Pilkington - 2009-10 (3)
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Table of Contents RECURRING CONSTITUTIONAL THEMES ....................................................................................................... 9 The Role of a Constitution ........................................................................................................................ 9 What Comprises the Constitution? ........................................................................................................... 9 Fundamental Constitutional Principles ..................................................................................................... 9 Relationship Between the Written Constitution and Unwritten Principles ........................................... 10 Reference re Secession of Quebec (1998) SCC .................................................................................... 11 The Rule of Law ....................................................................................................................................... 12 Roncarelli v. Duplessis (1959) SCC....................................................................................................... 12 Limits on the Rule of Law ........................................................................................................................ 13 British Columbia v. Imperial Tobacco Canada Ltd. (2005) SCC ........................................................... 13 Reference re Manitoba Language Rights (1985) SCC ......................................................................... 13 Constitutional Conventions..................................................................................................................... 14 Reference re Patriation (1981) SCC ..................................................................................................... 14 Constitutional Supremacy ....................................................................................................................... 15 Enforcing Constitutional Supremacy....................................................................................................... 16 Nova Scotia (Workers’ Compensation Board) v. Martin (2003) SCC................................................... 16 Adapting the Constitution....................................................................................................................... 17 Edwards v. Canada (Attorney General) (1930) JCPC ........................................................................... 17 Amending the Constitution ..................................................................................................................... 18 Attorney General of Quebec v. Attorney General of Canada (1982) SCC ........................................... 18 Reference re Legislative Authority of Parliament to Alter or Replace the Senate (1980) SCC ............ 20 THE EXERCISE OF PUBLIC POWER IN CANADA............................................................................................ 20 The Separation of Powers ....................................................................................................................... 20 Legislative Power .................................................................................................................................... 21 Babcock v. Canada (Attorney General) (2002) SCC ............................................................................. 21 Executive Power ...................................................................................................................................... 22 Judicial Power ......................................................................................................................................... 22 THE COURTS AND THE JUDICIARY ............................................................................................................... 22 Structure of the Canadian Court System ................................................................................................ 22 1 Limits on Provincial Jurisdiction .............................................................................................................. 25 Reference re Residential Tenancies Act (1981) SCC ............................................................................ 25 Judicial Appointments............................................................................................................................. 26 Judicial Independence............................................................................................................................. 30 Canada (Minister of Citizenship and Immigration) v. Tobiass (1997) SCC .......................................... 30 Core Characteristics of Judicial Independence ....................................................................................... 30 Reference re the Remuneration of Judges of the Provincial Court of PEI (1997) SCC ......................... 32 Provincial Court Judges’ Association v. New Brunswick (2005) SCC ................................................... 33 Constitutional Sources of Judicial Independence ................................................................................... 34 Ell v. Alberta (2003) SCC ...................................................................................................................... 34 THE EXERCISE OF EXECUTIVE AUTHORITY .................................................................................................. 35 The Executive Branch Defined ................................................................................................................ 35 Idziak v. Canada (Minister of Justice) (1992) SCC ............................................................................... 37 Fraser v. Canada (Public Service Staff Relations Board) (1985) SCC ................................................... 38 OPSEU v. Ontario (Attorney General) (1987) SCC ............................................................................... 38 Osborne v. Canada (Treasury Board) (1991) SCC ................................................................................ 39 Ocean Port Hotel Ltd. v. British Columbia (2001) SCC......................................................................... 40 East York (Borough) v. Ontario (Attorney General) (1997) Ont. CA .................................................... 41 Shell Canada Products Ltd. v. Vancouver (1994) SCC.......................................................................... 41 R. v. Campbell (1999) SCC ................................................................................................................... 42 Krieger v. Law Society of Alberta (2002) SCC ...................................................................................... 43 Black v. Chretien (2001) Ont. CA ......................................................................................................... 44 Re Gray (1918) SCC ............................................................................................................................. 45 Cloverdale Shopping Centre Ltd. v. Etobicoke (1966) Ont. CA ............................................................ 46 Controlling Procedures: Duty to Be Fair ................................................................................................. 47 Knight v. Indian Head School Division No. 19 (1990) SCC ................................................................... 47 Baker v. Canada (1999) SCC ................................................................................................................ 48 EQUALITY RIGHTS........................................................................................................................................ 49 Grant v. Torstar (2009) SCC................................................................................................................. 49 Equality Provisions in the Charter ........................................................................................................... 50 Alternative Conceptions of Government’s Role in Equality ................................................................... 50 Sources of Equality Obligations .............................................................................................................. 50 2 Equality as a Legal Standard ................................................................................................................... 51 Protection of Equality Prior to the Charter ............................................................................................. 51 The Attorney-General of Canada v. Lavell (1974) SCC ........................................................................ 51 Bliss v. Canada (Attorney General) (1978) SCC ................................................................................... 52 Drafting s. 15 of the Charter ................................................................................................................... 52 The Law Society of British Columbia v. Andrews (1989) SCC .............................................................. 52 The Equality Trilogy of 1995 ................................................................................................................... 54 Thibaudeau v. Canada (Minister of National Revenue) (1995) SCC .................................................... 54 Miron v. Trudel (1995) SCC.................................................................................................................. 55 Egan v. Canada (1995) SCC ................................................................................................................. 55 The Issues Unresolved ............................................................................................................................ 58 Law v. Canada (1999) SCC................................................................................................................... 58 Comparator Groups ................................................................................................................................ 60 Hodge v. Canada (2004) SCC ............................................................................................................... 60 Auton v. British Columbia (Attorney General) (2004) SCC .................................................................. 61 Wynberg v. Ontario (2004) Ont. CA .................................................................................................... 62 Granovsky v. Canada (2000) SCC ........................................................................................................ 63 Differential Treatment ............................................................................................................................ 63 Differential Treatment: Adverse Effects ................................................................................................. 64 Eldridge v. British Columbia (Attorney General) (1997) SCC ............................................................... 64 Differential Treatment: Adverse Impact of Omission ............................................................................. 65 Vriend v. Alberta (1998) SCC ............................................................................................................... 65 Analogous Grounds ................................................................................................................................. 67 Corbiere v. Canada (1999) SCC............................................................................................................ 67 Discrimination ......................................................................................................................................... 69 M. v. H. (1999) SCC.............................................................................................................................. 69 Law Test and Functional Relevance ........................................................................................................ 72 Actual Needs Approach........................................................................................................................... 72 Winko v. British Columbia (1999) SCC ................................................................................................. 72 Gosselin v. Quebec (2002) SCC ............................................................................................................ 73 Equality and Religion............................................................................................................................... 74 Reference re Same-Sex Marriage (2004) SCC ..................................................................................... 74 3 Affirmative Action: Section 15(2) ............................................................................................................ 75 Lovelace v. Ontario (2000) SCC ........................................................................................................... 75 R. v. Kapp (2008) SCC .......................................................................................................................... 76 Equality and Section 1............................................................................................................................. 77 Newfoundland Treasury Board v. NAPE (2004) SCC ........................................................................... 77 LIFE, LIBERTY AND SECURITY OF THE PERSON ............................................................................................ 78 Lochner v. New York (1905) US SC ...................................................................................................... 78 Reference re Motor Vehicle Act (British Columbia) s. 94(2) (1985) SCC ............................................. 79 Section 7 and Bodily Integrity ................................................................................................................. 80 R. v. Morgentaler (1988) SCC .............................................................................................................. 80 Borowski v. Canada (Attorney General) (1989) SCC ........................................................................... 82 Daigle v. Tremblay (1989) SCC ............................................................................................................ 82 Suresh v. Canada (2002) SCC .............................................................................................................. 83 Charkaoui v. Canada (2007) SCC ......................................................................................................... 84 Canada (Prime Minister) v. Khadr (2010) SCC..................................................................................... 85 Section 7 and Human Dignity.................................................................................................................. 86 Godbout v. Longueuil (1997) SCC ........................................................................................................ 86 R. v. Jones (1986) SCC.......................................................................................................................... 87 B.(R.) v. Children’s Aid Society of Metropolitan Toronto (1995) SCC .................................................. 87 New Brunswick (Minister of Health and Community Services) v. G. (J.) (1999) SCC ........................... 88 Gosselin v. Quebec (2002) SCC ............................................................................................................ 88 Chaoulli v. Quebec (2005) SCC ............................................................................................................ 89 FEDERALISM: PEACE, ORDER AND GOOD GOVERNMENT .......................................................................... 90 Historical Development .......................................................................................................................... 91 Approaches to POGG Pre-1930............................................................................................................... 91 Russell v. The Queen (1882) JCPC........................................................................................................ 91 Reference re Board of Commerce Act (1922) JCPC ............................................................................. 92 Toronto Electric Commissioners v. Snider (1925) JCPC ....................................................................... 92 Canada v. Eastern Terminal Elevator Co. (1925) SCC.......................................................................... 93 Approaches to POGG Post-1930 ............................................................................................................. 93 Reference re Regulation and Control of Aeronautics in Canada (1932) JCPC ..................................... 93 Reference re Regulation and Control of Radio Communication in Canada (1932) JCPC .................... 94 4 Impact of the Great Depression.............................................................................................................. 94 Attorney-General of Canada v. Attorney-General of Ontario (Labour Conventions) (1937) JCPC ...... 95 Reference re Employment and Social Insurance Act (1937) JCPC ....................................................... 95 Attorney General of Ontario v. Canada Temperance Foundation (1946) JCPC .................................. 96 Johannesson v. Rural Municipality of West St. Paul (1952) SCC ......................................................... 96 Munro v. Canada (National Capital Commission) (1966) SCC ............................................................ 97 Sorting out POGG .................................................................................................................................... 98 Reference re Anti Inflation Act (1976) SCC.......................................................................................... 99 Emergency Legislation After the Reference re Anti Inflation Act.......................................................... 102 R. v. Crown Zellerbach Canada Ltd. (1988) SCC ................................................................................ 103 Friends of the Oldman River Society v. Canada (Minister of Transport) (1992) SCC ........................ 105 FEDERALISM: INTERPRETIVE PRINCIPLES.................................................................................................. 106 Analytic Structure of ss. 91 and 92 ....................................................................................................... 106 Characterization of Laws....................................................................................................................... 106 Determining “Matter” a.k.a. “Pith and Substance” .............................................................................. 106 R. v. Morgentaler (1993) SCC ............................................................................................................ 107 Delineating the Scope of Classes of ss. 91 and 92 ............................................................................ 108 Double Aspect Doctrine ........................................................................................................................ 109 Hodge v. The Queen (1883) JCPC ...................................................................................................... 110 Multiple Access Ltd. v. McCutcheon (1982) SCC ............................................................................... 110 Law Society of BC v. Mangat (2000) SCC .......................................................................................... 111 Incidental Effect Doctrine ..................................................................................................................... 112 Necessarily Incidental Doctrine ............................................................................................................ 112 General Motors v. City National Leasing (1989) SCC ........................................................................ 112 Global Securities Corp. v. British Columbia Securities Commission (2000) SCC ................................ 113 Interjurisdictional Immunity ................................................................................................................. 114 McKay v. The Queen (1965) SCC ....................................................................................................... 114 Quebec (Commission du Salaire Minimum) v. Bell Telephone Co. (1966) SCC ................................. 115 Irwin Toy v. Quebec (1989) SCC ........................................................................................................ 116 Canadian Western Bank v. Alberta (2007) SCC ................................................................................. 117 Paramountcy ......................................................................................................................................... 118 Ross v. Registrar of Motor Vehicles (1975) SCC ................................................................................ 118 5 Multiple Access v. McCutcheon (1982) SCC ...................................................................................... 119 Bank of Montreal v. Hall (1999) SCC ................................................................................................. 119 Husky Oil Operations Ltd. v. Canada (Ministry of Natural Resources) (1995) SCC ........................... 120 Canadian Western Bank v. Alberta (2007) SCC ................................................................................. 120 Chatterjee v. Ontario (Attorney General) (2009) SCC ....................................................................... 121 FEDERALISM: ECONOMIC REGULATION ................................................................................................... 122 Distribution of Jurisdiction to Affect Economic Policy .......................................................................... 122 Mutual Modification ............................................................................................................................. 123 Citizens’ Insurance Co. v. Parsons (1881) JCPC ................................................................................. 123 Modern Challenges in Regulation of Economic Policy.......................................................................... 123 Mobility Rights ...................................................................................................................................... 124 Black v. Law Society of Alberta (1989) SCC ....................................................................................... 124 Canadian Egg Marketing Agency v. Richardson (1998) SCC ............................................................. 125 Provincial Powers Over Economic Regulation ...................................................................................... 126 Carnation Co. Ltd. v. Quebec Agricultural Marketing Board ............................................................ 126 Attorney General for Manitoba v. Manitoba Egg and Poultry Association (1971) SCC .................... 127 Burns Foods Ltd. v. Attorney General for Manitoba (1975) SCC ....................................................... 128 Reference re Agricultural Products Marketing Act (1978) SCC ......................................................... 128 Provincial Powers Over Natural Resources ........................................................................................... 129 CIGOL v. Saskatchewan (1978) SCC .................................................................................................. 129 Central Canada Potash v. Government of Saskatchewan (1978) SCC .............................................. 129 Federal Powers Over Interprovincial and International Trade ............................................................. 131 The Queen v. Klassen (1960) Man. CA .............................................................................................. 131 Caloil v. Attorney General of Canada (1971) SCC ............................................................................. 131 Federal Powers Over General Regulation of Trade .............................................................................. 132 Dominion Stores v. The Queen (1980) SCC........................................................................................ 133 MacDonald v. Vapor Canada Ltd. (1976) SCC ................................................................................... 133 Labatt Breweries v. Attorney General of Canada (1980) SCC ........................................................... 134 Canada (Attorney General) v. C.N. Transportation (1983) SCC ........................................................ 135 General Motors v. City National Leasing (1989) SCC ........................................................................ 135 Strengthening the Canadian Economic Union ...................................................................................... 136 CRIMINAL LAW .......................................................................................................................................... 136 6 Jurisdiction over Criminal Law .............................................................................................................. 136 The Scope of Federal Jurisdiction Over Criminal Law ........................................................................... 137 Margarine Reference (1949) SCC ...................................................................................................... 137 RJR MacDonald Inc. v. Canada (1999) SCC ....................................................................................... 138 Form of Criminal Law ............................................................................................................................ 139 R. v. Crown Zellerbach (1988) SCC .................................................................................................... 139 R. v. Hydro-Quebec (1997) SCC ......................................................................................................... 140 Reference re Firearms Act (2000) SCC............................................................................................... 141 Provincial Power to Regulate Morality and Public Order ..................................................................... 141 Nova Scotia Board of Censors v. McNeil (1978) SCC ......................................................................... 142 Bedard v. Dawson (1923) SCC ........................................................................................................... 142 Attorney General for Canada v. Dupond (1978) SCC ........................................................................ 143 Hutt v. The Queen (1978) SCC ........................................................................................................... 143 Westendorp v. The Queen (1983) SCC .............................................................................................. 143 Reference re ss. 193 and 195.1(1)(c) of the Criminal Code (1990) SCC............................................. 144 Application of the Double Aspect Doctrine .......................................................................................... 144 Rio Hotel Ltd. v. New Brunswick Liquor Licensing Board (1987) SCC ................................................ 144 R. v. Banks (2007) Ont. CA ................................................................................................................ 145 Chatterjee v. Ontario (2009) SCC ...................................................................................................... 145 Colourable Legislation........................................................................................................................... 146 Margarine Reference (1949) SCC ...................................................................................................... 146 R. v. Morgentaler (1993) SCC ............................................................................................................ 146 Provincial Commissions of Inquiry and the Criminal Law Power .......................................................... 147 Starr v. Houlden (1990) SCC .............................................................................................................. 147 ABORIGINAL PEOPLES AND THE CONSTITUTION ...................................................................................... 148 Types of Aboriginal Rights..................................................................................................................... 148 Sources of Aboriginal Rights ................................................................................................................. 148 Common Law Foundations of Aboriginal Constitutional Rights ........................................................... 148 Connolly v. Woolrich (1867) Que. SC................................................................................................. 148 Casimel v. Insurance Corporation of British Columbia (1993) BC CA ................................................ 149 Calder v. British Columbia (Attorney General) (1973) SCC................................................................ 149 Guerin v. The Queen (1982) SCC ....................................................................................................... 150 7 Constitutional Entrenchment of Aboriginal Rights ............................................................................... 150 Aboriginal Rights ................................................................................................................................... 151 R. v. Sparrow (1990) SCC ................................................................................................................... 151 R. v. Sappier; R. v. Gray (2006) SCC ................................................................................................... 153 Duty to Consult ..................................................................................................................................... 154 Haida Nation v. British Columbia (Minister of Forests) (2004) SCC .................................................. 154 Taku River Tlingit First Nation v. British Columbia (Project Assessment Director) (2004) SCC ......... 155 Mikisew Cree First Nation v. Canada (Minister of Canadian Heritage) (2005) SCC .......................... 155 Recognition of Métis Rights .................................................................................................................. 156 R. v. Powley (SCC) 2003 ..................................................................................................................... 156 Aboriginal Title ...................................................................................................................................... 157 Delgamuukw v. British Columbia (1997) SCC .................................................................................... 158 R. v. Bernard; R. v. Marshall (2005) SCC ........................................................................................... 160 Aboriginal Treaty Rights ........................................................................................................................ 161 R. v. Bernard; R. v. Marshall (2005) SCC ........................................................................................... 161 Aboriginal Right to Self-Governance..................................................................................................... 161 Division of Legislative Authority ........................................................................................................... 162 Delgamuukw v. British Columbia (1997) SCC .................................................................................... 162 Four B Manufacturing Ltd. v. United Garment Workers (1980) SCC ................................................ 163 8 RECURRING CONSTITUTIONAL THEMES The Role of a Constitution In a federal constitutional democracy, a constitution establishes: 1. Authority: a. Who has the authority to make the law; b. How that authority is divided among the levels of government (federal and provincial) c. The limits on authority i.e. limit on legislative and executive action (e.g. for the protection of individual rights against the exercise of government power) 2. Relationships between institutions of the state (the legislative, executive and judicial branches) What Comprises the Constitution? The Constitution is made up of: 1. The written constitution a. Constitution Act 1982 (Charter, aboriginal rights, equalization and amendment) b. Canada Act 1982 c. Constitution Act 1867 d. Other statutes and instruments (as per the Schedule to the Constitution Act 1982) 2. Unwritten principles of the constitution a. The common law of Crown prerogative b. In the absence of express constitutional provisions, the Court may identify and rely on fundamental constitutional principles reflected in the constitutional arrangements c. The express constitutional provisions may be displaced by constitutional conventions, recognized as conclusive by all the political players Fundamental Constitutional Principles The source of these principles emerges from an understanding of: 1. The written constitution, including the preamble (“constitution similar in principle to that of the United Kingdom”) 2. The historical context 3. Previous judicial interpretations of constitutional meaning 1. Constitutional Supremacy The Constitution is the supreme law and any ordinary law that is inconsistent with it is of no force and effect This principle is made explicit in the written constitution (see Constitution Act 1982, s. 52(1)) 2. The Rule of Law The rule of law is a fundamental underlying constitutional principle with the following content: 9 o The exercise of all public power (and the actions of officials) must be authorized by law (see Roncarelli v. Duplessis) “ A government of laws and not of people” Public power must not be used for an unauthorized or improper purpose o The law is supreme over the acts of both government and private persons: everyone is subject to the law and to being tried in the ordinary Courts o The rule of law requires the creation and maintenance of an actual order of positive laws to maintain normative order A framework of normative laws is required for the effective governance of society (see Manitoba Reference) There are certain limits on the principle (see BC v. Imperial Tobacco) The rule of law is explicitly acknowledged in the preamble to the Charter: “Whereas Canada is founded upon principles that recognize the rule of law…” 3. Federalism The Canadian constitution divides legislative sovereignty between Parliament and the provincial legislatures; each is supreme within its jurisdiction and each is subject to constitutional limits 4. Democracy 5. Parliamentary Supremacy Subject to the Constitution, Parliament or a legislature: i. Holds all legitimate public power that is within its jurisdiction; ii. May amend or replace the common law by enacting statutes; and iii. May, by statute, confer powers on the executive and subordinate bodies. 6. Respect for Minority Rights As set out in the Charter 7. Judicial Independence Since the judicial branch reviews the validity of legislative and executive action, its independence must be constitutionally protected Relationship Between the Written Constitution and Unwritten Principles Specific written provisions of the constitution promote legal certainty and predictability and provide a basis for judicial review Specific written provisions are always supreme over unwritten principles, but they are not exhaustive Unwritten constitutional principles are part of the framework of the constitution – the assumptions on which the text is based The unwritten principles may assist in interpreting the text, but do not displace the text The unwritten principles may fill gaps in the text to provide an exhaustive legal framework for our system of government 10 The unwritten principles have the force of law and can be the source of substantive limits on the powers of government Reference re Secession of Quebec (1998) SCC Facts: Reference pursuant to section 53 of the Supreme Court Act regarding the power of Quebec to effect unilateral secession from Canada. The Governor in Council submitted three questions: (1) whether Quebec could secede under the Constitution Act; (2) whether it could secede under international law; and (3) whether international or domestic law took precedence in Canada in the event of a conflict. A preliminary issue was whether the Court had jurisdiction to decide the Reference. Decision and Reasoning: The first two questions were answered in the negative. The third question did not need to be addressed. The written constitution does not provide for secession and so the four fundamental, unwritten constitutional principles relevant to addressing the questions were: 1. 2. 3. 4. Federalism Democracy Constitutionalism and the rule of law Respect for minorities The Court holds that these principles are interlinked, implicit and essential in our constitutional arrangements and must be reflected in a process for secession. The secession of a province from Canada would require an amendment to the Constitution, which perforce would require negotiation. A referendum that resulted in a clear expression by the people of Quebec of their will to secede from Canada could not in itself bring about unilateral secession. To be taken as an expression of democratic will, the referendum result would have to be free of ambiguity, both in terms of the question asked and the support it achieved. This would give rise to a reciprocal obligation on all parties to Confederation to negotiate constitutional changes to respond to that desire. The conduct of the parties in such negotiations would be governed by the same constitutional principle that gave rise to the duty to negotiate. There was no legal obligation on the other provinces and federal government to accede to the secession desires of a province. Conversely, the other provinces and the federal government could not deny the right of Quebec to pursue secession. A failure of the duty to undertake negotiations and pursue them according to constitutional principles could undermine Quebec’s claim to legitimacy, which was generally a precondition for recognition by the international community. There was no legal right to effect unilateral secession under international law. International law recognized the right of a people to self- determination. This right was to be exercised within the framework of existing sovereign states and consistently with the maintenance of the territorial integrity of those states; only where this was not possible, when people were part of a colonial empire, were subject to alien subjugation, or were denied any meaningful exercise of their right to self-determination, would the right of unilateral secession arise. Quebec did not meet this threshold and did not have the right to effect unilateral secession. Any subsequent recognition of unilateral secession that was subsequently recognized would not retroactively create a legal right. 11 S. 53, which permitted references to the Supreme Court of Canada on important questions of law or fact concerning the interpretation of the Constitution Act, was constitutional as falling within s. 101 of the Constitution Act, 1867. As a general Court of appeal, the Court could receive original jurisdiction and render advisory opinions. The questions were within the scope of section 53 as requiring the interpretation of the Constitution Act, the interpretation of the powers of the legislature or government of a Canadian province, and as important questions of law or fact. The Court was permitted to determine the international law question as the answer would not purport to bind any international tribunal and the question was not purely one of international law. The Court was permitted to deal with hypothetical questions on a reference. The Court was not usurping any democratic decision belonging to the people of Quebec. The Reference questions raised issues of fundamental public importance. It could not be said that the questions were too imprecise or ambiguous to permit a proper legal answer or that the Court was provided with insufficient information. Thus, the Court was duty bound to provide its answers. The Rule of Law Roncarelli v. Duplessis (1959) SCC Facts: The plaintiff was a restaurant owner and holder of an annual liquor licence for many years. He was a member of the Jehovah Witnesses and acted as a bondsman in 1945 and 1946 when several hundred members of the religious sect were arrested for distributing pamphlets of an alleged seditious character. His annual liquor licence was cancelled in 1946 without any prior notice to him, whereby he was forced out of business. He claimed that the arbitrary and unlawful cancellation was done on order of the defendant, the Premier of Quebec. The defendant contended that the Liquor Commission exercised its discretionary power, that whatever he did was done in the exercise of his duties as Minister of the Crown. Decision and Reasoning: The Court found in favor of the plaintiff for the following reasons: 1. There was ample evidence to sustain the finding of the trial judge that the cancellation of the appellant’s licence was the result of an order given by the respondent to the Manager of the Commission. 2. The respondent’s acts were not justifiable as having been done in the exercise of his official functions as Attorney-General and Premier of Quebec. No authority could be found to enable the respondent, either as Attorney-General or Premier, to direct the cancellation of a licence under the Alcoholic Liquor Act. There is no evidence of any breach of that Act by the appellant. The respondent was not acting in the exercise of any official powers which he possessed in doing what he did in this matter. 3. The cancellation of the licence was not a lawful act of the Commission, acting within the scope of its discretionary powers as defined in s. 35 of the Alcoholic Liquor Act. The discretionary power to cancel a licence given to the Commission by the Act must be related to the administration and enforcement of that statute. It is not proper to exercise the power of cancellation for reasons unrelated to the intent and purpose of the Act; a broad statutory discretion is subject to an implied statutory duty to exercise it in accordance with the rule of 12 law. The association of the appellant with the religious sect and his furnishing of bail for its members, which were admittedly the reasons for the cancellation of his licence and which were entirely lawful, had no relationship to the intent and purpose of the Alcoholic Liquor Act. Furthermore, the right of cancellation of a licence under that Act is a substantial power conferred upon what the statute contemplated as an independent Commission. That power must be exercised solely by that corporation. It must not and cannot be exercised by any one else. In the present case this power was not, in fact, exercised by the Commission, but was exercised by the respondent, acting through the Manager of the Commission. Cancellation of a licence by the Commission at the request or upon the direction of a third party is not a proper and valid exercise of the power conferred upon the Commission by s. 35. Limits on the Rule of Law British Columbia v. Imperial Tobacco Canada Ltd. (2005) SCC Facts: By virtue of the Tobacco Damages and Health Care Costs Recovery Act, the BC government was authorized to recover from tobacco manufacturers any health care expenditures incurred by it in treating individuals exposed to tobacco products. The government sued the appellant tobacco manufacturers, who challenged the constitutional validity of the Act on the basis of the rule of law. The grounds were that the statute is retrospective, aimed at specific defendants and embodying presumptions in favour of the government which interferes with fair trial. This case exemplifies the tendency to try to expand the scope of the rule of law to include a general concept of fairness. Decision and Reasoning: The Act was constitutionally valid. The Court rejects this attempt to expand the rule of law. An expanded rule of law would duplicate and expand Charter rights and other constitutional principles, thereby trivializing them. The Act did not offend the rule of law as comprehended by the Constitution, because the rule of law did not require that all legislation be prospective. Nor did it require that legislation be general in character and devoid of special advantages for the government. Although the rule of law did not require that legislation ensure a fair civil trial, the tobacco manufacturers would receive a fair trial in any event. Reference re Manitoba Language Rights (1985) SCC Facts: This was a reference, pursuant to s. 55 of the Supreme Court Act, in respect of French language rights under s. 23 of the Manitoba Act, 1870 and s. 133 of the Constitution Act, 1867, which both provided that all legislative enactments of the Manitoba legislature must be printed and published in both English and French. However, in 1890 Manitoba enacted the Official Language Act which provided that Acts of the legislature needed to be printed and published in the English language only. Though this Act was held to be unconstitutional, bilingual enactments were never resumed and the Act remained on the statute books. An Act passed in 1980 provided for legislation introduced in one language to be translated into the other after enactment. In April 1984, by an Order in Council the following questions were referred to the Supreme Court of Canada: (a) whether the constitutional provisions regarding the use of English and French were mandatory; (b) whether the statutes and regulations not printed in both languages were invalid; (c) if invalid, whether the invalid enactments had any legal force and effect; (d) 13 whether any of the provisions of the 1890 Act was inconsistent with s. 23 of the Manitoba Act, 1870, and, if so, invalid. Decision and Reasoning: Questions (a) and (b) were answered in the affirmative. As regards question (c), the legislation involved would be deemed to have temporary validity until the period required for their translation, re-enactment, printing and publishing. As regards question (d), the 1890 Act was invalid in its entirety and of no force and effect if it was not enacted, printed and published in both official languages, and in any event, ss. 1 to 5 of the Act were invalid and of no force and effect. The drafters of the Constitution Act, 1867, deliberately selected the inoperative “shall” because they intended the language guarantees to be guarantees. Declaring the statutes invalid, without more, would create legal chaos and undermine the rule of law which requires a system of enforceable positive laws. The constitutional guarantee of the rule of law also required that Acts which would be valid but for their constitutional defect be deemed temporarily valid for the minimum period required for their re-enactment, printing and publishing. Constitutional Conventions Conventions are recognized as binding by the political actors, but they are generally not legally binding and cannot be enforced by the Courts; although, they may be recognized by the Court, provided they serve a proper purpose Some conventions will also give rise to substantive legal obligations (see Patriation Reference, Secession Reference); they may have powerful normative force, binding on Courts and governments Reference re Patriation (1981) SCC Facts: Three appeals arose out of references made to the Courts of Appeal of Manitoba, Newfoundland and Quebec by their respective provincial governments in respect of a “Proposed Resolution for a Joint Address to Her Majesty the Queen respecting the Constitution of Canada”. The references posed the following questions: 1. Does the proposed resolution affect federal-provincial relationships or provincial powers and, if so, in what respect or respects? 2. Is there a constitutional convention requiring the agreement of the provinces before a joint resolution of the House of Commons and Senate may be sent to the British Parliament requesting an amendment to the Canadian constitution affecting federal-provincial relations or provincial powers? 3. Is the agreement of the provinces constitutionally required for an amendment to the Canadian constitution affecting federal-provincial relationships or provincial powers? 4. What is the manner in which amendments to the Terms of Union under which Newfoundland joined Canada could be effected should the provisions contained in the proposed resolution be enacted? The proposed resolution which gave rise to the references would have had the effect of patriating the Canadian constitution, of providing a means to amend the constitution, and of limiting the powers of 14 both the federal and provincial governments by means of a Charter of Rights. The provinces of Ontario and New Brunswick supported the proposed resolution while all other provinces opposed it. Decision and Reasoning: The Court answered "yes" to questions (1) and (2), "as a matter of law, no" to question (3), and confirmed the Newfoundland Court of Appeal answers to the fourth question on that reference with one correction. The proposed resolution, if enacted, clearly would affect federalprovincial relations or provincial powers and this was conceded by all parties. It was also agreed that there was no need to decide in what respect or respects these matters would be affected. The second question posed was not read as asking whether there was a constitutional convention requiring the agreement of all the provinces. The Court was of the view that, in a constitutional reference, it could interpret the question if it might be misleading or it could qualify both the question and the answer. The constitution includes: 1. British and Canadian constitutional statutes 2. The common law of Crown prerogative 3. Conventions initially developed in 19th century England and then exported and developed in colonies as they acquired self-government These constitutional conventions, based on custom and precedent, were usually unwritten and amounted to constitutional requirements. Their purpose is to ensure that the constitution operates in accordance with prevailing constitutional values. However, conventions are not judge-made rules and are not enforced by Courts. Conventions often narrow legal requirements by specifying how they will work. Three questions to be asked in determining whether a constitutional convention existed are: 1. What are the precedents i.e. how did the political actors act in the past? 2. Did the actors believe they were bound by a rule or practice? 3. Is there a reason for the rule or practice? In the past, amendments did not proceed without the agreement of a province whose legislative powers would be affected, but consensus had never been reached on an amending formula. It makes sense to require provincial consent to an amendment that affects provincial jurisdiction. In a federal state, neither level of government is subordinate to the other. The Court decides that there is a convention requiring substantial support, but they do not quantify how much support is required and from which provinces. Constitutional Supremacy Enshrined in Constitution Act 1982, s.52(1) Makes explicit what was implicit namely that the constitution is supreme and laws that are inconsistent with the constitution are of no force and effect The Constitution is entrenched beyond the reach of majority rule except for the s. 33 of the Charter, the override clause and the amendment process 15 Constitutional supremacy is seen in the Reference re Secession because the Court says democracy (majority rule) cannot override constitutionalism to alter the fundamental balances of political power Constitutionalism says that all government action must comply with the constitution (see Constitution Act 1982, s.52(1)) and the rule of law says that all government action must comply with the law, including the constitution the two fundamental principles are really just one concept Constitutionalism and the rule of law are not in conflict with democracy, but are essential to it – democracy doesn’t just mean majority rule, it means majority rule with a system of checks and balances Enforcing Constitutional Supremacy Courts develop the common law, consistent with constitutional values Courts interpret and apply statutes and assess their validity, in compliance with the constitution Adjudication is the means of asserting constitutional supremacy over constitutional conflicts and so the adjudicator must be independent of government The model for adjudication differs between countries: o US – constitutional issues are determined by the federal Courts and the US Supreme Court o South Africa – there is a special constitutional Court o Canada – constitutional issues are decided by the ordinary Courts, with appeals to Courts of appeal and the SCC Judicial authority to adjudicate the validity of statutes comes from: o Colonial Laws Validity Act (UK, 1865) which says that domestic laws of the colonies must be consistent with UK Imperial Statutes; colonies could not introduce legislation that was inconsistent with the Imperial Statutes and if they did, that legislation is invalid o The Constitution Act 1867, which was an Imperial Statute, held that Courts should adjudicate challenges to the jurisdictional validity of federal and provincial legislation o The Statute of Westminster (1931) repealed the CLVA except in so far as it applied to the Constitution Act 1867 o The Canada Act 1982 repealed the Statute of Westminster and enacted the Constitution Act 1982, s. 52(1) – a new source of authority for judicial review of legislative validity Constitutional supremacy is a check on majority rule in favour of: o Individuals and minority groups (under the Charter) o Regional populations (under federalism) The framers of a constitution anticipate for the future what values deserve protection from majority preferences; however, changes can be made through amendment as times change Nova Scotia (Workers’ Compensation Board) v. Martin (2003) SCC Facts: This appeal poses the question of whether or not administrative tribunals could decide constitutional issues. Laseur and Martin sustained workplace injuries and were unable to return to work due to chronic pain. The Board denied their applications to receive further benefits, and they appealed 16 to the Workers’ Compensation Appeals Tribunal, arguing that s. 10B of the Workers’ Compensation Act and the Functional Restoration (Multi-Faceted Pain Services) Program Regulations violated section 15(1) of the Charter by limiting compensation for chronic pain to four weeks. The Appeals Tribunal found that the chronic pain provisions violated the Charter. In allowing the Board’s appeal, the Court of Appeal held that the Appeals Tribunal did not have the jurisdiction to decide whether provisions under the Act and Regulation were constitutional. Decision and Reasoning: Whether a tribunal can decide a constitutional issue depends on the mandate of the tribunal, i.e. whether it has jurisdiction to interpret the law. If so, it has power to determine the law’s constitutional validity. However, tribunals’ decisions on validity do not operate as precedents for other Courts and tribunals and in any event, they are subject to judicial review by the Courts. In this case, the Appeals Tribunal had jurisdiction to interpret and apply the Charter with respect to the Act and Regulation. Pursuant to the Act, the Appeals Tribunal had jurisdiction to decide questions of law, and therefore it had the jurisdiction to decide issues of constitutionality. The chronic pain provisions violated the Charter. They clearly imposed differential treatment on chronic pain sufferers on the basis of the nature of their disability, which was an enumerated ground under section 15. Adapting the Constitution A constitution must adapt to changing conditions. It can be interpreted by three separate methods: 1. Constitutional interpretation, which includes: a. The originalist approach o Placing the dead hand of history on the Constitution b. The progressive or “living tree” approach o Interpret the constitution in a manner that makes sense of the words used at the time it is being interpreted o When there is ambiguity in the words of the Constitution, the Court can interpret these words in the scope of modern meaning, but only if the words are susceptible to that interpretation c. The purposive approach to rights guaranteed in the Charter o Interpret the Constitution within the terms it was intended 2. The SCC may rely on unwritten constitutional principles to fill gaps in the constitution (as in the Reference re Secession) 3. Parliament and legislatures may amend the constitution in accordance with the amendment formulas provided in Part V of the Constitution Act 1982 Edwards v. Canada (Attorney General) (1930) JCPC Facts: The case, put forward by a group of women known as the Famous Five, went all the way to the Imperial Privy Council, then the Court of last resort for Canada, and was a landmark case in at least two respects. The persons case established that Canadian women were eligible to be appointed senators and more generally, that Canadian women had the same rights as Canadian men with respect to positions of political power. Second, it established what came to be known as the living tree doctrine, which is a 17 doctrine of constitutional interpretation that says that a constitution is organic and must be read in a broad and liberal manner so as to adapt it to changing times. Decision and Reasoning: Lord Sankey proposed an entirely new approach to constitutional interpretation that has since become one of the core principles of constitutional law in Canada. The British North America Act planted in Canada a living tree capable of growth and expansion within its natural limits. The object of the Act was to grant a Constitution to Canada. Like all written constitutions it has been subject to development through usage and convention. Their Lordships do not conceive it to be the duty of this Board to cut down the provisions of the Act by a narrow and technical construction, but rather to give it a large and liberal interpretation so that the Dominion to a great extent, but within certain fixed limits, may be mistress in her own house, as the provinces to a great extent, but within certain fixed limits, are mistresses in theirs. From this the approach became known as the living tree doctrine which requires a large and liberal interpretation. Amending the Constitution Until 1982, the constitution was a UK statute and was amended by the UK Parliament, on request from Canada Various attempts to agree on an amending formula came to nothing until, finally, a federal initiative to patriate the constitution and adopt the Charter was successful To answer some questions about this federal initiative, the Reference re Patriation was brought before the SCC where it was decided that the federal government cannot proceed unilaterally to seek amendment of the constitution; substantial agreement of the provinces is required Federal-provincial conference: all provinces agreed to support the request to the UK, except Quebec Under Part V of the Constitution Act 1982, the constitution can be formally amended through five different processes (see chart below) Under s. 47, when the House of Commons passes a resolution approving an amendment, and the Senate does not approve the resolution within 180 days, the House of Commons can adopt the resolution again and that will constitute sufficient approval When all necessary approvals have been given to an amendment, the Queen’s Privy Council for Canada so advises the Governor General to issue the proclamation Attorney General of Quebec v. Attorney General of Canada (1982) SCC Facts: This constitutional reference raised the issue of whether the adoption by the Senate and House of Commons of Canada of the resolution, which subsequently led to the passage in the UK of the Canada Act, 1982, over the objection of Quebec was unconstitutional in the conventional sense. Quebec advanced two alternate arguments. First, it was argued that unanimous provincial consent was required for any constitutional amendment which altered federal-provincial relationships. Secondly, Quebec argued that, by constitutional convention, it had a veto over any constitutional amendment which affected its role or status within the Canadian federation. A preliminary issue was whether the Court should answer the question since it was a purely political question and because the question was now 18 moot, the Canada Act, 1982 now being law and the legality of which was neither challenged nor assailable. Decision and Reasoning: The Court had addressed itself in the First Reference to the question of whether unanimous provincial consent was required to a constitutional amendment which directly affected federal-provincial relationships and it unanimously concluded that unanimous consent was not required. With respect to the second argument, the appellant failed to establish a constitutional convention which gave the Province of Quebec a veto over constitutional change which affected its role or status within the Canadian federation. Formulas for Amendment, Part V of the Constitution Act 1982 FORMULA DESCRIPTION General formula Requires agreement of (s. 38) Parliament and the legislatures of at least 2/3 of provinces with 50% of population If the amendment derogates from the powers or rights of a province, it will not apply in a province that does not support it, provided the legislature passes a resolution of dissent (which is revocable) The proclamation of amendment is not issued until either one year has passed or all provinces have assented or dissented (s. 39) Canada shall compensate provinces who do not assent to a transfer of provincial powers re education and culture (s. 40) Unanimity of Parliament and legislatures (s. 43) Approval of APPLICATION All matters not specifically addressed in other sections Proportionate representation of the provinces in the House of Commons Senate: powers, selection process, number from each province, residence qualifications Supreme Court of Canada (other than composition) Extension of provinces into territories Establishment of new provinces Office of the Queen, Governor General, Lieutenant Governor of a province Right of province to number of members in House of Commons not less than number of Senators (as of 1982) Use of English or French language (subject to s. 43) Composition of Supreme Court of Canada An amendment to the amending formula Alterations to provincial boundaries 19 Parliament and legislatures of affected provinces (s. 43) Parliament unilaterally (s. 44) Use of French or English within a province Provinces unilaterally (s. 45) Changes to executive government of Canada, Senate and House of Commons (subject to ss. 41 and 42) Provincial constitutions (subject to s. 41) Reference re Legislative Authority of Parliament to Alter or Replace the Senate (1980) SCC Facts: By Order in Council, the Governor-General in Council referred to the Court for hearing and consideration two questions: 1. Was it within the legislative authority of the Parliament of Canada to repeal ss. 21 to 36 of the B.N.A. Act, 1867, as amended, and to amend other sections of that Act so as to delete any reference to an Upper House or the Senate; 2. Was it within the legislative authority of the Parliament of Canada to enact legislation altering, or providing a replacement for, the Upper House of Parliament, so as to effect any or all of the following: a. To change the name of the Upper House; b. To change the numbers and proportions of members by whom provinces and territories were represented in that House; c. To change the qualifications of members of that House; d. To change the tenure of members of that House; e. To change the method by which members of that House were chosen; or f. To provide that Bills approved by the House of Commons could be given assent and the force of law after the passage of a certain period of time notwithstanding that the Upper House had not approved them. Decision and Reasoning: The first question was answered in the negative. Subquestions 2(b), 2(e)(iv) and 2(f) were also answered in the negative. The other subquestions in question 2, in the absence of a factual background, could not be answered categorically. Parliament did not have the legislative authority to abolish the Senate. Parliament could not provide under the power to amend the Constitution for legislation to be enacted without the consent of the Senate. It was not within the authority of Parliament under the power to amend the Constitution to substitute a system of election for a system of appointment of members of the Senate. THE EXERCISE OF PUBLIC POWER IN CANADA The Separation of Powers Governmental functions are divided among three branches: 1. Legislative (making the law) 20 2. Executive a.k.a. the Cabinet (implementing the law) 3. Judicial (applying the law) In the Canadian system, powers overlap between the legislative and executive branches: o Members of the Cabinet sit in Parliament and the legislature o The Head of State acts on the advice of the Cabinet o The Cabinet is subordinate to the legislative branch This differs from the US presidential system where there is a complete separation of powers with checks and balances on the concentration of government power Legislative Power The federal legislature is a bicameral system with an elected House of Commons and an appointed Senate Provincial legislative power is exercised through elected legislatures Federally and provincially, legislative power is derived from the Constitution while subordinate governments (e.g. municipal governments) derive their power from provincial statutes Parliamentary Supremacy The principle of parliamentary supremacy was: o Established in the UK after a long struggle to bring the Crown and the executive under the authority of the elected parliament o Imported into Canada through the preamble to the Constitution Act 1867: “A constitution similar in principle to that of the UK” o Modified by the federal system which divides legislative power between two levels of government o Further modified in 1982 with the adoption of the Charter o Subject to the override power (s.33) and the amendment procedure (Part V) Babcock v. Canada (Attorney General) (2002) SCC Facts: Vancouver Department of Justice lawyers brought an action against the Government arising out of a pay raise given to Toronto Department lawyers. In its list of documents, the Government listed a number of documents as producible. Two years after the Government delivered its list of documents, it delivered a certificate of the Clerk of the Privy Council pursuant to section 39(1) of the Canada Evidence Act. The certificate indicated that the Government objected to the disclosure of certain documents on the ground that they contained information constituting confidences of the Privy Council. Judges were required to refuse applications for disclosure of certified information without examining the information sought to be disclosed. Decision and Reasoning: The federal legislation conferring on Cabinet the power to protect its documents from disclosure without judicial review is valid federal law. It is consistent with the rule of law and does not undermine the independence of the judiciary or fundamentally alter the relationship between the Courts and other branches of government. Parliamentary supremacy is very broad and subject to very few limits. Parliamentary supremacy does not mean that the legislature always has to act fairly, unless you can come up with some infringement of a right. 