask court first :D

o LaForest (dis)o Also believes judicial independence is important

o But must look for protection in Chartero Not PREAMBLE

o Elevates vague open language above texto UK is not even like Canada

o They have no written constitutiono Their courts have no power to hold an act of parliament invalid

or unconstitutionalo Only superior courts were given this protection

o Judicial independence power derived from s. 96-100 and s.11(d)o Using normal means of Charter interpretationo BUT what is a court? Where to stop?o Clearly protection when related to crim matters

Division of Powers

Ryder: “The Demise and Rise of the Classic Paradigm in Canadian Federalism

o Historyo Double Aspect

Fed and Prov can both have jurisdiction over the same issue

From different aspects! Courts have historically tried to minimize overlap

o Classic Paradigmo Watertight compartments

Spillover effects not tolerated Either by ruling law ultra vires or “reading them down”

o Strong theory of exclusivityo Mutual modification of federal/prov jurisdiction

Mutual modification – s.91 and 92 must be read together with heads in one modifying those in the other

o Ensures provincial autonomy Limits the ability of fed govt to pass laws intruding on prov

areas of jurisdiction BUT also limits the scope of prov jurisdiction

Compromises principle of exhaustiveness Contemplates judicial activism Effective regulation as a whole is left to the unpredictable fate

of attempts at intergovernmental cooperation Main criticism – in complex, interdependent world, social

problems don’t fit neatly into jurisdictional boxes

o Modern Paradigmo Layer cake – governance requires flexibility and overlapo Weak theory of exclusivityo “Pith/Substance”/incidental effects

Focus on dominant aim of legislation Spillover in ancillary areas ok

o Federal paramouncy in instances of strong conflicto Judicial restraint

More deferential to govt’s crossing the lineo Ensures principle of exhaustivenesso Main Pro – allows for areas of social life to be subject to

concurrent or overlapping powers

o Missingo Recognition of Aboriginal level of government

Third level? Neither CA 1867 or CA 1982 recognizes this third layer Royal Proclamation of 1763

Legally recognized First Nations Remains in force today Crown recognizes its horizontal, nation to nation,

relations with First Nations

Mutual Modification: Watertight Compartments

Citizens Insurance Company v. Parson (1881)

91(2) – Trade and Commerce 92(13) – Property and civil rights Ontario enacts statue that says insurance companies can’t put conditions in

fine printo Parsons tries to collect insurance (didn’t read fine print)

Tries to sue under statuteo Insurance company says statute is ultra vires

Three step processo First Question – does Act fall within s.92

Ontario act deals with insurance – falls within 92(13) Need to interpret broadly “Civil rights” used in BNA Act Court looks to Quebec Act – used to include contracts, torts and

property – private law relations Accepts that 92(13) is fine.

o Second Question – does it also fall within s.91 91(2) – could potential cover all business activity

BUT a broad interpretation would obliterate big chunks of private law in 92(13)

Court narrows the focus to be three main elementso Political arrangements in trade and sanction of

commerceo Regulation of interprovincial and international

tradeo General regulation of trade effecting the whole

dominion.o Third Question – is it overborne – if yes, likely that provincial will be

struck down ass ultra vires Held: the issue dealing with provincial insurance is intra vires and is valid in

force. Historical case to show the older notion of “watertight compartments” Also, how the court applied the doctrine of mutual modification

o These are features of the classical paradigm

Pith and Substance

R. v. Morgentaler (1993) SCC

Backgroundo Years earlier SCC strikes down provisions in Criminal Code that limit

abortions – violated Chartero Was valid legislation before then – Criminal Law – 91(27)o M plans to open an abortion clinico NS places restrictions on privatization of medical sources –

procedures that can only be done in hospital Provinces have authority over health