21 Executive Power The executive includes the Cabinet, government ministries, civil servants, the armed forces, Crown corporations and statutory bodies carrying out governmental functions The executive is subordinate to the legislature and derives its authority mainly from legislation Responsible government: the executive is responsible to the legislature Judicial Power The Courts have constitutional law jurisdiction to determine whether: o Legislation is invalid in that it exceeds the jurisdiction of the enacting legislature o Legislation or government action infringes the Charter in a manner that cannot be justified, and, if so, what is the just and appropriate remedy? The Courts have administrative law jurisdiction to determine whether government action is authorized by statute The Courts have ordinary jurisdiction to: o develop and apply the common law o interpret and apply valid statute law The principle of judicial independence says that it is essential in a constitutional democracy to enforce constitutional supremacy and the rule of law; the Courts must be insulated from pressure and free to decide matters in accordance with law and principle Judicial independence must be upheld to preserve confidence in the administration of justice and to enforce constitutional supremacy and the rule of law THE COURTS AND THE JUDICIARY Structure of the Canadian Court System The Constitution Act, 1867 provides for divided jurisdiction re Courts o Provincial jurisdiction is enshrined under s. 92(14): “The Administration of Justice in the Province, including the Constitution, Maintenance, and Organization of Provincial Courts, both of civil and of Criminal Jurisdiction, and including Procedure in Civil Matters in those Courts” o Federal jurisdiction is set out under s. 96: “The Governor General shall appoint the Judges of the Superior, District, and County Courts in each Province” o Federal jurisdiction is further set out under s. 100: “The Salaries, Allowances and Pensions of the Judges of the Superior, District and County Courts shall be fixed and provided by the Parliament of Canada” In s. 96 superior Courts, provinces provide facilities and staff while the federal government appoints and pays the judges In inferior provincial Courts, provinces provide facilities and staff, as well as appoint and pay judges 22 Another type of Court is established by s. 101: “the Parliament of Canada may, notwithstanding anything in this Act, from Time to Time provide for the Constitution, Maintenance and Organization of a General Court of Appeal for Canada, and for the Establishment of any additional Courts for the better Administration of the Laws of Canada” o In s. 101 Courts, the federal government makes appointments, and provides facilities and staff o Courts established by s. 101 include the SCC, the Federal Court of Canada and the Tax Court of Canada Provincial Courts “Inferior” Courts In Ontario, the provincial Court is the Ontario Court of Justice Its jurisdiction includes: o Most criminal matters and preliminary inquiries in those matters o Family law except divorce (why? – see Constitution Act 1867, ss. 91 and 92: marriage and divorce are under federal jurisdiction) o Youth offenders o Offences under provincial legislation Some provincial Courts are designated with special jurisdiction such as: o Drug treatment Court o Youth Court o Domestic violence Court Section 96 Courts “Superior” Courts Each province and territory has a superior Court which has “inherent jurisdiction”: can hear cases in any area except those that are specifically limited to another level of Court Superior Courts try the most serious criminal and civil cases and they exercise appellate jurisdiction over cases from the inferior Courts In some provinces, the Court has special divisions e.g. the family division, the commercial list The Court organization, structure and statutory framework is established by the provincial or territorial legislature, but the judges are appointed and paid by the federal government under federal statute Courts of Appeal Each province and territory has a Court of appeal or appellate division that hears appeals from decisions of the superior Courts and the provincial/territorial Courts By statute, a Court of appeal may be required to decide questions (a.k.a. references) that are referred directly to the Court by the provincial government (see Courts of Justice Act, s. 8) Courts of Appeal usually sit in panels of three, but may sit as five in an important case Jurisdiction is specified in provincial statute ( in Ontario, it is the Courts of Justice Act) The judges are appointed and paid pursuant to federal statute (see federal Judges Act) 23 Federal Courts Superior Courts with civil jurisdiction, created by Act of Parliament pursuant to Constitution Act 1867, s. 101; they include: o Federal Court (Trial Division) o Federal Court of Appeal The jurisdiction of federal Courts is limited to matters specified in federal statutes i.e. they are not Courts of inherent jurisdiction Federal Courts have: o Jurisdiction re intellectual property, citizenship and immigration, competition, appeals from the Tax Court, etc. o Exclusive jurisdiction over federal boards and tribunals o Shared jurisdiction (with provincial superior Courts) re federal-provincial matters Headquarters in Ottawa, sits in other centres across the country Specialized federal Courts include the Tax Court and Courts Martial The Supreme Court of Canada Final Court of appeal from all other Canadian Courts (unlike the US Supreme Court, whose jurisdiction is limited to Constitutional and federal law) It is composed of a Chief Justice and eight puisne judges, all appointed by the federal government The Supreme Court of Canada Act requires that at least three judges be from Quebec; by convention, three are from Ontario, one from the Atlantic provinces and two from the four western provinces (in rotation) Most cases come to the SCC through “leave to appeal” granted by a panel of three judges from the SCC or by the Court of appeal that heard the case o The applications for leave to appeal are made in writing o No reasons are given for decisions to grant or not grant leave to appeal; where leave to appeal is denied, it does not mean that the SCC approves the decision below o The grounds for granting leave are specified in the SCC Act: if leave is granted, it is because the case addresses either: A question of public importance, An important issue of law or mixed law and fact, or An otherwise significant issue (e.g. when Courts of appeal have reached inconsistent results on the same issue) o According to s. 690 of the Criminal Code, leave to appeal is automatic (a.k.a. an appeal as of right) when: The Court of appeal has overturned an acquittal One judge in the Court of appeal dissented on a question of law o Also, leave is granted for references: the SCC Act provides jurisdiction for the federal government to refer questions to the SCC for determination 24 Limits on Provincial Jurisdiction What jurisdiction can the provincial legislatures confer on “inferior” provincial Courts and tribunals? The SCC has employed s. 96 to maintain the jurisdiction of the superior Courts, and prevent it being reassigned by the provinces to their inferior Courts and tribunals The Courts have interpreted s. 96 to: o Protect the core functions of the superior Courts; o To maintain a unitary Court system; and o To ensure that the superior Courts continue to exercise inherent jurisdiction to decide questions of constitutionality Reference re Residential Tenancies Act (1981) SCC Facts: The SCC ruled on an appeal from a decision of the Ontario Court of Appeal on a constitutional reference. The Court of Appeal had held that the Residential Tenancies Act was ultra vires the Province insofar as it purported to give the Residential Tenancy Commission exclusive powers to make orders evicting tenants from residential premises and to make orders requiring landlords and tenants to comply with obligations under the Act. Decision and Reasoning: The Court applied a three-stage test in considering the impugned legislation: 1. The first stage involves consideration whether the power or jurisdiction conferred on the tribunal conforms to the power or jurisdiction exercised by superior, district or county Courts (s. 96 Courts) at the time of Confederation; 2. If so, then it must be determined whether the function remains ‘judicial’ when considered in its institutional setting (is there a matter a.k.a. “a lis” to be decided on legal grounds?); 3. If the function remains ‘judicial’, it is necessary to consider whether the institutional setting is fundamentally judicial. There was no doubt that the powers given to the Residential Tenancy Commission were analogous to the kind of powers historically exercised by the s. 96 Courts. Within their institutional setting, the powers to order eviction or compliance renamed ‘judicial’. The hallmark of a judicial power is a lis or dispute between parties in which a tribunal is called upon to apply a recognized body of rules in a manner consistent with fairness and impartiality. The adjudication must deal primarily with the rights of the parties to the dispute, rather than the collective good of the community as a whole. The discretion of the Commission in deciding disputes, to decide “upon the merits and justice of the case”, was not different in kind from the discretion given to s. 96 Courts. In applying the third stage of the test, the Court decided that the central function of the Commission was resolving disputes. Its other functions were either ancillary to this function or distinct from it. The chief role of the Commission was not to administer a policy or to carry out an administrative function. The Act specified no particular qualifications or experience as essential to appointment to the Commission. The Commission was in no way a specialized agency, like a labour relations tribunal composed of experts in a particular field. 25 Provincial legislature can confer non-judicial functions on Courts or tribunals and it can confer judicial functions on non-Courts, except that it cannot divert the powers of s.96 Courts to provincial Courts or tribunals (whose members are not appointed by the federal government). Judicial Appointments There are three alternative models for selecting judges in various jurisdictions: 1. Nomination committees with various appointment processes 2. Nomination with confirmation hearings 3. Direct election In the US, federal judges are nominated by the President, confirmed by Senate and serve during good behavior until they resign or are impeached and convicted by Congress; state judges are often elected and generally serve for fixed terms There are certain problems with election of judges: o Impact on judicial independence o Financing the costs; contributions detract from appearance of impartiality o Playing to the electorate; constraining choice in future cases Provincial Judicial Appointments In Ontario, the provincial appointment process goes as follows: 1. Vacancies are advertised 2. Candidates submit applications 3. Applications are reviewed by the advisory committee (which is comprised of seven lay members appointed by the Attorney General, six being from the legal community – the composition is supposed to reflect the diversity of Ontario in gender, geography, race and culture) 4. Committee does reference checks, makes confidential inquiries and conducts interviews 5. Committee sends ranked list to the Attorney General who appoints from that list Criteria for appointment includes: o Personal and professional qualities and experience o Community awareness exemplified in: Commitment to public service Awareness of social problems giving rise to Court cases Sensitivity to changes in values re criminal and family matters o Interest in methods of dispute resolution alternatives to formal adjudication and interest in community resources available tor participating in the disposition of cases o Demographics: judiciary should be reasonably representative of the population In Ontario, there is little criticism that appointments are political Federal Judicial Appointments Office of the Commissioner for Federal Judicial Affairs oversees the federal judicial appointment process which goes as follows: 26 1. Personal history form 2. Statutory qualifications (10 years at the bar or on the bench) 3. Review by the appropriate Judicial Advisory Committee which represents bench (although the judge on the Committee serves as chair and only votes in the event of a tie), bar, law enforcement and the public – each nominating organization or office submits names from whom a representative committee can be appointed by the Minister of Justice for a two year term, with possibility of one 2-year renewal 4. Confidential consultation within Committee 5. Committees assess candidates as “recommended” or “unable to recommend” (“highly recommended” was recently removed by the Minister) – results are confidential and solely for the Minister’s use (assessments are valid for two years at which time candidates can renew them) 6. Minister can consult elsewhere and ask Committee for a reassessment 7. Minister of Justice makes recommendation to cabinet re puisne judges and the Prime Minister makes recommendation re Chief Justices 8. Appointments are made by the Governor General on the advice of the federal cabinet Criteria for appointment includes: o Professional competence and experience: General proficiency in the law Intellectual ability, analytical skills, ability to listen, ability to maintain an open mind while hearing all sides of an argument, ability to make decisions, capacity to exercise sound judgment Reputation among peers and in general community Areas of specialization Ability to manage time and workload, capacity to handle heavy workload, capacity to handle stress and pressures of judicial isolation Interpersonal skills with peers and public Awareness of racial and gender issues Bilingual ability o Personal characteristics Ethics Patience Courtesy Honesty Common sense Tact Integrity Humility Punctuality Fairness Reliability Tolerance 27 Sense of responsibility Consideration for others o Potential impediments: Debilitating physical or mental medical condition, including substance dependency Past or current disciplinary actions Current or past civil or criminal actions Financial difficulties Candidates need to consider the potential impact on them and their families Criticisms of the federal judicial appointment process include: o The pool of recommended and highly recommended candidates is so large that recommendations to Cabinet may be influenced by political considerations and now that “highly recommended” is removed, the problem is more severe; the Canadian Judicial Council denounced this and other recent changes, which were implemented by the Minister of Justice without consultation Parliamentary committee’s suggestions for reform include: o The Minister should consult with Chief Justices and define criteria for each appointment o The Committee should recommend the best 3-5 candidates o Candidates should be interviewed (in private) The changes made in 2006 by the Minister of Justice did not respond to these concerns; instead, by appointing a representative of law enforcement to the advisory committees and making the judge non-voting, a majority of each committee is now appointed by the Minister Supreme Court of Canada Appointments There have recently been arguments for more transparency in the appointment process as the Court plays a significant role in judicial review of legislative action The appointment process is already political, but underground In 2004, the Minister of Justice presented the names of his nominees to the Standing Committee on Justice and answered questions on the search process and qualifications of the two nominees (Justice Charron and Justice Abella of the Ontario Court of Appeal) In 2005, the Minister of Justice proposed to appoint a replacement for Justice Major o Overriding considerations: merit and needs of the Court re expertise o Executive branch is constitutionally responsible for the appointment o Protect and promote the reality and perception of judicial independence o Transparency, public understanding and confidence o Meaningful Parliamentary input and provincial input To advance these goals, the Minister proposed the following 4-stage process: 1. Minister conducts consultations 2. Advisory committee appointed as each vacancy arises o Composition of committee: an MP from each recognized party, a retired judge, a nominee of the provincial AGs, the law societies, two prominent Canadians o Mandate of committee: 28 Vet the merit of candidates identified by the Minister against criteria provided by the Minister Provide an unranked list of three candidates, with an assessment of their merit and a report of consultations 3. Minister consults further and provides advice to Prime Minister, who makes a recommendation to Cabinet, generally from the short list 4. Minister appears before Justice Committee after the appointment to explain the process and the professional and personal qualities of the appointee This proposal was rejected by Conservative opposition, who wanted the chosen nominee to be ratified by Parliament Before any appointment was made, an election was held and Conservatives won In early 2006, PM Harper announced a hybrid plan including questioning of the nominee in a parliamentary committee PM recommended appointment of Mr. Justice Rothstein, who had been on the short list of the preceding government He was questioned in a public hearing by a parliamentary committee o The process was highly scripted and controlled; committee members generally respected the guidelines re the impropriety of questions about how he had decided past cases or how he would decide future cases o The Canadian Bar Association denounced the process on grounds that open questioning will ultimately impair judicial independence Note that the latest appointment to the SCC, Hon. Justice Thomas Cromwell, was not made in accordance with these processes. He did not appear before a parliamentary committee Appointment of Justice Cromwell In 2008, Stephen Harper officially appointed Thomas Cromwell of the Nova Scotia Court of Appeal to the Supreme Court, bypassing a parliamentary hearing process the prime minister has championed to more openly scrutinize nominees Cromwell replaces Michel Bastarache, who told the chief justice that he would retire at the end of the Court’s spring session The statement said Harper personally consulted with interim Liberal Leader Michael Ignatieff before making the appointment Cromwell was expected to appear before an all-party parliamentary committee to be interviewed before his Official appointment as part of a new selection process to the top court implemented in 2006. Justice Marshall Rothstein became the first nominee to undergo a public review by members of Parliament. He is the only justice to take part in that process Despite the review, Harper still has final power to approve or quash the nomination, which has sparked some critics to dismiss the exercise as meaningless 29 Judicial Independence Judicial independence means the freedom to render decisions based solely on the requirements of the law and justice, without interference from any other entity and particularly from the executive and legislative branches of government Assessing Independence The test for assessing independence is whether a reasonable person who is fully informed of all the circumstances would consider that a particular court enjoyed the necessary independent status o There must be actual independence o There must be conditions supporting a reasonable perception of independence Canada (Minister of Citizenship and Immigration) v. Tobiass (1997) SCC Facts: The Minister applied to revoke the citizenship of the appellants, Tobiass et al., who were allegedly involved in Nazi war crimes. The Assistant Deputy Attorney met with and wrote to the Chief Justice of the Federal Court about concerns with the slow pace of proceedings. The Associate Chief Justice, before whom the matters were being heard, excused himself. Stays of proceedings were granted on the ground of breach of judicial independence. The Minister’s appeal was allowed and the stays were set aside. Tobiass et al. appealed to the Supreme Court. Decision and Reasoning: Appeal dismissed. Appearance of judicial independence suffered greatly. A reasonable observer apprised of the workings of the Federal Court and of the circumstances would perceive that the CJ and ACJ were improperly and unduly influenced. However, there was no persuasive evidence of bad faith, nor was there any solid evidence that the independence of the judges was compromised. A stay of proceedings was inappropriate. The lesser remedy of ordering the cases forward under the supervision of another judge without any direction or intervention from the CJ or the ACJ would suffice. There was no likelihood that doing so would result in abuse. Canada’s interest in not giving shelter to those who concealed participation in wartime atrocities outweighed any foreseeable harm. The judiciary must be independent and be seen to be independent – there must be complete liberty of individual judges to hear and decide the cases that come before them, which means no interference (by government, pressure group, individual, another judge) with the way in which a judge conducts the case or makes the decision. Core Characteristics of Judicial Independence Three core characteristics: 1. Security of tenure 2. Financial security 3. Administrative independence The criteria apply in two dimensions: 1. Independence of individual judges 30 2. Institutional or collective independence – without institutional independence, no individual judge can be independent Security of Tenure A judge cannot be removed from office except for incapacity to perform his or her judicial duties o There must first be a judicial inquiry at which the judge is entitled to be heard Superior court judges can be removed from office only by a joint address of the House of Commons and Senate (see s. 99 of the Constitution Act, 1867) o s. 99: subject to subsection 2, the judges of the superior court judges shall hold office during good behavior but shall be removable by the Governor General on address of the Senate and the HoC… There is security of tenure, but this only applies to federally appointed judges of the SCC This leaves all provincial court judges with their interests not protected by the Constitution Act, 1867 1867-81: four cases came before Parliament; none were successful 1960’s: Justice Leo Landreville – resigned before the matter was heard by Parliament Judges Act was amended in 1971 to establish the Canadian Judicial Council o The Council is responsible for investigating complaints against federally appointed judges o The Council may recommend to Minister of Justice the removal of the judge from office and then the Minister may introduce the resolution in Parliament o The Council’s objective is to promote efficiency and uniformity and improve the quality of judicial service in the superior courts o To review an alleged error in the case, you can take an appeal o To complain about conduct of judge, you can complain to Judicial Council, which entails: Review by a member of the Judicial Conduct Committee If there is an issue to answer, the complaint is referred to the judge and the judge’s chief justice for comment, with a view to resolution If not resolved, refer to a panel of up to five members of Council; the panel either recommends a formal hearing, or closes the file with an expression of concern, or other remedial measures Council considers a report of an Inquiry Committee and makes a recommendation to the Minister On average, there are about 165 complaints per year (mostly re family law); 66% are concluded within three months and over 94% concluded within six months Financial Security Judicial independence precludes government from using its power to set judicial salaries as a means of applying pressure on judges 31 In the 90’s, cost-cutting provincial governments proposed to reduce the salaries of provincial judges… Reference re the Remuneration of Judges of the Provincial Court of PEI (1997) SCC Facts: The legislation of three provinces reduced provincial court judges’ salaries by an across-the-board percentage that applied to all persons in the public sector. Because the judges were members of inferior courts, ss. 99 and 100 did not apply and the case was decided under s. 11(d) of the Charter. Decision and Reasoning: Remuneration schemes in the three provinces were unconstitutional. As a general constitutional principle, salaries of provincial court judges could be reduced, increased or frozen. To avoid the possibility or appearance of political interference, a body must be interposed between the judiciary and the other branches of government to depoliticize the process of determining such changes or freezes to judicial salaries. This salary commission would have the task of issuing a report on the salaries and benefits of judges to the executive and the legislature. Provinces would thus be under a constitutional obligation to establish bodies which are independent, effective and objective. Any changes to or freezes in judicial remuneration made without prior recourse to the body, would be unconstitutional. The composition of the salary commission was stipulated by the Court. Independence of the judiciary implies freedom from executive or legislative encroachment and political pressures and freedom from financial or business entanglement. Financial security has three components that flow from the constitutional imperative that the relationship between the judiciary and the other branches of government be depoliticized: 1. Salaries of provincial court judges can be reduced, increased or frozen as part of an overall economic measure But, any changes require prior recourse to an independent, effective and objective commission The Commission’s recommendations are not binding, but should not be set aside lightly, and departures must be justified Governments are constitutionally bound to go through the commission process 2. Judges collectively and individually must not engage in negotiations over remuneration with the executive or legislature 3. Any reductions to judicial remuneration must not take those salaries below a basic minimum level of remuneration which is required for the office of a judge The salary commissions must be: Independent, in order to create the necessary buffer o Security of tenure for a fixed term o Appointments not entirely controlled by any one of the branches of government Objective – recommendations should be based on objective criteria, not political expedience; the Commission should receive submissions from government and the judges’ association; the statute should list relevant factors to consider 32 Effective: o Government cannot change or freeze remuneration without receiving and considering Commission’s report o Commission meets and reports after a fixed period has expired since last report (3 to 5 years) o Options to achieve these goals are: Make Commission’s report binding Make it binding unless legislature votes to reject or amend Make it subject to legislative approval It is open to governments to design a different approach as long as it provides an effective institutional sieve between the judiciary and other branches of government Provincial Court Judges’ Association v. New Brunswick (2005) SCC Facts: After the Reference re Remuneration, all governments were forced to establish judicial compensation commissions. The commissions typically recommended much higher increases to the judges than were received by civil servants and several provincial governments balked at the recommendations. The judges sought judicial review of the government’s refusals. This case was about whether provincial court judges in New Brunswick, Ontario, Albert and Quebec should be paid exactly what the provincial commissions recommended. Decision and Reasoning: The SCC said that the provincial commissions’ recommendations would be considered rational if they were: 1. 2. 3. 4. 5. 6. Legitimate Complete Meaningful In good faith Reveal a consideration of the judicial office Rely upon a reasonable factual foundation If the rationality standard is not met, the appropriate remedy by the reviewing court will generally be to return the matter to the government for reconsideration – in other words, all that can be achieved on judicial review is a reconsideration by government. In this case, the rationality of the reasons was upheld in all cases except for Quebec. This case clarified that a commission’s report is only consultative – the legislature may decide to make it binding. The government can reject the commission’s recommendation, but must provide adequate and rational reasons for doing so. These reasons should reflect the underlying public interest in depoliticizing the commission process. Administrative Independence See Canada v. Tobiass 33 Constitutional Sources of Judicial Independence Constitution Act, 1867 o s. 92(14): provincial legislatures have jurisdiction to establish and maintain the Courts o s. 101: Parliament has jurisdiction to establish a general court of appeal for Canada (the SCC) and courts for the better administration of the laws of Canada o s. 96: Federal government has power of appointment of superior, county and district court judges o s. 99: judges of the superior courts hold office during good behaviour until age 75 and can be removed only on joint resolution of Commons and Senate (security of tenure) o s. 100: salaries, allowances and pensions of superior court judges are fixed and provided by Parliament (some financial security) Charter o s. 11(d): any person charged with an offence (criminal or penal, federal or provincial) has the right …(d) to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal Preamble to the Constitution Act, 1867 (as an unwritten principle) o A constitution similar in principle to that of the UK o Judicial independence is an unwritten norm, recognized and affirmed by the preamble; in fact, it is in that preamble, which serves as the grand entrance hall to the castle of the constitution, that the true source of our commitment to this foundational principle is located (from the Reference re Remuneration) Act of Settlement 1701 o The preservation of the basic structure of government is a constitutional imperative o Judicial independence is essential to the judicial role and the effectiveness of the judicial branch The Principle of Judicial Independence Ell v. Alberta (2003) SCC Facts: The province of Alberta enacted legislation elevating the qualifications required for justices of the peace. Thos existing justices who did not meet the new qualifications (they now had to be lawyers) were removed from office. They challenged their removal. Decision and Reasoning: The justices were not covered by the express guarantee of independence in s. 99 because they were not superior court judges. Nor were they covered by s. 11(d) because they did not try criminal cases. However, they did perform the judicial functions of presiding over bail hearings and granting search warrants. The SCC held that these functions were sufficient to bring them within the unwritten principle of judicial independence so that their security of tenure was constitutionally guaranteed. However, the Court went on to decide that less stringent rules should protect their tenure than the rules that protect judges who perform more important judicial functions. In this case, the legislative judgment requiring the justices to have legal training was intended to advance the same underlying interests as the principle of judicial independence. The dismissal of 34 justices on that ground cannot be said to be arbitrary and does not violate the principle of judicial independence – the Court upheld the dismissals. THE EXERCISE OF EXECUTIVE AUTHORITY Executive branch refers to those institutions in government responsible for implementing and enforcing laws Executive branch is not a single institution, but consists of assortment of institutions and officials o Examples include constitutionally recognized positions such as the Governor General and the Privy Council (basically the Cabinet) o Also includes some bodies that operate at arm’s length from government but still perform governmental functions E.g. independent boards and tribunals, professional regulatory bodies, Crown corporations, etc. The executive is sometimes referred to as the “political executive” in order to differentiate from the broader range of administrative institutions and officials Administrative law is the body of law responsible for governing the exercise of executive powers and the manner in which powers are to be exercised o In common law provinces this is found mostly within the common law o In Quebec, admin law follows French tradition and is more inclusive (e.g. governs contracts by government, public sector employees, finance, etc.) o Admin law requires officials exercise their power in furtherance of public, not private interests o Admin law works to constrain exercise of administrative discretion to respect intentions of legislature and promote outcomes that take public interest into account The Executive Branch Defined The Crown Constitution Act 1867, s. 9: executive government is vested in the Queen The Crown has legal rights and obligations o Capacity to own property, enter contracts, sue and be sued The Crown is divided along federalism lines: there is a federal crown and a provincial crown o Each level identifies with the same Monarch hence powers cannot be attributed to multiple levels of government o To distinguish levels in legal and other official documents “Crown in the Right of Canada” refers to federal and “Crown in the Right” of Province X refers to provincial The Queen, Governor General and Lieutenant Governors: o Association with Crown only speaks to formal legal status of Executive – Queen does not exercise authority over matters of public policy o Letters of Patent (George IV, 1947) say that GG is to exercise all powers and authorities of monarch in respect to Canada 35 o Constitution Act, 1867 makes this clear – also in many provincial statutes – that some powers are to be exercised by “GG in Council” or “LG in Council” Power of the monarch is limited yet again as all appointments to GG or LG are made on advice of PM that must be followed Powers apparently exercised by the monarch are in fact exercised on the advice of the prime minister or premier and their cabinets: Constitution Act, 1867, s. 11-13 and constitutional convention: o s. 13 – “GG in Council shall be construed as referring to the GG acting by and with Advice of Queen’s Privy Council for Canada” o s. 11 – “Privy Council is a body to aid and advise in the Government of Canada” Only the active cabinet members within the Privy Council exercise the advisory function (by convention) o s. 9 – “The Executive Government and Authority of and over Canada hereby declared to continue and be vested in the Queen” o s. 15 – “The Command-in-Chief of the Land Naval Militia, and of all Naval and Military Forces, of and in Canada, is hereby declared to continue and be vested in the Queen” The Prime Minister and the Cabinet PM + Cabinet = the Government “ministry” = “cabinet” Not all Ministers are Cabinet members PM decides who are ministers, in what portfolios, who are in Cabinet and for how long – advises Governor General to make appointments PM presides over Cabinet PM’s prerogative extends: o To other appointments: SCC judges, Chief Justices, Senators o To advising the Governor General to dissolve Parliament and call federal elections o Beyond these powers PM does not hold privileged position in cabinet o Cannot formulate policy or exercise decision making powers independently – though still has considerable influence Cabinet determines the legislative agenda of Parliament – the Queen reads the Speech from the Throne announcing the agenda Hogg: “Cabinet is in most matters the supreme executive authority” Responsible government: o Cabinet members are generally drawn from the House of Commons/legislature Ministers may hold office pending election to Commons or while senator, but expected to be members of legislature o The Cabinet is accountable to the legislative branch both collectively and individually Cabinet must maintain the confidence of the legislature Ministers are accountable to legislature for ministry activities 36 Ministers have administrative responsibility for their departments – may exercise decisionmaking power that affects individuals o E.g. s. 40 of Extradition Act – federal minister has wide ranging discretion to make decisions respecting orders of surrender of persons to other jurisdictions to face prosecution for crime committed in that state o Must be exercised “personally” – not delegable Idziak v. Canada (Minister of Justice) (1992) SCC Facts: In order for an individual to be extradited, it must be determined that there is sufficient factual and legal basis to support extradition, and a further determination made by MoJ as to whether person must be surrendered. MoJ as head of Justice Department both oversees prosecution in hearing and then makes a personal determination following. It was argued that this dual role gave rise to a conflict of interest and raised questions of bias. Decision and Reasoning: Appeal dismissed. The Court had jurisdiction to hear the appeal. It shared concurrent jurisdiction with the Federal Court to hear all habeas corpus applications other than those specified in section 17(6) of the Federal Court Act. The appellant was thus not required to proceed in the Federal Court in spite of its concurrent jurisdiction. There was no evidence of any bias on the part of the Minister. There was no evidence that the Minister was improperly influenced, that he pre-judged the matter, or that he was biased against the appellant. The Minister’s decision whether or not to issue a warrant of surrender was political in nature and required the Minister to consider Canada’s treaty obligations along with the representations made on behalf of the accused. The Minister’s review should be characterized as being at the extreme legislative end of the continuum of administrative decision-making (i.e. separate from the judicial phase). The Public Service Employees of various ministries often referred to as civil servants – also part of the executive branch Concept of professional and neutral civil service seeks to draw line between political responsibilities of minister in charge and administrative responsibilities of civil service There aer three principles that structure relationship between civil service and officials within government: 1. Ministerial responsibility: the Minister is politically accountable for all matters within the department 2. Political neutrality: Civil servants are politically neutral and serve successive governments 3. Public service anonymity: civil servants are accountable to their political overseers, but not to Parliament Civil servants must refrain from public criticism of government policies o However, loyalty not boundless o Prof Lorne Sossin: exists in Canadian administrative and constitutional law dense web of legal norms concerning “bureaucratic independence” that “includes, but is not limited to, the protection of the neutrality of the civil service, the protection of the whistle37 blowing exception to the duty of loyalty, the protection against improper political interference in administrative decision making, the preservation of the rule of law, and the maintenance of objective guarantees of separation from the political executive, including the merit principle for hiring and promotion [protection against patronage] and security of tenure” Does the limit apply only to the civil servant’s direct responsibilities or to all government policies? Fraser v. Canada (Public Service Staff Relations Board) (1985) SCC Facts: Fraser, a civil servant, was critical of the metric conversion program and the enactment of the Charter. His job and his department were not involved with these matters. He argues that the duty to refrain from criticism only extends to areas related to his direct responsibilities. Decision and Reasoning: A job in the public service has two dimensions: 1. The employee’s tasks and how she performs them; 2. The public’s perception of the manner in which the employee exercises her powers. If a civil servant publicly criticizes the PM of autocratic and coercive behaviour it is unlikely to instill confidence in the clientele (constituency) who expect impartial and judicious treatment The public service administers and implements policy o Employees must act with knowledge, fairness and integrity o Employees must be loyal to the Government of Canada (not the party in power) They may act as whistleblowers where appropriate o E.g. If government were engaged in illegal acts or policies that jeopardize the life, health, or safety of public servant or others, or if public servant’s criticism had no impact on his or her ability to perform effectively duties of public servant in eyes of public o But they must not engage in sustained and highly visible attacks on major government policies o The public interest requires that the public service be impartial and appear to be impartial. MacDonell Commission: public might cease to believe in the impartiality of the permanent Civil Service – Ministers might cease to feel the well-merited confidence which they possess at present in the loyal and faithful support of their official subordinates To what extent can the civil service engage in partisan political activities? A statute (Public Service Employment Act) prohibiting a public servant from campaigning for a candidate or political party or running as a candidate are overinclusive and struck down as an infringement of freedom of expression OPSEU v. Ontario (Attorney General) (1987) SCC Facts: The Ontario Public Service Employees’ Union represented a number of employees who were subject to the Ontario Public Service Act which restricted certain federal political activity such as being a candidate in a federal election or soliciting funds for federal candidates or parties. The union, on behalf 38 of those employees, challenged the restrictive sections of the Act as being unconstitutional. The lower court decisions dismissed the challenge holding that the sections in question were valid provincial legislation as they related to labour relations which fell within provincial jurisdiction over property and civil rights. The issue was stated as a constitutional question to the SCC. Decision and Reasoning: The province may legislate conditions of employment in the provincial public sector, including restrictions on political activities. Osborne v. Canada (Treasury Board) (1991) SCC Facts: Appeal from decision finding s. 33 of the Public Service Employment Act, which prohibited public servants from engaging in work for or against a political party or candidate, violated the Charter and was not saved by s. 1 thereof since it failed to meet test of “reasonable limit”. The respondents were all public servants. Decision and Reasoning: Appeal dismissed. S. 33 violated s. 2(b) of the Charter and was not saved by s. 1 thereof. Restrictions on the freedom of expression went beyond what was necessary to achieve the objective of an impartial and loyal civil service. Restrictions in federal statute (PSE Act) struck down because it failed to make distinction between kinds of work the employee may be involved in and his or her level of responsibility within the civil service – the restrictions can apply only to senior civil servants. Independent Administrative Agencies In some cases, executive functions are conferred on bodies that have a measure of independence from government; the rationale for this is as follows: o Some executive or administrative decisions should be made on a principled basis by a specialized and independent tribunal, such as decisions that affect the legal rights of individuals o Cases in which the government is a party to the dispute E.g. government entitlement disputes In these cases, the role of administrative body approaches judiciary though scope is limited (e.g. Immigration and Refugee Board deals only with immigration admissibility and refugee claims) o Cases which need to be insulated from politics and influence E.g. economic matters in which desirable to ensure long-term goals are not compromised by short-term political interests or undue influence of interest groups – e.g. Bank of Canada for macroeconomic policy o Cases decided on the basis of particular expertise Independent boards facilitate specialization because of restricted mandate on administrative agency o Cases involving two or more jurisdictions E.g. Canada-Newf. And Lab. Offshore Petroleum Board, International Joint Commission 39 “Board, tribunal, commission, authority, council, agency” the nomenclature can be confusing but different terms do not signify different functions or structures o The body is the product of the legislation that creates it and subject to its terms Statute creating Canadian Human Rights Commission: o Legislation (Canadian Human Rights Act) establishes independence of CHRC, administrative duties, scope of authority, and responsibility to report to Parliament on activities o Also creates CHR Tribunal to look into human rights complaints filed with commission Independence for these types of bodies is however, usually not a constitutional matter Ocean Port Hotel Ltd. v. British Columbia (2001) SCC Facts: Appeal by the Liquor Control and Licensing Branch from a judgment setting aside a decision of the Liquor Appeal Board on the ground that the Board was not sufficiently independent. Following an investigation and hearing, a Senior Inspector with the Liquor Control and Licensing Branch concluded that Ocean Port Hotel had committed infractions of the Liquor Control and Licensing Act and regulations. Ocean Port’s liquor licence was suspended for two days. Ocean Port appealed to the Board, which confirmed the penalty. The Court of Appeal set aside the Board’s decision, holding that the Board lacked the necessary guarantees of independence required of administrative decision-makers who imposed penalties. Board members served at the pleasure of the Lieutenant Governor in Council. In practice, members were appointed for a one-year term, and served on a part-time basis. All members but the chair were paid on a per diem basis. Decision and Reasoning: Appeal allowed and matter remitted to the Court of Appeal to decide issues which it did not address. The degree of independence required of a tribunal was determined by its enabling statute. Unlike courts, administrative tribunals were created for the purpose of implementing government policy. They generally did not attract Charter requirements of independence. The legislature’s intention that Board members should serve at pleasure was unequivocal. Therefore, it did not permit the argument that the statute was ambiguous, and should thus be read as imposing a higher degree of independence to meet the requirements of natural justice. There was no basis to extend a constitutional guarantee of judicial independence to the Board, as it was not a court. It was a licensing body, and its decision to suspend Ocean Port’s licence fell squarely within the executive power of the provincial government. The fact that the initial decision was rendered by an adjudicator who was employed by the same agency as the investigator did not automatically raise a presumption of bias, as such a structure may have been authorized by the Act. Administrative tribunals created to administer government policy are not required to be independent. Crown Corporations Administrative bodies that have their own legal personality separate from the government Commercial enterprises with public objectives that need freedom from political interference Commercial nature of some activities may be ill-suited to government departmental structures and related rules respecting financial matters Managed by direct government ownership rather than imposition of regulatory controls 40 Can have express regulatory mandate (e.g. Bank of Canada) or deliver services of public importance (e.g. Canada Post, VIA Rail, electrical power) When the public aspect recedes – privatization (e.g. Petro-Canada, Air Canada – private markets developed around these entities making competition impractical) Standardized governance and accountability requirements Municipalities Created under provincial legislation Provide a wide range of public services Make policy on local matters Largely independent of provincial government and elected But: not a constitutionally recognized level of government Subject to provincial control and direction – e.g. re amalgamation On such matters, local governments are not entitled to be consulted East York (Borough) v. Ontario (Attorney General) (1997) Ont. CA Facts: This was an appeal from a decision dismissing an application by the Borough of East York and others to strike down the City of Toronto Act on the grounds that it violated the Charter and was ultra vires the province’s authority under the Constitution Act, 1867. The City of Toronto Act created the new City of Toronto. East York alleged that the new municipal organization resulted in a high ratio between numbers of voters and elected representatives, that the ratio was higher than those found in neighbouring municipalities, and that the high ratio diminished access to elected representatives. They also alleged that more disadvantaged people lived within the Greater Toronto Area and this reduced access would had an adverse impact on them. Decision and Reasoning: The appeal was dismissed. There was little evidence that the ratios provided by the new legislation would cause a serious reduction in the proportion of elected representatives to the population and no evidence that the new structure would reduce democratic access. S. 92 of the Constitution Act, 1867 allocated power over municipal institutions to provincial governments. There was no constitutional convention or norm prohibiting provinces from changing municipal institutions without their consent. The Courts could only intervene if the provincial government committed a legal, as opposed to political, impropriety. Shell Canada Products Ltd. v. Vancouver (1994) SCC Facts: Appellant, a subsidiary of Shell Canada Ltd. involved in retail and wholesale marketing of petroleum products in Vancouver, was periodically invited to tender bids for municipal contracts to supply petroleum products until the city council passed resolutions that the city would not do business with Shell until “Royal Dutch/Shell completely withdraws from South Africa”. In fact, the city itself purchased petroleum products from another company which, through one of its subsidiaries, also did business with South Africa. In an action by appellant, the British Columbia Supreme Court quashed the resolutions as being ultra vires the municipality. The Court of appeal reversed the judgment. 