92(13) – Property and civil rights in the Province 92(16) - Generally all matters of a merely local or

private Nature in the Province 92(7) – The Establishment, Maintenance, and

Management of Hospitals, Asylums, Charities, and Eleemosynary Institutions in and for the Province, other than Marine Hospitals

o Held: NS legislation is ultra vires

Pith and Substance – matter, true substance of the law, constitutional character

o Dominant aim or purposeo No single test – approach is flexible

Legal Effectso Intrinsic Evidence – start with evidence from the statute

Evidence within the four corners of the statute Title, what it grants, criteria, penalties,

How the legislation as a whole affects the rights and liabilities of those subject to its authority

o Extrinsic Evidence– looked to as part of attempt to discern PURPOSE Related legislation

Eg: here CC Previous regulations (here March regulations)

Legislative history – history of the actual statute Evidence of mischief – what is the directed toward Contextual events surrounding the creation of legislation Hansard – weak

But may be useful if colourability is at issue

Practical Effectso What are the real life impacts?

NS – will not restrict access to abortion M – this is about restricting access to abortion Court – no going to go there

o Practical effect hard to judge ahead of time Only relevance if act looks intra vires but has substantial effect

on an ultra vires area.

o Legal effect is always relevant – it does not change over time Only go further if other evidence is unclear

Colourability Doctrineo Hidden agenda – legislation made to look like one thing to deliberately

cover over what the real objective iso Court will not just at form, but also substance to determine what

legislature is really doing Courts are slow to say legislation is colourable

Sends a strong political statement Legislature can overstep bounds without trying to

disguise what they are doing

Doctrine of Severanceo Allows certain offensive provision to be cut out of legislation while

leaving the constitutionally valid part intact Remedial

o Test – can the part left survive independently,

Application to M’s caseo Catalyst for govt action was M opening his clinic

This was the mischiefo Hansard – M’s clinic was central concerno Older regulation – March regulationso Look at penalties – quite severe

Conclusiono Pith and Substance – the prohibition of the performance of abortions

with penal consequences Criminal matter Concern for women, or health care policy and regulation of

health care professionals was merely ancillary Approaches it from the viewpoint of public wrongs and crim

Not from viewpoint of health careo Colourable – probably, but don’t want to sayo Severance – no remaining “good part”

Reference re Same-Sex Marriage (2004) SCC

Series of Charter challenges making their way up Justiciability issue- court decides to not answer one of the questions Incidental Effects – main principle in judgment Living-tree principle – to counter “frozen concepts”

o Less about Pith & Substance

91(26) – authority in respect of “Marriage and Divorce”o Capacity to marry

92(12) – authority in respect of “the solemnization of marriage in the province”

o performance of marriage If anyone is going to change definition of marriage – fed

FIRST QUESTION – Is the Proposed Act Within the Exclusive Legislative Authority of the Parliament of Canada

o s.1 of Act – “marriage, for civil purposes, is the lawful union of two persons to the exclusion of all others” (two “persons” , regardless of gender are legally capable of being married)

Dominant characteristics – capacity to marryo Living Tree principle (Edwards decision – Persons case -women

eligible for senate) Constitution should not be frozen

o Must accommodate different generations and changing circumstances

OBJECTIONS – Scope of 91(26)o Originalist interpretation - Frozen concept argumento CA 1987 – definition of marriage is frozeno Natural definition – at it core heterosexualo Customs argument – institution of marriage “outside the law”

Embedded in custom, a natural institution Countered by “persons” case

o Scope would trench on provincial sphere Fed legislation would certainly impact the provincial sphere

Issuance of licenses, registration of marriage, property issues eg: dissolution of marriage

Incidental Effects – do not relate to the core powers over solemnization and property & civil rights

Permissible as long as the act is not in pith & substance related to provincial head of power

o Not watertight compartments

SCC strikes down s.2 of the Acto Relates to the solemnization of marriage and religious freedomo Any legislation protecting freedom of religion with respect to

marriage must be done by the province.