41 Decision and Reasoning: Appeal allowed. Generally, a municipal authority was authorized to act only for municipal purposes, including purposes compatible with the purpose and objects of the enabling statute. Here, the city was seeking to use its powers to do business to affect matters in another part of the world, a purpose which was directed at matters outside the city’s territorial limits. The Vancouver Charter, which stated that the council could provide for “the good rule and government of the city”, placed a territorial limit on council’s jurisdiction. While council could have regard for matters beyond its boundaries in exercising its powers, any action taken in so doing had to have as its purpose benefit to the citizens of Vancouver. Sections of the Charter expressly providing for activities in which the council could engage outside the city’s limits even when such activities clearly redounded to the benefit of its inhabitants were general sections found in most if not all municipal Acts which were to be construed subject to the limitations imposed by the purpose of the statute as a whole. Any powers implied from their general language had to be restricted to municipal purposes and could not extend to include the imposition of a boycott based on matters external to the interests of the citizens of the municipality. Even if there was a municipal purpose, the resolutions constituted unauthorized discrimination. Municipal authority can only be exercised in a relation to activities that fall within municipal purposes. Police and Prosecutors The executive branch enforces policies that have the force of law Police: maintain order and investigate illegal conduct o Provincial and municipal police have the jurisdiction to investigate breaches of provincial laws and federal criminal laws o RCMP (federal): investigate breaches of federal laws (but provincial police have primary responsibility re Criminal Code) Provide police services in the federal territories Provide police services in provinces under contract Prosecutors: prosecutorial powers are exercised by federal Attorney General and provincial Attorneys General However, police and prosecutors cannot operate without accountability for their actions R. v. Campbell (1999) SCC Facts: Appeal from conviction by Campbell and Shirose. The appellants were caught in a reverse sting operation in which the RCMP sold a large quantity of hashish to a drug trafficking organization. The trial judge found both guilty of conspiracy to possess for the purpose of trafficking, and conspiracy to traffic in, cannabis resin and dismissed their application for a stay of proceedings. They argued the reverse sting constituted illegal police conduct that warranted a stay. The appellants were denied access to the legal advice provided to the RCMP by the Department of Justice on which it claimed to have placed good faith reliance. The Ontario Court of Appeal affirmed the trial decision. Campbell and Shirose appealed to the Supreme Court of Canada. Decision and Reasoning: Appeal allowed in part. Both appeals against the findings of guilt were dismissed. A new trial was ordered limited to the issue of whether a stay of proceedings should be 42 granted for abuse of process. The RCMP acted in a manner facially prohibited by the Narcotic Control Act. The effect of police illegality had to be assessed on the facts of each particular case and did not warrant an automatic stay. It was up to the trial judge to determine whether in the circumstances of this case RCMP conduct shocked the conscience of the community. The RCMP is under the control and management of the Commissioner, appointed by Governor General in Council and under the direction of the Solicitor General. But, a police officer investigating a crime is not acting as a government functionary or agent – s/he occupies a public office, subject to statute and the common law. The independence of police from government in the conduct of a criminal investigation underpins the rule of law. The Commissioner is not subject to political direction. The Commissioner and every constable, in investigating a crime and deciding whether to prosecute, is answerable only to the law and his conscience. No Minister can direct an investigation or prosecution. Krieger v. Law Society of Alberta (2002) SCC Facts: Appeal by the Law Society of Alberta from a decision allowing an appeal by Krieger and the Alberta Minister of Justice and the Attorney General from the dismissal of Krieger’s application for an order that the Society did not have jurisdiction to hear a complaint against him. Krieger was assigned as Crown prosecutor in a murder trial against Ward. He received preliminary blood test results implicating a person other than Ward, but advised Ward’s counsel that the test results would not be available before the preliminary inquiry. Counsel learned about the results at the preliminary hearing and complained to the Deputy Attorney General. Krieger was reprimanded and removed as prosecutor. Six months later, Ward filed a complaint with the Society. The Deputy Secretary referred the complaint to the Conduct Committee Panel. Krieger argued before the Committee that it did not have jurisdiction to review the exercise of prosecutorial discretion by a Crown prosecutor. Decision and Reasoning: Appeal allowed. Pursuant to the Legal Professions Act, the Society had the jurisdiction to regulate the conduct of all Alberta lawyers, including Crown prosecutors. The Society had the jurisdiction to review the conduct of a prosecutor to determine whether he or she acted dishonestly or in bad faith by failing to disclose information in a timely manner. This was so notwithstanding that the prosecutor’s employer, the Attorney General, had reviewed Krieger’s conduct from the perspective of an employer. This case also discusses the nature and development of the AG’s office in Canada: From England – exercised on King’s behalf prerogative to bring and terminate prosecutions Exists more or less the same in Canada The office has constitutional recognition Duties: o Not enumerated but extensions listed s. 135 of Constitution, 1867 o Law officer to legislature and government departments o AG provides legal advice to government departments o AG is also MoJ – responsible for drafting legislation tabled by government o Manage prosecutions: prosecutorial discretion is not subject to interference 43 Crown Prerogative Powers Black v. Chretien (2001) Ont. CA Facts: Appeal by Conrad Black from the dismissal of his action against the Prime Minister of Canada and the Attorney General for abuse of power, misfeasance in public office and negligence. Black was nominated for appointment by the Queen as a peer. Black was a Canadian citizen who was ordinarily residing in England. He later obtained dual citizenship. The Prime Minister intervened to oppose the peerage. Black sought a declaration that the Prime Minister had no right to advise the Queen not to confer the honour on him and that his intervention constituted an abuse of power. Black also alleged that the government negligently misrepresented to him that he would be entitled to receive a peerage if he became a dual citizen and refrained from using the title in Canada. Decision and Reasoning: Appeal dismissed. The Prime Minister was exercising his honours prerogative when he advised the Queen about the conferral of an honour on Black. The exercise of this prerogative was not justiciable. Black did not have a legitimate expectation of receiving an honour. Denial of an honour has no adverse consequences to the person affected (no impact on liberty, property, economic interests). The doctrine of legitimate expectations gives rise only to a duty of procedural fairness, not rights. Even if it gave rise to substantive rights, no one has a right to, or legitimate expectation of, an honour. Honours are totally discretionary – there is no legal component to warrant the Court’s intervention. Since the honours prerogative is beyond judicial review, the manner in which it was exercised is also beyond review – even if wrong, careless, negligent, motivated by improper motives. The Crown prerogative is the residue of discretionary authority, which at any given time is left in the hands of the Crown. It is a branch of the common law – court decisions define its existence and scope, and whether it has been superseded by statute. By virtue of parliamentary supremacy, crown prerogative can be limited or displaced by statute. The prerogative re granting of honours has never been displaced by statute in Canada and so the Crown prerogative is not exercised only by the Governor General – to the extent that the GG exercises the prerogative as the Queen’s representative, s/he does so on the advice of the PM or cabinet. PM and Ministers may also exercise the Crown prerogative. The crown prerogative is an instrument of government and source of executive power (e.g. it enables the PM to speak for Canada re foreign affairs). Historically, the PM’s advice to another country is not justiciable, even if wrong, or given carelessly or negligently. Now, however, an exercise of prerogative would be subject to the Charter, which applies to Parliament/legislatures and governments (Black did not claim a Charter infringement) – exercises of prerogative which are justiciable in that they affect individual rights are subject to judicial review. The ability of the individual to seek relief should not turn on whether the action was pursuant to statutory power or prerogative. 44 Statutory Powers Most executive powers are delegated by statute o To ministries o To administrative agencies The authority to delegate is limited by constitutional restrictions re division of powers and Charter rights Parliament or a legislature cannot delegate powers that it does not possess The delegated powers must be exercised in accordance with the purpose of the statute (Roncarelli v. Duplessis) The delegated power (if it affects life, liberty or security of the person) must be sufficiently specific to provide fair notice to those who may be affected (Charter, s. 7) The delegation must not amount to a complete abdication of legislative authority (Re Gray) Parliament and the legislatures cannot delegate powers to each other Re Gray (1918) SCC Facts: The SCC had to determine the validity of the delegation of legislative power contained in the War Measures Act. In effect, the WMA transferred to the federal cabinet virtually the whole legislative authority of Parliament for the duration of the war. Decision and Reasoning: Even a delegation as sweeping as this one was valid. However, the power of delegation was not absolute and an abdication, abandonment or surrender of Parliament’s powers would be invalid. Parliament cannot abdicate its functions, but in accordance with parliamentary supremacy can delegate its powers to the executive. The delegation must be subject to termination by Parliament at any time. Nature and Function of Delegated powers Legislatures delegate to executive bodies powers that can be characterized as o Legislative (rule-making) o Adjudicative o Administrative Historically, common law courts have developed procedural requirements for the exercise of judicial or quasi judicial powers by administrative tribunals: “The rules of natural justice” Now, courts focus less on the nature of the decision-maker and more on the type of interest affected and the nature of the decision o There is a general duty of fairness, the content of which depends on the circumstances of the case Rule-Making Functions of Administrative Bodies Legislatures often delegate regulation-making powers, by statute, o To cabinet o To municipalities o To agencies. 45 Delegated legislation is subordinate: it must always be within the scope of the delegated power; otherwise, it is beyond jurisdiction (ultra vires) and invalid The benefit of regulations: o Easier to adapt as circumstances change o Body responsible for implementation can also be given authority to make specific rules, utilizing its special expertise The disadvantage of delegated power to make regulations: o Regulations are not enacted in public as legislation is, and are not subject to as much scrutiny – by elected members and the public Note, however, that the authorizing statute often requires consultation in the making of new regulations Further, where the rule-making process has a direct impact on the rights of some individuals, (eg municipal bylaws re land use) the Courts do impose procedural obligations of notice and an opportunity to be heard Adjudication (Dispute Resolution) Some administrative agencies are created to adjudicate disputes Some operate formally in the manner of courts Some are empowered to exercise appellate functions Some use more informal processes Some include members who are not lawyers but are experts in the relevant field (e.g. communications) Some are authorized to make and apply public policy in the relevant field and thus take into account a broader range of considerations than would be applicable in a court proceeding o E.g. Ontario Municipal Board: hears appeals of planning decisions; deals with them afresh (de novo) Cloverdale Shopping Centre Ltd. v. Etobicoke (1966) Ont. CA Facts: This was an appeal from a decision of the municipal board which approved an amendment to an official plan. The respondent SC had applied to the municipality for an amendment to the township plan to permit the development of a commercial shopping centre covering an area of 107 acres. The amendment included certain highway alterations to provide for the traffic which such a centre would create. The township approved the amendment and enacted by-laws to implement the approved amendment. The amended plan was then submitted to the minister for approval. The minister referred the matter to the municipal board under s. 34 of The Planning Act. After a hearing the municipal board approved a modification of the proposed amendment reducing the area of the centre and omitting the highway alterations. The by-laws submitted were not approved. The board’s decision was attacked as having exceeded its jurisdiction in exercising the same powers as the minister. It was argued that the board in altering the plan had gone beyond the jurisdiction which it had to modify a plan. Decision and Reasoning: The appeal was dismissed. There was nothing in the statute to compel a construction which would differentiate between the functions of the board and those of the minister 46 when an amendment was sought by someone other than a municipal council. The functions of both the board and the minister were administrative in character. A liberal construction was to be given to the word modification as contained in s. 12(1) of The Planning Act. The board had properly considered such issues as health, safety, communications, etc., and had made an administrative decision. Such a decision was not open to review by the courts except on a question of law or jurisdiction. Controlling Procedures: Duty to Be Fair Administrative decision-makers have a duty to use fair procedures The “rules of natural justice” apply to judicial or “quasi-judicial” decisions (determinations of legal rights) Other decisions are subject to a “duty of fairness” o The right to know and answer the case against one (“audi alteram partem”) o The right to a neutral decision-maker (“nemo judex in sua causa”) Knight v. Indian Head School Division No. 19 (1990) SCC Facts: The respondent, who was director of education for the appellant Board, was dismissed by the appellant on three months’ notice. He took action against the appellant Board for wrongful and unlawful dismissal, alleging the absence of procedural fairness. The written contract of employment provided for an annual review with a view to the possibility of revision, provided the agreement had not otherwise been terminated. Termination could be effected by either party on three months’ notice in writing or by resolution of the Board for just cause provided the employee be given a fair hearing and investigation. The question at issue here was respondent entitled to procedural fairness; if so, what was the scope of the duty to act fairly in the context of an employee/employer relationship; and given there was a duty to act fairly, was it complied with? Decision and Reasoning: The Board’s decision here was of a final and specific nature and accordingly could entail the existence of a duty to act fairly on the part of the Board. The employment relationship here was not that of master and servant but rather an office which encompassed some elements of a public nature and some elements that were clearly contractual. This office, since respondent could be dismissed for reasons other than cause, was one held at pleasure. Recent developments in the common law made procedural fairness an essential requirement of an administrative decision to terminate such an employee. An explicit or clearly implicit provision was required to overcome the presumption that the parties to the contract intended procedural fairness to apply. The fact the contract did not refer to the necessity of a hearing where no cause was invoked to justify the dismissal did not amount to a clear implicit waiver of the application of the duty to act fairly. The concept of procedural fairness is eminently variable and its content is to be decided in the specific context of each case. It is not, however, purely subjective. The closeness of the administrative process to the judicial process should indicate how much of the principles governing the judicial process should be imported into the realm of administrative decision-making. The content of the duty of fairness would be minimal where dismissal is at pleasure. It was met here because respondent had been notified of the Board’s reasons for dissatisfaction and had been given an opportunity to be heard. The requirements of procedural fairness were satisfied. 47 Baker v. Canada (1999) SCC Facts: Applicant entered Canada as a visitor in 1981. She overstayed her visitor's visa and worked as a live-in domestic worker. She had eight children, four of which were born in Canada. She subsequently suffered from post-partum psychosis and paranoid schizophrenia, but had partially recovered. She was ordered deported in 1992. In 1993, she applied for permanent residence under the H & C category; it was refused in 1994 with no reasons. The immigration officer considering the application, stated in his notes that applicant would be a tremendous strain on the social welfare system for the rest of her life, and that there were no H & C factors other than her four Canadian-born children. Decision and Reasoning: Duty of procedural fairness: An administrative decision-maker has a duty to provide to those whose interests are affected by a decision; a meaningful opportunity to present their case fully and fairly. Duty to give reasons: The duty of procedural fairness may require the provision of reasons in appropriate cases, e.g. in a decision re individual interests, where there is a statutory right of appeal. Requiring reasons reduces the risk of arbitrary decisions and increases confidence that the applicable issues have been fully considered; it also facilitates appeal or judicial review. But it may impose an inappropriate burden and increase cost and delay. Reasonable apprehension of bias: Procedural fairness requires impartiality from the decision-maker and from subordinates who make recommendations to the decision-maker, this include actual bias or reasonable apprehension of bias (“RAB”). Test of RAB: would an informed person, viewing the matter realistically and practically, and having thought the matter through, have a reasonable apprehension that the decision-maker is biased? Standards may vary with the context and function of the decision-maker. On the issue of determining the content of the duty of fairness, the court outlined several factors that should be taken into consideration: The nature of the decision being made and process followed in making it; The nature of the statutory scheme and the terms of the statute pursuant to which the body operates; The importance of the decision to the individual or individuals affected; The legitimate expectations of the person challenging the decision; The choices of procedure made by the agency itself. L'Heureux-Dube also considered the domestic use of international law in Canada. Baker appealed to the SCC for review of the administrative decision denying her application for permanent residence on humanitarian and compassionate grounds. One of Baker's arguments was that the she was owed a duty of fairness by the administrative decision maker and that this duty of fairness included the right to an oral hearing. The court rejected this argument, ruling that the unrestricted ability to forward written arguments was sufficient to meet the duty of fairness owed to Ms. Baker. 48 Baker also argued that the duty of fairness owed her by the Minister included a duty to provide reasons for any decision made. The court looked to English jurisprudence, in which a common law right to reasons in certain circumstances has developed in the case law. The court found that it would be unfair for the Minister not to provide written reasons for refusing an application in a case such as this where the decision has such significance for the individual and where there is a statutory right of review of the decision. Baker further argued that the duty of fairness owed her by the Minister meant that the decision-makers should be free from any "reasonable apprehension of bias". The court concurred and found on the facts that there was a "reasonable apprehension of bias" in the case of the immigration officer who wrote the notes on the file that were subsequently considered by the court to be the reason for the decision. EQUALITY RIGHTS Grant v. Torstar (2009) SCC Facts: Appeal from an Ontario Court of Appeal decision ordering a new trial; cross-appeal by respondents asking the Court to revise the defences available to journalists. Appellants sued in defamation for an article concerning a proposed private golf course development on Grant’s lakefront estate. The story aired the views of local residents who were critical of the development’s environmental impact and suspicious that Grant was exercising political influence behind the scenes to secure government approval for the golf course. The reporter attempted to verify the allegations in the article, including asking Grant for comment, which Grant chose not to provide. Following publication, Grant brought an action for defamation. At trial, the jury found respondents liable and awarded damages. The Court of Appeal concluded that the jury instructions were flawed and ordered a new trial. Decision and Reasoning: Appeal and cross-appeal dismissed. The prior law with respect to statements that were reliable and important to public debate did not give adequate weight to the constitutional value of free expression. While the law was required to protect reputation, the level of protection previously accorded, effectively a regime of strict liability, was not justifiable. The law of defamation accorded no protection for statements on matters of public interest published to the world at large if they could not have been proven true. However, such communications advanced democratic discourse and truth-finding, and therefore required some protection within the law of defamation. When proper weight was given to the constitutional value of free expression on matters of public interest, the balance tipped in favour of broadening the defences available to those who communicated facts it was in the public’s interest to know. Accordingly, it was appropriate to modify the common law to recognize the defence of responsible communication on matters of public interest. Thus, a responsible communication defence was added to Canadian defamation law, and the availability of that defence entailed a two-step analysis: 1. The judge determines whether a publication was on a matter of public interest 2. The jury determines whether the standard of responsibility was met The matter was sent back for trial in light of the new defence available to respondents. 49 Equality Provisions in the Charter Section 15 of the Charter: 1) 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 2) 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. Under s. 15, equality is only available to natural persons i.e. not available to corporations Discrimination is not limited to the enumerated grounds in s. 15 – analogous grounds have been established as well (e.g. citizenship, marital status, sexual orientation) o Once an analogous ground is recognized, it joins the list of enumerated grounds Note that under s. 32(2), s. 15 does not come into effect until three years after the enactment of the Charter – this was so that legislatures had time to make legislation compliant as opposed to just letting the litigation system go nuts with Charter complaints (the former is more cost and time efficient) The Charter also protects: o Minority language rights in s. 16-23 o Aboriginal rights in s. 25 o Multicultural heritage in s. 27 o Gender equality in s. 28 Alternative Conceptions of Government’s Role in Equality 1. Focus on equal treatment by the state: Duty on legislatures to ensure that laws do not exacerbate existing inequalities There are various forms of equal treatment: o Formal equality: uniform application of the law o Adverse impact of neutral law on people in different circumstances o Equality of opportunity and the right to become unequal 2. Focus on outcomes: Positive duty to redress existing inequalities o Equal distribution: the same for everyone regardless of deserts or needs o Proportional treatment, depending on deserts or needs o Affirmative action, which is not required but is protected under s. 15(2) of the Charter Sources of Equality Obligations 1. Obligations for the government – under the Constitution 2. Obligations for private actors – under human rights legislation 3. Obligations for general public – under common law 50 Equality as a Legal Standard The Rule of Law Freedom is subject to limits of the law The authority of government and its officials is limited by law Officials and others are all equal before the law Trial in ordinary Courts; ordinary procedure The Fourteenth Amendment Guaranteed equal protection after the Civil War But there is no list of prohibited grounds of discrimination like in the Charter and the US Constitution is silent on affirmative action In the US, there are three tiers of review for discrimination: 1. Strict scrutiny: if there is discrimination on the basis of race or alienage, it will be subject to strict scrutiny by the Court and it will be found invalid unless required in order to achieve a compelling legislative objective 2. Intermediate scrutiny: if there is discrimination on basis of gender, it will be subject to intermediate scrutiny by the Court and it will be found invalid unless substantially related to an important societal interest 3. Minimal scrutiny: other grounds of discrimination will be subject to minimal scrutiny and will be valid if reasonably related to a legitimate government interest Protection of Equality Prior to the Charter Canadian Bill of Rights adopted in 1960 guaranteed “equality before the law and the protection of the law” The Attorney-General of Canada v. Lavell (1974) SCC Facts: These two appeals were heard together. In each case the individual applicant appealed. The facts were similar in both cases. The applicants were Indian women who married non-Indian or white men. As a result, the Indian Councils, acting under the provisions of s. 12(1)(b) of the Indian Act, purported to deprive each woman of all civil rights which they enjoyed as members of an Indian Band. The rulings of the Indian Councils were overruled by the Federal Court of Canada and the Ontario High Court of Justice. The issues were carried to the Supreme Court of Canada. Decision and Reasoning: The appeals were allowed, the decisions of the trial Courts were set aside. The Bill of Rights was not effective to render inoperative legislation, such as s. 12(1) (b) of the Indian Act, passed by the Parliament of Canada in discharge of its constitutional function under s. 91(24) of the B.N.A. Act, to specify how and by whom Crown lands reserved for Indians were to be used. The Bill of Rights did not require federal legislation to be declared inoperative unless it offended against one of the rights specifically guaranteed by s. 1, but where legislation was found to be discriminatory, that afforded an added reason for rendering it ineffective. Equality before the law under the Bill of Rights meant equality of treatment in the enforcement and application of the laws of Canada before the law enforcement authorities and the ordinary Courts of the land, and no such inequality was necessarily 51 entailed in the construction and application of s. 12(1)(b). The Bill of Rights guarantees the rule of law NOT equal treatment under the law. *On the basis of this case, “equality under the law” was added to s. 15 of the Charter Bliss v. Canada (Attorney General) (1978) SCC Facts: The appellant sought to return to the work force a few days after the birth of a child and when suitable employment was not available, she applied for unemployment insurance benefits. She was not entitled to maternity leave or benefits, but she was “capable of and available for” employment. Her claim for “regular” benefits was rejected but was subsequently allowed by an Umpire on the ground that the relevant section of the Unemployment Insurance Act, 1971 was inoperative as it discriminated on the basis of sex in contravention of the provisions of the Canadian Bill of Rights. Review of the decision was sought and the Umpire’s ruling was set aside by the Federal Court. In this appeal, the claimant contended that she had been denied "equality before the law" because she had been refused benefits available to all other claimants who had eight weeks of insurable employment and who were capable of and available for employment. Decision and Reasoning: The appeal was dismissed. The legislation had been enacted for a "valid federal purpose" and the fact that it involved treating claimants who fulfilled the requirements for maternity benefits differently from those who did not meet those conditions could not be said to invalidate such legislation. Sections 30 and 46 constituted a code dealing exclusively with the entitlement of women to unemployment insurance benefits before and after childbirth and must be read together. These were provisions from which men were excluded. Any inequality between the sexes in this area was not created by legislation but by nature. The limitation on entitlement to benefits imposed by s. 46 must be read in the light of the additional benefits provided by the scheme as a whole. *On the basis of this case, “equal benefit of the law” was added to s. 15 of the Charter Drafting s. 15 of the Charter A special committee of the Senate and House of Commons was composed to draft s. 15; they: o Added “disability” o Left the enumerated grounds open to the possibility of analogous grounds o Clarified the affirmative action provision o Restricted s. 15 to natural persons, not corporations The Law Society of British Columbia v. Andrews (1989) SCC Facts: The constitutional questions for consideration by the Court were whether the Canadian citizenship requirement for admission to the bar in British Columbia, as set out in s. 42 of the Barristers and Solicitors Act, infringed or denied respondents’ equality rights guaranteed by s. 15(1) of the Charter; and if so, whether such infringement was justified by s. 1. Respondents were permanent residents of Canada who met all requirements for admission to the bar except that of citizenship. Decision and Reasoning: Appeal dismissed; s. 42 infringed s. 15(1) of the Charter. 52 Section 15 Per Dickson C.J. and McIntyre, Lamer, Wilson and L’Heureux-Dubé JJ: A rule, such as s. 42 of the Barristers and Solicitors Act, which barred an entire class of persons from certain forms of employment, solely on the grounds of a lack of citizenship status and without consideration of educational and professional qualifications or the other attributes or merits of individuals in the group, infringed s. 15 equality rights. There is a three-part test for discrimination: 1. A law imposes a distinction in treatment 2. Which imposes a burden or denies a benefit 3. On the basis of an enumerated or analogous ground The grounds of discrimination enumerated in s. 15(1) were not exhaustive. Not every distinction or differentiation in treatment at law violated equality rights, while identical treatment could itself produce serious inequality in some cases. In this case, citizenship is an analogous ground. Non-citizens lack political power and are vulnerable – legislative distinctions should not create or reinforce this disadvantage (much like race, citizenship is a largely unalterable and irrelevant characteristic and should not be the basis for discrimination. Per La Forest J. (concurring): Citizenship, while properly required for certain types of legitimate governmental objectives, was generally irrelevant to the legitimate work of government in all but a limited number of areas. Legislating citizenship as a basis for distinguishing between persons, in this case for conditioning access to the practice of a profession, harboured the potential for undermining the essential or underlying values of a free and democractic society embodied in s. 15. Section 1 Per Dickson C.J., Wilson and L’Heureux-Dubé JJ.: The majority applies s. 1 stringently and says the impugned legislation was not justified under s. 1 of the Charter. The objective of the legislation was not sufficiently pressing and substantial to warrant overcoming the rights protected by s. 15. Nor was the proportionality test met: the requirement of citizenship was not carefully tailored to achieve the objective that lawyers be familiar with Canadian institutions and customs and might not even be rationally connected to it. Per La Forest J.: The legislation failed to meet the proportionality test. Restriction of access to the legal profession to citizens was over-inclusive. Citizenship neither ensured the objectives of familiarity with Canadian institutions and customs or of commitment to Canadian society. While certain state activities might, for both symbolic and practical reasons, be confined to those who were full members of Canadian political society, a citizenship restriction should not apply to the legal profession as a whole, which was primarily a private profession. Per McIntyre and Lamer JJ. (dissenting): The dissent applies s. 1 flexibly and says the citizenship requirement was reasonable and sustainable under s. 1, given the importance of the legal profession in the government of the country. 53 Andrews Test An infringement of s. 15 requires: o A distinction in treatment o That results in the imposition of a burden or denial of a benefit o On the basis of an expressly prohibited ground or one analogous thereto Principles established by Andrews: o Equality does not require sameness of treatment o Differential treatment is not necessarily discriminatory o Facially neutral laws may be discriminatory if they have an adverse impact o It is not necessary to establish an intent to discriminate; the focus is on the effects o Rejection of “similarly situated” test : s. 15 requires “enumerated or analogous grounds” – does not apply re other arbitrary or unreasonable distinctions Andrews Aftermath Uncertainty and differences develop i.e. a minority of judges assert that distinctions that are “relevant” to the legislative purpose should not infringe s. 15 Accordingly, if the legislative purpose is to support the institution of traditional marriage, it can exclude common law couples and same sex couples In an effort to resolve the differences, the Court decides in Law (1999) that a distinction is discriminatory only if it violates the human dignity of the claimant These approaches introduce a justification argument into s. 15(1) itself, making it more difficult to establish infringement The Equality Trilogy of 1995 The Equality Trilogy is made up of three cases: 1. Thibaudeau v. Canada 2. Miron v. Trudel 3. Egan v. Canada Thibaudeau v. Canada (Minister of National Revenue) (1995) SCC Facts: Respondent mother, who had custody of her two children after divorce, received alimony of $1,150 per month from father for the exclusive benefit of the children. The tax impact on the former spouses and mother’s duty to provide for the children’s maintenance were taken into account in determining the amount of alimony. Under s. 56(1)(b) of the Income Tax Act, a divorced parent was required to include in his or her income any amounts received as alimony for the maintenance of children, while under s. 60(b),, a parent who paid such an amounts could deduct that sum from income. Respondent challenged the constitutionality of s. 56(1)(b) of the ITA, arguing that it infringed her right to equality under s. 15(1) of the Charter by imposing a tax burden on money which she was to use exclusively for the benefit of her children. The Tax Court of Canada found that the section was not discriminatory. A majority of the Federal Court of Appeal reversed the decision finding that s. 56(1)(b) infringed s. 15(1) and could not be saved by s. 1 of the Charter. 54 Decision and Reasoning: Appeal allowed. Section 56(1)(b) did not infringe s. 15(1). The group of single custodial parents receiving child support payments was not placed under a burden by the inclusion/ deduction regime of which s. 56(1)(b) was a part. If anything, the regime conferred a benefit on the post-divorce family unit. A s. 15(1) violation was not triggered by the mere fact that one member of the unit derived a greater benefit from the legislation than the other, nor did it lead to a finding that the distinction amounted to a denial of equal benefit or protection of the law. The amount of child support would include grossing-up calculations to account for the tax liability that the recipient would incur on the income. The system provided for avenues to revisit the support order to correct the situation should an error occur. Any disproportionate displacement of tax liability between former spouses lay in the family law system, not in the ITA. The dissent said the legislation imposes disadvantage on mostly female custodial parents and tax saving for mostly male non-custodial parents. Eventually, the legislation was amended in order to make it very clear how the whole thing would work, taking away the adverse effect of the decision. Miron v. Trudel (1995) SCC Facts: Appeal from a judgment affirming a judgment dismissing the appellants’ action. The appellants lived in a common law relationship. He was unable to work after a motor vehicle accident. He was denied spousal benefits under his common law wife’s insurance policy because he was not legally married and therefore not a spouse. The appellant argued that limitation of benefits to married persons violated section 15(1) of the Charter. Decision and Reasoning: Appeal allowed. The exclusion of unmarried couples from insurance benefits available to married couples was discriminatory. There is a denial of a benefit and marital status was an analogous ground of discrimination under s. 15. Discrimination based on marital status touched the essential dignity and worth of individual freedoms to live with the mate of one’s choice in the manner of one’s choice. Common law spouses constituted an historically disadvantaged group and individuals were not always free to choose to marry or not to marry. The breach of section 15(1) was not justified by section 1 of the Charter. The objective is to reduce hardship of an auto injury to an adult partner in the family unit and restricting benefits to married spouses does not further the objective of the legislation. The dissent said the provision does not infringe s. 15(1): the distinction between married and common law couples is relevant to the purpose of the legislation. The obligation of support is greater for married spouses. Egan v. Canada (1995) SCC Facts: James Egan and John Norris Nesbit were a gay couple who had been in a conjugal relationship since 1948. Upon reaching age 65 in 1986, Egan became eligible to receive old age security and a guaranteed income supplement from the government under the Old Age Security Act. The Old Age Security Act provides that a spouse of the pensioner may receive a spousal allowance should their combined income fall below a certain amount. When Nesbit reached 65, he applied to the Department of National Health and Welfare for a spousal allowance. However, he was refused on the basis that spouse, defined in section 2 of Old Age Security Act, did not include a member of the same 55 sex. The benefit under the Act was available to heterosexual common law couples (where one spouse is 65 and on pension and the other is between 60 and 65) who (i) have been together for at lease one year and (ii) who publicly acknowledge their relationship. Egan and Nesbit delivered a motion for a declaration of unconstitutionality to the Federal Court of Canada (Trial Division). They alleged that the definition of “spouse” under the Old Age Security Act constituted an infringement of their right to the equal protection and equal benefit of the law, entrenched in section 15 of the Canadian Charter of Rights and Freedoms, and that such an infringement was discriminatory on the basis of sexual orientation. Furthermore, they alleged that the section 15 violation could not be saved under Section 1. Nesbit and Egan petitioned the Court to remedy the alleged Charter violation by reading the definition of spouse so as to include same-sex couples. The Federal Court Trial Division dismissed appellants’ action and the decision was upheld by the Court of Appeal. Decision and Reasoning: The one thing the entire Court did agree on is that sexual orientation is an analogous ground of discrimination under s. 15. Plurality Reasons Writing for the plurality (Lamer, La Forest, Gonthier and Major), La Forest held that the exclusion of same-sex couples from the definition of “spouse” in the impugned Act did not violate s. 15 of the Charter. The controlling issue in s. 15 cases, La Forest argued, is whether a legislative distinction (based on a protected ground) is “irrelevant” to the objective of the legislation in question and therefore discriminatory. The objective of the Old Age Security Act is the support and protection of legal marriage, an institution which he describes as firmly anchored in the biological and social realities that heterosexual couples have the unique ability to procreate, that most children are the product of these relationships, and that they are generally cared for and nurtured by those who live in that relationship. In this sense, marriage is by nature heterosexual. Given the alleged “heterosexual” nature of marriage, La Forest argued that sexual orientation is inextricably relevant to the objective of the impugned Act and is not, therefore, tantamount to discrimination under s. 15 of the Charter. Concurring Reasons Sopinka, concurring only in result, registers his disagreement with the plurality’s reasoning that s. 2 of the Old Age Security Act is not discriminatory, and endorses the s. 15 analysis performed by Cory. However, Sopinka argues that the Canadian Government must be afforded some flexibility in extending social benefits; the Government need not be pro-active in recognizing new social relationships: it is not realistic for the Court to assume that there are unlimited funds to address the needs of all. A judicial approach on this basis would tend to make a government reluctant to create any new social benefit schemes because their limits would depend on an accurate prediction of the outcome of Court proceedings under s. 15(1) of the Charter. Sopinka cites McKinney v. University of Guelph in defence of his reasoning, noting that there are situations in which Legislatures may take an incremental approach to address novel issues. 56 Dissenting Reasons Cory and Iacobbucci wrote a joint reason, in which Cory articulated a s. 15 analysis closely following the approach laid out in Andrews. Iacobbucci, in turn, wrote the s. 1 analysis. In his s. 15 analysis, Cory says this is NOT a case of adverse effect discrimination – a neutral law which discriminates against a group only by the effect of the same application. Rather, Cory contends that the law being challenged is not facially neutral at all; since the impugned Act defines a spouse only in opposite sex terms, it draws a clear distinction between opposite-sex couples and same-sex couples. To be discriminatory within the meaning of s. 15 of the Charter, Cory argues that the distinction only has to be made on an enumerated or analogous ground protected by s. 15. As such, the appellant does not have to prove that the distinction on such a basis is irrelevant to the objective of the legislation. In this case, Cory asserts, there can be no doubt that the distinction is related to the personal characteristic of sexual orientation. It may be correct to say that being in a same-sex relationship is not necessarily the defining characteristic of being homosexual. Yet, only homosexual individuals will form a part of a same-sex common law couple. It is the sexual orientation of the individuals involved which leads to the formation of the homosexual couple. The sexual orientation of the individual members cannot be divorced from the homosexual couple. To find otherwise would be as wrong as saying that being pregnant had nothing to do with being female. The words of the opposite sex in the definition of spouse specifically exclude homosexual couples from claiming a spousal allowance. This distinction, Cory argues, is not based on anything other than the appellants’ sexual orientation and is therefore clearly discriminatory. With respect to the s. 1 analysis, Iacobbucci identifies the objective of the impugned legislation as alleviation of poverty in elderly households. He holds this to be a pressing and substantial government objective under the Oakes Test. However, Iacobbucci argues that the s. 15 violation (the exclusion of same-sex couples from the definition of spouse) is not rationally connected to that goal: if there is an intention to ameliorate the position of a group, it cannot be considered entirely rational to assist only a portion of that group. A more rationally connected means to the end would be to assist the entire group, as that is the very objective which is sought. Finally, Iacobbucci asserts that the suggestion that there is precedent for an incremental approach as a misrepresentation of the Court’s view in McKinney. He points out that the Court’s decision in McKinney was far more complex, having the potential to affect the entire composition of the workforce; the ability of younger people to secure jobs; access to university resources; promotion of academic freedom, excellence and renewal; collective bargaining rights; and the structure of pension plans. The case at bar, he contends, offers no such predicament. In addition, he argues that the "incremental" approach, offered by Sopinka, introduces two unprecedented and potentially undefinable criteria into s. 1 analysis. Such a level of deference to the legislatures, he asserts, has the potential to completely undermine the effectiveness of the Charter. 57 L’Heureux-Dubé wrote her own dissent expounding on what she thought ought to be the appropriate approach in both the s. 15 and s. 1 analyses. First and foremost, she is extremely critical of the irrelevance approach expounded by La Forest. She contends that the approach defeats the very purpose of the equality rights in s. 15 of the Charter, noting that the objective of the Act in question may be discriminatory per se, but would survive constitutional scrutiny. L’Heureux-Dubé preferred an approach giving substantial judicial discretion, in which the appellant must demonstrate that there is 1. A legislative distinction 2. That this distinction leads to a denial of any equality right as per s. 15, and 3. That the distinction is discriminatory, which is proven if the distinction is capable of: o Either promoting or perpetuating the view that the individual adversely affected by this distinction is less capable, or o Less worthy of recognition or value as a human being or as a member of Canadian society, equally deserving of concern, respect, and consideration In her analysis, L’Heureux-Dubé registers her accord with Cory’s finding that there is a legislative distinction being made. Furthermore, she concludes that the distinction denies the appellants the equal benefit of the law as a couple. Regarding the status of the appellants, she agrees with Cory that they are clearly part of a highly socially vulnerable group, in that they have suffered considerable historical disadvantage, stereotyping, marginalization and stigmatization within Canadian society. As for the nature of the interest affected, L’Heureux-Dubé asserts that the appellants have been directly and completely excluded, as a couple, from any entitlement to a basic shared standard of living for elderly persons cohabiting in a relationship analogous to marriage. She finds, therefore, that the exclusion of same-sex couples is indeed discriminatory and in violation of Section 15 of the Charter. Regarding the Section 1 analysis, L’Heureux-Dubé registers her agreement with the analysis of Iacobucci and characterizes the incremental approach, suggested by Sopinka, as undermining the values that s. 1 sought to protect. *Note that the irrelevance approach which prevailed by plurality in Egan was rejected by the majority in Miron, in which the more orthodox Andrews approach prevailed by plurality The Issues Unresolved In the next several equality cases, the Court agreed on the result without resolving their differences in approach – this caused criticism of the Court for failing to provide guidance to lower Courts and legislatures Then, in Law v. Canada, the Court appeared to resolve its differences Law v. Canada (1999) SCC Facts: The case involved Nancy Law, a 30-year old widow without dependants who was denied survivors benefits under the Canada Pension Plan, which are usually given to those 65 or over, or to the disabled, or to those with dependants at the time of death. She appealed to the Pension Plan Review Tribunal on 58 the basis that the age requirement was in violation of her equality rights under section 15(1) of the Charter (where age is already an enumerated ground). The tribunal held that the legislation did not violate Law’s rights. The majority held that even if it did it would be justified under s. 1. However, the dissenting opinion found that the age distinction was arbitrary and Parliament could have targeted those in need better. The Federal Court of Appeal upheld the tribunal’s decision. The question before the SCC was whether ss. 44(1)(d) and 58 of the Canada Pension Plan infringe s. 15(1) of the Charter on the ground that they discriminate on the basis of age against widows and widowers under the age of 45, and if so, whether this infringement is demonstrably justified in a free and democratic society under s. 1 i.e. whether the age distinctions drawn by the impugned provisions imposed a disadvantage upon surviving spouse as a younger adult in a manner which constituted discrimination under s. 15(1) of the Charter. Prior to this case there had been a sharp divide in the Court in the interpretation of the s. 15 test established in Andrews v. Law Society of British Columbia. The dispute culminated in this case where the test was reformulated to reflect both sides of the dispute. Decision and Reasoning: Appeal dismissed. The unanimous Court held that the Canada Pension Plan did not violate section 15(1). While there has been dispute between the justices in previous cases, there is a consensus on the purpose and approach in this case. Law Test First, the approach must not be mechanical, rather it should be flexible, purposive and contextual. The steps in the test must function as a point of reference, not strict guidelines, and must allow for expansion and modification by cases in the future. The analysis must be remedy-oriented in order to properly identify and solve situations of discrimination. Second, the analysis generally should focus on three issues (analysis of the issues should establish whether the law causes differential treatment, and then whether the differential treatment constitutes discrimination): 1. Whether a law imposes differential treatment, in purpose or effect, by denying a benefit or protection; 2. On the basis of an enumerated or analogous ground; 3. In a manner that discriminates i.e. violates human dignity (see opinion of L’Heureux-Dube in Egan). On the third stage of analysis, Iaccobucci enumerates four factors that should be considered: a) Whether the excluded group has suffered pre-existing disadvantage, stereotyping, prejudice, vulnerability; b) Whether the law provides for the assessment of claimants’ actual needs, capacities or circumstances; c) Whether the distinction in treatment is for the amelioration or benefit of those who are more disadvantaged than the claimant(s); 59 d) The nature and scope of the interest affected. Upon application of the tests to this case, it is decided that there is no infringement of s. 15. Although the legislation draws a distinction on the basis of age resulting in unequal treatment, neither the purpose nor the effect of the provision violates the claimant’s human dignity. The contextual factors considered were: She is not part of a disadvantaged or vulnerable group The law has an ameliorative purpose: to protect older surviving spouses Parliament is entitled to premise remedial legislation upon “informed generalizations” (as long as they are not stereotypes) While the “irrelevant personal characteristics test” applied in Egan and Miron is not referred to in this case, the Court in effect finds that the distinction on the basis of age is “relevant to the functional values of the legislation”. Commentary on Andrews and Law In some respects, Law contradicts the earlier s. 15 case Andrews v. Law Society of British Columbia, in which it was ruled that differential, detrimental treatment directly affecting an enumerated or analogous ground constituted a violation of s. 15, and that any discussion about the law’s purpose or reasonableness should then take place in the s. 1 analysis. As Hogg has written, by examining whether the challenged law undermines dignity while still looking at s. 15, and not yet section 1, Law moved much of the analysis of the law’s purpose and reasonableness from the traditional s. 1 test, and into s. 15. This means that a person who claims his s. 15 rights are violated must himself prove his dignity was undermined. Comparator Groups Hodge v. Canada (2004) SCC Facts: Appeal from a decision that the definition of spouse in s. 2(1)(a)(ii) of the Canada Pension Plan (CPP) breached the equality provisions in s. 15(1) of the Charter. Respondent sought a survivor’s pension under the CPP. She had lived in a common law relationship with the contributor from 1972 to 1993. After a brief reconciliation failed, respondent ended the relationship finally and permanently in 1994. The contributor died five months later. Respondent’s application for CPP survivor’s benefits was denied because she was no longer a spouse at the time of the application. The definition of spouse in s. 2(1)(a)(ii) requires a common law spouse, but not a married spouse, to have cohabited with the contributor at the date of the death and for one year prior to that date. A CPP Review Tribunal held that the definition breached the equality provisions in s. 15(1) of the Charter. The Pension Appeals Board set aside the Tribunal’s decision. The Federal Court of Appeal allowed respondent’s application for judicial review and restored the Tribunal’s decision. The Minister of Human Resources Development appealed the decision to the SCC. Decision and Reasoning: Appeal allowed. At the time of the contributor’s death, respondent was not a separated common law spouse but a former common law spouse. Former spouses, whether married or 60 common law, did not qualify for a survivor’s pension under the CPP. Since former married spouses and former common law spouses were treated the same, there was no distinction based on marital status and thus no discrimination. The Court found that in considering equality rights, comparator groups are needed to demonstrate that one has suffered differential treatment. While the claimant originally selects her own comparator group, courts may reject the rights claimant’s view as to what an appropriate comparator group would be. The choice of comparator group is crucial since the comparison permeates each stage of the infringement analysis. Comparator groups indicate that a rights claimant is similar to one group, but has suffered differential treatment due to a different characteristic. The appropriate comparator is the group that mirrors the claimant’s characteristics relevant to the benefit, other than the allegedly discriminatory characteristic (enumerated or analogous ground). In this case, the appropriate comparator group is married spouses who have divorced, not married spouses who have separated; marriage begins and ends with formal legal acts. A divorced spouse is not eligible for benefits and neither is a former common law spouse. There is no distinction in their treatment based on their marital status. Auton v. British Columbia (Attorney General) (2004) SCC Facts: The parents of several autistic children brought an action against the British Columbian government for failing to fund Applied Behavioral Therapy (ABA/IBI), a form of treatment for autistic children. For several years previous to this case the government had been funding ABA/IBI treatment for autism, however, for financial reasons and due to the ethical controversy surrounding the methods of treatment, they ceased the funding. Both at trial and in the British Columbia Court of Appeal the Court found that the children’s equality rights (under s. 15) were violated. Decision and Reasoning: The Court unanimously decided that the refusal to fund the ABA/IBI treatment did not violate the children’s section 15 equality rights. McLachlin, writing for the Court, reiterated that the question here is whether the petitioners were denied a benefit in a discriminatory manner (Law test). However, here, the benefit of funding for all medically required treatment is not guaranteed by law, as it is neither promised in the Canada Health Act nor any provincial health legislation. Rather, the Health Act only guarantees funding for core services of which ABA/IBI for autism is not one. The Court further rejected the possibility that autistics were adversely discriminated against by the underinclusiveness of the legislation. Non-core medical services are by their very nature underinclusive and cannot be considered discriminatory. For a claim to succeed, the petitioner must establish a comparator group from which differential treatment must be shown. In this case, the Court identified the comparator group as a person who is not suffering from a mental disability who wants funding for an emergent or experimental treatment. As the petitioners were unable to show that other seekers of experimental treatments are guaranteed funding, the Court rejected the claim on this basis as well. 61 Wynberg v. Ontario (2004) Ont. CA Facts: Appeal by the government of Ontario from a decision finding that the exclusion of autistic children aged six and over from the Intensive Early Intervention Program (IEIP) violated the equality guarantee in the Charter, and was not saved by section 1 of the Charter. The respondent parents appealed that portion of the judgment finding that they had not demonstrated a violation of their equality rights, and that neither the infant plaintiffs nor the adult plaintiffs had shown that their s. 7 Charter rights had been infringed by the special education regime in Ontario. The Ontario government had provided assistance to preschool autistic children who were between two and five years old through the IEIP since September 2000. Decision and Reasoning: Appeal by the government of Ontario allowed. Appeal by the parent respondents dismissed. All parties agreed that the