NEXT QUESTIONo Was common law inconsistent with Charter

Were Appeal courts right when they rules opposite sex requirement was unconstitutional

Non-justiciable – refuses to answer Unwise and inappropriate Government says its going to enact the legislation

regardless of answer, so answer would be purely for political reasons and have no effect on law

Already decided in lower courtso Proper time for appeal has already passedo No compelling reason to answer a question that

might go against lower court and cause confusion

There are same-sex couples that have already obtained a right

Do not want to jeopardize an acquired right if not necessary

Paramouncy and Interjurisdictional Immunity

Canadian Western Bank v. Alberta (2007) SCC

Introo Banking introduced insurance line

Must they abide by Alberta’s Insurance Act? 91(15) – Banking, Incorporation of Banks, and the Issue

of Paper Money 92(13) – Property and Civil Rights in the Province

o Insurance trad. falls here Pith and Substance

o Reference Morgantallero Dominant purpose is decisiveo Incidental effects – oko First do pith and substance, then move onto Paramouncy and II

Want incremental approach, case by case

Interjurisdictional Immunityo Greatly limits it’s application

Leads to “watertight compartments” Continued risk of erosion of provincial power

In theory, resiprocal, but in practice now Want to use double aspect doctrine (and paramouncy) when

possible II creates uncertainty

o Difficult to define “core”o Dis-favours incremental approach

o Could create legal vacuum Very rarely, but can protect:

Federally incorporated companieso If used:

Needs to “impair” (not quite “sterilize”) Bell Canada: limited to “basic, minimum and unassailable

content” Now = core

o Transport cases Might be cases that overlap does not work well

But still, fed transport undertakings must abide by provincial speed limits

o Banking (here) Cannot be immune to “any” financial service

Must be core

Federal Paramountcyo How to determine the degree of incompatibility needed to trigger

application? If to broad – expands central powers If to narrow – give provincial governments more latitude

o Multiple Access Ltd v. McCutcheon (used in General Motors) “except where there is actual conflict in operation as where

one enactment says “yes” and the other says “no”: “the same citizens are being told to do inconsistent things”; compliance with one is defiance of the other.”

Provincial laws may add requirements or supplemental requirement to federal legislation

o Hall, Mangat, Rothmans Don’t want to make this too broad To comply with provincial law would frustrate the purpose of

the federal law Even though it is not directly violating Onus is on the party relying on paramountcy to

demonstrate that the fed law purpose would be frustrated

o Almost always start with Pith and Substance analysis Need to determine if both legislation in question is actually

valid II and Paramountcy then determine if law is applicable or

operative II should be reserved for situation already covered by

precedent Preferable to use federal paramountcy

Application to Western Banko Pith and Substance – Insurance Act is valid

Insurance still falls under province despite banks starting ito II – No – insurance is not a core function of the banks

Bank Act does not even recognize as core functiono Federal Paramountcy

Neither operational incompatibility nor frustration Operational

Can comply with provincial regulation Frustration

Eg of yes: Mangat o Fed – enable non-lawyers to appear before

immigration proceedings (promote hearings that are informal, accessible and expeditious

o Prov – prohibition against non-lawyers before triubnal

Here – no frustrationo Parliament documents show they want level

playing field for insurance

Alberta Government Telephones v. CRTC (1989) SCC

Interjurisdictional Immunity (cont)o AGT deals with Communicationso 91(29) – such classes of subjects as are expressly excepting in the

Enumeration of the Classes of subjects by this Act assigned exclusively to the Legislatures of the Provinces

o + 92(10) – Local works and undertakings other than such as are of the following classes

92(10)(a) – lines of steam or other ships, railways, canals, telegraphs, and other works and undertakings connecting the Province with any other or others of Provinces, or extending beyond the limits of the boarder

o The two together = fed jurisdiction over Transportation and Communication works or undertakings

that extend across prov. or int. boarderso 92(10)(c) – fed declaratory power – unilaterally define as fed

Used for grain elevators Power has been infrequent in recent years – might be amended

o AGT Challenge the jurisdiction of fed body – CRTC Equipment and operations wholly within Alberta

Cables and microwave equipment with other companies across boarder

Was not good enough to get them off the hook It provides local subscribers with services of interprovincial

and international nature. Various business agreements enable it to play role that

is national in nature. AGT could not separate itself from Telecom Canada

without fundamentally altering the fundamental nature of AGT’s enterprise.