appropriate comparator group was autistic children age two to five. It was also agreed that, through the Minister’s establishment of the IEIP for autistic children age two to five, the state imposed differential treatment on the claimants compared to the comparator group. The question that remained was whether that was discriminatory: 1. Since the ground of discrimination underpinning the claim was age, that contextual factor turned on whether the claimant group, namely autistic children six and over, had suffered from historic disadvantage as a result of stereotyping on the basis of age, not because of autism; there was no basis for concluding that prior to the implementation of the IEIP, autistic children ages six and over historically suffered disadvantage because of their age compared to autistic children age two to five, who were targeted by the program 2. The IEIP corresponded to the capacities and circumstances of autistic children in the targeted age group; those circumstances differed in important and relevant respects from those of autistic children age six and over; the IEIP did not correspond in the same way to the needs, capacities and circumstances of the claimant group, which made it less likely that the differential treatment accorded to the younger group based on age constituted discrimination against the older group 3. Exclusion from a targeted program made less likely the conclusion that the excluded group was thereby subjected to discrimination 4. While the nature and scope of the interest affected by state action in this case was of fundamental importance, the effect was considerably muted The respondents also failed to demonstrate that they had been subjected to differential treatment based on disability under s. 8(3) of the Education Act. The appropriate comparator group was exceptional pupils with communications and physical challenges in special education programs. The respondents did not show (a) that the program could be delivered within the public school system as a special education program, or (b) that the program for 2 to 5 year olds is the only appropriate program for autistic children over 6. Although the Court found that there was not infringement of s. 15, if there was, it would be justified under s. 1. At the time, the evidence showed that the program was most effective with 2 to 5 year olds and there were scarce human and financial resources for program implementation. Thus, the age limit 62 is rationally connected to the objectives. According to the deference test re minimal impairment, it was a reasonable choice to distribute resources among children who could benefit most. Under the proportionality branch, the salutary effects outweigh deleterious effects. *Although plaintiffs lost the case, they gained substantial positive publicity and in February 2007, there was a directive to school boards requiring specialized autism treatment in classrooms Granovsky v. Canada (2000) SCC Facts: Applicant injured his back at work in May 1980. He was then 32. Since then, he had been employed irregularly at various jobs. In 1993, he applied for a permanent disability pension under the Canada Pension Plan (CPP). His application was denied on the basis that over the relevant 10-year period prior to his application, applicant had failed to make the required CPP contributions in any year except 1988. Applicant contended that it was his disability that prevented him from making all of the required contributions, and that the failure of the CPP to take his disability into account in considering his lack of contribution amounted to discrimination under s. 15 of the Charter. The CPP contained a drop-out provision that gave certain individuals the benefit of the pension without meeting the contribution requirements. Among those individuals were those who were found to be permanently disabled at the date of the application as well as during the contribution period. Decision and Reasoning: Appeal dismissed. The CPP as designed and as applied to applicant did not violate his equality rights. The drop-out feature of the plan relaxed the contribution requirement for individuals with permanent disabilities but not those with temporary disabilities. Parliament was entitled to take into account the nature and extent of an individual’s disability both at the time of the application for a disability pension and during the prior 10-year contribution period. The statutory distinction drawn between individuals with differing levels of disability during the contribution period did not demean applicant. It simply recognized the greater economic strength applicant enjoyed at the relevant time, as compared to that of permanently disabled individuals. As his comparator group, the claimant sought the same benefits as people who are permanently (as opposed to temporarily) disabled. A distinction is made between the two groups on the basis of the extent of their disability, but the differential treatment is not discriminatory; it ameliorates the position of more disadvantaged individuals and does not demean the dignity or undermine the worthiness of the temporarily disabled. Governments have the right to make distinctions as long as they don’t do so in a discriminatory way – here the Court says the government was not discriminating. Differential Treatment Differential treatment can be established in one of two ways: 1. Explicitly on the face of the legislation (the legislation will explicitly make a distinction) 2. Implicitly, on the basis of the disparate impact of legislation which is neutral on its face (the legislation will apply in such a way that a group is left out) 63 Differential Treatment: Adverse Effects Eldridge v. British Columbia (Attorney General) (1997) SCC Facts: Medical care in BC is delivered through two primary mechanisms. Hospital services are funded under the Hospital Insurance Act by the government which reimburses them for the medically required services provided to the public. Funding for medically required services delivered by doctors and other health care practitioners is provided by the province’s Medical Services Plan (established and regulated by the Medical and Health Care Services Act). Neither program pays for sign language interpretation for the deaf. Each of the appellants was born deaf and their preferred means of communication is sign language. They contend that the absence of interpreters impairs their ability to communicate with their doctors and other health care providers, and thus increases the risk of misdiagnosis and ineffective treatment. Appellants unsuccessfully sought a declaration in the Supreme Court of British Columbia that the failure to provide sign language interpreters as an insured benefit under the Medical Services Plan violates s. 15(1) of the Charter. A majority of the Court of Appeal dismissed an appeal from this judgment. The constitutional questions are: 1. Whether the definition of benefits in s.1 of the Medicare Protection Act infringed s.15(1) of the Charter by failing to include medical interpreter services for the deaf; [Court says no] 2. If so, whether the impugned provision was saved under s. 1 of the Charter; 3. Whether ss.3, 5 and 9 of the Hospital Insurance Act and the Regulations infringed s.15(1) by failing to require that hospitals provide medical interpreter services for the deaf; and [Court says no] 4. If the answer to 3 is yes, whether the impugned provisions were saved under s.1. Also at issue were whether, and in what manner, the Charter applies to the decision not to provide sign language interpreters for the deaf as part of the publicly funded scheme for the provision of medical care, and, if a Charter violation were found, what the appropriate remedy would be. Decision and Reasoning: As deaf persons, appellants belong to an enumerated group under s.15(1), the physically disabled. There is also no question that the distinction drawn between appellants and others is based on a personal characteristic that is irrelevant to the functional values underlying the health care system, the promotion of health, the prevention and treatment of illness and disease, and the realization of those values through a publicly funded health care system. The only issue is whether appellants have been afforded “equal benefit of the law without discrimination” within the meaning of s.15(1) of the Charter. On its face, the medicare system applies equally to the deaf and hearing populations, so the claim here is for adverse effect discrimination. The failure of the Medical Services Commission and hospitals to provide sign language interpretation where it is necessary for effective communication constitutes a prima facie violation of the s.15(1) rights of deaf persons. This failure denies them the equal benefit of the law and discriminates against them in comparison with hearing persons. The Court assumes, without actually deciding, that the decision to not fund is prescribed by law; that the objective of the legislation is pressing and substantial and that the decision not to fund is rationally 64 connected. They then go right to the minimal impairment test. The failure to provide sign language interpreters would fail the minimal impairment branch of the Oakes test under a deferential approach. The government has manifestly failed to demonstrate that it had a reasonable basis for concluding that a total denial of medical interpretation services for the deaf constituted a minimum impairment of their rights. Moreover, it is purely speculative to argue that the government, if required to provide interpreters for deaf persons, will also have to do so for other non-official language speakers, thereby increasing the expense of the program dramatically. The possibility that a s.15(1) claim might be made by members of the latter group cannot justify the infringement of the constitutional rights of the deaf. Respondents have presented no evidence that this type of accommodation, if extended to other government services, will unduly strain the fiscal resources of the state. Also, the cost of providing interpretation would be 0.0025% of health budget – the Court decides that a refusal to pay such an insignificant sum cannot be minimal impairment. The appropriate and just remedy was to grant a declaration that this failure is unconstitutional and to direct the BC government to administer the Acts in a manner consistent with the requirements of s.15(1). A declaration, as opposed to some kind of injunctive relief, was the appropriate remedy because there are myriad options available to the government that may rectify the unconstitutionality of the current system. It was appropriate to suspend the effectiveness of the declaration for six months to enable the government to explore its options and formulate an appropriate response. Eldridge cf. Auton In Eldridge, the claimants are not seeking some new treatment that may or may not be helpful, they are just seeking help to access the same services that everyone else is getting – when the government provides something, they have to do so in a way that does not discriminate Differential Treatment: Adverse Impact of Omission Vriend v. Alberta (1998) SCC Facts: Vriend was dismissed from his position as a lab coordinator at King’s College, a private religious college in Edmonton because of his sexual orientation. He was prevented from making a complaint under the Alberta Individual Rights Protection Act because the legislation did not include sexual orientation as a prohibited ground of discrimination. Vriend sought a declaration from the Alberta Court of Queen’s Bench that the omission breached s. 15 of the Charter. They found in favour of Vriend as the college violated s. 15 of the Charter and could not be saved by s. 1. The Alberta Court of Appeal overturned this decision. Decision and Reasoning: Standing Court granted discretionary standing to Vriend to raise all of the issues with respect to sexual orientation – without this, he would have been able to deal only with discrimination in employment discretionary standing to expand the scope of the case. 65 Discrimination As established in Egan, sexual orientation is an analogous ground. The Court looked at the language of s. 32 and found that it does not limit the scope of the Charter to only positive acts. It is not only to protect against encroachment on rights or the excessive exercise of authority, rather it is a tool for citizens to challenge the law in all its forms. The legislature’s silence on an issue does not constitute neutrality with first assessing the application of s. 15. The Court then looked at the application of the Charter to private activities. Although the Act targets private activities and as a result has an effect on those activities it does not follow that this indirect effect should remove the Act from the purview of the Charter. It would lead to an unacceptable result if any legislation that regulated private activity would for that reason alone be immune from Charter scrutiny. Infringement The Court followed this with a s. 1 analysis: 1. The respondents failed to show a “pressing and substantial objective”. The Court dismissed the respondents’ submission, that the predicament would be rare, as only an explanation and not an objective, as it lacked any description of goal or purpose. 2. The respondents failed to show a “rational connection”. The Court was especially harsh on this point, stating: far from being rationally connected to the objective of the impugned provisions, the exclusion of sexual orientation from the Act is antithetical to that goal. Indeed, it would be nonsensical to say that the goal of protecting persons from discrimination is rationally connected to, or advanced by, denying such protection to a group which this Court has recognized as historically disadvantaged. The respondents attempted to justify the rational connection as part of an incrementalist approach similar to one used in Egan, which the Court rejected as inappropriate and a poor basis for justifying a Charter violation. 3. The respondents failed to show that there was “minimal impairment”. Though the legislature must balance between the competing rights of religious freedoms and protections of gays and lesbians, the legislature made no compromise between rights at all. In concluding, the Court ruled that to remedy the situation sexual orientation must be read into the impugned provision of the Act, effective immediately. Dissent The sole dissenting opinion was written by Major J. He argued that reading in a sexual orientation provision in the Individual Rights Protection Act was not necessarily more desirable than simply dismissing the entire IRPA as unconstitutional, since the Alberta legislature had repeatedly indicated they specifically did not wish to include such rights in the document. Major wrote that the IRPA should in fact be overturned. He then suggested that the remedy be postponed for one year so that the legislature can assess its options. 66 Judicial Review This case endured criticism that Courts are “usurping role of legislatures”: o The Court is in the role of trustee to scrutinize the work of the legislature and executive in accordance with democratically chosen values o The Court is not making value judgments or second-guessing policy choices, but upholding the constitution o Dynamic interaction among branches of governance enhances the democratic process – “the concept of democracy is broader than the notion of majority rule, fundamental as it may be” Analogous Grounds Factors necessary to establish an analogous ground are as follows (from Miron v. Trudel): o Must be related to the essential dignity and worth of the individual o Must be associated with patterns of historical disadvantage and prejudice o Must be an immutable characteristic or one over which one may have limited but not exclusive control o Must have the ability to be used to deny equal treatment to people on grounds which have nothing to do with their true worth or entitlement 1. Citizenship Andrews v. LSBC: non-citizens are a “discrete and insular minority” who lack political power; legislation prohibiting a non-citizen from being called to the Bar infringed s.15(1) and is not justified 2. Marital Status Miron v. Trudel: legislation re auto insurance provided coverage to the insured and the insured’s husband or wife, but not to the insured’s common law spouse 3. Sexual Orientation Egan v. Canada: denying spousal allowance to long term gay partner which would be available to a heterosexual common law spouse of one year 4. Aboriginal Residence Corbiere v. Canada: the distinction went to the personal characteristic essential to a band member’s personal identity and was discriminatory; off-reserve band members had important interests in band governance and denying them the right to vote and participate in their band’s governance perpetuated the historic disadvantage of off- reserve members, treated them as less worthy, and denied substantive equality Corbiere v. Canada (1999) SCC Facts: Members of the Batchewana Indian Band, on behalf of themselves and all other non-resident members of the band, sought a declaration that section 77(1) of the Indian Act violates section 15(1) of the Charter. The section of the Indian Act required band members to be “ordinarily resident” on their 67 reserve in order to be eligible to vote in band elections. However, only one-third of the registered members live on the reserve. Decision and Reasoning: The Court unanimously agreed with the Court of Appeal’s ruling that the Act violated section 15(1) of the Charter. Aboriginal Residence as an Analogous Ground The implications of finding an analogous ground are as follows: o Equivalent to an enumerated ground for all future purposes o A signal of potentially suspect decision-making The criteria for identifying an analogous ground are as follows: o A personal characteristic that is Immutable or “Constructively” immutable (changeable only at unacceptable cost to personal identity i.e. the government has no legitimate interest in expecting the individual to change in order to receive equal treatment under the law) o Often, the analogous ground will have served as the basis for stereotypical treatment in the past o An analogous ground may be “embedded” within a larger enumerated or analogous ground The Court finds that residence, as a basis for denying benefits available to aboriginal people, is constructively immutable; however, note that this decision does not mean that “place of residence” is an analogous ground in other contexts Discrimination The distinction between resident and non-resident band members has the effect of: o Perpetuating the historic disadvantage of off-reserve members o Not reflecting respect for the dignity and difference of off-reserve members o Reflecting the stereotype that off-reserve aboriginals are not interested in preserving their cultural identity or participating in the band The interests affected are fundamental – culture, property, funds and expenditures Infringement The objective of the legislation is to give the vote only to those most directly affected Thus, the restriction is rationally connected to objective However, it is not a minimal impairment – the Crown did not establish that complete denial of voting rights for off-reserve members was necessary In concluding, the majority decides that “ordinarily resident” should be stuck from the Act, with a transition period of 18 months. 68 Discrimination M. v. H. (1999) SCC Facts: This is an appeal by the Attorney General from the Ontario Court of Appeal’s decision to uphold a declaration that the opposite-sex definition of spouse in s. 29 of the Family Law Act violated the Charter and to read in certain words to s. 29. Two women, M and H, cohabited together in a same-sex relationship from 1982 until 1992. During that time, they lived in H’s home, started a successful advertising business, and jointly purchased business property and a vacation property. M performed many of the household duties and H was more involved in business. In 1992, they separated and M left the common home. She applied for support under the FLA and sought a declaration that the oppositesex definition of spouse in s. 29 was invalid as it violated section 15(1) of the Charter. The motions judge granted the declaration and read out the words “man and woman” and read in the words “two persons”. Both H and the AG appealed. The Court of Appeal upheld the decision, but suspended the declaration’s implementation for one year to give Ontario time to amend the FLA. The AG appealed to the SCC. Decision and Reasoning: To determine whether there was discrimination, the Court applied the Law test: 1. Whether a law imposes differential treatment, in purpose or effect, by denying a benefit or protection the economic needs of a dependent same sex partner are not protected when the relationship ends (where as they are in heterosexual couples) 2. On the basis of an enumerated or analogous ground sexual orientation is an analogous ground as established in Egan and reaffirmed in Vriend 3. In a manner that discriminates i.e. violates human dignity the legislation discriminates in that it violates human dignity a) Whether the excluded group has suffered pre-existing disadvantage, stereotyping, prejudice, vulnerability there is a pre-existing disadvantage of gays and lesbians b) Whether the law provides for the assessment of claimants’ actual needs, capacities or circumstances lack of correspondence between limits on eligibility for support and the actual needs of claimants (the fact that heterosexual males are eligible undermines the idea that the legislation is aimed at protecting the interests of traditionally economically dependant females – once you recognize that men may need support from their former female partners, it is not a big step to say, if you are in a conjugal relationship, it should not matter whether it is homosexual or heterosexual if the whole idea is just to provide support for the disadvantaged partner in the relationship) c) Whether the distinction in treatment is for the amelioration or benefit of those who are more disadvantaged than the claimant(s) the excluded group is not more advantaged d) The nature and scope of the interest affected the nature of the interest affected is fundamental – financial needs following breakdown of relationship characterized by intimacy and economic dependence 69 The majority then did a s. 1 analysis. They decided that they couldn’t simply rely on the reasoning in Egan for this part because different legislation is at issue. 1. Pressing and substantial objective of legislation/impugned provision? The objective is to: o Provide for equitable resolution of economic disputes arising on breakdown of intimate relationships between financially interdependent individuals o Provide a means of redress o Alleviate the burden on the public purse The Crown asserts that the objective of the provision is to: o Remedy systemic inequality in opposite sex relationships o Protect children of the relationship o BUT the provisions apply to men as well as women and are not conditional on having children 2. Proportionality analysis No rational connection between the omission and the objectives o If the objective is to support women in opposite sex relationships, the legislation is over-inclusive (applies to male partners too) o If the objective is to support spouses in relationships with children, it is overinclusive and under-inclusive (includes childless heterosexual couples; excludes same sex couples with children) Even if same sex couples tend to be more egalitarian, the legislation excludes those who aren’t Omission of same sex couples does not reduce the burden on the public purse There is no benefit from the infringement that can outweigh the detriment 3. Minimal impairment test Not a minimal impairment (even if deference test is applied) Not reasonable for government to conclude it has impaired rights of same sex partners as little as possible consistent with achieving objective 4. In any event, deference is not appropriate because: You are not balancing competing claims It is irrelevant that gays and lesbians are not unanimous in wanting access to support obligations Incrementalism (see Sopinka in Egan) is generally an inappropriate justification but, in any event, there is no evidence of incrementalism Legislature made no effort to “tailor” the exclusion to minimize impairment Extending the benefits has no fiscal implications Bastarache concurred with the majority, but thought that the analysis should go a different way – the objective of the omission is to prevent the undermining of the traditional family (but he isn’t very convincing about how the traditional family is undermined if they simply share the protection with 70 others). In his view, the objectives are not pressing and substantial and are inconsistent with Charter values. In Vriend, Major deferred to the legislature. Here, he concurs with the majority but on much narrower grounds – the objective serves no purpose and unduly burdens the public purse. Remedy If the Crown fails to establish justification under s. 1, the onus shifts back to the claimant to identify an appropriate remedy. The options for a remedy for under/over-inclusive legislation are as follows (as identified in Schachter): 1. 2. 3. 4. Strike down the legislation Sever the infringing provision, leaving the rest of the legislation intact “Read in” words, or “read down” the provision Combine any of the above with a temporary suspension To decide when to choose one of these remedies over another, consider the following factors: a. b. c. d. e. Whether the remedy can be stated precisely Whether there are any budgetary implications The effect of the remedy on the remaining portion of the legislation The extent to which the remedy would interfere with legislative objectives The significance or long-standing nature of the remaining portion In this case, the remedy can be stated precisely, but has significant impact on other parts of Act. Thus, the provision should be severed – the Court strikes down the offensive provision and suspends the order for six months to enable the legislature to reconsider the Family Law Act and related statutes. Dissent Gonthier in dissent said that the legislation does not infringe s. 15 – although it does withhold a benefit or protection on the basis of an analogous ground, it doesn’t discriminate, it just recognizes the social and biological function of opposite sex couples and the dependence of women – but this implies that same sex couples cannot be parents. He says the legislation corresponds to the actual need, capacity and circumstances of the group it targets and it ameliorates the position of dependent women in heterosexual relationships. By bringing other people inside the tent of the legislation, we somehow change it and this effects other people’s entitlement to the benefits – but really, what does it take away from everyone else, other than the right to live in a society that excludes and devalues the interests of certain people? 71 Law Test and Functional Relevance Did the Law Test eliminate the relevance test in s. 15(1) analysis? In M. v. H., Gonthier differs from the majority re the purpose of the legislation and whether it corresponds to the actual needs and circumstances of same sex couples and in two previous cases, Gonthier joined three other judges in holding that laws using marital status and sexual orientation to define the rights of spouses are not discriminatory because they are relevant to the legislative objectives of supporting the traditional family: o Miron v. Trudel (discrimination on basis of marital status, denying insurance benefit to common law spouse) o Egan v. Canada (discrimination on basis of sexual orientation, denying spousal allowance to long term gay partner which would be available to a heterosexual common law spouse of one year The danger of the functional relevance test used in this way is that it brings stereotypical thinking right into s. 15 – as soon as you start to say the distinctions are relevant to the legislation, you allow stereotypes to operate o However, as soon as you focus on individual’s actual needs, it is likely to defeat the stereotypical thinking In five unanimous decisions, the SCC has held that differential treatment on a prohibited ground is not discriminatory: Law, Granovsky, Winko, Gosselin and Lovelace The Law test was an attempt to reconcile the different approaches of the Court to s. 15(1) Actual Needs Approach Winko v. British Columbia (1999) SCC Facts: In 1984, accused was tried on charges of aggravated assault and assault with a weapon. He was found not criminally responsible (NCR). He was then institutionalized until 1994, when he returned to the community. Accused had since then lived in a hotel run by a mental patients association. Accused had never presented any particular problems other than on one occasion where he missed a medication injection. In 1995, the Review Board considered accused’s status and issued a conditional discharge on the basis that accused could become a significant risk to public safety in “certain circumstances”. Accused appealed the order of the Review Board. The B.C. Court of Appeal upheld the conditional discharge order. Accused argued that Part XX. 1 of the Criminal Code, which said that where an accused is found NCR, review boards have discretion to either discharge absolutely or conditionally or detain indefinitely to protect the public, was unconstitutional because it treated people differently on the basis of mental disability. Decision and Reasoning: The Court decided that the provision was not discriminatory because although mentally disabled people are part of a disabled group in our society, the decisions of the review board are based on individual assessments and not stereotypical application of group characteristics. Are mentally disabled people a vulnerable group, subject to discrimination in our society? Yes, but then you have to look at contextual circumstances – to what extent does the law take into account that actual 72 needs of the person who is being discriminated against? This is a case where the treatment is not discriminatory; the decision is made on the basis of an individual assessment, not based on stereotypical ideas of a certain group. Part XX.1 did not reflect the application of presumed group or personal characteristics. Rather it promoted the claimant’s right to be considered as an individual, equally entitled to the concern, respect and consideration of the law. *This case is a good illustration of the “actual needs” factor Gosselin v. Quebec (2002) SCC Facts: In 1984, the Quebec government enacted s. 29(a) of the Regulation respecting social aid setting the base amount of welfare payable to persons under the age of 30 at roughly one third of the base amount payable to those 30 and over. Persons under 30 were able to increase their welfare payments to the same or close to the base amount payable to those 30 and over by participation in certain education or work experience programs. In 1989, the provision was repealed. Appellant welfare recipient commenced a class action challenging the 1984 scheme on behalf of all welfare recipients under 30. Appellant argued that the 1984 social assistance regime violated ss. 7 and 15(1) of the Charter. She requested that s. 29(a) be declared to have been invalid from 1987 (when it lost the protection of the notwithstanding clause) to 1989, and that the government be ordered to reimburse all affected welfare recipients for the difference between what they actually received and what they would have received had they been 30 years of age or over, for an aggregate of $389 million dollars. The Superior Court dismissed the class action. The Court of Appeal upheld the decision. Appellant appealed to the Supreme Court of Canada. Decision and Reasoning: Appeal dismissed. The majority said the differential welfare scheme did not breach s. 15(1) of the Charter under the Law test. Appellant has failed to discharge her burden of proof on the third branch of the Law test, as she has not demonstrated that the government treated her as less worthy than older welfare recipients, simply because it conditioned increased payments on her participation in programs designed specifically to integrate her into the work force and to promote her long-term self-sufficiency. An examination of the four contextual factors set out in Law does not support a finding of discrimination and denial of human dignity: a. This is not a case where members of the complainant group suffered from pre-existing disadvantage and stigmatization on the basis of their age b. The record in this case does not establish a lack of correspondence between the scheme and the actual circumstances of welfare recipients under 30 c. The “ameliorative purpose” contextual factor is neutral in the present case, since the scheme was not designed to improve the condition of another group d. The findings of the trial judge and the evidence do not support the view that the overall impact on the affected individuals undermined their human dignity and their right to be recognized as fully participating members of society notwithstanding their membership in the class affected by the distinction 73 Dissent L’Heureux-Dube said that claimants under 30 suffered severe impacts because they were denied access to benefits and this constitutes discrimination where infringement not justified. Bastarache (with Arbour and LeBel concurring) said that distinctions based on age are often viewed as less subject to stereotypical thinking; nonetheless, they are as suspect as other enumerated distinctions. He held that young welfare recipients are a marginalized group and the program did not take into account their actual needs; any ameliorative purpose should be aimed at this group, not another. He said that the treatment demeaned and threatened the claimant and infringement is not justified because the legislation does not meet the minimal impairment test – reasonable alternatives were available – and the limit on rights was not proportional: the inadequacy of the program was foreseeable. The dissent has a compelling argument to be made that no matter how well-meaning the program was, it had a significant detrimental impact on young people solely because of their age. Equality and Religion Reference re Same-Sex Marriage (2004) SCC Facts: The federal government proposed legislation that would permit same-sex marriages; s. 1 of the proposed legislation extended the definition of marriage to include same sex couples and s. 2 stated that the proposed legislation did not prevent religious officials from refusing to perform marriages that were not in accordance with their religious beliefs. The Governor in Council referred four questions to the SCC for determination: 1. Whether the proposal was within Parliament’s jurisdiction; 2. Whether s. 1 was consistent with the Charter; 3. Whether the Charter’s freedom of religion protected religious officials from being compelled to perform same-sex marriages; and 4. Whether the opposite sex requirement in the common law definition of marriage was consistent with the Charter. Decision and Reasoning: The Court answered the first three questions: 1. S. 1 of the proposed legislation was within Parliament’s jurisdiction; it pertained to the legal capacity for marriage, which fell within the subject matter of s. 91(26) of the Constitution Act, 1867. S. 2 of the proposed legislation was ultra vires Parliament; it related to who performed marriages and fell within provincial jurisdiction. 2. S. 1 of the proposed legislation did not violate the Charter and in fact flowed from it; the mere recognition of the equality rights of one group did not constitute a violation of the equality rights of another group. 3. If the extension of benefits collides with the religious rights of others, the conflict will be balanced under s. 1 of the Charter; freedom of religion protects religious officials against being 74 compelled by the state to perform marriages between two persons of the same sex contrary to their religious beliefs. 4. It was not appropriate for the Court to answer the fourth question because, as a result of recent court decisions, the common law definition of marriage in five provinces and one territory no longer precluded same-sex marriage and the federal government had clearly adopted that position as well. *Note that on a reference, the Court may decline to answer a question where: The question is too ambiguous or imprecise There is insufficient information It would be unwise and inappropriate In this case, the federal government already said it would proceed with the legislation and answering the question could jeopardize uniformity in civil marriage. Affirmative Action: Section 15(2) S. 15(2) holds: 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 Lovelace v. Ontario (2000) SCC Facts: In the early 1990s, First Nations bands approached the Ontario government for the right to control reserve-based gaming activities. The profits from these activities were to be used to strengthen band economic, cultural and social development. In 1996, the Ontario government announced that reserve-based casino proceeds, known as the First Nations Fund, would be distributed only to Ontario First Nation communities registered as bands under the Indian Act. The appellant groups were not registered as Indian Act bands and did not have reserve lands, although they had members who were status Indians. A motions judge held that the exclusion of the appellants from the Fund violated their equality rights under section 15(1) of the Charter. The Court of Appeal set aside this decision and held that the casino project was authorized by section 15(2) of the Charter, on the basis that the project’s primary purpose was to improve the social and economic conditions of the bands. The issue before the SCC was whether the exclusion of Metis and other first nations groups constituted unjustified infringement of s. 15. Decision and Reasoning: Appeal dismissed. The appeal was decided based on section 15(1) of the Charter. The First Nations Fund did not conflict with the purpose of section 15(1). The appellants did establish the three of the four contextual factors of the Law test: a. The claimant group suffers pre-existing disadvantage because of exclusion from Indian Act b. But the actual needs, capacities and circumstances of the target group support the exclusion of claimant group 75 c. Ameliorative purpose: a targeted program developed on a partnered basis, not a universal or generally comprehensive benefits program d. Nature of interests affected: affects only remotely the recognition of claimants as selfgoverning communities; does not demean their human dignity Since the actual needs, capacities and circumstances of the target group support the exclusion of claimant group, they failed to establish that the Fund functioned by way of stereotype. The appellant communities had very different relations regarding land, government and gaming from those anticipated by the casino program. The ameliorative purpose of the casino project and the Fund had been clearly established. While the project was not designed to meet similar needs in the appellant communities, its failure to do so did not amount to discrimination under section 15. The actual needs, capacities and circumstances of the target group support the exclusion of claimant group – the object of the legislation is a partnered initiative designed to reconcile competing positions of provincial government and First Nations regarding reserve-based gambling, to support government to government relationship between bands and provincial government, and to improve conditions of band communities. The claimants have similar needs, but they do not have the same relation to the land, government and gaming. The claimants also had no quid pro quo to put on the table: the government was seeking to limit the number of casinos and the excluded group had no capacity to establish casinos in the first place. *Note that s. 15(2) acts as an interpretative aid to s. 15(1), not as an exception or defence R. v. Kapp (2008) SCC Facts: The Aboriginal Fisheries Strategy was implemented by the federal government in order to enhance aboriginal involvement in the commercial fishery. Pursuant to this strategy, three aboriginal bands were granted a communal fishing licence under the Aboriginal Communal Fishing Licences Regulations that gave fishers designated by the bands an exclusive right to fish during a certain predetermined period. Non-aboriginal fishers were prohibited from fishing during this period. The appellants were all commercial gillnet fishers, mainly non-aboriginal, who participated in a protest fishery during this 24-hour prohibited period. Consequently they were all charged with fishing at a prohibited time. The appellants argued that the program implemented by the federal government, the communal fishing licence and the related legislation, violated their equality rights under s. 15 of the Charter in a manner that was not justified by s. 1. Decision and Reasoning: Appeal dismissed. The communal fishing licence fell in the ambit of s. 15(2) of the Charter. Sections 15(1) and 15(2) of the Charter worked together to promote a vision of substantive equality that formed the basis for s. 15 as a whole. Section 15 sought to combat discrimination in two ways: 1. By preventing discriminatory distinctions that impact adversely on members of groups identified by the enumerated grounds in s. 15(1) and analogous grounds, and 2. By allowing for the development of programs aimed at helping disadvantaged groups improve their situation through s. 15(2). 76 The communal fishing licence was authorized by the Aboriginal Communal Fishing Licences Regulations, which brought it under s. 15(2) as a “law, program or activity”. The communal fishing licence also met the requirement under s. 15(2) that it have as its purpose “the amelioration of conditions of disadvantaged groups or individuals”. If a program comes within 15(2), it is not necessary to conduct a full 15(1) analysis. When claimant establishes different treatment on basis of enumerated or analogous ground, the government can show that the object of the law, program or activity is to ameliorate the conditions of disadvantaged individuals or groups. Numerous objectives were described by the Crown for the program, including supporting self-sufficiency, negotiating a solution to aboriginal fishing rights claims and attempting to redress the social and economic disadvantage of the targeted bands. To determine the object of the legislation, consider the intended purpose of the law, program or activity (not its effects). Also consider whether the different treatment serves and is necessary to the ameliorative purpose. The means that the government chose to achieve those objectives, namely awarding special fishing privileges for aboriginal communities, was rationally related to serving that purpose. The government’s objectives correlated to the actual economic and social disadvantage suffered by members of the three aboriginal bands. As such, the program was protected by s. 15(2). It is not necessary for the government to prove that all members of the band are disadvantaged or that the impugned program will effectively tackle the group’s disadvantage – rational connection is sufficient. If submissions under 15(2) fail, claimant continues with 15(1) analysis. Equality and Section 1 Newfoundland Treasury Board v. NAPE (2004) SCC Facts: The government of Newfoundland and Labrador agreed in 1988 to implement a pay equity agreement in favour of female employees in the health care sector, including those represented by appellant union. In 1991, the government introduced the Public Sector Restraint Act. Section 9 of the Act deferred commencement of the promised pay equity increase and extinguished the 1989-1991 arrears, effectively erasing a $24 million obligation of the government. The justification was that the government was experiencing an unprecedented financial crisis. The government also adopted other severe measures to reduce the province’s deficit. Grievances were filed on behalf of some female employees affected by the cut to pay equity. The Arbitration Board ordered the province to comply with the original agreement, holding that s. 9 infringed s. 15(1) of the Charter. On judicial review, the motions judge quashed the Board’s decision and dismissed the grievances. He agreed that s. 9 infringed s. 15(1) but found the infringement justifiable under s. 1. The Court of Appeal upheld the motion judge’s decision. The union appealed to the SCC. Decision and Reasoning: Appeal dismissed. The targeting of an acquired right to pay equity amounted to discrimination within the meaning of s. 15(1) of the Charter. Section 9 affirmed a policy of gender discrimination which the provincial government had itself denounced. However, s. 9 was justifiable under s. 1 of the Charter. The need to address the fiscal crisis was a pressing and substantial legislative objective in the spring of 1991. The crisis was severe. The cost of putting the pay equity into effect was a 77 major expenditure. The government’s response was also proportional to its objective. The detrimental impact of a delay in achieving pay equity did not outweigh the importance of preserving the fiscal health of the provincial government. Ordinarily, budgetary considerations do not constitute a pressing and substantial objective under s. 1, but in a financial crisis government must be accorded the scope to take proportional remedial measures. The minimum impairment test cannot be applied in a way that is blind to consequences for other social, educational and economic programs – the Court rejects the argument that the separation of powers requires s. 1 analysis to defer to legislative choice regarding economic and social policy. LIFE, LIBERTY AND SECURITY OF THE PERSON S. 7 of the Charter holds: Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice Thus, the state may infringe the right to life, liberty and security of the person, provided it complies with fundamental justice o If the state fails to comply with fundamental justice, it may seek to justify infringement under section 1, but it will be difficult to do so S. 7 protects an individual’s autonomy and personal legal rights from actions of the government This Charter provision provides both substantive and procedural rights; it has broad application beyond merely protecting due process in administrative proceedings and in the adjudicative context, and has in certain circumstances touched upon major national policy issues such as entitlement to social assistance (Gosselin) and public health care (Chaoulli) S. 7 protects life, liberty and security of the person, but it does not protect property or liberty of contract (see Ref re ss. 193 and 195.1(1)(c) of CCC) S. 7 also protects fundamental justice, which can mean three things: 1. Procedural protection (natural justice) 2. Something more than procedural protections 3. Substantive due process (see Lochner – requires courts to adjudicate the merits of public policy choices that impinge on life, liberty and security of the person) The wording of s. 7 says that it applies to everyone; this includes all people within Canada including non-citizens, but does not apply to corporations Section 7 rights can be violated by the conduct of a party other than a Canadian government body – the government need only be a participant or complicit in the conduct threatening the right, where the violation must be a reasonably foreseeable consequence of the government actions Section 7, however, does not convey positive rights nor does it impose any positive obligations upon the government Lochner v. New York (1905) US SC Facts: This was a landmark case that held a liberty of contract was implicit in the due process clause of the Fourteenth Amendment, which provides: “... nor shall any State deprive any person of life, liberty, or 78 property, without due process of law”. The case involved a New York law, the Bakeshop Act, which limited the number of hours that a baker could work each day to ten, and limited the number of hours that a baker could work each week to 60. Lochner, an employer, challenged the constitutionality of the law. Decision and Reasoning: The Court held that the statute violated the liberty of employees to contract re their hours of work. By a 5-4 vote, the Supreme Court rejected the argument that the law was necessary to protect the health of bakers, deciding it was a labor law attempting to regulate the terms of employment, and calling it an unreasonable, unnecessary and arbitrary interference with the right and liberty of the individual to contract. Canadian Administrative Law: Natural Justice An individual who will be specifically affected by a government decision is entitled to: 1. Notice and an opportunity to present evidence and arguments o May vary from informal interview to written submissions to a trial-like hearing, depending on the context 2. An impartial and independent decision-maker o This constitutes procedural due process Reference re Motor Vehicle Act (British Columbia) s. 94(2) (1985) SCC Facts: This was an appeal by the Attorney General of BC from a judgment of the Court of Appeal which held that s. 94(2) of the Motor Vehicle Act was inconsistent with the Charter. The decision of the Court of Appeal was made on a reference by the Lieutenant Governor in Council as to the constitutionality of s. 94(2). Under s. 94(2), driving without a valid driver’s licence or with a licence under suspension was an absolute liability offence which was punishment with a mandatory minimum term of imprisonment (a deprivation of liberty) whether or not the accused knew of the prohibition or suspension. Decision and Reasoning: The judgment of the Court of Appeal was affirmed. Section 94(2) had the potential to convict morally innocent persons and therefore offended the principles of fundamental justice and infringed the right to liberty guaranteed by s. 7 of the Charter. Further, s. 94 could not be justified as a reasonable limit within the meaning of s. 1 of the Charter because it fails to meet the minimal impairment test: objective could be served by a strict liability offence and a defence of due diligence. Fundamental justice was not synonymous with natural justice but something more. The second part of s. 7 qualifies the first part; the second part of s. 7 (in accordance with the principles of fundamental justice) should not be narrowly interpreted: s. 7 must not be narrower than the legal rights (ss.6-14) which are specific instances of the protection of life, liberty and security (i.e. it goes beyond “natural justice”). Fundamental justice is more than a procedural right similar to due process, but also protects substantive rights even though such rights were counter to the intent of the initial drafters of the Charter. 79 Section 7 and Bodily Integrity R. v. Morgentaler (1988) SCC Facts: Prior to this ruling, s. 251 of the Criminal Code, as it was then, now found under s. 287, allowed for abortions to be performed at only accredited hospitals with the proper certification of approval from the hospital’s Therapeutic Abortion Committee. Three doctors, including Dr. Morgentaler, set up an abortion clinic in Toronto for the purpose of performing abortions on women who had not received certification from the Therapeutic Abortion Committee, as required under s. 251(4) of the Criminal Code. In doing so they were attempting to bring public attention to their cause, claiming that a woman should have complete control over the decision on whether to have an abortion. Morgentaler had previously challenged the abortion law at the SCC in the pre-Charter case of Morgentaler v. The Queen where the SCC denied having the judicial authority to strike down the law. In this case, the Court of Appeal for Ontario found in favour of the government. On appeal, the main issue put before the SCC was whether s. 251 violated s. 7 of the Charter. A secondary issue was whether the creation of antiabortion law was ultra vires the federal government’s authority to create law. Decision and Reasoning: The Court ruled 5 to 2 that the law violated s. 7 and could not be saved under s. 1 despite the fact that it was not ultra vires the government to create such a law. However, there were three different opinions given by the majority, none having achieved more than two signatures. As such, no Morgentaler precedent is binding. Dickson (with Lamer concurring) Dickson found that s. 251 forced some women to carry a fetus irrespective of her own priorities and aspirations. This was a clear infringement of security of person. He found a further violation due to the delay created by the mandatory certification procedure which put the women at higher risk of physical harm and caused harm to their psychological integrity. Following standard s. 7 analysis, Dickson examined whether the violation accorded with the principles of fundamental justice. He found that it did not as the excessive requirements prevented smaller hospitals from providing such services thus preventing many women from even applying for certification. Moreover, he claimed that the administrative system failed to provide adequate evaluation criteria which allowed the committees to grant or deny therapeutic abortions almost arbitrarily at times. Dickson found that the violation could not be justified under s. 1, focusing on the means chosen by the government to achieve its objectives. In the end, the law failed on every step of the proportionality test: 1. Rational connection: he found the administrative process was often unfair and arbitrary 2. Minimal impairment: the resultant impairment of women’s rights was way beyond what was necessary to evaluate their case 3. Proportionality: the effect of the impairment far outweighed the importance of the law’s objective 80 Beetz (with Estey concurring) Beetz wrote a second opinion finding the abortion law invalid. Beetz noted that by adopting s. 251(4), the government acknowledged that the interest of the state to protect the woman is greater than its interest to protect the fetus when the continuation of the pregnancy of such female person would or would be likely to endanger her life or health. He found a violation of s. 7 as the procedural requirements of s. 251 were manifestly unfair. In the s. 1 analysis, Beetz found that the objective had no rational connection to the means, thus the law cannot be justified. He also speculated that if the government were to enact a new abortion law, this law would require a higher degree of danger to the woman in the later months rather than the early months for an abortion to be allowed. In this case it could be sufficiently justifiable under s. 1. Wilson Wilson decided that s. 251 violates two rights: liberty and security of person. She emphasized how s. 251 violated a woman’s personal autonomy by preventing her from making decisions affecting her and her fetus’ life. To Wilson, the women’s decision to abort her fetus is one that is so profound on so many levels that goes beyond being a medical decision and becomes a social and ethical one as well. By removing the woman’s ability to make the decision and giving it to a committee would be a clear violation of her liberty and security of person. Wilson scathingly noted that the state is effectively taking control of a woman’s capacity to reproduce. Wilson goes on to agree with the other Justices that s. 251 (prohibiting the performance of an abortion except under certain circumstances) is procedurally unfair, adding that the violation of s. 7 also has the effect of violating s. 2(a) of the Charter (freedom of conscience) in that the requirements for a woman to be permitted to obtain an abortion legally (or for a doctor to legally perform one) were in many cases so onerous or effectively impossible that they were resulting in a failure to comply with the principles of fundamental justice. The decision to abort is primarily a moral one, she notes, and thus by preventing her from doing so violate a woman’s right to conscientiously-held beliefs. With the abortion law, the government is supporting one conscientiously-held belief at the expense of another, and in effect, treats women as a means to an end, depriving them of their essential humanity. In her analysis of s. 1, Wilson notes that the value placed on the fetus is proportional to its stage of gestation and the legislation must take that into account. However, here, the law cannot be justified as the law takes the decision-making power away from the woman absolutely, thus cannot pass the proportionality test. Dissent Dissent was written by McIntyre with La Forest concurring. McIntyre finds that there is no right to abortions in s. 7 nor any other laws. His argument is based on the role of judicial review and how the Courts must not go about creating rights not explicitly found in the Charter nor interpret Charter rights to protect interests that the rights were not initially intending to protect. Nowhere in any constitutional 81 texts, history or philosophies is there support for any such rights. Furthermore, there is no societal consensus that these interests should be protected either. Even if a right could be found, says McIntyre, the case would not have been sufficient to prove a violation. The provisions of s. 251(4) cannot be said to be manifestly unfair on the basis that some women do not have access. The problems with administrative procedure are external to the legislation and cannot be the basis of a violation. Remedy The law was struck down as unconstitutional and Morgentaler’s conviction was overturned. In 1990, an attempt to pass a new abortion law was defeated in the Senate on a tie vote, leaving Canada without effective legislation governing abortion. However, the Criminal Code still contains a provision (s. 287) which limits an individual’s right to perform abortions and, as outlined in subsection 4, gives medical practitioners the sole right to perform an abortion. Borowski v. Canada (Attorney General) (1989) SCC Facts: Joseph Borowski was a prominent pro-life activist in Saskatchewan who wanted to challenge the abortion provisions under s. 251 of the Criminal Code as violations to right to life in the Canadian Bill of Rights. In a seven to two decision the SCC found that Borowski had standing to challenge the law, developing what is known as the Borowski test for public interest standing. Decision and Reasoning: A plaintiff seeking a declaration to invalidate a law must show either: 1. That he is directly affected by it, or 2. That he has a genuine interest as a citizen and there is no reasonable and effective alternative means to challenge the law. Borowski was found to meet this requirement as it would be difficult to bring such an issue to court without having an interest group make a challenge. However, R. v. Morgentaler was decided first and Borowski was dismissed as moot since the abortion provisions had been struck down. Daigle v. Tremblay (1989) SCC Facts: Canadian abortion law had already been mostly invalidated, as the Therapeutic Abortion Committees were found unconstitutional under s. 7 of the Charter in Morgentaler. That case, however, had not resolved the issue of the status of fetal rights. In this case, Chantal Daigle and Jean-Guy Tremblay were involved in a sexual relationship in 1988 and 1989 and Daigle became pregnant. Tremblay, however, beat Daigle; the relationship came to an end and Daigle decided she wanted an abortion. Among other things, Daigle cited a desire to raise children in peaceful and stable circumstances, an interest in never seeing Tremblay again, and concern for her own psychological health. In response, Tremblay sought an injunction to halt the abortion, claiming to be protecting the fetus’ right to life. Tremblay defended the existence of this fetal right by saying that the fetus is indeed a person. When the case reached the SCC, Daigle left the province for the US to terminate the pregnancy. 82 Nevertheless, the issue was considered important enough that the SCC declined to set aside the case for mootness. They went on to give a decision, which was unanimous and which vindicated Daigle. Decision and Reasoning: SCC set aside the injunction since neither the father nor the fetus could assert a right under the Quebec Charter. The Canadian Charter did not apply because there was no government action at issue. Suresh v. Canada (2002) SCC Facts: Suresh, a Convention refugee from Sri Lanka, applied for immigrant status in Canada. In 1995, the government rejected his application and ordered that he be deported on the basis that he was a security risk. CSIS had claimed that he was a supporter and fundraiser for the Tamil Tigers, a terrorist group in Sri Lanka. The Federal Court of Canada upheld the deportation order. Following this, the Minister of Citizenship and Immigration issued an opinion that declared him a danger to the security of Canada under section 53(1)(b) of the Immigration Act and consequently recommended deportation. Suresh had been given an opportunity to present written and documentary evidence to the Minister, however, he was not provided with a copy of the memorandum of the immigration officer and he consequently was not provided with the opportunity to respond to the memorandum. Due to this inability to respond Suresh applied for judicial review of the decision. He argued that: The Minister’s decision was unreasonable; The procedures of the Immigration Act were unfair; The Immigration Act infringed ss. 7, 2(b) and 2(d) of the Charter. The application was dismissed by the Federal Court. On appeal, the Federal Court of Appeal upheld the decision of the trial court. The decision was then appealed to the SCC. Decision and Reasoning: Section 7 The Court agreed that the word “everyone” in s. 7 included refugees. It was further held that deportation to a country where there is a risk of torture deprives the refugee of his right to liberty and security of person. The primary issue was whether the deprivation was in accordance with the principles of fundamental justice. The Court identified fundamental justice to be “the basic tenets of our legal system”, to be determined by a contextual approach that considers the “nature of the decision to be made”. Here, the Court must balance the government’s interests in preventing terrorism and the refugee’s interest in protection from torture. The test proposed by the Court was: Whether the deprivation would shock the Canadian conscience o That is, whether the conduct is fundamentally unacceptable to our notions of fair practice and justice 83 Applying this test, the Court finds that deportation of a refugee where there is risk of torture is unacceptable. The Court also considers the international perspective and finds that it too is incompatible with the practice of deportation where there is a risk of torture. In conclusion, the Court finds that the deportation order given by the Minister is unconstitutional, but the provisions of the Immigration Act are constitutional. Procedural Fairness The Court applied the five-question framework from Baker v. Canada to determine the level of procedural protection required by s. 7 of the Charter. The Court finds that Suresh was not owed a full oral hearing or a complete judicial process. That said, the Court finds that Suresh was owed a level of procedural protection greater than that required by the Act (which offered no protection whatsoever) and greater than that which Suresh received. Specifically, the Court found that a person facing deportation to torture under s. 53(1)(b) of the Immigration Act should receive a copy of the material on which the Minister is basing his decision, subject to valid reasons for reduced disclosure such as safeguarding public security documents, and that an opportunity should be provided for the person to respond to the case presented to the Minister. Furthermore, the refugee who is being deported has the right to challenge the information of the Minister, including the right to present evidence. Remedy The Court finds that because Suresh made a prima facie case that he would be subject to torture upon being returned to Sri Lanka and because he was denied the procedural fairness owed to him by the Charter, the case should be returned to the Minister for reconsideration in accordance with proper procedure. Charkaoui v. Canada (2007) SCC Facts: In 2003, Adil Charkaoui, a permanent resident in Canada since 1995, was arrested and imprisoned under a security certificate issued under s. 34 of the Immigrant and Refugee Protection Act by the Solicitor General of Canada and the Minister of Immigration. The evidence upon which the certificate was issued is secret, disclosed neither to Charkaoui nor his lawyers. Public summaries of the evidence issued by the Federal Court alleged a connection with “the bin Laden network”. Charkaoui appealed his detention three times before being released on the fourth try in February 2005, having spent almost two years in a Montreal prison. He was released under severely restrictive bail conditions. Charkaoui has never been charged or tried. The certificate against Charkaoui has never undergone any judicial review; the Federal Court suspended its review process in March 2005, pending a new decision from the Minister of Immigration on Charkaoui’s deportability (a decision which evaluates risk to Charkaoui). Decision and Reasoning: Chief Justice McLachlin, writing for a unanimous court, holds that the legislation infringes s. 7 as it deprives detainees of liberty and security (removal to a place where his freedom is threatened or where he may be at risk of torture). Deportation of non-citizens does not in itself implicate liberty and security interests, but detention or deportation to torture can bring the matter within s. 7. 84 The Court also looks at the impact of security considerations on s. 7 analysis: Have the principles of fundamental justice been observed in substance, having regard to the context and the seriousness of the violation? Security concerns are not a justification at this stage of analysis, but can be considered under s.1 The Court says the relevant principles of fundamental justice are: 1. 2. 3. No detention for significant periods without fair process, which entails: Hearing before an independent magistrate Right to know and answer the case against one Decision based on facts and law 1 and 2 are not met here: the detainee does not have access to the evidence against him and the judge cannot conduct an independent investigation Is the infringement of s. 7 justified under s. 1? Infringements of s. 7 are not easily justified by competing social interests However, protection of national security constitutes a pressing and substantial objective The provisions re nondisclosure of evidence are rationally connected to the objective BUT they do not constitute a minimal impairment given that a clearance system is used elsewhere in the world that would designate certain lawyers to view the evidence on behalf of the accused Canada (Prime Minister) v. Khadr (2010) SCC Facts: Appeal by the Prime Minister of Canada from a judgment of the Federal Court of Appeal requiring the Canadian government to request the United States to return Khadr from Guantanamo Bay to Canada. Khadr, a Canadian citizen, had been detained by the United States government at Guantanamo Bay, Cuba, for over seven years. In 2004, he was charged with war crimes, but the U.S. trial was still pending. In 2004, a Department of Foreign Affairs and International Trade (DFAIT) official interviewed Khadr with the knowledge that he had been subjected by U.S. authorities to a sleep deprivation technique in an effort to make him less resistant to interrogation. In 2008, the SCC ordered the Canadian government to disclose to Khadr the transcripts of the interviews he had given to CSIS and DFAIT, under s. 7 of the Charter. Khadr repeatedly requested that the Canadian government seek his repatriation, but the Prime Minister announced that he would not do so. Khadr applied to the Federal Court for a judicial review of that decision. The Federal Court concluded that Canada had a duty to protect Khadr and found that the refusal to request his repatriation violated Khadr’s rights under s. 7 of the Charter. The Court also ordered the government to request his repatriation. The Federal Court of Appeal upheld the order, but defined the s. 7 breach more narrowly. It found that the s. 7 breach arose from the interrogation conducted with the knowledge that Khadr had been subjected to sleep deprivation. Decision and Reasoning: Appeal allowed in part. The Court determines whether a Crown prerogative exists and whether its exercise infringes the constitution. The Charter does not generally apply extraterritorially, but the Court finds in this case that Canada infringed Omar Khadr’s s.7 rights. The 85 conduct of the Canadian government deprived Khadr of the right to liberty and security of person. Canadian conduct in connection with the case did not conform to the principles of fundamental justice. Interrogation of a youth, to elicit statements about the most serious criminal charges while detained and without access to counsel, and while knowing that the fruits of the interrogations would be shared with the U.S. prosecutors, offended the most basic Canadian standards about the treatment of detained youth suspects. Khadr was entitled to a remedy under s. 24(1) of the Charter. The necessary connection between the breaches of s. 7 and the remedy sought was established. The breach of Khadr’s rights remained ongoing and the remedy sought could potentially vindicate those rights. The order made by the lower courts that the government request Khadr’s return to Canada was not an appropriate remedy for that breach under s. 24(1) of the Charter. The evidentiary uncertainties, the limitations of the Court’s institutional competence, and the need to respect the prerogative powers of the executive, led the Court to conclude that the proper remedy was declaratory relief. In this case, the proper remedy was to grant Khadr a declaration that his Charter rights had been infringed, while leaving the government a measure of discretion in deciding how best to respond. The government must have flexibility in deciding how its duties under the Crown prerogative re the conduct of foreign affairs will be discharged, but is not except from constitutional scrutiny. Section 7 and Human Dignity S. 7 protects the integrity of the human body and also human dignity and autonomy Godbout v. Longueuil (1997) SCC Facts: Michèle Godbout was hired as a dispatcher for the Longueuil police force. As part of her employment she was required to sign a declaration that she would reside within the city and if she were to move outside of the city her employment would be terminated without notice. Initially she had lived within the city but soon bought a house in the nearby town of Chambly. When she refused to move back in she was fired. Decision and Reasoning: Justice La Forest, writing for the Court, held that the restriction on residency was unconstitutional. La Forest began by considering the question of whether the Charter applied to municipalities. He found that it did as they were government entities. He noted that municipalities were run by elected officials and were accountable to the public, they had the power to collect taxes, and they had the power to make laws which they derived from the provincial government. In addressing the municipality’s argument that the residency requirement was merely a private employment contract and not a governmental function, La Forest J. found that once a body is labeled governmental, that body cannot use colourable devices or organize activities to avoid Charter responsibility. La Forest considered the validity of the law under s. 7 of the Charter. He identified s. 7 as protecting personal autonomy which includes the choice of selecting one’s home. At no time did Godbout waive that right, even in signing the employment contract that contained the residency restriction. He further found that the restriction did not conform to the principles of fundamental justice as there was no compelling reason to have such a restriction. 86 R. v. Jones (1986) SCC Facts: This was an appeal by the accused from his convictions on three counts of truancy on the part of his children contrary to s. 180(1) of the Alberta School Act. The accused, a pastor, refused to send his children to public school as required under s. 142(1) of the Act unless the child was attending an approved private school or a certificate from the educational authorities certifying efficient instruction at home or elsewhere was obtained under s. 143 of the Act. Instead, the accused educated his children along with some 20 others in a program he operated out of his church. He sought no provincial approval in the belief that his authority over his children and his duty to attend to their education came from God and that it would be sinful to request the state to permit him to do God’s will. The accused now argues that ss. 142, 143 and 180 of the Act are inconsistent with ss. 2(a) and 7 of the Charter and, therefore, of no force or effect. Decision and Reasoning: The appeal was dismissed and the convictions were affirmed. Sections 142, 143 and 180 of the Act did not infringe the accused’s fundamental right to freedom of religion under s. 2(a) of the Charter. The Act required that the children of the accused attend a school under the board’s control subject to the penalty set out in s. 180 of the Act. Section 143(1) of the Act provided excuses for failure to comply with the requirement, it being up to the accused to avail himself of this provision. Even if the requirement that instruction be certified as efficient infringed his rights, such interference was demonstrably justified within s. 1 of the Charter given the state’s compelling interest in the efficient instruction of the young. One member of the Court held that s. 7 protects the right of parents to educate children privately in accordance with their religious beliefs. Even assuming that liberty as used in s. 7 of the Charter included the right of parents to educate their children as they see fit as argued by the accused, he was not deprived of that liberty contrary to the principles of fundamental justice. B.(R.) v. Children’s Aid Society of Metropolitan Toronto (1995) SCC 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’ appeal was dismissed and costs were awarded against the Attorney General. The parents argued that provisions of the Child Welfare Act were contrary to ss. 7 and 2(a) of the Charter. Decision and Reasoning: Section 7 of the Charter did not guarantee unlimited freedom. The right to liberty does not include a parents’ right to deny a child necessary medical treatment; the child’s liberty and security interest is at stake. Although the Child Welfare Act deprived the appellants of their right to choose the medical treatment for their child in this case, such intervention was justified. Liberty protects personal autonomy from state action; parental responsibility to make fundamental decisions re care of child is part of liberty and limits on it must conform to fundamental justice. Here, the procedure for making the child a ward of the state conformed to fundamental justice. The procedure governed by section 19(1)(b)(ix) of the Act was in accordance with the principles of fundamental justice. The infringement of the appellants’ freedom of religion was justified under s. 1 of the Charter. 87 New Brunswick (Minister of Health and Community Services) v. G. (J.) (1999) SCC Facts: The Minister of Health and Community Services was granted custody of JG’s children for six months. He applied for an extension. JG’s application for legal aid to contest the application was denied as such applications were not covered by legal aid. JG then brought the motion that was the subject of this appeal. While the motion was pending, the Minister was granted the extension sought. The issue before the SCC was whether indigent parents have a constitutional right to state-funded counsel when government seeks to suspend their custody of their children. Decision and Reasoning: Appeal allowed. The Charter issues were required to be determined in a prospective manner so that the Court was required to determine whether s. 7 would have likely been infringed had the custody hearing proceeded with JG unrepresented. The s. 7 right to security of the person applied to parents who could be relieved of the custody of their children as this constituted a serious interference with the psychological integrity of the parent. Security of the person protects both physical and psychological integrity. Psychological interference requires serious and profound stress from government action, which would arise in state interference with parental custody of children, due to the stigma, distress, impact on personal identity. Section 7 guaranteed such parents the right to a fair hearing. JG’s right to a fair hearing required that she be represented by counsel due to the seriousness of the interests at stake, the complexity of the proceedings, and JG’s capacities. The policy of not providing state-funded counsel was not saved under s. 1 of the Charter as the deleterious effects of the policy far outweighed the salutary effects of potential budgetary savings. The least intrusive remedy under section 24(1) of the Charter was to leave the legal aid policy intact, subject to a discretion vested in the trial judge to order state-funded counsel on a case-by-case basis when necessary to ensure the fairness of the custody hearing. Gosselin v. Quebec (2002) SCC Facts: See above. Decision and Reasoning: The factual record is insufficient to support appellant’s claim that the state deprived her of her s. 7 right to security of the person. The dominant strand of jurisprudence on s. 7 sees its purpose as protecting life, liberty and security of the person from deprivations that occur as a result of an individual’s interaction with the justice system and its administration. Such a deprivation does not exist here and the circumstances of this case do not warrant a novel application of s. 7 as the basis for a positive state obligation to guarantee adequate living standards. Section 7 protects against deprivations that occur within the justice system (criminal law, parental rights, human rights process), but is not necessarily limited to this context; it protects the right not to be deprived of life, liberty and security of the person and so far, there is no positive obligation on government to ensure that everyone enjoys life, liberty and security (although it could develop in a later case). Section 7 has the potential for expansion and even though it was intended to be a procedural due process provision, the Court rejected the original intentions approach to interpretation and there is a possibility that there are two independent rights in s. 7 – the right to liberty AND the right not to be deprived thereof. What is interesting is whether that first branch could be argued to require governments to provide social assistance – none of that is guaranteed in our Charter (although they are 88 in some other constitutions). In this case, the Court admits that s. 7 may have more scope than originally thought. In dissent, Arbour says s. 7 imposes a positive obligation on the state to offer basic protection for the life, liberty and security of its citizens; this is a huge statement with huge implications. Chaoulli v. Quebec (2005) SCC Facts: Section 15 of the Health Insurance Act and s. 11 of the Hospital Insurance Act prohibited the purchase of private health insurance for services available in the public health system (but for which there are long wait-lists). This legislation was challenged by a patient who could not get the treatment he needed and by a doctor who wished to operate an independent private hospital. They claimed that the legislation violated their rights under s. 7 of the Charter. The Superior Court dismissed appellants’ motion for a declaratory judgment. The Court found that, even though appellants had demonstrated a deprivation of the rights to life, liberty and security of the person guaranteed by s. 7 of the Charter, this deprivation was in accordance with the principles of fundamental justice. The Court of Appeal affirmed that decision. Appellants appealed to the SCC. Decision and Reasoning: Appeal allowed. Because ss. 15 and 11 of the Acts were arbitrary, they violated s. 7 of the Charter. That breach was not justified under s. 1. Limits on access to health care infringe personal inviolability pursuant to Quebec Charter and the limits cannot be justified. The objective, which is to preserve the integrity of the public health care system, is pressing and substantial and the quasi monopoly is rationally connected to the objective. However, the government did not meet its onus of proving that a total prohibition on private insurance is required; the health systems in other provinces and countries are not jeopardized by operation of private systems and insurance. The Court should not defer to government’s judgment: the Court has the tools to evaluate the impugned measure and the failure of government to take action. The provision also infringes s. 7 and is not justified (s.1). The Charter does not confer a right to health care – but if a scheme is put in place, it must comply with the Charter. Appellants do not seek an order that government spend more on health care or reduce waiting times. Rather, they seek a ruling that delays in waitlists place their health and security at risk and that they should not be prohibited from holding insurance to obtain access to private services. Prohibiting health insurance that would permit individuals to access health care, in circumstances where the government is failing to deliver it in a timely manner, increases health risks and infringes s.7. It is a principle of fundamental justice that a law must not be arbitrary: here, there was no evidence that prohibiting private health insurance is necessary or related to maintaining high quality in the public health care system. The experience of other countries refutes the government’s position in this regard. Under s. 1, the prohibition is not rationally connected to the objective of protecting the public health system. The deleterious effects (waiting, suffering, dying) outweigh the benefits (none were demonstrated) of the prohibition. The dissent held that the prohibition on private insurance is not arbitrary and thus does not infringe s. 7. Private insurance, and a consequent major expansion of private health services, would have a harmful 89 effect on the public system. The judges split 3/3 on whether the prohibition was arbitrary and an infringement of s. 7. Thus, Chaoulli applies only in Quebec. In Quebec, legislation now permits private health insurance for hip and knee replacement and cataract surgery; and contains measures re timely access to medical services. *In Gosselin, the Court says s. 7 can be expanded and here, they do expand it. Section 7 is the provision of the Charter that is the one to watch – attempts to limit it to legal rights and the justice system have not been, in the end, successful FEDERALISM: PEACE, ORDER AND GOOD GOVERNMENT In Canada, “peace, order and good government” is often used to describe the principles upon which that country’s Confederation took place Originally used in the Constitution Act, 1867, enacted by the Imperial Parliament, it defines the principles under which the Canadian Parliament should legislate o Specifically, the phrase appears in section 91 of the Act, which is part of the block of sections that divide legislative powers between the federal and provincial levels of government o In section 91, the phrase describes the legal grounds upon which the federal government is constitutionally permitted to pass laws that intrude on the legislative purview of the provinces In various cases, Canadian courts have found different functions for POGG, including POGG’s residuary power o The text of s. 91 allows Parliament to legislate “in relation to all matters not coming within the Classes of Subjects by this Act assigned exclusively to the Legislatures of the Provinces” Hence, when courts examine a jurisdictional dispute over something, if that thing is not specified as falling under provincial jurisdiction, the presumption is that the federal government may regulate it However, this residuary function has not been the only effect of POGG: Canadian courts have also ruled that it is from POGG that the Canadian Parliament may legislate and invoke emergency powers o This began in 1882, when the JCPC ruled in Russell v. The Queen that the federal government could legislate with regard to alcohol, because even though this would probably have been considered provincial jurisdiction in ordinary circumstances, the federal government was acting to ensure order in Canada o This concept further evolved during the 1920s, when in the 1922 Reference re Board of Commerce Act, it was stated that POGG could be invoked in times of war and famine to allow Parliament to intervene in matters of provincial jurisdiction o POGG was later used this way in the Anti-Inflation Reference of 1976, when the SCC allowed Parliament to regulate inflation on the grounds that it posed a considerable economic problem for Canada 90 In this case, a great degree of deference was exercised in accepting what the federal government deemed to be an emergency The “national dimensions” (originally called “national concerns”) doctrine was an alternate means of applying the POGG powers that found use in the mid 20th century; it allowed Parliament to legislate on matters that would normally fall to the provincial government when the issue became of such importance that it concerned the entire country o The doctrine originated from a statement by Lord Watson in the Local Prohibition case o After this case the doctrine was completely ignored until 1946 when Viscount Simons brought it back in the case of Ontario v. Canada Temperance Foundation o The test as stated in Temperance Foundation was whether the matter “goes beyond local or provincial concern or interests and must from its inherent nature be the concern of the Dominion as a whole” Despite its technical purpose, the phrase “peace, order and good government” has also become meaningful to Canadians o This tripartite motto is sometimes said to define Canadian values in a way comparable to “liberté, égalité, fraternité” (liberty, equality, fraternity) in France or “life, liberty and the pursuit of happiness” in the US Thus the POGG power has been the trunk from which three branches of legislative power have grown: 1. The gap branch – one of the offices of the POGG power is to full gaps in the scheme of distribution of powers, though there are very few undoubted haps in the scheme of distribution which have to be filled in this way (see Radio Reference) 2. The national concern branch – from Johannesson and Munro, we lean that to satisfy the national concern tests, it has to be a matter of import or significance to all parts of Canada (see R. v. Russell, Attorney General of Ontario v. Canada Temperance Foundation, Johannsesson v. West St. Paul, Munro v. National Capital Commission, R. v. Crown Zellerbach) 3. The emergency branch Historical Development Approaches to POGG Pre-1930 Russell v. The Queen (1882) JCPC Facts: In 1878, the government of Canada passed the Canada Temperance Act which allowed for a county or city to hold a plebiscite (a vote by the electorate determining public opinion on a question of national importance) on banning the sale of alcohol. Fredericton held such a plebiscite which was successful. Charles Russell, a local pub owner, was convicted under the Temperance Act of selling alcohol. Russell argued that Parliament cannot delegate its powers to any other part of government. The law can best be characterized as either falling into the provinces power to legislate on matters related to taverns and saloons (section 92(9)), property and civil rights (section 92(13)), or matters of a local or private nature (section 92(16)). 91 Decision and Reasoning: The decision of the Council was given by Sir Montague Smith. Smith upheld the law as a valid exercise of federal power under the doctrine of “peace, order and good government” which means that any law that cannot be found to be allocated to the provincial head of power under s. 92 must necessarily fall into the residual power granted to the federal government. He dismissed all of Russell’s characterizations of the law. The law was found to be in relation to public order and safety, which precludes characterizing it as a matter of local nature, property and civil rights, or tavern and saloons. Parliament has jurisdiction under POGG over matters of general concern throughout the Dominion on which uniform legislation is desirable and thus the federal Temperance Act is valid. This decision dramatically increases Parliament’s power. This reasoning in this case was very mischievous and the Court was reluctant to say they were wrong – instead, down the line in the Snider case, the JCPC said that the basis for the Russell case was that drunkenness was such an emergency across the country that it had to be dealt with by the federal government. Then, finally in King, the Russell decision is criticized. *Note that this is the first articulation of the national concern doctrine Reference re Board of Commerce Act (1922) JCPC Facts: This was an appeal from the SCC to determine the validity of the Combines and Fair Prices Act and the Board of Commerce Act. These Acts enabled the Board of Commerce to restrain and prohibit the operation of trade combinations in Canada. It also may restrict the accumulation of necessaries of life beyond an amount reasonably required, with the surplus to be sold at fair prices. The board had power to take requisite action for any breaches. Decision and Reasoning: The law was not enacted to meet special conditions in wartime which might bring it within the general power of POGG in s. 91 of the Constitution Act, 1867. Under normal circumstances, general Canadian policy cannot justify interference with property and civil rights. These Acts do not come within the subject matter of “regulation of Trade and Commerce”. They cannot be held intra vires of the Dominion Parliament because ancillary provisions of the statutes are matters of criminal law. Federal jurisdiction under POGG is limited to emergencies – Parliament can only override provincial jurisdiction temporarily during an emergency. Toronto Electric Commissioners v. Snider (1925) JCPC Facts: In 1923, the employees for the Toronto Electric Commission, through the Canadian Electrical Trades Union, went on strike over working conditions and wages. The union applied under the Industrial Disputes Investigation Act to establish a dispute resolution board. The Commission did not want to recognize the authority of the board and so applied to have the Act invalidated as ultra vires of the federal government. 92 Decision and Reasoning: Lord Haldane held that the Act could not be upheld under the “emergency” doctrine of POGG power. Where a matter is within a class of subjects in s. 92 and not within a class of subjects in s. 91, Parliament can legislate only in an emergency (“explains” Russell as an emergency). POGG cannot be used to unjustifiably override the provinces’ property and civil rights power. Labour unrest is not an emergency. JCPC struck down the federal Industrial Disputes Investigation Act, which is the precursor to the Canada Labour Code. The Court identified matters in relation to labour to be within the exclusive competence of the province in the property and civil rights power under section 92(13) of the Constitution Act, 1867. This decision is considered one of the high water-marks of the Council’s interpretation of the Constitution in favour of the provinces. Canada v. Eastern Terminal Elevator Co. (1925) SCC Facts: SCC held that the marketing of Saskatchewan grain, even though it was all destined for export (some of the grain stored on the site was for local markets), was in the jurisdiction of the province under section 92(13) of the Constitution Act, 1867. Decision and Reasoning: The decision, though largely out of place in modern constitutional jurisprudence, represents a high point of the SCC’s adoption of the JCPC’s view of an exceptionally narrow interpretation of the federal government’s Trade and Commerce power under section 91(2). Following the decision the federal government overrode the provincial jurisdiction by declaring it to be a federal “work and undertaking” under section 92(10)(c) of the Constitution Act, 1867. The dissent in this case (Anglin CJ) criticizes Lord Haldane’s explanation of Russell in Snider. Approaches to POGG Post-1930 Reference re Regulation and Control of Aeronautics in Canada (1932) JCPC Facts: SCC said federal legislation regulating aeronautics would be valid. Decision and Reasoning: Lord Sankey of the JCPC said that the federal government has the authority to govern the subject of aeronautics, including licensing of pilots, aircraft, and commercial services and regulations for navigation and safety. His Lordship held that transport is an issue that falls under both provincial jurisdiction and federal jurisdiction. The relevant clauses in the Constitution Act, 1867 that support the federal claim include s. 91(2), which grants federal government the right to regulate Trade and Commerce and s. 91(5) regarding postal services. The provinces argued on the grounds of s. 92(13) (property and civil rights in the Provinces) and s. 92(16) (all matters of a merely local and private nature). However, their lordships ruled that none of those sections deals specifically with aeronautics, and that this branch of transportation really falls under s. 132 of the Constitution, which gives the Parliament all powers necessary or proper for performing the obligations towards foreign countries arising under treaties between the Empire and such foreign countries i.e. jurisdiction to implement imperial treaties and international convention. 93 The Court further held that the real object of the Constitution Act, 1867 was to “give the central Government those high functions and almost sovereign powers to which uniformity of legislation might be secured on all questions which were of common concern to all the Provinces as members of a constituent whole”. Reference re Regulation and Control of Radio Communication in Canada (1932) JCPC Facts: The Dominion government signed the Radio Convention with foreign countries. This was objected to by the provinces. The two questions referred to the JCPC were as follows: (1) Has the Parliament of Canada jurisdiction to regulate and control radio communication and (2) If not, in what particulars is the jurisdiction limited. The validity of subsequent federal legislation to enforce the terms of the convention was involved. In the SCC, there was a 3/2 split re whether federal legislation regulating radio communications was valid. Decision and Reasoning: The convention amounts to the same thing as a treaty. The Dominion had the power under POGG to enter the convention, but not under s. 132 as the treaty is not imperial. The gap theory is also applied – if something doesn’t fall within s. 91/92, POGG applies. Note that the gap theory is subsequently abandoned (in the Labour Conventions case), leaving the emergency and national dimensions tests for federal jurisdiction pursuant to POGG. Impact of the Great Depression The Great Depression devastated the economy and provinces couldn’t cope with the costs of social welfare During the Great Depression, R.B. Bennett was the prime minister Bennett introduced a Canadian version of the Roosevelt’s “New Deal” involving unprecedented public spending and federal intervention in the economy o Progressive income taxation, a minimum wage, a maximum number of working hours per week, unemployment insurance, health insurance, an expanded pension program, and grants to farmers were all included in the plan Bennett faced criticism that his reforms either went too far, or did not go far enough o Some of the measures were alleged to have encroached on provincial jurisdictions laid out in s. 92 of the Constitution Act, 1867 o The Courts, including the JCPC agreed and eventually struck down virtually all of Bennett’s reforms o However, some of Bennett’s initiatives, such as the Bank of Canada and the Canadian Wheat Board, remain in place to this day Mackenzie King defeated Bennett in the 1935 election and King’s government implemented its own moderate reforms, including: o The replacement of relief camps with a scaled down provincial relief project scheme o The repeal of s. 98 o The CBC o The nationalized Bank of Canada o Versions of minimum wage, maximum hours of work 94 o o Pension Unemployment insurance legislation Attorney-General of Canada v. Attorney-General of Ontario (Labour Conventions) (1937) JCPC Facts: This was an appeal from the SCC on a reference as to the constitutional validity of three statutes, the Weekly Rest in Industrial Undertakings Act, the Minimum Wages Act and the Limitation of Hours of Work Act. This federal employment legislation was entered in pursuant to international (but not imperial) treaty obligations. In the SCC, six judges were divided equally in opinion as to validity. The recitals in the statutes stated that they were passed in accordance with conventions adopted by the International Labour Organization of the League of Nations, under the Labour Part of the Treaty of Versailles of June 28, 1919. It was argued for the Dominion that the legislation could be justified either: (1) under s. 132 of the Constitution Act, 1867 or (2) under the general residuary powers given by POGG in s. 91 in relation to matters not specifically mentioned in s. 92. The provinces contended that s. 132, by its terms, did not apply to the Labour Conventions, and as to (2), the subject-matter was exclusively assigned to the provinces by the head, “property and civil rights in the province” in s. 92. Decision and Reasoning: The JCPC decided all three acts were ultra vires the Parliament of Canada. The JCPC decided that s. 132 did not apply to the obligations here in question, which were not obligations of Canada as part of the British Empire, but of Canada, by virtue of her new status as an international person, and did not arise under a treaty between the British Empire and foreign countries a.k.a. an imperial statute (see Reference re Radio). Further, the Reference re Aeronautics and the Reference re Radio cases did not overrule the 1925 decision of the SCC this legislation. The Reference re Aeronautics was founded on s. 132, and the ground of decision in the Reference re Radio was that the subject-matter did not fall within s. 92. Treaty legislation, as such, was not dealt with in ss. 91 and 92; the distribution of legislative powers was based on classes of subjects, and as a treaty dealt with a particular class of subjects, so would the legislative power of performing it be ascertained. Further, the general words of s. 91 could not support this legislation as being a subject-matter of “general importance” or “of national concern”. This decision ultimately protects provincial jurisdiction (“watertight compartments”) and rejects the national dimensions test – POGG can be used in emergency situations only. Reference re Employment and Social Insurance Act (1937) JCPC Facts: During the Depression, Parliament legislated to establish unemployment insurance. This was an appeal from the SCC on a reference of the question as to the constitutional validity of the Employment and Social Insurance Act. The SCC held the Act ultra vires. Recitals in the statute preamble referred to the Treaty of Versailles and the covenant of the League of Nations, but counsel did not seek to uphold 95 the legislation on the ground of treaty-making power. A strong appeal was made on the ground of the special importance of unemployment insurance in Canada. Decision and Reasoning: The JCPC dismissed the appeal, holding the Act ultra vires Parliament. This Act does not purport to deal with any special emergency and on the principles stated in the JCPC judgment on the three Labour Acts, this appeal cannot sustain the Act. Neither can the authority of the Dominion under enumerated heads 1 and 3 of s. 91 of the Constitution Act, 1867 support the legislation: (1) the public debt and property; and (3) the raising of money by any mode or system of taxation. In pith and substance this Act is an insurance act affecting the civil rights of employers and employees in each province and as such is invalid. The Act is not severable, and hence the whole Act is ultra vires. Note that in 1940, the Constitution Act 1867 was amended to add unemployment insurance to federal jurisdiction (see s. 91(2A)). Attorney General of Ontario v. Canada Temperance Foundation (1946) JCPC Facts: Here, the JCPC revisited the issue dealt with in Russell v. The Queen which examined whether the federal Canada Temperance Act (1927) was valid. Haldane, in Russell, provided for a very narrow use of the POGG power in the context of emergencies. Consequently, for over 60 years numerous federal laws were struck-down. Decision and Reasoning: This was the first decision to bring back the “national concerns” branch of POGG. Viscount Simon upheld the ruling in Russell, but also suggested that POGG could be invoked for matters of national concern: “In their Lordships’ opinion, the true test must be found in the real subject matter of the legislation: if it is such that it goes beyond local or provincial concern or interests and must from its inherent nature be the concern of the Dominion as a whole (as, for example, in the Aeronautics case and the Radio case), then it will fall within the competence of the Dominion Parliament as a matter affecting the peace, order and good government of Canada, though it may in another aspect touch on matters specially reserved to the provincial legislatures”. This became the foundation of the national dimensions test. Matters will have a national dimension when: 1. They go beyond local or provincial concern or interests… 2. That are inherently of concern to the Dominion as a whole… 3. Even though they may also have some provincial aspect. Johannesson v. Rural Municipality of West St. Paul (1952) SCC Facts: Konnie Johannesson bought a plot of land near the Red River in order to build a landing strip. The neighbourhood brought an action against him to prevent him from building the strip on the basis that it violated a municipal law that regulated the building of aerodromes. This case is a question about whether Parliament has authority over the location of airports or whether it is a provincial question. 96 Decision and Reasoning: The municipal by-law is ultra vires. Notwithstanding that the International Convention of 1919 under consideration in the Aeronautics Case was denounced by the Government of Canada in 1947, the decision of the JCPC is in its pith and substance that the whole field of aerial transportation comes under the jurisdiction of the Dominion and it would not matter that Parliament may not have occupied the field. The field of legislation is not capable of division in any practical way (e.g. through local zoning). The subject matter of aerial navigation in Canada is of national interest and importance. Use of property is normally provincial legislation as to civil rights, but use of property for an airdrome cannot be divorced from the subject matter of aeronautics as a whole. The failure of one province to accept uniform procedures for the use of air space and ground facilities would endanger the residents of other provinces engaged in inter-provincial and international air travel. Even though s. 132 no longer applies because Canada enters into its own treaties, The Court finds that POGG clause gives Parliament jurisdiction anyway – the national dimensions test is sufficient authority to override the provincial power. Munro v. Canada (National Capital Commission) (1966) SCC Facts: The National Capital Commission, a federal body, sought approval from the Governor General to expropriate land for the creation of a green belt around Ottawa. The proposal was challenged as being beyond the power of the NCC. This was an appeal from a decision of the Exchequer Court which confirmed the expropriation of lands to form a green belt in conjunction with the national capital. The only issue on appeal was whether the parliament of Canada had authority to pass the enabling section of the National Capital Act. Decision and Reasoning: Appeal dismissed. SCC held that the zoning, expropriation and renovation of land within the National Capital Region, in the vicinity of Ottawa, is a matter under the authority of the federal government. Typically, matters of city improvement, zoning and bylaws are in the exclusive power of the provincial government under the property and civil rights power of the Constitution Act, 1867. However, the unique nature of the city of Ottawa in relation to the federal government was basis of giving authority to the federal government. The interpretation of the national concern branch of POGG is a significantly broad one. The failure of either Quebec or Ontario to cooperate in the development of the national capital region would have denied all Canadians the symbolic value of a suitable national capital – indeed, the SCC took judicial notice of the fact that the “zoning” of the national capital region was only undertaken federally after unsuccessful efforts by the federal government to secure cooperative action by Ontario and Quebec. A unanimous Court held that the NCC plan falls within the national concern test of POGG. To reach this conclusion the Court examined the pith and substance of the empowering legislation and found that the 97 law was in relation to establishing national capital region “in order that the nature and character of the seat of the Government of Canada may be in accordance with its national significance.” The Court then allocated the matter to a Constitutional head of power but found that it did not come within either s. 92 (the provincial head of power) or s. 91(1) (the federal head of power). Instead the Court held that it fell within s. 91 and the national concern branch of POGG as it deals with a “single matter of national interest” as in Canada Temperance Federation case. Sorting out POGG The Centralist Vision of Laskin Laskin’s approach to the way the Constitution Act, 1867 should be interpreted involved favouring a strong central government He believed that the POGG clause constituted the “general power” and the enumerated powers in s. 91 were illustrative only However, the JCPC took the opposite view and gave primacy to the enumerated powers and regulated POGG to a residuary position Laskin felt a court should focus on the object or purpose of legislation, asking whether the law had a federal or provincial aspect, with the result that concrete subjects like the wheat trade, for example, might be regulated by both levels of government – albeit from different aspects as permitted by the classes of law-making powers set out in ss. 91 and 92 Because of this view, Laskin particularly disliked the national dimensions doctrine which seemed to imply that government could legislate on a subject normally within the jurisdiction of the other level of government if the measure was “necessarily incidental” to effective reulation within its own sphere He rejects the territorial approach to jurisdiction which would fence off subjects for exclusive federal or provincial jurisdiction Laskin though the federal government was the logical institution to deal with important problems – he believed in the efficacy of national regulation o Problems once local in nature could take on a federal aspect as they became more complex or spilled over provincial borders – the Courts should interpret the constitution so as to recognize this evolutionary potential Laskin’s functional approach to interpretation lent itself to the expansion of the central power The Classical Federalism of Beetz Beetz was much more protective of provincial rights and more cautious than Laskin about departing from precedents which provided safeguards for provincial autonomy However, he also demanded respect for the autonomy of the federal government in the areas of jurisdiction which the constitution allocated to it Beetx preferred a more conceptual approach to the interpretation of the constitution which would preserve exclusive areas of jurisdiction for both levels of government 98 Beetz was supportive of the JCPC because that body treated the opening words of s. 91 as residuary and subordinate and gave primary only to the federal enumerated powers over the provincial powers Reference re Anti Inflation Act (1976) SCC Facts: Reference question to the SCC regarding the constitutionality of the Anti Inflation Act, which was passed in 1975, on recommendation of the Bank of Canada, to control the growing inflation of the past several years. The Act controlled increases in wages, fees, prices, profits and dividends, administered by federal tribunals and officials. The scheme was temporary, at Act automatically expiring at the end of 1978 unless terminated earlier or extended by the government with parliamentary approval. It applied to federal public service, large private sector firms of more than 50 employees and the provincial public sector if the province opted in. Due to growing unease with the Act, the federal government put two questions to the SCC on the validity of the Act, the major question being whether the Act was ultra vires of the federal government. Decision and Reasoning: First, the Court noted that the subject-matter of the Act being inflation made it impossible to assign to one of the enumerated powers in the Constitution Act, 1867. Consequently, the Act would only be able to be upheld under the POGG power which allowed the federal government to legislate in matters related to emergencies or matters of national concern. The Court looked at both options and found that the law could be saved under the emergency power of the POGG power. Positions of the Judges Majority o Laskin + 3: valid exercise of emergency jurisdiction, need not consider the national dimensions test You do not even need to mention the national dimensions test because it has already been recognized as valid under the emergency test o Ritchie + 2: valid exercise of emergency jurisdiction, but not a valid exercise of national dimensions jurisdiction o The majority says there does not have to be an explicit use of the word “emergency”, it is enough to say “serious national concern” (this was qualified later with the Emergencies Act) Minority o Beetz + 1: not a valid exercise of emergency jurisdiction or of the national dimensions jurisdiction; if parliament wants to use this extraordinary jurisdiction, they have to take political responsibility and declare that that is what they are doing (the majority was prepared to give parliament a little more leeway) Beetz’s ideas on the national dimensions test become the majority view on that point because Ritchie + 2 agree with them Emergency Branch 99 The Act itself, although it contained a preamble which purported to recite the reasons for the legislation, did not assert the existence of an emergency. This omission pointed to the conclusion, which was only accepted by Beetz + 1, that Parliament had proceeded on the basis that federal power existed under the national concern branch of POGG and that no showing of emergency was required. The majority disclaims any judicial duty to make a definitive finding that an emergency exists – all that the Court need do is to find that a rational basis exists for a finding of emergency. Also, it is not necessary for the proponents of the legislation (i.e. the government) to establish a rational basis, it is for the opponents to establish the absence of a rational basis. The majority decision in this case makes it almost impossible to challenge federal legislation on the ground that there is no emergency – Parliament can use is emergency power almost at will. Must the legislation be temporary? o Unanimous: yes o To deal with an emergency, it must be temporary and because it is temporary, Parliament has broad powers to deal with it: they can exercise what are clearly understood to be provincial powers in order to deal with the emergency Has Parliament invoked the emergency jurisdiction? o Laskin: preamble is sufficient – “serious national concern” To say “serious national concern” is sufficient to connote an emergency, everyone understands what is being said, that this is something that can get out of hand very quickly (although Laskin says this based on his own subjective opinion) o Ritchie: preamble and White Paper are sufficient (White Paper is often prepared by the ministry as background for legislation; they are publically available and become the basis for the minister’s introduction of the legislation into parliament) o Beetz: declaration of emergency must be explicit If they want to exercise emergency powers, they are going to have to say that is what they are doing – to leave it to the Court to make the declaration is not right, they are not being transparent (MP says Beetz is absolutely right here). Nature and extent of judicial review re existence of emergency: o The Court takes a very deferential approach to parliament’s decision which one would think would require that parliament’s decision at least be explicitly made, but the onus is shifted from parliament to anyone who is challenging the validity of the legislation; the opponents have to establish that there is no rational basis o Laskin: defer to Parliament unless there is “no rational basis” for the judgement o Ritchie: defer to Parliament unless there is “clear evidence to the contrary” The Court should defer to parliament unless there is clear evidence to the contrary, unless there is quite obviously no emergency (i.e. unless there is clear evidence that parliament has gone off its rails) o Beetz: need not consider 100 Accordingly: o 9/9: some assertion of emergency is required o 7/9: defer to Parliament’s judgment in absence of “clear evidence” or “no rational basis” o The onus on challengers National Dimensions What is the scope of the “national dimensions test” and does it support this Act? o Laskin CJ: need not consider (as it is already valid emergency legislation) o Ritchie: concurs with Beetz J. o Beetz: the national dimensions test is limited to Distinct, discrete subject matter that is… Not within s. 92 and is… Of national concern Inflation is an aggregate of several subjects within s. 92 o The majority on this issue says there should be limits on the national dimensions test because an expansion would put enormous jurisdiction permanently in the hands of the feds Ontario lined up with the federal government on this issue: both were prepared to say the legislation is a matter of national dimension and thus should be upheld under the national dimension branch of POGG (they said if this doesn’t apply, then use the emergency branch) MP: Ontario and the federal government are wrong here o Inflation is that it is not a discrete thing that can be put under federal jurisdiction o The national dimensions test gives a certain area of jurisdiction forever to the feds – it is kind of like analogous grounds in this way, they just add it in there o If you take something huge like inflation and just put it permanently under federal jurisdiction, it has an enormous effect on the balance of power o The very nature of emergency power is that it is temporary – when the emergency is over, the usual division of power reverts back to what it was It was agreed other than by Ontario and the feds that the national dimensions test cannot apply here because it would give Parliament way too much jurisdiction Opting In Ontario decided to opt in to the legislation, but in a particular way: o They tried to opt in through an Order-in-Council (i.e. a cabinet decision) o The SCC said no, you cannot make the public sector in Ontario subject to a federal law without enacting legislation on the floor of the Ontario legislature – you cannot bring it in with a closed cabinet meeting with an Order-in-Council This would be in direct opposition to the rule of law: if a law is going to apply in Ontario, it has to be properly enacted by the province pursuant to its own legislation, enacted on the floor of the house, subject to debate, in the public eye, transparent 101 Parliament does not have jurisdiction over provincial matters – for the province to opt in, they had to enact their own legislation: there are limits to what the executive can do and this is one of those limits The federal parliament cannot authorize the provincial cabinet to exercise powers as it simply does not have jurisdiction to do so The Court unanimously held this was not effective as an agreement which binds subjects to laws must be authorized by legislation (Laskin) Extrinsic Evidence The factual material filed included an economic study asserting that inflation was on the wane and not particularly serious in Canada, especially compared to other nations like the US o Nevertheless, the Laskin + 3 agreed that the Court would be unjustified in concluding that there was no rational basis for regarding the inflation problem as an emergency Ordinarily, you cannot introduce extrinsic evidence with respect to a statute o It is ok here because it is being introduced to see whether parliament has jurisdiction to act: whenever you are dealing with what is the purpose of the legislation, in order to characterize the constitutional validity of the legislation (and not the meaning of a specific provision), you can use extrinsic evidence to address what is the objective of the legislation o In these cases, evidence provides the Court with a better factual foundation, but doesn’t play into how they interpret the meaning of the legislation Admissibility of extrinsic evidence: o Laskin: consider extrinsic material re circumstances in which legislation was passed (purpose and effect) in order to: Determine constitutionality, but not to interpret its provisions Ritchie: consider the legislation and the material before Parliament Beetz: consider the material filed, as well as Hansard, which are the printed transcripts of parliamentary debates o In this case, Hansard indicates that government purported to act under the national dimensions test Emergency Legislation After the Reference re Anti Inflation Act The Emergencies Act (Canada) An Act of the Parliament of Canada to authorize the taking of special temporary measures to ensure safety and security during urgent and critical national emergencies and to amend other Acts in consequence thereof The following situations qualify as an emergency sufficient to trigger the Act: o An situation that seriously endangers lives, health, safety and exceeds capacity or authority of a province o A situation that seriously threatens sovereignty, security, territorial integrity of Canada It received Royal Assent on July 21, 1988, replacing the War Measures Act 102 The Emergencies Act differs from the War Measures Act in two important ways: o A declaration of an emergency by the Cabinet is required where they describe the state of affairs and then this emergency must be reviewed and confirmed by Parliament Also, the affected province must agree that it cannot deal with the situation o Any temporary laws made under the Act are subject to the Charter Thus any attempt by the government to suspend the civil rights of Canadians, even in an emergency, will be subject to the “reasonable and justified” test R. v. Crown Zellerbach Canada Ltd. (1988) SCC Facts: Crown appealed dismissal of charges that respondent company had contravened s. 4(1) of Ocean Dumping Control Act, which prohibited the dumping of any substance at sea except in accordance with terms and conditions of a permit. “Sea” was defined for purposes of Act as including the internal waters of Canada other than fresh waters. Respondent had, during conduct of its logging operations, dumped woodwaste in waters within province of BC which flowed into a strait connected to Pacific Ocean. There was no evidence of any dispersal of the woodwaste or of any effect on navigation or marine life. Provincial Court judge and Court of Appeal had both held that s. 4(1) of Act was ultra vires Parliament. Decision and Reasoning: Appeal allowed. There was no basis for federal legislative jurisdiction to control marine pollution generally in provincial waters under any of the specified heads of federal jurisdiction in s. 91 of Constitution Act, 1867, whether taken individually or collectively. The heads considered were s. 91(10) – navigating and shipping – and s. 91(12) – seacoast and inland fisheries (including prevention of marine pollution). However, s. 4(1) was constitutionally valid as enacted in relation to a matter falling within national concern doctrine of the POGG power of Parliament. Steps to the National Concern Doctrine Within this doctrine, there are a series of inquiries to look at whether this is something that ought to be shifted to federal jurisdiction. 