Cannot separate Telecom Canada into various members

Consolidated Fastfrate Inc v. Western Canada Council of Teamsters (2009) SCC

Factso Niche market – freight forwardingo Fastfrate – has branches across Canada

Interpreting 92(10)(a)o History – Preference for diversity at regulatory authorityo Textual – Basket clause

Decides all the previous examples have physical movemento Jurisprudence

Commonalities within the industry Differentiates from communication

o Communications can operate and provide international and interprovincial communication services from a fixed point.

o There is no line to draw line in transportationo Definition of transport is physical mobility

Does not like the “dominant approach” method Potential to sweep all into federal jurisdiction

Applicationo Fastfrates operations are entirely intraprovincialo Uses Empress Hotel

CPR – fed company Patrons stay at the hotel

Hotel is not subject to fed laws Hotel role in the system is not integral or essential

o Analogy of hotel to third-party contractors transporters

o Fastfrate – integrated company branches across country Corporate structure is not determinative To customer – both ends of transaction are Fastfrate

Dissent – Binnie J (McLachlin CJ, Fish JJ)o Maj lends to “checkerboard provincial regulation”o AGT

Different here - customer to customer interprovincial service Communication technology is different, but still same legal

test Functional test – what type of transport service does

Fastfrate undertake to provide service to customerso Local or interprovincial

Nature of service – not modalities of performanceo Should pay more attention to incremental case by case approach

Maj drawing the line at physical transportation – looking at entire industry – too broad a sweep

o Fastfrate is a single enterprise Alberta board meets “single enterprise” BUT each Fastfrate terminus is heavily dependent on each

other Cannot separate Alberta’s undertaking from

interprovincial workso Same as AGT

Federalism with Respect to Aboriginal People

Natural Parents v. Supt. Of Child Welfare (1976) SCC

Context: after residential schools, fed back out of child welfare programs. Want provinces to do it.

Issue: adopting out aboriginal children to non-aboriginal families Facts: natural parents speaking for community, customary that children

should go to aunt and uncle 91(24) – fed jurisdiction over Indians and Indian lands s.88 – all provincial laws of general application from time to time

(anticipatory incorporation by reference) in force in the province apply to Indians (general rule)

o Exceptions: 1) Subject to treaty 2) Subject to any other Act of Parliament 3) Except to the extent of inconsistency with Indian Act 4) Except to the extent that the Indian Act deals with the

matter 92(16) – Adoption Act – birth parent relationship with child is erased

Indian Act – doesn’t deal with adoption (can’t use that s.88 exception)o BUT – does have a system for registering those who qualify for Indian

status So if you are adopted by non-Aboriginal family, you lose your

status Natural Parents argument – Provincial Adoption Act conflicts with respect to

Indian statuso Entitled to it, but will lose status if adoptedo IJI – “Indianness” is fedo Argued that Adoption Act goes to vital or essential core of Indianness

Q1) Is the provincial law a law “in relation to Indians”?If actually “in relation to Indains” it is ultra vires the provincesAnswer: Does not single them out

Q2) Does adoption act apply on its own power to the adoption of First Nation children?

Answer: Different opinionsLaskin CJ - No - family matters core of IndiannessMartland J –Yes

Q3) What is the scope of the area of IJI?Answer: Different opinionsLaskin CJ – large – includes family relationsMartland J – smaller – if they have status or not

Q4) Is it incorporated by s. 88 of Indian Act? If so, what effectAnswer: Different opinionsLaskin CJ – incorporated by reference – with aboriginal kids – s.88 makes fed lawMartland J – s.88 just declarative

LASKIN CJo Large area of IJI around Indiannesso Adoption Act would encroach on federal power over Indianso May apply through referential incorporation under s.88o Are there exceptions?