1. The national concern doctrine applies to: a. New matters of national concern that did not exist at confederation; or b. Matters which were local or private but have transformed into matters of national concern (i.e. something that is not new, but that has transformed in such a way that it can be seen as new). 2. For a matter to qualify as a matter of national concern, the cohesiveness test is applied; the matter must have singleness, distinctiveness and indivisibility that clearly distinguished it from matters of provincial concern. The reason it has to be discrete and distinct is so there isn’t too much impact on the province. In determining whether a matter had requisite singleness, distinctiveness and indivisibility, it was relevant to consider effect on extra-provincial interests of a provincial failure to deal effectively with control or regulation of intra-provincial aspects of the matter. 103 Control of marine pollution met this test – because of its predominantly extra-provincial as well as international character and implications, marine pollution was clearly a matter of concern to Canada as a whole. Pollution of marine waters, including provincial marine waters, by the dumping of substances was sufficiently distinguishable from pollution of fresh waters by such dumping to meet the requirement of singleness or indivisibility. Moreover, distinction between salt and fresh water as limiting application of Act met the consideration that in order for a matter to qualify as one of national concern falling within POGG power it must have ascertainable and reasonable limits insofar as its impact on provincial jurisdiction was concerned. However, the requirement of distinctiveness was the issue that divided the SCC here – La Forest dissented because he said marine pollution lacked the distinctness requires of a matter of national concern (because it is so greatly affected by other variables such as air and fresh water flowing into the sea). The requirement of distinctness is a necessary but not sufficient condition for a matter to be admitted to the national concern branch of POGG – a distinct matter would also have to satisfy the provincial inability test or some other definition of national concern in order to be admitted to the national concern branch. A distinct matter would come within provincial power if it came within “property and civil rights in the province” (s. 92.13) or if it were “of a merely local or private nature in the province” (s. 92.16). 3. The matter must also pass the provincial impact test: a scale of impact on provincial jurisdiction that was reconcilable with the fundamental distribution of legislative power under Constitution i.e. what will be the impact on provincial jurisdiction generally if the matter is shifted to the feds? 4. Lastly, the provincial inability test is considered: what would be the effect on extra-provincial interests of a provincial failure to deal effectively with the control or regulation of the intraprovincial aspects of the matter? The failure of one province to protect its waters would probably lead to the pollution of the waters of other provinces as well as the (federal) territorial sea and high sea. In this case, Le Dain for the majority relied on the provincial inability test as a reason for finding that marine pollution was a matter of national concern – it seems, therefore, that the most important element of national concern is a need for one national law which cannot realistically be satisfied by cooperative provincial action because the failure of one province to cooperate would carry with it adverse consequences for the residents of other provinces; a subject matter of legislation which has this characteristic has the necessary national concern to justify invocation of the POGG power (the provincial inability test is also exemplified in Johannesson and Munro). Conclusion The legislation is valid and applies to the respondent The “environment” is a national and global concern Jurisdiction over environment is divided between Parliament and the provinces 104 “Environment” is not discrete and indivisible and thus assigning it to federal jurisdiction would intrude on too many areas of provincial jurisdiction BUT “pollution in marine waters” is sufficiently discrete and distinguishable from pollution of fresh water Dissent Made up of La Forest, Lamer and Beetz – although it is Beetz’ test that is being used here from the Reference re Anti Inflation, he is unhappy with its application in this instance Parliament has jurisdiction over the territorial sea beyond the limits of the provinces Parliament may exercise emergency power under POGG where appropriate But: Parliament cannot prohibit dumping within the province which does not cause pollution to marine waters outside the province o The feds have not shown in this fact situation that there is a sufficient need for them to exercise control in the dumping of things in provincial marine waters The “national dimensions” test is not meant to conceptualize broad social, economic and political issues so as to invent new federal powers Environmental pollution/ocean pollution is not sufficiently discrete: everything affects the environment o Regulation the environment in this way would intrude on provincial legislative power The province’s failure to act in this matter would not preclude Parliament from addressing the issue using its powers to prohibit marine pollution (provincial inability test) This is an impermissible attempt to control local activities on provincial property Friends of the Oldman River Society v. Canada (Minister of Transport) (1992) SCC Facts: Appeal from an order by the Federal Court requiring the Minister of Transport and the Minister of Fisheries and Oceans to comply with the federal Environmental Assessment and Review Process Guidelines Order. These guidelines required all federal departments and agencies that have a decisionmaking authority for any proposal that may have an environmental effect on an area of federal responsibility to screen such proposal and determine whether it may give rise to any potentially adverse environmental effects. If a proposal could have adverse effects on the environment, the Guidelines Order provided for a public review by an environmental assessment panel to study the effects of the proposal. Alberta had obtained approval from the Minister of Transport for the construction of a dam. The Minister considered only the dam’s effect on navigation and did not make an assessment under the Guidelines. Construction of the dam commenced. The Court of Appeal quashed the Minister’s approval and ordered the Minister of Transport and of Fisheries and Oceans to comply with the Guidelines order by setting up an environmental assessment panel to study the environmental impact of the dam. Alberta’s position was that jurisdiction over the environment is shared and parliament lacks jurisdiction to deal with the environmental effects of provincial works. Decision and Reasoning: Appeal dismissed. The Guidelines Order was validly enacted pursuant to s. 6 of the Department of the Environment Act and it was intra vires Parliament. The dam project fell within the ambit of the Guidelines Order under which the Minister of Transport was required to consider the 105 environmental impact of the dam on such areas as navigable waters, fisheries, Indians and Indian Lands – because it affects federal jurisdiction in these three ways, the Minister is required to undertake the study. The Guidelines Order did not apply to the Minister of Fisheries and Oceans because there was no equivalent regulatory scheme under the Fisheries Act which applied to the dam project. “Environment” is a diffuse subject – it is not a single matter assigned by the Constitution exclusively to one level of government. It is an amorphous topic which is distributed to the federal Parliament or the provincial legislatures depending on the purpose and effect of the particular measure in issue. FEDERALISM: INTERPRETIVE PRINCIPLES Analytic Structure of ss. 91 and 92 Beginning of s. 91: “Parliament has jurisdiction to make laws for the peace, order and good government of Canada…” o “in relation to all matters not coming within the classes of subjects assigned exclusively to the provinces” (s.92) o but, “the exclusive authority of Parliament extends to all matters within the classes of subjects in s. 91”. o End of s. 91: “Any matter within a class of subjects in s. 91 shall not be deemed to come within the class of matters of a local or private nature assigned exclusively to the legislatures of the provinces.” S. 92: “In each Province the Legislature may exclusively make Laws in relation to Matters coming within the Classes of Subjects next hereinafter enumerated; that is to say…” The underlying message of these sections is that federal power is exclusive and if something relates to an area of federal jurisdiction, it will not come within provincial jurisdiction at all Characterization of Laws 1. Identify the “matter” (or “pith and substance”) of the statute whose constitutional validity is at issue 2. In doing so, consider the following: Statutory context Purpose of the legislation: o Legislative history o Reports and white papers Effects of the legislation: o Factual data o Assess “colourability” Determining “Matter” a.k.a. “Pith and Substance” Classifying legislation is an interlocking process, not an exact science o One must consider principles and apply common sense 106 R. v. Morgentaler (1993) SCC Facts: Criminal Code therapeutic abortion provisions had been struck down under s. 7 of the Charter (see R. v. Morgentaler 1988). To replace its regulations on abortion, the Nova Scotia government enacted the Medical Services Act and the Medical Services Designation Regulation, which contained a prohibition on the performance of abortions outside hospitals and the denial of health insurance coverage for abortions performed in violation of the prohibition. Despite those laws, respondent doctor opened his clinic and performed 14 abortions. He was charged under the MSA. The trial judge acquitted respondent, holding that the legislation was ultra vires the province because it was in pith and substance criminal law, and his decision was upheld by the Court of Appeal. Decision and Reasoning: Appeal dismissed. The Medical Services Act and Medical Services Designation Regulation together constituted an indivisible attempt by the province to legislate in the area of criminal law. An examination of: The legislation’s terms and legal effect (i.e. effect on rights and liabilities), The legislation’s practical effect (i.e. actual and predicated effect), The history and purpose of the legislation and The circumstances surrounding the legislation’s enactment led to the conclusion that the legislation’s central purpose and dominant characteristic was the restriction of abortion as a socially undesirable practice which should be suppressed or punished. Although the evidence of the legislation’s practical effect was equivocal, it was not necessary to establish that its immediate or future practical impact would actually be to restrict access to abortions. The legislation had an effect on abortions in private clinics virtually indistinguishable from that of the now defunct abortion provision in the Criminal Code, and that overlap of legal effects was capable of supporting an inference that the legislation was designed to serve a criminal law purpose. In addition, excerpts from Hansard, properly admitted at trial, demonstrated that members of all parties in the legislature understood the central feature of the proposed law to be prohibition of respondent’s proposed clinic on the basis of a common and almost unanimous opposition to abortion clinics. The concerns to which the provincial government submitted the legislation was primarily directed – privatization, cost and quality of health care, and a policy of preventing a two-tier system of access to medical services – were conspicuously absent throughout most of the legislative proceedings. While legislation which authorized the establishment and enforcement of a local standard of morality did not ipso facto invade the field of criminal law (could be seen as being under s. 92.16), interdiction of conduct in the interest of public morals was and remained one of the classic ends of the criminal law. The inference that the legislation related to a matter of criminal law within federal power was supported by the absence of evidence that privatization and the cost and quality of health care services were anything more than incidental concerns and by the relatively severe penalties provided for in the Act. Determining the Pith and Substance 107 Determine the leading feature or true character of the legislation Avoid a technical, formalistic approach Consider o Purpose of the legislation Social or economic purposes Background and circumstances o Legal effect (effect on rights and liabilities) o Practical effect (actual and predicted) Use of Extrinsic Materials To determine the background context and purpose of the legislation (but not to interpret the meaning of its provisions), the Court can review and consider: Related legislation Evidence of the “mischief” addressed by the legislation Legislative history of the legislation Reports and material submitted to the legislature Legislative debates and speeches Assigning Legislation to a Class of Subjects Determine the scope of competing classes; in this case: o Criminal law under s. 91(27) includes any legislation that enacts the prohibition of activity, subject to penal sanctions, for a public purpose o Provincial health jurisdiction: hospitals are provincial under s. 92(7), as well as the medical profession, practice of medicine, health care delivery system under ss. 92(13) and (16) The Court find that abortion is criminal because: o Historically, abortion is regulated by the criminal law and o Accordingly, provincial regulation of abortion must be solidly anchored in federal jurisdiction Delineating the Scope of Classes of ss. 91 and 92 Take account of the need to balance exclusivity and overlap Understand precedents in their historical context Understand federalism: o Consider the need to protect provincial autonomy o Consider the impact of provincial action or inaction on national interests There may be tension between ss. 91 and 92 in terms of exclusivity and overlap Exclusivity a.k.a. watertight compartments approach o There are some matters in which the province and Parliament have specific jurisdiction and these cannot overlap o The Court’s decision may constrain government action o The Court’s decision can create a legislative vacuum 108 o This approach generally has been applied re economic regulation Overlap approach o There are some activities that can be regulated both by the federal parliament and the provinces (e.g. conduct on the highways – the most serious driving offences are specified in the Criminal Code, but we also have the Highway Traffic Act, a provincial statute that addresses all the rules of the road within Ontario and characterizes provincial offences) o If there is a conflict between a valid federal law and a valid provincial law, it is solved with the paramountcy doctrine which says if the laws conflict, then the federal law will be paramount and the provincial law, which is still valid, will be inoperable to the extent of the conflict In this way, the overlap approach may undermine provincial autonomy o There is a preference for the overlap approach, but with respect to the regulation of Trade and Commerce, there will always be a watertight compartments approach favouring federalism o Reflects judicial restraint in striking down legislation o Maximizes the ambit of legislative power o Generally applied re regulation of moral/social order Doctrines that have been used to ensure that provincial jurisdiction is protected are as follows: o Mutual modification and collocation of powers re Trade and Commerce (see Parsons) o POGG: there are tests that require an assessment of the degree to which they intrude on provincial powers (see Reference re Anti Inflation Act and Crown Zellerbach) Doctrines that have been used to protect federal exclusiveness: o Interjurisdictional immunity o The national dimensions test of POGG and general regulation of Trade and Commerce i.e. tests that assess the consequences of provincial inability to regulate (see Crown Zellerbach and General Motors) Doctrines that have been used to permit overlap: o Pith and substance – enables one level of government to enact laws with substantial impact on matters outside its jurisdiction (see Morgentaler) o Double aspect o Incidental effect o Necessarily incidental o Paramountcy (see Ross, Multiple Access, Hall, Mangat, Husky Oil, Canadian Western Bank, Chatterjee) Double Aspect Doctrine The double aspect doctrine says that a subject which in one aspect and for one purpose fall within s. 92, may in another aspect and for another purpose fall within s. 91 (see Hodge, Multiple Access) 109 It has been applied in various situations but has NOT been applied with regard to Trade and Commerce or Labour Relations – these matters have been saved for the watertight compartments approach Hodge v. The Queen (1883) JCPC Facts: The province of Ontario delegated the authority to the Board of Commissioners to enact a regulation that prohibited the use of billiard tables during any time when the sale of alcohol was prohibited under the Liquor Licence Act. Decision and Reasoning: Lord Fitzgerald held that the province had the authority to delegate any of its residual powers under section 92(16). He examined the pith and substance of the law that delegated power to the commission and identified both provincial and federal jurisdiction: the Act also touched on powers that were exclusively in the authority of the federal government. Fitzgerald distinguished this fact with what is now the doctrine of double aspect. Consequently, when a law has some overlapping characteristics between the two heads of power it may still be valid. Multiple Access Ltd. v. McCutcheon (1982) SCC Facts: This appeal raised the issue of the constitutionality of provincially and federally enacted insider trading legislation and more specifically, very similar sections in provincial and federal statutes which dealt with the use of confidential information by insiders. The respondents in this appeal were “insiders” of the appellant corporation. On a motion made by two shareholders of the corporation it was ordered that the Ontario Securities Commission commence an action, in the name of and on behalf of the appellant corporation to enforce the liability created by alleged “insider trading” of the respondents. Before trial of the action the respondents moved the Supreme Court of Ontario, High Court for a determination of a point of law. It was contended on behalf of the respondents that s. 113 and 114 of the Securities Act (Ontario) were suspended and rendered inoperative by virtue of similar provisions in the Canada Corporations Act and consequently they could not confer jurisdiction upon the Court to grant leave to the Ontario Securities Commission to commence action on behalf of the corporate appellant. When the trial court refused to accept the contentions of the respondents, they appealed to the Divisional Court which accepted their contentions and that decision was affirmed by the Ontario Court of Appeal. Decision and Reasoning: The Court found that ss. 100.4 and 100.5 of the Canada Corporations Act put teeth into s. 100 of that Act. The provisions dealt with obligations attached to the ownership of shares in a federal company, which extended to shareholders, officers and employees of such companies, a subject matter that was not within the exclusive jurisdiction of provincial legislatures. The enactment by Parliament of these provisions was in discharge of its company law power. Sections 113 and 114 of the Securities Act (Ontario) constituted valid legislative provisions in relation to the subject matter of property and civil rights in the province, with respect to trading of the capital securities of a company. The sections did not sterilize the functions and activities of a federal company nor did they impair its status or essential powers. The provincial legislation merely duplicated the federal, it did not contradict it. The fact that a plaintiff might have a choice of remedies did not mean 110 that the provisions of both levels of government could not “live together” and operate concurrently. Insiders should not benefit, either at the expense of the company or at the expense of other shareholders, from their access to confidential information intended to be available only for a corporate purpose and not for the personal benefit of anyone. Information so acquired was at the expense of the enterprise. Majority: The federal legislation is valid because: o Parliament has jurisdiction to incorporate companies for other than provincial objects (see POGG, general regulation of trade, John Deere v. Wharton) This includes protection of creditors and shareholders, internal ordering, capability of raising capital o Note: some provinces do not have securities legislation The provincial legislation is valid re federal companies under s. 92(13) o Provided it does not single out federal companies, discriminate against them, impair their status or capacities (including raising capital), or sterilize their functions and activities Double aspect: the federal and provincial characteristics of the legislation are roughly equal in importance and both are valid Dissent: The federal legislation is invalid: Parliament can regulate the functional aspects of federally incorporated companies but not their conduct Law Society of BC v. Mangat (2000) SCC Facts: Mangat was an immigration consultant holding a law degree from a university in India. He had not studied law in Canada and was not a member of the Law Society of British Columbia. He made it clear to his clients that he was not a member of the Law Society and that his involvement in any immigration matter would not go beyond the Immigration and Refugee Board. The Law Society warned Mangat about his holding himself out as entitled to practice law. The warning arose out of an advertisement in a newspaper. Mangat offered to change the wording in the advertisement to reflect the fact that he was only an immigration consultant and not a lawyer. The Law Society sought a permanent injunction against Mangat, enjoining him from engaging in the alleged practice of law. The applications judge granted the injunction. The B.C. Court of Appeal lifted the injunction. The Law Society appealed. At the time of this appeal hearing, Mangat was a member of the Law Society of Alberta and the Law Society of Upper Canada. At issue were whether ss. 30 and 69(1) of the Immigration Act, which allowed representation by counsel or an agent, were intra vires the Parliament; and whether s. 15 (then s. 26) of the Legal Profession Act (B.C.) which prohibited a person, other than a member of the Law Society, from engaging in the practice of law, was constitutionally inoperative or inapplicable to persons acting under ss. 30 and 69(1) of the Immigration Act. Facts: Appeal dismissed. The pith and substance of ss. 30 and 69(1) of the Immigration Act was to provide aliens with the right to legal representation before the administrative divisions of the 111 immigration authorities. This subject matter fell within both the provincial jurisdiction over civil rights in the province and the federal jurisdiction over aliens and naturalization. As there was a conflict between the two statutes in issue, namely, that the Immigration Act authorized non-lawyers to represent aliens and the Legal Profession Act prohibited them from doing so, the Immigration Act must prevail over the Legal Profession Act. Incidental Effect Doctrine The incidental effect doctrine says that valid federal or provincial legislation can have an “incidental effect” on matters within the jurisdiction of the other level of government (Carnation Milk) o In Carnation Milk, for example, it was held that provincial legislation aimed at creating local marketing plans is not invalid because the plan has an incidental effect on the price of milk in international trade (a matter within federal jurisdiction) Necessarily Incidental Doctrine The challenged provision is ultra vires in itself, but is necessary to the effectiveness of a larger legislative scheme which is intra vires The Court has held that where it is necessary to the integrity of the federal scheme to regulate inter-provincial schemes, it is permitted o The basis is that if, for example, the government doesn’t control all wheat transactions, an undermarket (a.k.a. black market) will be created (Klassen, Caloil) General Motors v. City National Leasing (1989) SCC Facts: During the 1970s General Motors sold vehicles to both City National Leasing and to CNL’s competitors. It was discovered that GM was giving CNL’s competitor a better interest rate than CNL, which violated the federal Combines Investigation Act. In its defence GM argued that the provision in the Act that created the civil cause of action was outside the legislative competence of the federal government. The motions judge found that the provision was ultra vires the federal government and struck it out. The Court of Appeal held that the provision was intra vires Parliament and the matter was appealed to the SCC. Two questions were put before the Court: whether the Combines Investigation Act, either in whole or in part, was intra vires Parliament, and whether s. 31.1 was within the legislative competence of Parliament. Decision and Reasoning: The Court found that the Act was valid under the general Trade and Commerce power and that the provisions were necessarily incidental to the valid subject of the Act thus were valid as well. Both questions were answered in the affirmative and 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. The Court outlined the analysis for determining the constitutionality of a provision under the general branch of the Trade and Commerce power: 112 1. It must be determined whether the impugned provision can be viewed as intruding on provincial powers, and if so to what extent; 2. It must be determined whether the act (or a severable part of it) in which the impugned provision is found is valid. This requires examination of several factors: a. The impugned legislation had to be part of a general regulatory scheme; b. The scheme had to be monitored by the continuing oversight of a regulatory agency; c. The legislation had to be concerned with trade as a whole rather than with a particular industry; d. The legislation had to be of a nature that the provinces jointly or severally were incapable of enacting; e. 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 Court then considered whether the provision could be found valid under the necessarily incidental doctrine. In examining the test established Papp v. Papp, the Court re-articulated it: 1. The law as a whole must be valid; 2. If so, the Court must consider the degree of encroachment outside of the government’s jurisdiction; a. If it is a serious encroachment the provision will only be upheld if it is necessarily incidental to the function of the entire Act; b. For minor encroachments the provision need only have a rational connection to the entire Act. On the facts of this case, the Court found that the provisions were ancillary to the Act and so were upheld. Global Securities Corp. v. British Columbia Securities Commission (2000) SCC Facts: Appeal by Global Securities from a denial of its petition for a declaration that section 141(1)(b) of the British Columbia Securities Act was ultra vires the province. 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. Decision and Reasoning: Appeal allowed. Section 141(1)(b) was intra vires the province. The dominant purpose of the provision was the enforcement of provincial securities law. In pith and substance, it fell within the scope of section 92(13) (property and civil rights of the province) of the Constitution Act, 1867. Effective regulation of domestic securities markets required access to records located outside the province and monitoring of extra-jurisdictional misconduct of domestic registrants, necessitating 113 reciprocal cooperation with other securities regulators. Provincial authority over securities regulation was not limited to intraprovincial matters. It included investigations of possible violations of foreign securities laws. The provision was part of, and necessarily incidental to, a valid legislative scheme for securities regulation. The British Columbia Securities Commission’s power to seize documents in the province for the purpose of handing them over to the securities commission of another jurisdiction is upheld on the basis of its contribution to the regulation of the securities market in BC. The SCC says this is valid provincial legislation re mutual cooperation and if it were invalid, it would be upheld as necessarily incidental to the effective exercise of valid provincial jurisdiction. *Note that MP says it is troubling that the necessarily incidental doctrine can apply in favor of provincial legislation Interjurisdictional Immunity Protects certain areas of federal jurisdiction from the impact of valid provincial laws and thus, overrides the double aspect doctrine The provincial law is valid , but it is inapplicable to the federal undertaking or matter = the provincial law is “read down” Even valid provincial jurisdiction will be repulsed – even if Parliament has not enacted similar legislation: the fact that the feds have jurisdiction is enough to override the provincial jurisdiction The doctrine protects only federal entities – it is not available to provincial entities The doctrine is at odds with the “overlap” approach Interjurisdictional immunity can cause gaps because if valid provincial legislation doesn’t apply and there is no federal legislation, there is just a gap Note that the Court has now said that interjurisdictional immunity will not be expanded beyond the cases it has already been used in In the vein of interjurisdictional immunity, two tests have developed re federal undertakings (see Irwin Toy): 1. Where provincial legislation otherwise applies directly to a federal undertaking: o It will not apply if it affects a vital part of the operation or management of the undertaking 2. Where provincial legislation applies indirectly to a federal undertaking: o It will not apply if it sterilizes or impairs the undertaking *Note that until the Bell case in 1966, the provincial laws that were held inapplicable to federallyregulated undertakings were laws that asserted a power to sterilize (paralyze or impair) the federallyauthorized activity; in the Bell case (below), the SCC abandoned the language of sterilization McKay v. The Queen (1965) SCC Facts: This was an appeal from the decision of the Court of Appeal which reversed the judgment of the lower court and restored a conviction of the appellants by a magistrate of unlawfully maintaining a sign on their premises contrary to municipal by-law. The sign identified a candidate in the federal election. 114 The validity of the by-law was not challenged. It was argued that on its true construction it did not forbid the conduct which was held to be an offence. Decision and Reasoning: The appeal was allowed and the conviction set aside. The provincial legislature had no power to enact a prohibition such as was attempted in the by-law in issue. Such a prohibition would be a law in relation to proceedings at a federal election and not in relation to any subject matter within provincial power. The abstinence of the federal parliament from legislating to the full limit of its powers did not have the effect of transferring to the provincial legislature the power given to the Dominion by s. 91. A proper construction of the by-law did not disclose that it prohibited displaying the sign which the appellants displayed. Majority Canon of interpretation: where a bylaw is susceptible of two interpretations, you prefer the interpretation that protects its validity Legislature cannot do indirectly what it could not do directly (which, in this case, is prohibiting federal election signs) Even if Parliament doesn’t pass legislation, provincial legislation will simply not be applicable to a federal activity (i.e. federal signs) Therefore, the by-law is “read down” so as not to apply to federal election signs Dissent The provincial legislation is valid since: o It is not aimed at regulating a matter within federal jurisdiction o It can have a valid incidental effect on a matter within federal jurisdiction (as in General Securities Corp.) If Parliament really wanted to do something about it, they could displace its operation by enacting conflicting federal legislation (using paramountcy) *Note that MP agrees with the dissent here – she says the province isn’t actually directly regulating an activity **Also note that if this case were decided now, it would have been argued on the basis that the bylaw interferes with freedom of expression under the Charter – since the Charter, courts have declined to use interjurisdictional immunity to protect rights and “reading down” has become an important remedy in Charter cases Quebec (Commission du Salaire Minimum) v. Bell Telephone Co. (1966) SCC Facts: The Minimum Wage Commission appealed from the decision of the lower court which held that a certain company employer was not subject to the wage levy made pursuant to a by-law under the Quebec Minimum Wage Act. Although the company’s operations – consisting of an inter-provincial telecommunication system – fell within the legislative authority of the Parliament of Canada, the Commission contended that this exclusive jurisdiction over the works and undertakings of the company 115 did not extend to the fixing of minimum wages; and that the latter was a matter solely within provincial jurisdiction, thereby making the company subject to the levy. Decision and Reasoning: The appeal was dismissed. By virtue of the Constitution Act, 1867, an interprovincial undertaking fell into that class of subjects reserved to the exclusive legislative authority of Parliament. The word “undertaking” must be interpreted to mean not only the physical structure but all matters, which form a vital part of the operation, as well. This included such matters as hours of work, rate of wages and all other working conditions which affect an essential part of the management and operation of any commercial or industrial undertaking. Thus, although the subject matter of wage rates was generally within the competence of provincial legislatures, this authority did not extend to the regulation and control of the scale of wages to be paid by an interprovincial undertaking. Any provincial legislation in that field, while valid in respect of employers not within exclusive federal legislative jurisdiction, could not apply to employers coming within that exclusive control. In this decision, the SCC abandoned the traditional language of sterilization and held that Bell (an interprovincial undertaking) was immune from a provincial minimum wage law on the lesser ground that such a law affects a vital part of the management and operation of the undertaking. This new vital part test carved out a much broader field of immunity from provincial law than the old sterilization test because the vital part test precluded the application of provincial laws that could not possibly paralyze or even impair the operation of the federally-regulated undertaking. In this case, the decision meant that workers in federal industries were not protected by minimum wage laws, because at the time there was no federal minimum wage. In the second Bell case in 1988, the SCC reaffirmed its commitment to the vital part test. In this case, Beetz acknowledged that a law requiring the reassignment of a small number of workers could not paralyze or impair the operation of the federal undertaking – it is sufficient that the provincial statute which purports to apply to the federal undertaking affects a vital or essential part of that undertaking, without necessarily going as far as impairing or paralyzing it. *Note that this case is criticized in OPSEU v. AG Ont (1987) for being inconsistent with pith and substance/incidental effect approaches and using immunity instead of paramountcy; nevertheless, the decision was affirmed in the second Bell case in 1988 Irwin Toy v. Quebec (1989) SCC Facts: This was an appeal from the judgment of the Quebec Court of Appeal allowing an appeal from a judgment which dismissed the respondent’s action for a declaration that ss. 248 and 249 of the Consumer Protection Act were ultra vires the legislature of the Province of Quebec. The issue before the SCC was whether the law, which restricted advertising aimed at children, could apply to advertising on television, which is a federally-regulated medium. Decision and Reasoning: The appeal was allowed. The SCC held that the law was applicable to advertising on television. They acknowledged that advertising was a vital part of the operation of a television broadcast undertaking, but now they said that the vital part test applied only to provincial 116 laws purported to apply directly to federal undertakings. Where a provincial law had only an indirect effect on the undertaking, the law would be inapplicable only if the law impaired a vital part of the undertaking. An indirect effect falling short of impairment, even if it affected a vital part of the undertaking, would not render the provincial law constitutionally inapplicable. In this case, the provincial prohibition on advertising applied to advertisers, not to the media: the advertisers were prohibited from placing the prohibited category of advertising, but the media were not directly prohibited from carrying the advertising. Since the effect of the provincial law on a television undertaking was indirect, it did not matter that the law affected a vital part of the undertaking – only impairment would render the law inapplicable and the loss of children’s advertising could not impair the operation of the television undertaking. *The decision here doesn’t seem to make sense – if, as Bell #2 held, it is the case that any vital part of a federal undertaking is within the unassailable, exclusive core of federal power, then surely that core should be protected from indirect invasion by provincial law as well as direct invasion; some critics say what is really happening here is that the SCC is becoming concerned that the vital part test is too tight a restriction on provincial power over federal undertakings operating within the province Canadian Western Bank v. Alberta (2007) SCC Facts: Appeal by several banks from a decision of the Alberta Court of Appeal, upholding a decision by the Queen’s Bench court, concluding Alberta’s legislative scheme requiring banks to be licensed to promote insurance products was valid provincial legislation. The banks claimed the provincial scheme struck at the core of what banking was all about, namely enhancing the security of loan portfolios. The provincial legislation aimed to regulate the banks’ promotion of insurance as security collateral for loans. The banks had been allowed to enter into the business of insurance by amendments to the federal Bank Act in 1991. The provincial scheme was adopted in 2000. Evidence showed many bank customers took out the insurance offered by the banks. The Court of Appeal ruled the legislation had not had the effect of restricting the banks’ lending operations, and had not restricted the ability of the banks to take any type of security at any time. As such, the provincial scheme did not result in a sterilization or frustration of the parliamentary purpose of the Bank Act. Decision and Reasoning: Appeal dismissed. When promoting insurance, the banks were participating in the business of insurance. Parliament’s decision to permit banks to enter this provincially-regulated line of business did not broaden the scope of the federal government’s power to include the regulation of the business of insurance. As such, the doctrine of interjurisdictional immunity was not engaged. Banks had to comply with both federal and provincial laws because the paramountcy doctrine was not engaged. The provincial scheme was not incompatible with federal legislation relating to banking. It related to property and civil rights in the province of Alberta. There was a difference between requiring collateral, a banking activity, and promoting the acquisition of insurance that could possibly be used as collateral. As the banks had been complying with both provincial and federal legislation since 2000, it was obvious the schemes were not incompatible. They failed to discharge the onus on them to show their federally-regulated operations had been impaired by the provincial scheme. 117 In other words, the SCC changes it mind about the test for interjurisdictional immunity. They announced that they were completing the reassessment begun in Irwin Toy. Now, interjurisdictional immunity applies only if a core competence of parliament or a vital or essential part of an undertaking it duly constitutes would be impaired by a provincial law. If the core competence or vital part would merely be affected (without any adverse consequence) by a provincial law, no immunity applied. Also, the Irwin direct-indirect distinction was erased – it no longer matter whether the effect of a provincial law on the core or vital part was direct or indirect; in either case, the rule is the same: in the absence of impairment, interjurisdictional immunity does not apply. Impairment would involve: An adverse consequence that… Placed the core or vital part in jeopardy… Although without necessarily sterilizing or paralyzing. The underlying idea here is that where possible, a court should favor the ordinary operation of statutes enacted by both levels of government. Paramountcy This doctrine says in cases of conflict between valid federal and valid provincial laws, the federal law is paramount and the provincial law is inoperative to the extent of the conflict o Paramountcy only arises when there are two pieces of valid legislation regulating the same activity, one enacted by Parliament, one by the province What constitutes “conflict”? o Narrow reading: the laws conflict only if compliance with provincial law would require breach of a federal law o Broader reading: the provincial law is inoperative if it would interfere with the policy objective of the federal law Ross v. Registrar of Motor Vehicles (1975) SCC Facts: The question arose whether there was inconsistency between a federal law conferring a judicial discretion to prohibit a convicted drunk driver from driving and a provincial law imposing an automatic suspension of a convicted drunk driver’s licence. The sentencing court, pursuant to its right under the Criminal Code, prohibited Ross from driving for six months, except Monday to Friday from 8 AM to 5:45 PM in the course of employment and going to and from work. An automatic, blanket suspension of the Ross’ licence under the provincial law would nullify the effect of the Criminal Code provision and make a mockery of the Court’s carefully tailored order. Decision and Reasoning: As long as the provincial licence suspension is in effect, the person concerned gets no benefit from the indulgence granted under the federal legislation – but the Court didn’t care about this. While the dissent said that there was a direct conflict between the two laws and thus the provincial law should be completely inoperative, the majority held there was no conflict of law between the Criminal Code and the provincial statute. In enacting s. 238(1) and allowing the sentencing board to tailor the sentence, Parliament did not purport to deal generally with the right to drive following a conviction for a driving offence and provincial legislation providing for an automatic suspension of 118 driving licences after a conviction remained operative. The majority said that Ross could comply with both – for the first three months, he doesn’t drive at all and for the next three, he only drives to and from work. The majority says there is only a conflict if one law prohibits him from doing something that the other law requires him to do – that is the only test of conflict. If you can comply with both, there is no conflict. The problem with this decision is that it seems to give the provincial legislation paramountcy over the federal legislation because if paramountcy were actually applied, the federal purpose is paramount and the provincial statute which automatically suspends the license would not apply. Multiple Access v. McCutcheon (1982) SCC Facts: see above. Decision and Reasoning: The SCC applied the provincial “insider trading” law to shares in a federally incorporated company, despite the existence of an applicable federal law prohibiting insider trading. The majority said that both statutes are valid as they are virtually identical. They employed the conflict tests (dual compliance and displacement of the federal objective) and there was no conflict – the legislative purpose of Parliament will be fulfilled under either test. The dominant test for conflict becomes: what is the legislative purpose of parliament and is it being interfered with if the provincial legislation is allowed to operate? *From cases like this, it is clear that the SCC does not infer an inconsistency between federal and provincial laws based on an imputation that federal law “covers the field” or carries a “negative implication” forbidding supplementary provincial law in the same field. The SCC will only infer an inconsistency where it concludes that a federal law has a purpose that would be frustrated by a provincial law. The SCC has to make a judgment as to whether the two laws can indeed live together, bearing in mind not just the compatibility of the provincial law with the literal requirements of the federal law, but also the compatibility of the provincial law with the purpose of the federal law. Bank of Montreal v. Hall (1999) SCC Facts: The issue was whether there was a conflict between the federal Bank Act, which provided a procedure for the foreclosure of a mortgage held by a bank, and a provincial act, which stipulated, as a prelude to foreclosure proceedings, that the creditor must serve on the debtor a notice giving the debtor a last opportunity to repay the loan. In this case, the bank had taken foreclosure proceedings in compliance with the federal law, but had not served the notice in compliance with the provincial law. It was not impossible for the bank to obey both laws – if it had served the notice in compliance with the provincial law, it would not have been in breach of the federal law. In fact, according to the Ross test, you could technically comply with both laws. But the dissent in Ross and the majority in Multiple Access seem to say that the stricter law takes precedence. Decision and Reasoning: The SCC held that the bank was not obliged to obey the provincial law, because it was inconsistent with the federal law. La Forest said that there was an actual conflict in operation and that compliance with the federal statute necessarily entails defiance of its provincial 119 counterpart. In other words, the purpose of the federal law would be frustrated if the bank had to comply with the provincial law. Husky Oil Operations Ltd. v. Canada (Ministry of Natural Resources) (1995) SCC Facts: Appeal by the Workers’ Compensation Board from a decision that the Workers’ Compensation Act was inapplicable to bankruptcies. Husky owed money to Metal Fab which owed money to the Workers’ Compensation Board. When Metal Fab went bankrupt, the Board looked to Husky for payment of the monies owing. Section 133(1) of the Saskatchewan Workers’ Compensation Act permitted the Board to seek payment from a principal of a defaulting contractor. Section 133(3) then allowed Husky to recover these amounts by setting them off from the amount owed by Husky to Metal Fab. The creditors of Metal Fab claimed that s. 133 conflicted with s. 136 of the Bankruptcy Act in that it permitted the Board to obtain full payment ahead of the creditors which ranked higher than the Board under the Bankruptcy Act. Decision and Reasoning: Appeal dismissed. Sections 133(1) and 133(3) of the Saskatchewan Workers’ Compensation Act conflicted with the priorities set out in s. 136(1)(h) of the Bankruptcy Act. Since the provincial and federal legislation are both valid, they conflict re priorities among creditors. Bankruptcy is an exclusive federal field and thus the conflicting provincial legislation is inapplicable. The majority goes through a summary of what would happen in certain situations: In an operational conflict, the federal legislation prevails In a conflict within an exclusive federal field, the provincial legislation is ultra vires to extent of the conflict In a conflict in an overlapping field, the federal legislation is paramount and the provincial is valid but inoperative If there is no operational conflict, the provincial law may have an incidental or ancillary effect The dissent, however, says that both laws are valid and you can comply with both so there is no problem – they want to pursue cooperative federalism. Occasionally, the search for differences – any differences – has led judges to point out that the competing laws had different “purposes” or “aspects” and that they were consistent for that erason, even though they were substantially the same in operation. Canadian Western Bank v. Alberta (2007) SCC Facts: see above. Decision and Reasoning: The majority called upon the paramountcy doctrine to say that when the operational effects of valid provincial legislation are incompatible with federal legislation, the federal legislation prevails and the provincial legislation is inoperative to the extent of the incompatibility. The test of incompatibility is as follows: It is impossible to comply with both laws; OR To apply the provincial law would frustrate the purpose of the federal law. 120 In this case, the provincial legislation regulating insurance in the province is valid (under s. 92(13) – property and civil rights). The doctrine of paramountcy does not apply because the provincial legislation is not incompatible with the operation of any federal legislation and does not frustrate a federal purpose; compliance by the banks with provincial law complements the federal purpose. Chatterjee v. Ontario (Attorney General) (2009) SCC Facts: Appeal by Chatterjee from a decision concluding that the Civil Remedies Act was constitutional. Chatterjee was arrested for breach of probation and, incidental to the arrest, the police searched his car. They discovered cash and items that were associated with the drug trade and also smelled of marijuana, but no marijuana was found. He was never charged with any offence in relation to the money, items, or any drug related activity. The AGO successfully brought an interlocutory motion under ss. 4 and 9 of the CRA to preserve the seized money and equipment. Subsequently, the AGO brought an application under ss. 3 and 8 of the CRA for forfeiture of the seized money as proceeds of unlawful activity and of the items as instruments of unlawful activity. Chatterjee challenged the CRA’s constitutionality, arguing that the CRA’s forfeiture provisions were ultra vires the province on the basis that they encroached on the federal criminal law power. The applications judge concluded that the CRA was intra vires and valid. The Court of Appeal agreed that the CRA was valid provincial legislation and dismissed the appeal. Decision and Reasoning: Appeal dismissed. The CRA’s forfeiture provisions were constitutional. The argument that the CRA was ultra vires was based on an exaggerated view of the immunity of federal jurisdiction in relation to matters that might, in another aspect, have been the subject of provincial legislation. Where possible, the Court should favour the ordinary operation enacted by both levels of government. The CRA was enacted to deter crime and to compensate its victims. The former purpose (to deter crime) was broad enough that both the federal government and the provincial governments could validly pursue it. The latter purpose (to compensate victims) fell squarely within provincial competence. The costs of crime impacted many provincial interests and it would have been out of step with modern realities to conclude that a province had to shoulder the costs of criminal behaviour but could not use deterrence to suppress it. The CRA was enacted in relation to property and civil rights and could incidentally affect criminal law and procedure without doing violence to the division of powers. There was no general bar to a province’s enacting civil consequences to criminal acts provided that the province did so for its own purposes in relation to provincial heads of legislative power. The CRA did not introduce an interference with the administration of the Criminal Code provisions. Procedural options were available where a CRA judge could consider whether the conduct of the AGO was abusive of the processes of the Court. Furthermore, if in particular circumstances a conflict arose with the CRA to the extent that dual compliance was impossible, then the doctrine of paramountcy would render the CRA inoperable to the extent of the conflict. 121 PARAMOUNTCY TESTS Provincial law operates, if it is possible to comply with both Dual Compliance* provincial and federal laws Provincial Compliance = Federal NonThe provincial law will not operate if complying with it Compliance means not complying with the federal law If there is a complete federal code covering the area, then Negative Implication/Covering the Field the provincial law will not operate, even if it doesn’t come into conflict Duplication Federal purpose fulfilled, so the provincial law can operate If the provincial law would displace the federal purpose, it Displacement will not operate The provincial law does not operate in an exclusive federal Federal Exclusive Power domain (e.g. bankruptcy) *This is the only test that enhances provincial power – all of the others preserve federal power FINAL RESOLUTION TO THE PARAMOUNTCY TEST If there is valid federal and valid provincial legislation regulating the same activity, the provincial legislation will be inoperative to the extent: a. It is impossible to comply with both laws; or b. Application of the provincial law would frustrate the purpose of the federal law. The result is that the provincial law remains valid, it is just inoperable to the extent of its incompatibility. FEDERALISM: ECONOMIC REGULATION Distribution of Jurisdiction to Affect Economic Policy Federal Economic Powers Trade and Commerce, s. 91(2) o International trade, interprovincial trade, general regulation of trade throughout the country (Parsons) Taxation, s. 91(3) Criminal law (product safety standards), s. 91(27) Banking, s. 91(15) Interest, s. 91(19) Bankruptcy and insolvency, s. 91(21) Patents, s. 91(22); copyright, s. 91(23) Interprovincial and international works and undertakings, s.92(10) Provincial Economic Powers Property and civil rights, s. 92(13) Intraprovincial trade Section 121 of the Constitution Act, 1867 includes a guarantee of free movement of goods across provincial borders, but it has limited impact 122 Mutual Modification The terse descriptions of the classes of subjects in ss. 91 and 92 appear to give rise to a good deal of duplication and overlapping – “property and civil rights in the province” under s. 92(13) appears apt to include “the regulation of Trade and Commerce” under s. 91(2) The Courts have dealt with this kind of overlapping by interpreting each head of power as excluding the other o Thus, “Trade and Commerce” has been narrowed down to interprovincial and international Trade and Commerce, while “property and civil rights” has been interpreted as including the regulation of only local Trade and Commerce The Courts have narrowed the meaning of the broader class in order to exclude the narrower class This process of mutual modification is necessary in order to place each head of power in its context as part of two mutually exclusive lists Citizens’ Insurance Co. v. Parsons (1881) JCPC Facts: Parsons was the owner of a hardware store that was covered by an insurance policy provided by Citizen Insurance Co. of Canada. When a fire burnt down the store Parsons tried to collect on the insurance but he was denied on account of an exemption clause found in the contract. Parsons sued the Insurance Company for not conforming to the Ontario Fire Insurance Policy Act. The Insurance Company argued that the Act was ultra vires of the province, and only the federal government could regulate matters in relation to the Trade and Commerce power. Decision and Reasoning: The issue did not come within the federal Trade and Commerce power because that power should be read as not including the power to regulate by legislation the contracts of a particular business or trade, such as the business of fire insurance in a single province. What the phrase “the regulation of Trade and Commerce” did include was: 1. Political arrangements in regard to trade requiring the sanction of Parliament, 2. Regulation of trade in matters of interprovincial concern and 3. The general regulation of trade affecting the whole dominion. Since the Parsons case, it has been accepted that, in general, intraprovincial Trade and Commerce is a matter within provincial power, under “property and civil rights in the province” (s. 92(13)) and the federal Trade and Commerce power is confined to: 1. Interprovincial or international Trade and Commerce and 2. General Trade and Commerce. Modern Challenges in Regulation of Economic Policy Increasingly competitive global marketplace Multilateral and bilateral trade agreements (e.g. NAFTA) Need for a stronger economic union in Canada The regulation of capital markets: the need for a national securities commission 123 The cost of interprovincial barriers and competition o Procurement practices o Marketing boards o Regulations that restrict access to employment, etc. o Differing standards for products, services, occupations o Limitations on investments o Competitive subsidies o Cost estimate: the cost to maintain these provincial barriers is $6B. a year ($1,000 per family of 4) Mobility Rights S. 6 of the Charter reads: 1. Every citizen of Canada has the right to enter, remain in and leave Canada. 