Abor argu Even if s.88 – irreconcilable inconsistence If applys, only allow Indians by Indians

Laskin does repair job Gets rid of inconsistency:

o Allow Indians to keep their status even if they are adopted by non-Indian parents

Problem with this solution

o Children need to find birth parents and community to get status

o Function problem still Martland J

o Rejects argument of IJI Smaller conception of area

o Adoption Act does touch on Indianness – just incidental effecto S.88 need not applyo He says Indian Status can survive adoption theoretically

So no need to go to paramountcy No conflict

Dick v. R. (1986) SCC

Dick – member of Alkali Lake Bando Charged $50 for killing a deer out of season

92(13) - Game Laws – Wildlife Act 91(24) – Indian Act – does not talk about hunting

Lambert J – strong dissent in Court of Appealso At core of Indiannesso Falls within scope of IJIo Falls within scope of s.88o Even if intruded, s.88 make it fed law

Beetz J – SCC rulingo Does not agree/disagree with Lambert’s reasonso Leaves question about core of Indianness openo Even if IJI applies – s.88 makes fed law

Does scope matter anymore?o This is an anticipatory incorporatition by reference

Settles the question about s.88 – goes with Laskin CJ

Note: s.35 of CA 1982 – protects Ab treaty rights against BOTH levels of gov’tCharter protection – so don’t need to use the prov/fed protection as much

Kitkatla Band v. British Columbia (2002) SCC

Comes after CA 1982 Makes argument using s.35 Also 91(24) – Indian Act 92(13) – Property and Civil Rights – Heritage Conservation Act Indianness argument

o Should be IJI – culturally modified trees – core of identity

o Court – not enough evidence Not enough to establish CMT’s as core

Narrow area of Indianness Not as broad as vital and essential part test that operates in the

undertakings area Leaves open large area of incidental effects flowing from

provincial laws Unwilling to look at practical effects – impact on Ab

communitieso Next Argument - S.88 won’t help (like in Dick) because the Act is

not of general application Singles out Native objects for special treatment 99% of heritage objects are Ab cultural property Colourablility argument

o Court – GM TEST Pith and Substance of the Act is heritage

Heritage of ppl of BC, not just Abp pl Disproportionate impact, but not singling out Parmountcy does not apply because no valid federal

legislation occupies the same field Unnecessary to consider s.88

Dissent – Prowse Jo Notes that 99% of heritage items are Aboriginal

Would find ultra vires to the province S.88 would not work either

Weber notes: o court does bad job of separating the stepso Slips from interjurisdictional authority into GM testo Articulates three step test

1) Intrusion 2) Validity of act as whole 3) Degree of integration

Balance context of intrusion vs integrationo In DICK – hinted that prov may never tailor for ab rightso HERE – quite diff

Will allow provinces to adapt their role specifically to adapt for ab ppl

Flexible approach to interjurisdictional authority The idea that only fed makes ab laws is highly eroded here Province can adapt their regimes to deal quite specifically with

ab ppl 1) Characterization - is it a valid prov enactment? 2) IJI – does this touch core area of Indianness

o Here – does not fall within core 3) Accordingly – they do not need to look at s.88

o This case – more flexible approach to Characterization

Powers of Good Government – POGG

Term comes from intro to s.91 Initially was a general word for fed powers

o Later – more restricted THREE branches of POGG

o 1) Residual Branch (Hogg – Clear Gaps) fed absorbs ‘residual’ powers not accounted for by the

enumerated powers but, enumerated powers are so broad, they do cover most

matterso 2) Emergency Branch

see anti-inflationo 3) National Dimension/Concerns Branch

see Crown Zellerbach

Reference re Anti-Inflation Act (1972) SCC

Anti-Inflation Act was evaluated from the perspective of emergency branch and national concerns branch

o Residual did not applyo This is leading authority on emergency branch

“serious national concern” Majority – uphold ultra vires on basis of emergency branch Laskin J – what is the matter/dominant aim? Is it emergency power?