2. Every citizen of Canada and every person who has the status of a permanent resident of Canada has the right a. To move to and take up residence in any province; and b. To pursue the gaining of a livelihood in any province 3. The rights specified in subsection (2) are subject to a. Any laws or practices of general application in force in a province other than those that discriminate among persons primarily on the basis of province of present or previous residence; and b. Any laws providing for reasonable residency requirements as a qualification for the receipt of publicly provided social services. 4. Subsections (2) and (3) do not preclude any law, program or activity that has as its object the amelioration in a province of conditions of individuals in that province who are socially or economically disadvantaged if the rate of employment in that province is below the rate of employment in Canada. Black v. Law Society of Alberta (1989) SCC Facts: This was an appeal by the Law Society of Alberta against a decision of the Alberta Court of Appeal holding that certain new rules instituted by the Law Society violated mobility rights guaranteed under s. 6(2)(b) of the Charter and were not saved by s. 1 of the Charter. A Calgary Law firm set itself up as an interprovincial law firm with offices in Calgary and Toronto. The Law Society of Alberta enacted two new rules in response to this development: Rule 154 prohibited members of the Law Society who ordinarily resided and practised law in Alberta from entering into partnership with anyone who was not an active member ordinarily resident in Alberta and Rule 75B prohibited members of the law society from participating in dual or multiple partnerships. At issue was whether these rules violated ss. 6(2)(b) and 2(d) of the Charter. Decision and Reasoning: The appeal was dismissed. Both Rules violated s. 6(2)(b) of the Charter. The combined effect of the rules seriously impaired the ability of the respondents to maintain a viable association for the purpose of obtaining a livelihood, and made such a business arrangement completely 124 unfeasible. Rule 154 triggered the operation of s. 6(2)(b) of the Charter by restricting the mobility of non-resident lawyers. Section 6 of the Charter protected the right of persons to work in a province without being resident there. Section 6 of the Charter was intended to protect the right of a citizen to move about the country, reside where they wished, and pursue their livelihood without regard to provincial boundaries. While the provinces could regulate these rights, they could not do so on the basis of provincial boundaries. Section 6(3) of the Charter which qualified the scope of s. 6(2) did not save the impugned Rules which fell under the phrase “other than those laws that discriminate among persons primarily on the basis of province of present or previous residence”. The claim that the public interest was threatened if lawyers from other jurisdictions were permitted to practice law in Alberta was ill-founded. The claim that local competence and expertise would be diminished by the existence of interprovincial law firms was not persuasive. The argument that the insurance fund in the province covering defalcation and malpractice would be adversely affected was not made out. Nor was the issue of professional discipline a reason to uphold these Rules. Sanctions for professional misconduct could be equally effective outside provincial boundaries. The Law Society could, if it wished, make competence support programs mandatory for non-resident lawyers practicing law in Alberta. Similarly the Law Society could enact rules concerning fee-splitting if it was felt that this behavior was so unethical as to require action. It was not a justification, however, for prohibiting interprovincial law firms. The limits on s. 6(2) Charter rights resulting from Rule 154 was completely disproportionate to the alleged legislative objectives sought. It was therefore not reasonably justified under s. 1 of the Charter. The problems of conflicts of interest could easily be avoided in an interprovincial law firm by use of computers and this was not a reason to find Rule 75B justifiable. Rule 75B was not saved by s. 1 of the Charter. Canadian Egg Marketing Agency v. Richardson (1998) SCC Facts: Appeal by the Canadian Egg Marketing Agency from an Ontario Court of Appeal Decision which upheld in part a trial decision that part of the federal egg marketing scheme violated the Charter. The Canadian egg market was regulated by a federal-provincial scheme. Under the federal part of the scheme, a federal quota and license were required to produce and market eggs interprovincially. The Agency only allocated quotas to the provinces, but not the Northwest Territories. Although the respondent NWT egg producers, Richardson and Pineview, were excluded from lawfully marketing interprovincially, they did so. The Agency sued the respondents for damages and sought an injunction to stop them. The respondents were granted public interest standing to challenge the scheme’s constitutionality. The trial judge held that parts of the scheme violated ss. 2(d), 6(2)(b) and 15(1) of the Charter and were not saved by section 1. The trial judge granted the respondents a constitutional exemption from the scheme. The Court of Appeal upheld the findings except with regard to section 15(1). Decision and Reasoning: Appeal allowed. The scheme did not violate the Charter. The respondents had standing to challenge the scheme’s constitutionality. As corporations, they were allowed to invoke the Charter as they were defendants in civil proceedings started by the state pursuant to a regulatory 125 scheme which may be unconstitutional. The scheme did not violate s. 6 as it did not discriminate primarily on the basis of residence – mobility does not extend to mobility of economic factors and products. The dissent said that the legislation does infringe s. 6, which promotes a collective economic union and individual mobility rights. It is not justified under s. 1 because quotas (which this scheme was going off of) are a product of historical accident. Also, there is no pressing and substantial objective to justify infringement of s. 6. Provincial Powers Over Economic Regulation Provincial powers create internal barriers to trade Economic integration requires sacrifice of political autonomy Free market maximizes economic gains Interference with market creates distortion On the other hand, o There is a strong argument that the nation would be better served by more integration, but this would mean sacrificing provincial autonomy o Government intervention may correct the market o Imperfections may offset each other o There are priorities other than maximizing outputs Carnation Co. Ltd. v. Quebec Agricultural Marketing Board Facts: The appellant company operated a processing plant in the province of Quebec; the major part of its production was sold and shipped outside of that province. The Quebec Marketing Board having set the prices to be paid by the appellant for raw milk and such prices being higher than prices paid by other purchasers in the area, the appellant moved to set the order of the Board aside. That application was dismissed, the Court holding that the price fixing was a local or private issue and not an infringement of the powers of the Parliament of Canada. In this appeal the appellant attacked the jurisdiction of the Board and the validity of the Marketing Act. Decision and Reasoning: The appeal was dismissed. The orders in question affected the costs of a company doing business in Quebec and engaged in intraprovincial trade. There was no attempt at regulating interprovincial trade; nor were the orders directed at restraint of trade. They were valid orders. The legislation addresses valid provincial objectives and is not aimed at international trade. The fact that it has an incidental effect on international trade does not undermine its validity. Where the province has legislated and it is not directly affecting any international transactions, but the effect of the legislation is to increase the price of milk which is going off to international trade, the mere fact of this incidental effect does not prevent the province from legislating the regulations – as long as it is operating properly within the province, provincial jurisdiction is not undermined. This effectively broadens the scope for provincial jurisdiction – this case removes a potential limit on provincial jurisdiction over transactions within the province. 126 This case is distinguishable from the Farm Products Marketing Act which says legislation affecting the flow of interprovincial trade is ultra vires the province – the difference here is that the legislation is the directly affecting the flow of international trade. Attorney General for Manitoba v. Manitoba Egg and Poultry Association (1971) SCC Facts: This case arose out of a much-publicized “chicken and egg war” between Ontario (which produced a surplus of eggs) and Quebec (which produced a surplus of chickens). Those provinces had established marketing plans for eggs in Quebec and for chickens in Ontario which, according to the press, gave undue preference to the locally-produced product. Manitoba, which as a producer of agricultural surpluses claimed to be injured by both plans, created an egg marketing plan of its own on the Quebec model and referred it to the Courts for a judicial decision which would also effectively determine the validity of the Quebec and Ontario plans. The scheme applied to all eggs sold in Manitoba, including eggs produced elsewhere. The reason for the application of the scheme to eggs produced out-of-province was that the scheme could otherwise be undermined by imports of an unregulated and cheaper product. The judges must have considered that the marketing plans could be used as vehicles by which a province could discriminate against the out-of-province product. Discrimination would make the plan unconstitutional in operation. However, none of the opinions clearly sated that the decision was based on the discriminatory character of the plan. Decision and Reasoning: The SCC unexpectedly struck down the provincial scheme to regulate the marketing of eggs. Without explaining why the Carnation precedent wasn’t controlling, the Court said that the egg marketing plan not only affects interprovincial trade in eggs, but it aims at the regulation of such trade – accordingly, the plan was held to be entirely unconstitutional. The test for the validity of the marketing plan was whether the provincial legislation was made in relation to the regulation of interprovincial trade. In applying it, it was decided that the plan aims at regulating interprovincial trade and thus interferes with the free flow of trade between provinces. The legislation is not severable: those portions dealing with local provincial trade are inextricably bound up with those that deal with interprovincial product and so the whole plan is invalid. Is this decision in line with the incidental effect doctrine and Carnation? MP says yes – in this case, Manitoba is trying to subject eggs outside the province to the regulatory regime, but in Carnation, they want to set up a marketing scheme for a proper provincial purpose and although it may slightly raise the price internationally, there is no direct regulation of interprovincial trade. These two cases don’t conflict. The decision in this case was followed by a federal-provincial agreement involving all 11 governments which settled a national marketing plan for eggs. The plan allocated production quotas to each province and stipulated a higher price for eggs sold outside the province of production. The plan was to be administered by a national marketing board and ten provincial marketing boards, under the aegis of a federal marketing statute and ten provincial marketing statutes and each marketing board was granted powers by inter-delegations from both levels of government. Through the cooperative action of both levels of government, it was hoped to gill the gaps in federal and provincial legislative power. 127 Burns Foods Ltd. v. Attorney General for Manitoba (1975) SCC Facts: The trial Court and the Manitoba Court of Appeal both ruled that the Natural Products Marketing Act was intra vires the Provincial Legislature. The statute purported to direct that packing houses were required to purchase all hogs for slaughter, whether domestic raised or imported from another province, through the Manitoba Hog Producers Marketing Board. That decision was appealed to the SCC. Decision and Reasoning: The appeal was allowed, the judgments of the Courts below were set aside, the injunction was dissolved. The counter-claim declaring the provincial legislation intra vires was reversed. The impugned regulation sought to require that hogs acquired from a producer in another province be subject to the law of Manitoba and not with the law of the province of origin. The regulation did not purport to prohibit the bringing in of imports if the requirement was not complied with, but the same result was sought by providing that the goods could not then be used for the sole purpose for which they were brought in, namely immediate slaughter. This was an attempt to directly interfere with interprovincial trade by a provincial authority and, therefore, it was ultra vires. This decision is similar to the Manitoba Egg Reference in that since the legislation’s aim was to regulate interprovincial trade (and not just an incidental effect), it is unconstitutional. However, in this decision, only he part of the Manitoba Hog Producers’ Marketing Plan which purported to bind the product purchased out-of-province was invalid. Even this more restrained result seems open to criticism, however, on the basis that the application to the imported product was necessary to the integrity of the plan and was merely an incidental effect of a plan whose primary purpose was to control the marketing of hogs in the province (this was the basis of Ritchie’s dissent). Reference re Agricultural Products Marketing Act (1978) SCC Facts: This was an appeal from a reference to the Ontario Court of Appeal concerning the interaction of federal and provincial legislation and of the agencies established thereunder for the regulation of production and marketing of eggs in the intraprovincial, interprovincial and export trade in that product. The Court of Appeal upheld the validity of the challenged provisions. The act was cooperative legislation – provincial and federal legislation delegated authority to provincial boards (ultimately the same plan as laid out in the Manitoba Egg Reference). Decision and Reasoning: Both the federal marketing statute and the Ontario statute were upheld, on the basis that the federal statute regulated the interprovincial elements of the plan, and the provincial statute regulated the intraprovincial elements of the plan. Although it was doubtful whether each level of government succeeded in remaining within its proper sphere, the Court was willing to give the benefit of the doubt to both the federal and provincial sides of the cooperative enterprise. With respect to the provincial statute, perhaps the most important aspect of the decision is the holding that the provincial statute could impose production quotas on all producers irrespective of the destination of their output. Laskin for the concurring minority was cautious, upholding production controls on the basis that the primary object of the act was to regulate marketing in intraprovincial trade. 128 *Note that MP says the necessary incidental doctrine cannot work in favor of provinces, otherwise they would have used it in this case Provincial Powers Over Natural Resources CIGOL v. Saskatchewan (1978) SCC Facts: The plaintiff appealed to the SCC from a judgment of the Saskatchewan Court of Appeal upholding a trial judgment which found that legislation enacted in 1973 and 1974 by the Saskatchewan Government was validly enacted. The respondent contended that the mineral income tax was a direct tax and that the royalty surcharge was not a tax but a genuine royalty payable to the Crown as the owner of mineral rights by its lessees who had been authorized to extract minerals from Crown lands. The appellant contended that both the mineral income tax and the royalty surcharge constituted indirect taxation and were therefore beyond the powers of the province to impose. It was contended that the legislation related to the regulation of interprovincial and international Trade and Commerce, over which the federal Government had exclusive legislative power under s. 91(2). Decision and Reasoning: The appeal was allowed and the judgments below set aside. The statutory provisions and 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 Province. The tax was essentially an export tax imposed upon oil production. The taxation provisions comprising the mineral income tax and the royalty surcharge did not constitute direct taxation within the province and were therefore outside the scope of the provincial powers under s. 92(2). The price was not an “export price” being imposed without regard for the destination of the oil. However, because the evidence showed that 98% of Saskatchewan’s oil was exported to eastern Canada, the Court held the province was attempting to fix the price in the export market, which was an unconstitutional attempt to regulate interprovincial Trade and Commerce. The dissent said the legislation is intra vires as it regulates at the well-head within the province to raise revenue and causes no impediment to external trade – the ultimate position of consumers not affected and thus the effect on extra provincial trade is indirect and remote. Central Canada Potash v. Government of Saskatchewan (1978) SCC Facts: The province enacted a prorationing scheme for potash. The scheme, which was established by regulations made under statutory authority, imposed production quotas on producers of potash within the province. The Court of Appeal upheld the controls as measure to protect and maintain the potash industry as a viable economic industry within the province. Decision and Reasoning: The SCC struck down the province’s prorationing scheme for potash produced in the province. Laskin for a unanimous court acknowledged that Reference re Agricultural Marketing Act had held that production controls were ordinarily matters within provincial authority, but he said the situation may be different where a province establishes a marketing scheme with price fixing as its central feature. Laskin didn’t explain why and it is hard to see why since price fixing was also a big part of the egg scheme. The controls in each case pursued the same purpose: by reducing the supply of the 129 product, the price could be maintained at a level above its free-market level. The political object in both cases was to increase returns to producers and make the producing industry more prosperous. Laskin said for the majority that since the only market for potash is international, the province is interfering with and regulating the price of potash in international trade – this is not an incidental effect, it is a direct effect. The different outcomes in these cases could be attributable to the destination of the product. In the Reference re Agricultural Marketing Act, 90% of the eggs produced in Canada were consumed within the province of production. In Potash, virtually all of the potash was produced in Saskatchewan and exported. This led Laskin to characterize the prorationing scheme as directly aimed at the production of potash destined for export. The Court’s reasoning here produces the consequence that those provinces that, like Saskatchewan, are mainly primary producers have less control over their natural resources than those provinces that, like Ontario, have more integrated economies. Natural Resources Amendment, S. 92A The Constitution Act, 1982 by s. 50, added a new s. 92A to the Constitution Act, 1867 to enlarge the provincial powers over natural resources Applies to o Nonrenewable natural resources o Forestry resources o Electrical energy Provinces have additional jurisdiction to legislate re o Exploration, development, conservation and management o Interprovincial trade without discrimination in pricing or supply (subject to federal legislation) o Taxation (direct or indirect), whether or not exported from the province, but without discrimination within Canada o Primary rate of production All subject to the overriding power of parliament – parliament can come in and override the province S. 92A(1)(b) confers on the provincial legislatures the power to make laws in relation to “development, conservation and management of nonrenewable natural resources and forestry resources in the province, including laws in relation to the rate of primary production therefrom” Note that this power applies only to nonrenewable natural resources and forestry resources and not to eggs or other agricultural products S. 92A(2) provides: “in each province, the legislature may make laws in relation to the export from the province to another part of Canada of the primary production from non-renewable natural resources and forestry resources in the province and the production from facilities in the 130 province for the generation of electrical energy, but such laws may not authorize or provide for discrimination in prices or in supplies exported to another part of Canada This is an enlargement of the pre-1982 provincial power, since laws in relation to the export of resources were previously incompetent to the provinces (see Central Canada Potash) However, there are limitations in that it doesn’t extend to agricultural products or resources exported to anywhere outside Canada – the export of resources from Canada remains outside provincial power Federal Powers Over Interprovincial and International Trade The Queen v. Klassen (1960) Man. CA Facts: The accused, the manager of a locally operated feed mill, appealed by way of stated case from his conviction under ss. 42(1)(c) and 16(2) of the Canadian Wheat Board Act for failing to enter a certain delivery of wheat in a permit book. The Canadian Wheat Board Act legislated the pooling, equalizing and managing wheat trade in international markets. The accused disputed the constitutionality of the Act; he had not at any time been engaged in interprovincial or export trade, and he was not aware that any of the products of his mill have been used in interprovincial or export trade. The issue was whether the Act could apply to a feed mill which processed locally produced wheat and sold it to farmers. Decision and Reasoning: The appeal was dismissed. S. 16 and the schedule to the Act are intra vires of Parliament. Part II of the Act is not an attempt by Parliament to interfere with or control the business of flour, feed and seed mills within the province as an end in itself but the interference with property and civil rights which results under Part II is incidental and ancillary to the achievement of the Act, the pith and substance of which is the provision of an export market for surplus grains, a matter of national importance. The interprovincial and export marketing of certain grains by the Board and the regulation of interprovincial and export trade in such grains is legislation in relation to the regulation of Trade and Commerce. It is not relevant that the accused operates his feed mill in a purely local and provincial manner, as the Act is not legislation in relation to property and civil right but is legislation in relation to Trade and Commerce. This is a liberal interpretation of the Trade and Commerce power – federal regulation of the trade in grain is upheld, even though the regulation extended to purely local transactions. The reasoning was that the marketing of products which flow across interprovincial boundaries from the province of production or importation to the province of consumption or export could be regulated by Parliament and that some local transactions could also be regulated where that was an incident of the regulation of the interprovincial trade. The SCC refused leave to appeal in this case, but the decision here was affirmed in Caloil. Caloil v. Attorney General of Canada (1971) SCC Facts: The appellant company questioned the validity of regulations issued by the National Energy Board. These regulations prohibited the distribution of oil, imported by the appellant, to points west of 131 the Ontario-Quebec border. The appellants’ first action was successful and the regulations were ruled invalid. The Board then amended the regulations and a second action by the appellant was dismissed. Decision and Reasoning: The appeal was dismissed. Parliament had the admitted authority to regulate importation of goods from foreign countries. That authority was validly exercised in the instant case. Restriction of the area of distribution of the goods within Canada by their importer was a part of the overall regulatory scheme. With this case, the SCC confirmed the decision in Klassen. They upheld federal prohibition on transportation or sale of imported oil west of Ottawa, the purpose being to protect the oil industry in the west. Although this affected many intraprovincial transactions, it was an integral part of controlling imports in extraprovincial trade policy and an extraprovincial marketing scheme. The purpose of the regulations was to provide protection and remove competition but this affected all sorts of interprovincial transactions – no deals could be made to transport oil from the west to consumers in Ottawa. The SCC said that these regulations were integral to controlling imports in extra provincial trade – it was an extra provincial marketing scheme. In effect, they adopt the approach of the Manitoba CoA in Klassen to expand federal jurisdiction. *Note that Klassen and Caloil overrule majority in King v. Eastern Terminal (necessarily incidental test); this connotes that the trade in grain and oil is of strategic national importance. Summary of Federal Trade and Commerce Power Parliament can regulate o International trade o Interprovincial trade Including intraprovincial transactions where legislation aims at flow of goods and has some incidental effect on intraprovincial transactions or Requires direct regulation as necessarily incidental to the regulation of a strategic product (e.g. grain in Klassen, oil in Caloil) o General regulation of trade throughout the country Federal Powers Over General Regulation of Trade General regulation of trade is the third branch of federal Trade and Commerce jurisdiction outlined in Parsons Parsons and the general regulation of trade is relied on in John Deere Plow Co. v. Wharton to support the incorporation and regulation of federal business corporations Parsons and the general regulation of trade is relied on in AG Ontario v. AG Canada (“National Standards Case”) to establish the “Canada Standard” for products But note: Insurance Reference: Parliament does not have jurisdiction to regulate a single industry, even if it operates nation-wide 132 Dominion Stores v. The Queen (1980) SCC Facts: This was an appeal from a conviction of possessing apples for sale which did not conform to the grade stated in a federal Act. The accused was a food retailer. It was agreed that the matter was a local one. The Ontario Provincial Court quashed the charge on the ground that the federal Act was ultra vires. The Ontario High Court allowed an appeal and set aside the acquittal. The Ontario Court of Appeal dismissed the retailer’s appeal. Decision and Reasoning: The appeal was allowed. The Federal Act did not apply to local commerce within a province and was therefore ultra vires to that extent. The majority said prosecution should be under provincial law in relation to intraprovincial transactions. This had the effect of striking down Part I of the federal Canada Agricultural Products Standards Act. The Act provided for the establishment of grades with appropriate grade names for agricultural products. Part II of the Act made it compulsory to use the grade names for products moving in interprovincial or international trade. Part I of the Act did not make it compulsory to use the grade names for products marketed within the province of production, but it provided that, if the grade names were used in local trade, then the appropriate federal standards had to be complied with. Dominion was charged under Part I with selling apples (which were locally produced) under the federally established grade name “Canada Extra Fancy”, which did not comply with the standards stipulated for that grade of applies. The company was acquitted on the grounds that Part I was an unconstitutional attempt to regulate local trade. The dissent upheld the federal standard on basis of convenience for dealers to use same grades for product sold within and outside the province. Part II was a valid exercise of the Trade and Commerce power – to set up federal grade names and products moving interprovincially or internationally. If the same grade names could be used for locally-produced products, without compliance with the federal standards, then the grade names would lose their credibility. Part I was necessary to protect the interprovincial and international scheme. This case was a bit of a setback; the decision was not very helpful and has not been relied on subsequently, but remains in the books. MacDonald v. Vapor Canada Ltd. (1976) SCC Facts: The Trade Marks Act, which was enacted by Parliament and within federal jurisdiction, provided remedies for acts or business practices that are “contrary to honest industrial or commercial usage in Canada”. The constitutionality of these provisions were challenged as ultra vires of the federal government as it created civil remedy and cause of action for tort and contractual matters which is generally under the power of the provincial authority over property and civil rights. The Federal Court of Appeal upheld the provision as valid under the Trade and Commerce power. Decision and Reasoning: The SCC held in a unanimous decision that the provisions were unconstitutional. 133 Laskin, writing for the Court, found that the provisions did encroach on the province’s authority over property and civil rights and could not be upheld under the Trade and Commerce branch. In considering the Trade and Commerce clause he examined the “general trade” branch of the clause first articulated in Parsons. Laskin proposed a three stage test for the “general trade” branch. He said a remedial provision which would otherwise be within provincial jurisdiction may be included in federal legislation where: 1. There must be a “general regulatory scheme”; 2. The scheme must have the “oversight of a regulatory agency”; and 3. The scheme must have a concern with “trade as a whole rather than a particular industry”. *This test was later modified by General Motors v. City National Leasing. Labatt Breweries v. Attorney General of Canada (1980) SCC Facts: Labatt produced a line of beer with a 4% alcohol content that was labelled as “Labatt’s Special Lite” and was sold in Ontario and British Columbia. Under Food and Drug Regulations under the federal Food and Drugs Act, beers could only be called “light” if it contained between 1.2 and 2.5 per cent alcohol. Labatt sought a declaration that its “lite beer” would not be subject to the requirements for “light beer” under the regulations. Decision and Reasoning: The Court held that despite that the law was accompanied by a penalty of imprisonment and was related to health and safety, it was not enough to save the Act under the Constitution’s criminal law power. The provisions were found to be regulatory in nature and not prohibitory. Equally, the law could not be saved under the POGG power. The SCC struck down the compositional standards for beer enacted under the FDA. It is not valid to say that this was within Parliament’s power to regulate interprovincial trade because the standards were imposed without regard for the products movements across provincial boundaries. Also, as established in the insurance cases, the Trade and Commerce power will not authorize the regulation of a single trade or industry, even if the industry is dominated by a few large firms which advertise and market their products on a nation-wide basis. Even if several industries are regulated, Parliament cannot regulate elements of intraprovincial trade (unless emergency). The regulations must cover industry and commerce at large. Laskin in dissent argued that the Act could be upheld under the general trade branch of the Trade and Commerce power. He believed that the federal government should be permitted to “fix standards that are common to all manufacturers of foods, including beer, drugs, cosmetics and therapeutic devices, at least to equalize competitive advantages in the carry on the businesses concerned with such products”. This is another case where the federal Trade and Commerce power was rejected as a support for federal legislation. 134 Canada (Attorney General) v. C.N. Transportation (1983) SCC Facts: This was an appeal from a decision allowing an appeal from refusal to grant an order prohibiting the Alberta Provincial Court from proceeding to try charges under s. 32(1)(c) of the Combines Investigation Act so long as the prosecution was to be conducted by counsel for the AGC. This Act is now the Competition Act and it granted Parliament power to initiate prosecutions. The questions raised on this appeal were (1) whether the constitutional validity of s. 32(1)(c) depended upon the federal power to legislate with respect to criminal law, granted under s. 91(27); and (2) if so, whether it was within the competence of Parliament to enact legislation, as in s. 2 of the Criminal Code and s. 15(2) of the Combines Investigation Act, authorizing the AGC or his agents to prefer indictments and conduct proceedings in respect of violations of s. 32(1)(c). Decision and Reasoning: The majority said the legislation is valid as criminal law (see Ref. re Board of Commerce Act). The federal AG has concurrent jurisdiction to prosecute criminal offences. Dickson got to the same result, but in a different way – he said that the provinces have exclusive jurisdiction, but this decision can still be upheld as regulating Trade and Commerce throughout the country. Dickson thus added a fourth and fifth element to the Vapor test for when a remedial provision which would otherwise be within provincial jurisdiction may be included in federal legislation. The test became: 1. 2. 3. 4. There must be a “general regulatory scheme”; The scheme must have the “oversight of a regulatory agency”; The scheme must have a concern with “trade as a whole rather than a particular industry”; The legislation should be of a nature that the provinces jointly or severally would be constitutionally incapable of enacting (provincial incapacity test); and 5. The failure to include one or more provinces or localities in a legislative scheme would jeopardize the successful operation of the scheme in other parts of the country (provincial jeopardy test). Dickson said the CIA aims at economy as a single integrated national unit and is valid as legislation re general regulation of trade. It is not valid only as an exercise of the criminal law power. Accordingly, federal prosecutors are entitled to prosecute offences under the CIA. General Motors v. City National Leasing (1989) SCC Facts: see above. Decision and Reasoning: The allegations that gave rise to the litigation concerned price discrimination in the financing of the purchase of vehicles by companies that lease fleets of automobiles and trucks. These purchases, and the associated financing arrangements, were transactions that, individually, took place within a single province. Those facts gave rise to an argument that the federal legislation should be read down to exclude such intraprovincial activity which could be left to the provincial law. Dickson’s answer to this argument was a reference back to the provincial inability test, captured in elements 4 and 5 of his definition of general Trade and Commerce in C.N. Transportation: competition cannot be successfully regulated by federal legislation which is restricted to intraprovincial trade. 135 The conclusion was that Parliament (as well as the provinces) has the constitutional power to regulate intraprovincial aspects of competition. Dickson cautions that these tests are not exhaustive or conclusive re scope of federal jurisdiction re general regulation of trade. There is a little bit of an encroachment on provincial powers here because the creation of civil right of action is generally within provincial powers. However, it is remedial and limited. The federal government is not precluded from creating rights of civil action where warranted within its jurisdiction The Act does create a regulatory scheme. It creates a complex scheme of economic regulation; it specifies prohibited conduct, creates an investigatory procedure, establishes a remedial mechanism – it is a well-integrated scheme of regulation to discourage forms of commercial behaviour viewed as detrimental to Canada and its economy. In this case, watertight compartments are not applied. The Act as a whole is valid general regulation of trade: it is aimed at the economy as a single integrated national unit. Competition cannot be effectively regulated unless it is regulated nationally, although provinces can also legislate re competition in local markets (hence not watertight compartments). In order for s. 31.1 to be valid, it must be sufficiently related to the Act – the more intrusive on provincial powers the provision is, the stronger the required relationship. Here, the provision only intrudes in a limited way and so it need not meet higher test of being necessary and integral. Thus, the appropriate test is: is the provision functionally related to the general objective of the legislation, and to the structure and content of the scheme? S. 31.1 meets functional test. It reinforces other sanctions, reflects the spirit of competition (private action against wrongdoer), supplements, but does not displace, other remedies and it may operate where public enforcement is not sufficiently responsive. Strengthening the Canadian Economic Union Various suggestions for reform include: o Strengthen federal powers or o Strengthen protection against barriers between provinces Attempts at constitutional reform to reduce barriers include: o 1982 reform discussions; 1992 Charlottetown Accord Constitutional change includes: o Strengthening federal role through the Courts o Intergovernmental cooperation: 1994 Agreement on Internal Trade o International influences: NAFTA, WTO CRIMINAL LAW Jurisdiction over Criminal Law One area where lines are blurred in Canada is policing where there is divided jurisdiction 136 While we have a national standard of criminal law, it differs from state to state in the US Federal Jurisdiction Parliament has exclusive jurisdiction over: Criminal law and procedure under s. 91(27) of the Constitution Act, 1867 which says Parliament has power over “The Criminal Law, except the Constitution of Courts of Criminal Jurisdiction, but including the Procedure in Criminal Matters” Federal offences to enforce legislation re other classes of federal jurisdiction Provincial Jurisdiction Provinces have power over: The administration of justice in a province under s. 92(14) of the Constitution Act, 1867 which says provincial legislatures can make laws relating to “The Administration of Justice in the Province, including the Constitution, Maintenance, and Organization of Provincial Courts, both of Civil and of Criminal Jurisdiction, and including Procedure in Civil Matters in those Courts Provincial offences to enforce provincial laws under s. 92(15) of the Constitution Act, 1867 which says provincial legislatures can make laws relating to “The Imposition of Punishment by Fine, Penalty, or Imprisonment for enforcing any Law of the Province made in relation to any Matter coming within any of the Classes of Subjects enumerated in this Section” The Scope of Federal Jurisdiction Over Criminal Law Margarine Reference (1949) SCC Facts: S. 5(a) of the Dairy Industry Act provides: “No person shall (a) manufacture, import into Canada, or offer, sell, or have in his possession for sale any oleomargarine, margarine, butterine, or other substitute for butter, manufactured wholly or in part from any fat other than that of milk or cream”. The question of law was submitted to the Supreme Court of Canada whether s. 5(a) is ultra vires of Parliament either in whole or in part and, if so, in what particular or particulars and to what extent. The Dominion contended the constitutionality of s. 5(a) under the B.N.A. Act, namely under s. 91(27). Decision and Reasoning: The prohibition of importation is intra vires and the prohibition of manufacture, etc. is ultra vires. The majority decision declaring the prohibition of manufacture as ultra vires was based on the following reasons: 1. The object of the Dairy Industry Act is economic and the legislation’s purpose is to give protection to the dairy industry in the production and sale of butter – to benefit one group of persons as against competitors in business in which otherwise the latter would be free to engage in the Provinces; this amounts to an interference with civil rights in the Provinces, which is a subject committed to the provincial legislatures under s. 92(13), B.N.A. Act 2. The Regulation of Trade and Commerce by Parliament under s. 91(2), B.N.A. Act, does not permit the regulation of individual forms of trade or commerce confined to the provinces 137 3. The enactment of offences under the Dairy Industry Act does not represent Criminal Law within the meaning of s. 91(27), B.N.A. Act The test for whether legislation is valid criminal law has two steps (this comes from the Margarine Reference but is expanded in RJR MacDonald – as things change, different things become part of the public interest e.g. the environment): 1. In form, criminal law is a prohibition with a penalty 2. In substance, it must be for a public purpose – to protect peace, order, security, health or morality (these are the traditional categories but they are not exhaustive or frozen; there is room for expansion) In form, this law is criminal but in substance, it is not – it concerns economic matters, not criminal. The federal criminal law power will be held to be invalid when it is colourable – when Parliament purports to use the criminal law power for a purpose that is not criminally-motivated. *For the criminal law power, the Court says it is an exclusive and plenary power that parliament can exercise, without regard to the impact on provincial jurisdiction – all one has to determine to see if it is validly used is to see if the legislation enacted is criminal law in form and substance RJR MacDonald Inc. v. Canada (1999) SCC Facts: This was an appeal from a decision of the Quebec Court of Appeal allowing an appeal from a decision of the Quebec Superior Court striking down certain sections of the Tobacco Products Control Act. The Act prohibits advertising, promotion and sale of tobacco products without unattributed health warnings. The Act carries a penal sanction and its public purpose is to prevent the detrimental effects of tobacco on health. The constitutional questions to be determined by the Court were whether the Act was within the legislative competence of the Parliament of Canada under the Constitution Act, 1867 or whether it intruded on provincial jurisdiction. Decision and Reasoning: The appeal was allowed and the Act was declared a valid exercise of the criminal law power of Parliament for the following reasons: Criminal law power may be used to prohibit or control products that effect health There is no evidence that the legislation is colourable or intended to intrude on provincial powers Complete prohibition of sale or consumption is not a practical option (addiction, widespread use would lead to increase in smuggling and crime) Limiting advertising and promotion may be effective to reduce tobacco use The definition of “criminal law” is not frozen as of some particular time (to public peace, order, security, health or morality); it may expand as needed in a changing context to create new public crimes Criminal law may validly contain exemptions for certain conduct without losing its status as criminal law and becoming regulatory law (see Morgantaler) 138 The dissent disagreed for the following reasons: Matters which pose a significant and serious risk of harm can be proscribed as criminal BUT you cannot permit the activity and criminalize advertising of that activity Broad exemptions emphasize that the legislation is regulatory, not criminal: it is aimed at decreasing tobacco consumption They are not prohibiting the activity – they are prohibiting and regulating the advertising and the criminal law cannot be used to prohibit the promotion of an non-prohibited activity *If parliament tried to regulate the tobacco advertising industry, it would be declared invalid – read the expansion of the criminal law power with the fact that this is aimed at decreasing an activity dangerous to public health Form of Criminal Law Form of criminal law: prohibition, penalty, enforced by Courts If a federal statute has regulatory features (e.g. licensing, inspection, detailed regulation, civil remedies), its criminal purpose may be undermined But according to the majority in RJR MacDonald, the exemptions in the Tobacco Products Control Act did not have this effect Note that preventive provisions may be valid criminal law: e.g. detaining in custody an accused acquitted by reason of insanity (R. v. Swain) – detaining the accused is necessary in order to prevent further harm Another example is that provisions have to be added to the Criminal Code where the Court can provide that after people who sexual abuse children are released from jail, limits are imposed (e.g. you can’t go near schools, etc.) – even though they have fully served their sentences, they can be subsequently ordered to comply with these restrictions a preventive penumbra, a little extensive for preventive powers R. v. Crown Zellerbach (1988) SCC Facts: This was an appeal from a decision of the British Columbia Court of Appeal dismissing an appeal from a dismissal of charges against the respondent for unlawfully dumping in the waters in the province of British Columbia on the basis that s. 4(1) of the Ocean Dumping Control Act was ultra vires the federal government. The dredging and dumping took place in a cove on the northeast side of Vancouver Island. The material that was the subject of the dredging was wood waste that was not shown to have any effect on navigation or marine life. Decision and Reasoning: The appeal was allowed. Section 4(1) of the Ocean Dumping Control Act was not ultra vires the federal government. While there was no basis for federal legislative jurisdiction to control marine pollution generally in provincial waters in any of the specific heads of s. 91 of the Constitution Act, 1867, the national concern doctrine of the federal peace, order and good government power provided a basis for the constitutional validity of the subsection. The issue of marine pollution, being predominantly extra-provincial as well as international in its character and implications, was found to be a matter of concern to Canada as a whole. The distinction between salt and fresh water as limiting 139 the application of the legislation met the consideration that the power have ascertainable and reasonable limits in its impact on provincial jurisdiction. R. v. Hydro-Quebec (1997) SCC Facts: Appeal by the Attorney General of Canada from a decision by the Quebec Court of Appeal which dismissed an appeal from the Superior Court’s decision upholding the Court of Quebec’s decision that section 34 and 35 of the Canadian Environmental Protection Act were ultra vires federal jurisdiction. In 1990, the respondent, Hydro-Quebec was charged with two offences relating to the alleged dumping PCBs into a river. The first was for releasing PCBs in a quantity greater than that permitted by section 6(a) of the Chlorobiphenyls Interim Order, adopted and enforced pursuant to sections 34 and 35 of the CEPA. The second was for failing, after that release, to report the matter to an inspector in contravention of section 36(1)(a) of the Act. Hydro pleaded not guilty and brought a motion to have sections 34 and 35 of the CEPA and s. 6(a) of the Interim Order declared ultra vires the Parliament of Canada on the basis that they did not fall within under any federal head of power set out in section 91 of the Constitution Act, 1867. Decision and Reasoning: Appeal allowed. The Quebec Court of Appeal’s judgment was set aside and the matter was sent back to the summary conviction Court for rehearing. The impugned provisions were valid legislation. They fell under the federal power to enact laws under the criminal law power of s. 91(27) of the Constitution Act. The environment was a subject matter that cut across many areas of constitutional responsibility, some federal, some provincial. If a provision relating to the environment, in pith and substance fell within the parameters of power assigned to the body that enacted the legislation, then it was constitutionally valid. Under section 91(27), Parliament was accorded plenary power to make criminal law. Environmental protection, through prohibitions against toxic substances, constituted a wholly legitimate public objective in the exercise of the criminal law power. Legitimate use of the criminal law in no way encroached on provincial legislative power, though it affected matters falling within the province’s jurisdiction. Parliament could validly enact prohibitions under its criminal law power against specific acts for the purpose of preventing pollution. The use of the federal criminal law power in no way precluded the provinces from exercising their extensive powers under s. 92 to regulate and control environmental pollution either independently or in co-operation with federal action. The dissent says this is just regulatory legislation with an offence to enforce it – the more the criminal law power is allowed to support this kind of legislation, the broader the power becomes. Protection of the environment is a legitimate public purpose which could support criminal legislation, but the provisions are more an attempt to regulate pollution than to prohibit it – the more elaborate a regulatory scheme, the more likely it will be regulatory rather than criminal. A criminal law ordinarily consists of a prohibition which is to be self-applied by the persons to whom it is addressed and there is not normally any intervention by an administrative agency or official prior to the application of the law. In this case, however, there is no offence until an administrative agency “intervenes”. 140 *It used to be thought that if a law included regulatory provisions, it cannot be considered criminal law – now we have some cases that show that as long as regulatory provisions are ancillary to criminal law, it doesn’t matter that they are regulatory, they can still be criminal Critique of Majority Decision in Hydro-Quebec In Crown Zellerbach, there was a lot of concern re expanding federal jurisdiction over the environment, but this case seems to open the door to exactly that – these cases seem to show that as long as you are not being duplicitous, you can turn almost anything into criminal law This decision unjustifiably expands the federal government’s criminal law power by removing the constraint of prohibition and penalty It also undermines other decisions that establish divided jurisdiction over the environment It is a serious thing to commit a criminal offence as we use it to denote social disapproval Reference re Firearms Act (2000) SCC Facts: This was a reference by the Province of Alberta concerning the constitutionality of federal firearms legislation. In 1995, Parliament enacted the Firearms Act, banning some firearms and requiring other firearms owners to obtain licences and to register their guns. If you didn’t comply, it was a criminal offence. Alberta referred certain constitutional questions to the Alberta Court of Appeal to determine whether the licensing and registration provisions of the Act, as they related to ordinary firearms, were intra vires Parliament. The majority of the Court of Appeal found that the Act was a valid exercise of Parliament’s criminal law power. Alberta appealed to the Supreme Court. Decision and Reasoning: Appeal dismissed. The impugned provisions of the Act were constitutional, falling within the federal criminal law power. The Act had the valid purpose of enhancing public safety by controlling access to potentially dangerous firearms and its regulatory aspects are secondary to its primary criminal law purpose. The Act was not essentially regulatory legislation, nor did its complexity detract from its criminal nature. The registration and licensing provisions were integral and necessary to the operation of the scheme. Parliament’s intention was not to regulate property. The Act was distinguishable from existing provincial property regulation and its effects on provincial jurisdiction over property and civil rights were incidental. The mere fact that guns were property did not suffice to show that gun control was pith and substance a provincial matter. In any event, the double aspect doctrine permitted Parliament to regulate the safety aspects of ordinary firearms. The cost and efficacy of the federal scheme were irrelevant to Parliament’s ability to legislate within its constitutional sphere. *This case adds another gloss to the expansion of the criminal law power – it may be relevant to inquire whether the intrusion into provincial jurisdiction is so excessive as to upset the balance of powers (this is like the national dimensions approach) Provincial Power to Regulate Morality and Public Order Balancing provincial and federal interests in criminal law: o Provincial jurisdiction over the administration of justice, including policing re criminal and provincial offences o Provincial prosecution of criminal offences 141 o o o Some federal laws have allowed provinces to opt out (e.g. Lords Day Act, lotteries) Judicial recognition of concurrent provincial jurisdiction – dual aspect doctrine (e.g. conduct on the roads) Under s. 92(15), the province is entitled to specify offences to enforce its laws – this is an ancillary provincial power Nova Scotia Board of Censors v. McNeil (1978) SCC Facts: This was an appeal from a decision of the Nova Scotia Court of Appeal allowing the respondent’s application for a declaration that certain sections of the Theatres and Amusements Act and regulations thereunder were ultra vires the province. The Act established a licensing and censorship system for films and imposed sanctions in the form of monetary penalty and revocation of licence to operate movie theatres. McNeil challenged the validity of the legislation on federalism grounds after the censorship board banned Last Tango in Paris. Decision and Reasoning: The appeal was allowed. When the Act and regulations were read as a whole it could be seen that they were primarily directed to the regulation, supervision and control of the film business within the province. To this end the impugned provisions were enacted for the purpose of reinforcing the authority of the Nova Scotia Amusements Regulation Board to perform its task of regulation, including the authority to prevent the exhibition of films which the Board, applying its own local standards, had rejected as unsuitable for viewing by provincial audiences. This legislation was concerned with dealings in and the use of property wholly within the province and was thus valid provincial legislation (see Bedard v. Dawson). The dissent said the legislation is a direct intrusion into the field of criminal law. Provincial legislative authority may extend to objects where moral considerations are involved, but must be anchored in the provincial catalogue of powers and not conflict with the federal legislation. The Act is a direct control of public taste – a matter that can be controlled only under the criminal law. Bedard v. Dawson (1923) SCC Facts: The Provincial Act of 1915, c. 81 made it illegal to use or to allow a house to be used as a disorderly house. It provided that any person knowing or having reason to believe that any house is used for such purpose may take an action by notice, followed, if such use is continued, by the obtaining of an injunction. If the judge found that such use was continued he could order the house to be closed for a period limited by the Act. An action was brought challenging the validity of the Act. Decision and Reasoning: On appeal from the Court of Appeal of Quebec that the Act is only concerned with civil matters, and in no way infringes on the domain of criminal law. The Act is intra vires – it is valid as provincial legislation re use of property. The province is allowed to suppress conditions favouring development of crime as a preventative measure and the province can legislate re civil consequences of crime (e.g. licence suspension: you can suspend a person’s licence if they are driving dangerously as there is a subtle distinction between punishment and a means of suppressing crime). 142 Attorney General for Canada v. Dupond (1978) SCC Facts: The appellant attacked the constitutional validity of a City of Montreal by-law and ordinance prohibiting the holding of any assembly, parade or gathering on the public domain of the city for a period of 30 days. The by-law was passed in 1969 in response to considerable social unrest in the city which had taken the form of numerous demonstrations of an unruly nature. Her petition for a declaration as to the invalidity of the law had been allowed at trial but had been overturned on appeal. She appealed further. Decision and Reasoning: The appeal was dismissed. The legislation in question was in the nature of a police or municipal regulation of a merely local character calculated to preserve peace and repress disorderly and riotous conduct in the municipality. It was not punitive but essentially preventative in nature. The suppression of conditions likely to favour the commission of crimes fell within provincial competence. There was also an issue re how else they could take preventative measures to control the rioting and looting – Parliament could not issue an ordinance restricted to Montreal. The dissent said the bylaw is an invalid attempt to reinforce the criminal law and apply it to innocents as well as violators. They were concerned about the impact on civil liberties (freedom of association and expression – these days, the law would be seen as an infringement on the Charter right of freedom of association). Hutt v. The Queen (1978) SCC Facts: The accused appealed from a decision of the British Columbia Court of Appeal allowing the Crown’s appeal from the acquittal of the accused on a charge of soliciting for the purpose of prostitution. Decision and Reasoning: Appeal allowed; accused acquitted. The Court held that the crime of soliciting in a public place for the purpose of prostitution required “pressing or persistent” solicitation; cities then took steps to control the problem – this is an example of dialogue, an interplay between the criminal law power and controlling the streets. Westendorp v. The Queen (1983) SCC Facts: The SCC said in Hutt that solicitation has to be pressing and persistent; this opens up scope for passive solicitation and so the city of Calgary enacts a bylaw to prohibit passive solicitation. The appellant was charged with being on a street for the purpose of prostitution contrary to s. 61(2) of the “Street By-law” of the City of Calgary. The trial judge acquitted the respondent on the ground that the by-law was unconstitutional as invading federal authority in relation to criminal law. Decision and Reasoning: The appeal was allowed and the acquittal restored. The by-law was ultra vires as invading exclusive federal power in relation to criminal law. As the by-law stood and read, it was only activated by what was said by a person, referable to the offer of sexual services. The SCC says this is a colourable attempt to supplement criminal law and the bylaw is struck down. Such interpretation would establish a concurrency of legislative power, going beyond any double aspect principle and leaving it open to a province or municipality authorized by a province to usurp exclusive federal legislative power. 