o looks at legal effects/ 4 corners analysis (extrinsic evidence matters)o Is there enough evidence in the Act to support the existence of a

‘crisis’ Preamble – enough in there – don’t need to explicitly say

‘emergency’ Weak but good enough extrinsic evidence to back up

o Standard is rational basis of a crisiso Whether there is clear evidence to the contrary (extremely low

standard) Beetz J – dissent – picked up later

o Wants clear distinction between emergency and national dimensionso Emergency power is an overt intrusion into prov powers

Standard is high In this case falls short

Parliamnet should be explicit Preamble does not cut it Strict manner/form requirement

Emergency with support of 4 corners of the Act Does not have to be about war

Peacetime OK – Inflation could qualify Could be anticipation of emergency Must be temporary!

o National Dimensions Dealing with the addition of a permanent class of subjects to

s.91 Like a judicial amendment to the constitution

Need to be very careful Does not want a “repackaging” of already existing

powerso Eg: environmento Eg: cultureo Eg: inflcation

Already powers distributed to prov and fed

Cannot change the allocation of powers Cannot just give it a new label

Things that do fit under this brancho Aeronautics – cannot be divided between prov

and fed Unlike radio (divided)

o Radio communicationso National Capital Regiono Atomic Energy – ok under declaratory as well

FEDS CODIFY BEETZ dissent Emergencies Act 1988

o Defines emergency as urgent critical situationo Parliament shall declare that there is an emergency in Act and

elaborated on the situation and get provincial agreement

Regina v. Crown Zellerbach Canada Ltd (1988) SCC Webber notes:

o Important for two reasons 1) Consolidation of ND branch 2) Discusses environment

Context:

Feds pass Ocean Dumping Control Act – is it ultra vires?o Environmental protection is prov jurisdiction

Political sense that things have changedo When drafted CA 1867 – envi was prov – local and private mattero But today, more like fed

Treaty Obligationso Feds pass Act as upholding International Treaty obligationo Other countries – signing would make domestic lawo Try to enact into Canadian lawo Provincial jurisdiction vs fed Treaty acto Let’s use POGG - National Dimension

Factso Logging company moved a bunch of leftover wood from one part of a

cove to anothero Beaver cove is clearly internal waters

Therefore provicinal jurisdictiono Company gets charged under Fed Act

Le Dain – majorityo Pith and substance – Marine Pollutiono What fed powers?

Fisherises Don’t use because burdensome to prove damage to fish

and then deal with regulations Criminal Shipping and navigation

o Could use Ancillary power – concede ultra vires then show not dominant effect

Have to keep pollution out of internal waters in order to keep p[pollution out of territorial waters

But then again, regulatory constraint issueo Criteria for invoking national dimensions

1) National concern doctrine is separate and distinct from national emergency doctrine

temp nature 2) National concern applies to both new matters which did not

exist at Confederation and to originally matters of a local or private nature that have since, in the absence of an emergency, become matters of national concern

3) To qualify Singleness, distinctiveness, indivisibility

o Clearly distinguishes it from matters of prov 4) In determining (3) must consider

What would be the effect on extra-provicial interests of a provincial failure to deal effectively

with the control or regulation of intraprovincial aspects of the matter

PROVINCIAL INABILITY – provinces cannot cooperate, can’t regulate effectively

o If one province didn’t deal effectively with the problem, would it hurt citizens of another province? – then feds could go in

o LeDain – Marine pollution meets these requirements Not necessary said that it first under POGG national dimension

branch But Webber thinks it’s there

Dissento Really just an aggregate of existing matters

Should be convered under fed fishery powero Danger of conferring broad powers to fedo Indivisibility issue – quite seriously affects balance of powero Scale of impact concerno Image: stand on beach in province and throw a stone in the water …

fed jurisdiction now