143 However, this is an example of dialogue because Parliament amends the legislation to include passive solicitation and this is upheld in a subsequent reference (see below). Reference re ss. 193 and 195.1(1)(c) of the Criminal Code (1990) SCC Facts: This was an appeal from a reference on the constitutionality of ss. 193 and 195(1)(c) of Criminal Code. Section 193 of the Criminal Code prohibited the keeping of a common bawdy-house and s. 195(1)(c) of the Criminal Code prohibited a person from communicating or attempting to communicate with any person in a public place for the purpose of engaging in prostitution or of obtaining the sexual services of a prostitute. Parliament replaced the prior offence of “pressing and substantial” solicitation – made it an offence to communicate or attempt to communicate with any person in a public place for purposes of prostitution. Decision and Reasoning: The SCC upheld the validity of the provision pursuant to the criminal law power. Application of the Double Aspect Doctrine Now, the SCC applies a more generous approach to provincial legislation dealing with public order and morality using the double aspect doctrine – provided that there is a valid provincial purpose The double aspect doctrine allows for laws to be created by both provincial and federal governments in relation to the same subject matter. Typically, the federalist system assigns subject matters of legislation to a single head of power. However, certain matters have several dimensions to them such that for one purpose the matter will fall to one head of power, while for another purpose it will fall to the other. For example, highway traffic laws fall into the property and civil rights power of the province but equally can be a criminal offence which is in the criminal law power of the federal government The paramountcy test – if the federal and provincial legislation are in conflict, then the federal legislation will be paramount and the provincial legislation will be inoperative to the extent of the conflict, but only in that one situation o But what constitutes conflict? Either that you cannot comply with both pieces of legislation OR the provincial legislation will displace the federal purpose Rio Hotel Ltd. v. New Brunswick Liquor Licensing Board (1987) SCC Facts: This was an appeal from a judgment of the New Brunswick Court of Appeal dismissing an application for judicial review of the constitutional validity of s. 63.01(5) of the New Brunswick Liquor Control Act. Under this Act liquor licence holders had also to obtain an entertainment licence if they wanted to hold live entertainment on the licensed premises. The plaintiff’s entertainment licence specified certain rules and conditions with respect to providing nude shows. Upon an allegation that the plaintiff was in breach of the conditions the Liquor Licensing Board decided to hold a hearing. The plaintiff applied for judicial review to quash the proceeding on the ground that s. 63.01(5) of the Liquor Control Act was ultra vires the province being criminal law. It was also argued that the Board lacked jurisdiction as the impugned statutory provisions violated the Charter rights to freedom of expression 144 and association. The Court of Queen’s Bench transferred the matter to the Court of Appeal. The Court of Appeal dismissed the appeal. The plaintiff appealed to the Supreme Court of Canada. Decision and Reasoning: The appeal was dismissed. The Liquor Control Act purported to regulate the forms of entertainment used by owners of licensed premises. It related to property and civil rights within the province and was therefore valid provincial legislation. There was no direct conflict between the impugned provisions of the Act and ss. 159(2)(b), 163, 169, 170 of the Criminal Code prohibiting public nudity. Under the double aspect doctrine both legislation can operate concurrently. The entertainment licence conditions imposed under the provincial statute did not infringe upon the federal criminal power. SCC applies the double aspect doctrine and says the law is part of a comprehensive scheme of regulating and licensing and this is a valid exercise of provincial jurisdiction to regulate premises and their use within the province – there are not criminal sanctions attached to the legislation, just that your licence can be revoked (which can be a serious penalty, but not criminal). In areas of provincial jurisdiction where the province is exercising that jurisdiction through a comprehensive scheme of regulating and licensing, part of that can include the behavior that is accepted under the system. If the province simply prohibited certain conduct on its own (without a regulating system), then that might well be held to be legislation in relation to criminal law. R. v. Banks (2007) Ont. CA Facts: Appeal by accused from their convictions for provincial offences under certain provisions of the Safe Streets Act and the Highway Traffic Act. Appellants were found engaging in squeegeeing on various roads in Toronto. Appellants were either charged with soliciting business contrary to s. 177(2) of the HTA or soliciting a person in a vehicle on a roadway contrary to s. 3(2)(f) of the SSA. The SSA prohibited begging and panhandling in specific circumstances and, together with a provision of the HTA, entirely banned the activity of squeegeeing and the solicitation of people in vehicles on a roadway. The appellants submitted that the legislation was criminal law and thus ultra vires the province. Decision and Reasoning: Because a matter within provincial competence could also be subject to the federal criminal law power, it was not enough for appellants to show that the provisions they attacked had a criminal law aspect. On their face, the provisions at issue regulated the interaction of pedestrians and vehicles on roadways, which was indisputably a subject within provincial competence. While measures to address intimidating behaviour could be addressed under the federal criminal law power, addressing such behaviour was not beyond the power of the province acting under a constitutional head of competence. The pith and substance of the provisions was the regulation of the interaction of pedestrians and vehicles on the roadways in the interests of public safety, efficient circulation, and public enjoyment of public thoroughfares. That was a legitimate legislative goal of the province. This is another example of upholding provincial legislation in relation to the use of public places – we are seeing a broad application of the double aspect doctrine as long as there is some firm foundation in provincial jurisdiction. Chatterjee v. Ontario (2009) SCC Facts: Appeal from a decision that the Civil Remedies Act was constitutional. Appellant was arrested for breach of probation and, incidental to the arrest, the police searched his car. They discovered cash and 145 items that were associated with the drug trade and also smelled of marijuana, but no marijuana was found. He was never charged with any offence in relation to the money, items or any drug-related activity. The Attorney General of Ontario successfully brought an interlocutory motion under ss. 4 and 9 of the Act to preserve the seized money and equipment. Subsequently, the attorney general brought an application under ss. 3 and 8 of the Act for forfeiture of the seized money as proceeds of unlawful activity and of the items as instruments of unlawful activity. Appellant challenged the Act’s constitutionality, arguing that the forfeiture provisions were ultra vires the province on the basis that they encroached on the federal criminal law power. Decision and Reasoning: The Act’s forfeiture provisions were constitutional. The argument that the Act was ultra vires was based on an exaggerated view of the immunity of federal jurisdiction in relation to matters that might, in another aspect, have been the subject of provincial legislation. Where possible, the Court should favour the ordinary operation enacted by both levels of government. The Act was enacted to deter crime and to compensate its victims. The former purpose was broad enough that both the federal government and the provincial governments could validly pursue it. The latter purpose fell squarely within provincial competence. The costs of crime impacted many provincial interests and it would have been out of step with modern realities to conclude that a province had to shoulder the costs of criminal behaviour but could not use deterrence to suppress it. The Act was enacted in relation to property and civil rights and could incidentally affect criminal law and procedure without doing violence to the division of powers. Furthermore, if in particular circumstances a conflict arose with the Act to the extent that dual compliance was impossible, then the doctrine of paramountcy would render the Act inoperable to the extent of the conflict. Colourable Legislation Margarine Reference (1949) SCC See above. R. v. Morgentaler (1993) SCC Facts: To replace its regulations on abortion, the Nova Scotia government enacted the Medical Services Act and the Medical Services Designation Regulation, which contained a prohibition on the performance of abortions outside hospitals and the denial of health insurance coverage for abortions performed in violation of the prohibition. Despite those laws, respondent doctor opened his clinic and performed 14 abortions. He was charged under the MSA. The trial judge acquitted respondent, holding that the legislation was ultra vires the province because it was in pith and substance criminal law, and his decision was upheld by the Court of Appeal. Decision and Reasoning: Appeal dismissed; SCC struck down provincial legislation, which was ostensibly directed at quality control in free-standing health facilities, but actually aimed at supplementing the criminal law after the SCC struck down the abortion provisions in the Criminal Code. The Medical Services Act and Medical Services Designation Regulation together constituted an indivisible attempt by the province to legislate in the area of criminal law. An examination of their terms and legal effect, their history and purpose and the circumstances surrounding their enactment led to the conclusion that the 146 legislation’s central purpose and dominant characteristic was the restriction of abortion as a socially undesirable practice which should be suppressed or punished. The legislation had an effect on abortions in private clinics virtually indistinguishable from that of the now defunct abortion provision in the Criminal Code, and that overlap of legal effects was capable of supporting an inference that the legislation was designed to serve a criminal law purpose. Provincial Commissions of Inquiry and the Criminal Law Power Other issues arise when provincial laws intrude on the procedural protections associated with the criminal law e.g. where a provincial inquiry is appointed to inquire into conduct that also gives rise to a criminal investigation or charges The problem is a criminal suspect has the right to silence, but a provincial inquiry can compel a person to testify (subject to protection against subsequent use of the evidence to incriminate the witness) Our right to self-incrimination is that you must answer any questions put to you, but your answers cannot be used in a subsequent proceeding – we get all the relevant evidence but the person who has incriminated himself gets the protection that it cannot be used subsequently against him Someone who is a criminal suspect cannot be compelled to speak to the police, provide information or be a witness at the trial – they have the right to silence, a key component of criminal procedure and a constitutionally guaranteed right collision course between provincial inquiries and criminal proceedings Generally, provincial inquiries are upheld on the dual aspect doctrine When there is a provincial commission, how do you investigate what went wrong without making findings as to who are the wrongdoers and what it is they did? This is a problem because in a commission of inquiry, the commissioner (usually a judge) who conducts the inquiry is supposed to be impartial in relation to hot button issues e.g. in the Walkerton Inquiry, it was suggested that the commissioner would now be chief justice if he had not turned the heat up on Premier Harris Starr v. Houlden (1990) SCC Facts: This was an appeal from a decision of the Ontario Court of Appeal concerning a public inquiry into the actions of the applicants. By virtue of allegations of benefits having been conferred upon various members of the legislature and their staff by the applicant, Starr, using the money of a charitable foundation, a public inquiry was ordered into the facts and relationships of the applicants. The appellants were granted leave to appeal to the Supreme Court on the questions of whether the inquiry was within the exclusive jurisdiction of the Province of Ontario, whether the inquiry infringed or denied the rights of the appellants under the Charter and, if the inquiry violated the Charter rights of the appellants, was the infringement justified. Decision and Reasoning: The appeal was allowed and the inquiry was found to be ultra vires the province. The inquiry was in pith and substance a matter related to the criminal law and criminal procedure under the exclusive jurisdiction of the federal government. The inquiry is invalid as a 147 substitute police investigation and preliminary inquiry in which the accused are compellable – thus bypassing protections available when one is charged with an offence. It wasn’t an inquiry to find out what had gone wrong in a certain situation, it was an investigation into the wrongdoing of specific individuals – this is invalid because the accused have to testify and this is an interference with their rights. ABORIGINAL PEOPLES AND THE CONSTITUTION Types of Aboriginal Rights 1. Aboriginal rights to use lands and resources: Generic versus specific rights Exclusive versus non-exclusive rights Depletable versus non-depletable rights 2. Aboriginal title to land 3. Aboriginal right to self-government Sources of Aboriginal Rights 1. Treaties 2. Royal Proclamation of 1763 Rights to lands that were never ceded (given up) Rights to land can be ceded only to the Crown 3. Common law doctrine of aboriginal rights Ancient inter-societal custom Aboriginal customary law Fiduciary role of the Crown Basic principles of justice Operates as part of (but distinct from) Canadian common or civil law 4. Constitution Act 1982, s. 35 Aboriginals mounted an effective campaign for the recognition of aboriginal rights and it included going in aboriginal dress to ask the queen to intercede to protect them The campaign led to a lot of public sympathy for their position and created public support The difficulty comes when the aboriginal rights comes into conflict with the rights of nonaboriginal people which undermines public support There is a disconnect between the groundswell of support in 1982 and a downturn of support now Common Law Foundations of Aboriginal Constitutional Rights Connolly v. Woolrich (1867) Que. SC Facts: Connolly was born in Lower Canada and went to the North West Territories where he resided at various posts. He married an Indian girl according to the rites of her tribe. After 30 years, he left her and 148 was married to another woman by a Roman Catholic priest in Montreal. He treated his first marriage as invalid and had two children by his second wife. The first wife left for out west and lived the rest of her life in a convent where she was supported by Connolly and then Connolly’s wife. The first wife’s son sued Connolly’s second wife for a share of his estate – the son argued that his mother’s marriage to Connolly was valid under Cree law and that only half of Connolly’s estate was available for the second wife. Decision and Reasoning: The first marriage was legal. The admission of parties, long cohabitation and repute were good evidence of the first marriage, where there were no priests or other marriage officers to perform the ceremony. Aboriginal societies were autonomous nations living within the protection of the Crown, but maintaining their own rights and their own laws; the usages and laws of aboriginal peoples were not abrogated or modified when the European nations began to trade with them. There is pre-existing aboriginal law and custom that continues to govern. This case is an early recognition of the existence of aboriginal customary law, signifying that it is not replaced by other legal systems. Casimel v. Insurance Corporation of British Columbia (1993) BC CA Facts: Plaintiffs, who were members of the Stellaquo Band of the Carrier People, claimed through their biological grandson, who had been killed in a car accident at age 28. The grandson was their daughter’s biological son, but she had left him in plaintiffs’ care his entire childhood, taking no interest in him. He had referred to plaintiffs as Mom and Dad and to his biological mother by her first name. His aunt had treated him as a brother. When the grandson was old enough for a reserve home of his own, he did not apply for it, but chose to stay with and take care of plaintiffs. He was the primary breadwinner, pooling his money with plaintiffs’. Just before his death, the grandson had been elected chief of the band, which, along with plaintiffs, considered him plaintiffs’ son. The chambers judge had held the band’s adoption customs gave rise to moral rights and obligations but not to legal ones. The plaintiff’s claim they are the grandson’s adoptive parents and thus entitled to no-fault death benefits under the B.C. Insurance (Motor Vehicle) Act. Decision and Reasoning: The Canadian legal system recognizes the aboriginal customary law of adoption and the adoptive parents are entitled to insurance on death of adopted son. Delgamuukw v. The Queen established that aboriginal rights of social self regulation were to be examined in each case to determine their scope and content, and to determine the relationship between those rights with the scope, content and workings of the general law of British Columbia. Consistent with that case was wellestablished Canadian law that status conferred by aboriginal customary adoption would be recognized by the Courts in applying common and statutory law. There was no legislation to qualify, regulate or extinguish status conferred by aboriginal customary law. Customary adoption was integral to the distinctive culture of plaintiffs’ Band. The son was adopted in accordance with customary law of the Band and the Band’s right to establish family connections had not been extinguished or limited by statute or common law; it was thus protected by the Constitution Act 1982, s. 35. Calder v. British Columbia (Attorney General) (1973) SCC Facts: This was an appeal by the elected representatives of the Nishga Nation, consisting of four bands, from the dismissal of their action seeking a declaration that the aboriginal title to the lands held by their 149 tribes since time immemorial has never been lawfully extinguished. They obtained leave to appeal to the SCC after their appeal to the B.C. Court of Appeal was dismissed. Their contention was that the Royal Proclamation of 1763 applied to the Nishga territory, that their nation had never been conquered and that their title to the land had never been extinguished. Decision and Reasoning: This case marks a new beginning in aboriginal law. Aboriginal title is a legal right, derived from historic occupation and possession and recognized in the Royal Proclamation of 1763. It can only be extinguished by proper legislative action. The Constitution Act 1867, s. 91(24) holds that the federal Parliament has jurisdiction over “Indians and lands reserved for Indians”. This jurisdiction has been exercised in the Indian Act. Guerin v. The Queen (1982) SCC Facts: The Musqueam Indian band held roughly 416 acres of prime land in the Vancouver area. In 1958, the federal government, on behalf of the band, made a deal with the Shaughnessy Heights Golf Club to lease 162 acres of the land in order to build a golf club. However, the actual terms of the agreement between the government and the club were not those that were told to the band. In 1970, the band discovered the true terms and protested on the basis that the government had a duty to properly explain the full extent of the deal. At trial, the Court held that the Crown had breached their trust with the band and awarded the Musqueam ten million dollars. This ruling was overturned by the Federal Court of Appeal. The matter was then considered by the SCC. Decision and Reasoning: Section 18 of the Indian Act says that reserves are held by the Crown in trust for Indian bands. The Court held that the nature of aboriginal title imposes an enforceable fiduciary duty upon the Crown. Dickson described the nature of aboriginal title as a sui generis right that has no equivalent. It is an inherent right that existed prior to the Royal Proclamation of 1763 and is founded in historical occupation. This special right means that title to aboriginal land can only be alienable to the Crown and the Crown can only use it in the interests of the aboriginals (the ultimate title remains with the Crown). Ultimately the Court decided that the initial terms of lease were approved by the Band, but the Federal crown leased the land for less without the Band’s approval. Equity (fiduciary duty) requires utmost loyalty to the beneficiary and thus the Federal crown must make good the loss. Constitutional Entrenchment of Aboriginal Rights Section 35 of the Constitution Act 1982 holds as follows: 1) The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed 2) In this Act, “aboriginal peoples of Canada” includes the Indian, Inuit and Métis peoples of Canada 3) For greater certainty, in subsection (1) “treaty rights” includes rights that now exist by way of land claims agreements or may be so acquired 4) Notwithstanding any other provision of this Act, the aboriginal and treaty rights referred to in subsection (1) are guaranteed equally to male and female persons Section 25 of the Charter holds as follows: 150 The guarantee in this Charter of certain rights and freedoms shall not be construed so as to abrogate or derogate from any aboriginal, treaty or other rights or freedoms that pertain to the aboriginal peoples of Canada including a) Any rights or freedoms that have been recognized by the Royal Proclamation of October 7, 1763, and b) Any rights or freedoms that now exist by way of land claims agreements or may be so acquired Note that s. 25 of the Charter is not subject to s. 28 which holds as follows: Notwithstanding anything in this Charter, the rights and freedoms referred to in it are guaranteed equally to male and female persons Aboriginal Rights R. v. Sparrow (1990) SCC Facts: Ronald Sparrow, a member of the Musqueam Band, was caught fishing with a drift net 45 fathoms in length, 20 fathoms longer than permitted by the Band’s fishing licence under the Fisheries Act. Sparrow admitted to all the facts in the charge but justified it on the ground that he was exercising his aboriginal right to fish under s. 35(1) of the Constitution Act 1982. At trial, the judge found that s. 35 only protected existing treaty rights and that there was no inherent right to fish. An appeal to the County Court was dismissed and a further appeal to the Court of Appeal was dismissed on the grounds that there was insufficient evidence to maintain the defence. The issue to the SCC was whether the net length restriction violated s. 35(1). Decision and Reasoning: The Court unanimously held that Sparrow was exercising an inherent aboriginal right that existed before the provincial legislation and that was guaranteed and protected by s. 35 of the Constitution Act, 1982. To arrive at this they interpreted each of the words of s. 35(1). “Existing” The word “existing” in s. 35(1) must be interpreted flexibly so as to permit the evolution of rights over time. As such, existing was interpreted as referring to rights that were not extinguished prior to the introduction of the Constitution Act 1982. They rejected the alternate frozen interpretation referring to rights that were being exercised in 1982. Based on historical records of the Musqueam fishing practices over the centuries and into colonial time, the Court found that the band had a clear right to fish for food. Extinguishment of rights can only occur through an act that showed clear and plain intention on the government to deny those rights. Here, the Court found that the Crown was not able to prove that the right to fish for food was extinguished prior to 1982. The licencing scheme was merely a means of regulating the fisheries and did not remove the underlying right, nor did any historical government policy towards fishing rights amount to a clear intention to extinguish. 151 “Recognized and Affirmed” A purposive interpretation of s. 35 should be utilized. The words “recognized and affirmed” incorporate the government’s fiduciary duty to the aboriginal people which requires them to exercise restraint when applying their powers in interference with aboriginal rights. This further suggests that aboriginal rights are not absolute and can be encroached upon given sufficient reason. Prescribing Limits Even though s. 35 is not part of the Charter and is not subject to s. 1 or s. 33, the Court decides that there is a need to permit some limits on aboriginal rights. Thus, s. 35 is a compromise between reading all past regulations into the rights and guaranteeing aboriginal rights in their original form. In this case, exhaustible resources need protection and management, but the onus is on the Crown to justify limits on rights. First, the onus is on the claimants to establish the right and interference with the right. Here, the Court considers the following: 1. Is the limit reasonable? 2. Does it impose undue hardship? 3. Does it deny the preferred means of exercising the right? In this case, there is a prima facie infringement of the right to fish. Then, the onus shifts to the Crown to justify the limit on the right. Here, it must be proven that there is: 1. 2. 3. 4. 5. A valid legislative objective Consultation with aboriginals Sensitivity to fiduciary obligation As little infringement as possible Availability of compensation In this case, the Court decides that the order of priorities is: 1. 2. 3. 4. Conservation Indian fishing Non Indian commercial fishing Non Indian sports fishing Ultimately, the interpretation of s. 35 is double-edged it does not recreate rights that have been extinguished, but the Court will not hold that they are extinguished unless it has been done clearly. The Court allow for limits on the rights that remain, but only where there is consultation and appropriate compensation. Remedy 152 In this case, the Court orders a new trial to make findings of fact in accordance with the above tests. Establishing an Aboriginal Right In order to establish an aboriginal right it must be proven: 1. That the activity sought to be protected is/was: a. Centrally significant to the aboriginal society? b. Integral to a distinctive culture? 2. That there is continuity between the activity now and the practices prior to contact with Europeans – it must be a distinctive activity emerging from aboriginal culture, not affected or tainted by contract with the Europeans; if the practice has fallen into disuse, it is no longer protected R. v. Sappier; R. v. Gray (2006) SCC Facts: Appeals by the Crown from the acquittal of Sappier, Polchies, and Gray on charges of unlawful possession or cutting of Crown timber under New Brunswick’s Crown Lands and Forests Act. Two of the respondents, Sappier and Polchies, were Maliseet, while the third, Gray, was Mi’kmaq. All three argued that they possessed an aboriginal and treaty right to harvest timber for personal use. The logs had all been taken from lands traditionally harvested by the respondents’ respective First Nations. Those taken by Sappier and Polchies were to be used to construct Polchies’ house and for community firewood, while those taken by Gray were to be used to fashion furniture. The respondents were acquitted at trial. The acquittals of Sappier and Polchies were upheld by both the Court of Queen’s Bench and the Court of Appeal, while Gray’s acquittal was set aside by the Court of Queen’s Bench but restored on appeal. The Crown now appeals to the SCC. Decision and Reasoning: Appeals dismissed. The respondents had established an aboriginal right to harvest wood for domestic uses. The evidence in these cases established that wood was critically important to the pre-contact Maliseet and Mi’kmaq, and it could be inferred from the evidence that the practice of harvesting wood for domestic uses was significant, though undertaken primarily for survival purposes. A practice of harvesting wood for domestic uses undertaken in order to survive was directly related to the pre-contact way of life and met the “integral to a distinctive culture” threshold. The nature of the right was not to be frozen in its pre-contact form, but rather determined in light of present-day circumstances. The right to harvest wood for the construction of temporary shelters was to be allowed to evolve into one to harvest wood by modern means to be used in the construction of a modern dwelling. The site-specific requirement was also met. The Crown had not discharged its burden of proving the aboriginal right had been extinguished by pre-Confederation statutes. The legislation relied upon by the Crown as proof of extinguishment was primarily regulatory in nature, and the regulation of Crown timber through a licensing scheme did not meet the high standard of demonstrating a clear intent to extinguish the aboriginal right to harvest wood for domestic uses. The right is communal, but does not extend to commercial transactions, including bartering. When direct evidence of an aboriginal right is not available, the Courts must draw necessary inferences – harvesting of wood for domestic use was significant, but mainly for survival. 153 Duty to Consult Governments have a duty to consult with aboriginal groups whenever their decision-making could adversely affect an aboriginal right or title (including where the right or title has been asserted but not yet proven) Haida Nation v. British Columbia (Minister of Forests) (2004) SCC Facts: In 1961, BC issued licences permitting harvesting of trees on Haida Gwaii, which consisted of heavily forested islands. The Haida Nation claimed title to this area but this title had not yet been recognized at law. The Haida Nation also claimed an aboriginal right to harvest red cedar in that area. The Minister of Forests subsequently issued replacement licences, and, in 1999, transferred the licence to Weyerhaueser. The Nation brought proceedings against BC and Weyerhaueser. The chambers judge found that there was a reasonable probability that the Nation would establish title to parts of Haida Gwaii, and a substantial probability that it would establish its right to harvest trees on these parts. The chambers judge found that the Crown was under a moral – but not legal – duty to negotiate with the Haida Nation. The Court of Appeal reversed this decision, deciding that both the Crown and Weyerhauser Co. are under legal obligations to consult with aboriginal groups whose interests may be affected. Decision and Reasoning: Appeal by BC dismissed and appeal by Weyerhaueser allowed. The Crown had the duty to consult with aboriginal peoples and accommodate their interests pursuant to the honour of the Crown. The duty to consult and accommodate extended to the provincial government as well. The scope of this duty depended on the circumstances, including the strength of the aboriginal claim to a title and specified rights. During negotiation of claims to aboriginal rights and title (even if rights have not been determined yet): Crown must negotiate and conclude an honourable agreement reflecting claimants rights, reconciling prior aboriginal occupation of the land with Crown sovereignty In the meantime, Crown may manage resources but must respect potential rights (not yet determined) by consulting and accommodating Aboriginal interests Duty to consult arises when Crown has knowledge, real or construction, of the potential existence of the Aboriginal right or title and contemplates conduct that might adversely affect it. Extent of duty depends on the strength of the claim and the seriousness of the adverse effect – some cases may require consent and a duty to accommodate Aboriginal people have a concomitant obligation not to obstruct with unreasonable positions BC had knowledge of the potential existence of the Nation’s claims to title and harvesting rights, and the Nation had a prima facie case with respect to these claims. As a result, the honour of the Crown mandated that it had a duty to consult with the Nation, which it failed to do in any meaningful way. Meaningful consultation was required to take place at the stage of granting or renewing a licence. The issue of whether BC had a duty to accommodate the Nation could only be determined after consultation. However, given the strength of the claims for title and the right to harvest the trees and the serious impact of licences on these interests, the honour of the Crown might well require significant accommodation to preserve the Nation’s interests pending resolution of the claims. With regard to the 154 claim against Weyerhaeuser, a third party did not owe a duty to consult and accommodate, given that the duty to do so flowed from the Crown’s assumption of sovereignty over lands and resources formerly held by aboriginal groups. The forestry licences issued without consultation breached s. 35 and are invalid. Taku River Tlingit First Nation v. British Columbia (Project Assessment Director) (2004) SCC Facts: Appeal by the Province of British Columbia from a judgment upholding a decision to quash the Province’s approval of a project approval certificate. A mining company sought to reopen an old mine and build a road through a portion of the Taku Tlingit First Nation’s traditional territory. The First Nation participated in an environmental assessment of the project directed by the Province, but objected to the building of the road, and brought a petition to quash the project approval certificate granted by the Province based upon administrative law principles, as well as claims for Aboriginal rights and title. The chambers judge held that the Province had not adequately addressed the substance of the First Nation’s concerns during the assessment process, and directed a reconsideration of the matter. The majority of the Court of Appeal upheld the chambers judge’s decision, and stated that the Province had failed to fulfill its duties to consult and accommodate the First Nation. Decision and Reasoning: Appeal allowed. The duty to consult arose when the Crown had knowledge of the potential existence of Aboriginal right or title, and considered conduct that could adversely affect it. This in turn could give rise to a duty to accommodate. Responsiveness was a key requirement of both duties. The scope of the duty to consult depended on the strength of the potential claim, and the degree to which the right or title claimed might be adversely affected. The Province’s duty to consult was engaged in this case, as it was aware of the First Nation’s title and rights claims, and knew that the decision to reopen the mine had the potential to adversely affect those claims. The First Nation was entitled to more than the minimum level of consultation. However, the assessment process engaged by the Province in this case fulfilled its duties to consult and accommodate. The Province’s failure to reach an agreement with the First Nation did not constitute a breach of its duty of good faith. Mikisew Cree First Nation v. Canada (Minister of Canadian Heritage) (2005) SCC Facts: Appeal by an Indian Band to the SCC from a decision that the taking of certain land around the boundary of the Band’s reserve was done pursuant to a treaty. Treaty 8 was entered into in 1899, and involved the surrender of a large amount of land in Western Canada in exchange for certain benefits, including the rights to hunt, trap and fish throughout the land subject to the treaty, except such land that was required for settlement, mining, lumbering, trading or other purposes. In 2000, the federal government approved a winter road that was to run through the reserve, without consulting with the Band. The Band protested, and the location of the proposed road was moved to go around the boundary of the reserve, but this decision was also made without consultation. The Federal Court set aside the Minister’s approval of the road on the basis that the Crown had breached its fiduciary duty to consult adequately with the Band. The Federal Court of Appeal overturned that decision, finding that the winter road constituted a taking up of surrendered land, pursuant to the treaty. Decision and Reasoning: Appeal allowed. The Crown breached its duty of consultation. Its approach undermined the process of reconciliation. The issue was the degree to which the conduct contemplated 155 by the Crown would adversely affect the rights of aboriginal peoples such as to trigger the duty to consult. In this case, the duty was triggered. The impact of the proposed road was clear, established and demonstrably adverse to the hunting and trapping rights of the Band. However, as the Crown proposed to build a relatively minor road on surrendered lands that were expressly subject to taking up, the duty to consult in this case was at the lower end of the spectrum. The Crown did have to provide notice to the Band, solicit and listen to their concerns, and attempt to minimize adverse impacts on their treaty rights. It did not discharge its obligations when it unilaterally realigned the road. *Note that Note that new treaties provide for consultation and reconciliation processes; this decision in effect incorporates such provisions into earlier treaties Recognition of Métis Rights Métis are a distinctive peoples of aboriginal and mixed ancestry, with their own customs, who developed separate recognizable group identity The Métis community has a distinctive collective identity, living in in same geographical area and sharing common way of life s. 35 protects historically important practices, integral to culture of Métis communities R. v. Powley (SCC) 2003 Facts: Respondents, members of a Métis community near Sault Ste. Marie, Ontario were charged and acquitted of unlawfully hunting a moose without a licence and with knowingly possessing game hunted in contravention of the Game and Fish Act. The trial judge found that the Métis community in and around Sault Ste. Marie had, under s. 35(1) of the Constitution Act, 1982, an aboriginal right to hunt for food. He then found that the right was infringed without justification by the Act. The acquittals were upheld on appeal. Appellants obtained leave to appeal to SCC. Decision and Reasoning: Appeal dismissed. Section 35 provides that existing aboriginal and treaty rights of aboriginal peoples of Canada are recognized and affirmed, and that “aboriginal peoples of Canada” includes Métis peoples. However, the term “Métis” as used does not encompass all individuals with mixed Indian and European heritage. Rather, it refers to distinctive peoples who, in addition to their mixed ancestry, developed their own customs and recognizable group identity separate from their Indian or Inuit and European forebears. The test set out in this court’s decision of R. v. Van der Peet is to be used to determine Métis s. 35 entitlements, with certain modifications. The Van der Peet test is called the “Integral to Distinctive Culture” test and it has ten main parts: 1. Courts must take into account the perspective of aboriginal peoples themselves 2. Courts must identify precisely the nature of the claim being made in determining whether an aboriginal claimant has demonstrated the existence of an aboriginal right 3. In order to be integral a practice, custom or tradition must be of central significance to the aboriginal society in question 4. The practices, customs and traditions which constitute aboriginal rights are those which have continuity with the practices, customs and traditions that existed prior to contact 156 5. Courts must approach the rules of evidence in light of the evidentiary difficulties inherent in adjudicating aboriginal claims 6. Claims to aboriginal rights must be adjudicated on a specific rather than general basis 7. For a practice, custom or tradition to constitute an aboriginal right it must be of independent significance to the aboriginal culture in which it exists 8. The integral to a distinctive culture test requires that a practice, custom or tradition be distinctive; it does not require that that practice, custom or tradition be distinct 9. The influence of European culture will only be relevant to the inquiry if it is demonstrated that the practice, custom or tradition is only integral because of that influence 10. Courts must take into account both the relationship of aboriginal peoples to the land and the distinctive societies and cultures of aboriginal peoples The pre-contact aspect of the test is to be adjusted to take into account post-contact ethnogenesis and evolution of the Métis. Also, a pre-control test establishing when Europeans achieved political and legal control in an area and focusing on the period after a particular Métis community arose and before it came under the control of European laws and customs is necessary. That being said, to support a sitespecific aboriginal rights claim, an identifiable Métis community with some degree of continuity and stability must be established through evidence of shared customs, traditions, and collective identity, as well as demographic evidence. Here, the trial judge’s findings of a historic Métis community and of a contemporary Métis community in and around Sault Ste. Marie are supported by the record and must be upheld. Next, the Court must verify a claimant’s membership in the relevant contemporary community. Self-identification, ancestral connection, and community acceptance are factors which define Métis identity for the purpose of claiming Métis rights under s. 35. In the Court’s opinion, the trial judge correctly found that respondents are members of the Métis community that arose and still exists in and around Sault Ste. Marie. The historical record shows that the period just prior to 1850 is the appropriate date for finding effective European control in the Sault Ste. Marie area, and supports the finding that hunting for food was integral to the Métis way of life in the area at this time. This practice has been continuous to the present. Ontario’s lack of recognition of any Métis right to hunt for food and the application of the challenged provisions infringes the Métis aboriginal right. Nor do conservation concerns justify the infringement. Even if the moose population in that part of Ontario were under threat, the Métis would still be entitled to a priority allocation to satisfy their subsistence needs. Aboriginal Title The challenge in recognizing aboriginal title is melding two legal systems o Aboriginal title is subject to European sovereignty Calder (1973 SCC): case involving the Nisga’a lands in BC o Nisga’a people sought a declaration that their right to lands had never been extinguished o The SCC found that the aboriginals do have land rights 157 o But the Court was split 50/50 on whether land rights were extinguished prior to confederation o After this, Parliament started negotiating treaties; the first was the James Bay treaty in northern Quebec and since then, there have been other land claims that have been resolved in the Yukon, NWT, Nunavut, and Labrador o Despite the Calder case, BC refused to acknowledge any recognition of rights to land prior to 1991 o Calder states that the Royal Proclamation acknowledges, but does not ground title Guerin (1984 SCC): the Court first stated that the government has a fiduciary duty towards the First Nations of Canada and established aboriginal title to be a sui generis right o The Crown’s fiduciary obligations – the “Honour of the Crown” – to the aboriginals in question must be respected; this requires a balancing of the intended effects of the legislative action and the degree of infringement on aboriginal peoples o Dickson described the nature of aboriginal title as a sui generis right that has no equivalent It is an inherent right that existed prior to the Royal Proclamation of 1763 and is founded in historical occupation This special right means that title to aboriginal land can only be alienable to the Crown and the Crown can only use it in the interests of the aboriginals Adams (1996 SCC): aboriginal title is a subset of aboriginal rights o Aboriginal rights are not inherently based in claims to land and are not inexorably linked to aboriginal title In some areas, title is governed by treaties; in non-treaty areas, title must be sorted out o There are particular challenges in BC because the Province insisted that all First Nations land rights in BC were extinguished by the colonial government before it became part of Canada in 1871 o In Delgamuukw, Chief Justice Allan McEachern ruled that aboriginal rights in general existed at the “pleasure of the crown” and could thus be extinguished “whenever the intention of the Crown to do so is clear and plain” Delgamuukw v. British Columbia (1997) SCC Facts: Appeal by 51 Gitksan and Wet’suwet’en hereditary chiefs from a judgment which upheld the dismissal of the appellants’ action against the Province of British Columbia, for damages and a declaration of ownership, jurisdiction, and aboriginal rights for 58,000 square kilometres of land. The BC Supreme Court found that the appellants’ aboriginal rights were extinguished by colonial instruments enacted before the 1871 Confederation. It heard evidence in form of oral histories and legends. It dismissed the appellants’ claims subject to a declaration that the Province was required to allow the appellants to use certain unoccupied Crown lands for the purpose of exercising certain aboriginal rights. On appeal to the Court of Appeal, the appellants replaced the ownership and jurisdiction claims with aboriginal title and self-government claims. Also, individual claims were amalgamated into two communal claims without amending the pleadings. The Court varied the judgment by declaring that all the appellants’ aboriginal rights were not extinguished before 1871, and that they had unextinguished 158 non-exclusive aboriginal rights in certain lands. The appellants appealed. The SCC does not decide the case, but sends it back to trial. Reasoning: The trial judge had not properly dealt with the oral histories of the nations. Aboriginal title to land is based on occupation – to prove that, the claimants have to rely on history and often what is recorded was recorded by English settlers and it is culturally distorted. In reality, the Aboriginal peoples did not have written languages and relied on oral histories. The issue is that oral histories may not be admissible because they are like hearsay. The SCC claimed that the trial judge had not admitted the oral histories with sufficient weight, despite hearsay rules. For the first time, the SCC directly addressed the issue of Aboriginal title. Aboriginal title is different from land usage rights, as it acknowledges indigenous ownership of the land and the right to use in ways it had not been used traditionally. On the other hand, it is different from common land ownership, in that it is a Constitutional communal right deeply linked to indigenous culture. Land governed by Aboriginal title can only be sold to the Federal Government, not to private buyers. Aboriginal title can be proven in the following ways: 1. There was aboriginal physical occupation prior to sovereignty of Europeans (not “at contact with Europeans” as with aboriginal rights) that has not subsequently been extinguished 2. At the time of European sovereignty, there has to proof of exclusive occupation, laws in place, physical possession 3. There must be substantial continuity in occupation, though the nature of the occupation may change over time Aboriginal title may be infringed either by federal or provincial laws. However, any provincial law that specifically deals with aboriginal people is going to be invalid because it is within federal jurisdiction and no provincial law can aim at dealing with aboriginal rights or title. An infringement is justified if its purpose is to further any one of the following objectives (basically, anything to do with progress as we define it in our society): Agriculture Forestry Mining Hydro-electric power General economic development Grotection of environment Building infrastructure Settlement of foreign populations to support these aims However, there are limits on these justified infringements. These limits, as set out in Sparrow, are: Fiduciary duty Reflect the prior interest of aboriginal title 159 Consultation Fair compensation In this case, a new trial was ordered but the parties were urged to enter into good faith negotiations in order to resolve the issues. Generally, these cases are not amenable to the litigation process so the Court urged the parties to negotiate. R. v. Bernard; R. v. Marshall (2005) SCC Facts: Bernard involved the unlawful possession of spruce logs taken from Crown land in NB while the other case involved charges of unlawfully cutting timber on Crown lands in NS without authorization. In both cases, the accused argued that as Mi’kmaq Indians, their actions were lawful by virtue of either treaty or aboriginal title – they plead aboriginal title as a defence to their criminal charges. Eventually the convictions were restored, stating that aboriginal title was not proven. Reasoning: The Delgamuukw test is revisited. They look at three issues: 1. What is the standard of “exclusive occupation”? At trial, the standard of occupation was strict – must be the regular and exclusive use of the site; however, on appeal, a more generous standard was applied – entry and some acts from which intention to occupy could be inferred SCC says you have to examine pre-sovereignty practice and translate it into a modern legal right: is it equivalent to common law title? o They approach this in a generous manner, not formalistic or narrow o You must consider Aboriginal and European perspectives, as well the group’s size, manner of life, resources, technological abilities and the character of the land What is required is a demonstration of effective control; absolute and deliberate acts of exclusion are not necessary So in conclusion, they need only establish that the aboriginal group had effective control of the land – in doing so, it may be sufficient to establish that there were no adverse claimants Requiring proof of acts of exclusion may be unfair 2. May nomadic or semi-nomadic First Nations ever meet that standard? This depends on evidence re nature of the land and the manner of use Regular use for hunting, fishing, etc. may be sufficient They are not prepared to rule out that nomadic peoples can never assert title – each case needs to be assessed on its circumstances 3. What is meant by the requirement of continuity? The contemporary claimants must establish that they are the rights-holders – that there is a connection with the pre-sovereignty group whose practices they rely (recall that a small break in time is permitted) Note that these tests are rather theoretical, imposing a common law perspective on what it means to own the land – the right to exclude comes from the common law. 160 The SCC takes pains to reaffirm the centrality of the aboriginal perspective at every step of its analysis. Similarly, oral history “must be accepted” where useful and reasonably reliable – recall that the oral histories were disregarded, arguably even disrespected in the trial level Delgamuukw judgment. On the facts of this case, the degree of occupation does not establish title. Aboriginal Treaty Rights s. 35(1) protects aboriginal rights and treaty rights, including pre-contact treaty-making and post-contact treaties o The basis of this treaty-making is the promotion of peace and friendship Treaties cover much of Canadian territory (other than in BC) Principles governing the Court’s approach to treaties are: o A treaty is treated as an exchange of solemn promises o The honour of Crown: assume intention to fulfil promises o Construing ambiguities against the Crown (due to the inequality of bargaining power) o Narrowly construing restrictions on Indians’ rights o The onus of proving extinction of treaty rights is on the Crown and it requires proof of clear intention R. v. Bernard; R. v. Marshall (2005) SCC Facts: Treaty with Mi’kmaq provided that they would trade only with the British and it also recognizes Mi’kmaq right to trade fish to obtain a moderate living. Marshall wanted the Mi’kmaq treaty to extend to logging, despite a provincial regulation to the contrary. Decision and Reasoning: The Treaty right does not extend to all products that were used, but only to those that were traded. The Treaty protects modern trading activities that evolve logically from ancestral activities, but does not extend to new and different trading activities (e.g. fishing does not convert to logging). If the treaty was clear that it applied only to fishing, the aboriginal people cannot say that by analogy, the treaty also covered logging – commercial logging is a new and different activity. Aboriginal Right to Self-Governance The aboriginals had diverse modes of self-governance prior to contact with Europeans o Is self government among the rights recognized and affirmed by s. 35? The Indian Act replaced the diverse modes of government for the aboriginal people – everything was monitored and controlled by the government Now there are attempts to establish self-governance processes and aboriginal people are supposed to operate efficiently within these arrangements – not surprisingly, they often have difficulty o If you haven’t grown up with a tradition of responsibility and an understanding of how things ought to be done, then you are likely to run amok as an adult e.g. First Nations university in Regina did not succeed 161 Pamajewon (1996 SCC): sets out the framework for recognition of self-government; it is established like any other aboriginal right o The Court held that the right to self-government, if it exists, is subject to reasonable limitations and excluded the right to control high stakes gambling o Lamer stated that “assuming without deciding that s. 35(1) includes self-government claims”, the existence of a right to gambling must be analyzed using the test from Van der Peet Division of Legislative Authority Prior to 1982, Parliament had all jurisdiction to legislate with regard to “Indians and lands reserved for Indians” under s. 91(24) of the Constitution Act, 1867 o They could legislate to regulate, limit or extinguish aboriginal rights (including treaty rights) Prior to 1982, provincial laws of general application were valid as long as: o They do not single out Indians o They do not affect an integral part of primary federal jurisdiction Post-1982, there are some limits on legislative action re Indians… Delgamuukw v. British Columbia (1997) SCC Facts: See above. With regard to legislative authority, the issue is the jurisdiction of province to extinguish aboriginal rights. Decision and Reasoning: For land, Parliament has the right to legislate with regard to reserves and aboriginal title beyond reserves under s. 91(24). Under s. 109, land title goes to the provincial Crown, but only the federal Crown can accept surrender of aboriginal title – provinces cannot accept surrender of aboriginal title. With respect to rights, s. 91(24) gives jurisdiction to legislate regarding Indians and Indian lands to Parliament. Interjurisdictional immunity with respect to the core of “Indianness” includes aboriginal rights, so provincial legislation regarding aboriginal rights will be inapplicable – provincial laws that single out Indians for special treatment are invalid (ultra vires). Provinces cannot extinguish Aboriginal rights as rights cannot be extinguished unless it is done so clearly and explicitly, and this is not possible without specifically legislating with respect to Indians, which is not possible for provinces under s. 91.24. However, provincial laws of general application do apply – BUT they are still subject to federal jurisdiction over the core of “Indianness”. Allowing the provincial laws of general application creates difficulties because it means Parliament would have to establish parallel laws with respect to everything that provinces legislate in their laws of general application. The federal solution to this problem is s. 88 of the Indian Act – provincial laws of general application are incorporated by reference. The effect of this provision is to adopt provincial laws even though they affect the core of “Indianness”, but such laws could not operate to extinguish aboriginal rights. 162 Indian Act, s. 88 “Subject to the terms of any treaty and any other Act of the Parliament of Canada, all laws of general application from time to time in force in any province are applicable to and in respect of Indians in the province, except to the extent that such laws are inconsistent with this Act or an order, rule, regulation or by-law made thereunder, and except to the extent that such laws make provision for any matter for which provision is made by or under this Act” Section 88 of the Indian Act states that provincial laws may affect Aboriginals if they are of “general application” meaning that they affect other people as well as Aboriginals – hence, provincial laws are incorporated into federal law, since otherwise the provincial laws would be unconstitutional o Provincial laws are incorporated except to the extent that they are overwritten by federal laws (i.e. paramountcy) The net effect of this is switching it from interjurisdictional immunity to paramountcy in order to avoid gaps and to avoid parliament having to identify and replace all 13 provincial/territorial laws that could effect the core of Indianness Four B Manufacturing Ltd. v. United Garment Workers (1980) SCC Facts: When the Ontario Labour Relations Board certified a bargaining agent to represent the employees of a shoe manufacturing plant located on an Indian reserve, the Board’s jurisdiction to do so was contested by the owners of the plant, four brothers who were members of the band and lived on the reserve. On the basis that Indians are “federal persons”, it was submitted that the power to regulate labour relations came within federal jurisdiction over Indians and lands reserved for Indians, the question also arising as to whether the field of labour relations was covered by the provisions of the Canada Labour Code. The Courts below, in dismissing the owners’ application for judicial review, had applied the “functional test” and had found that the operation of the business enterprise on reserve land in no way affected the operation or affairs of the reserve, and therefore provincial legislation was applicable, permitting the Board to certify and to order reinstatement of dismissed employees. Decision and Reasoning: The appeal was dismissed. The manufacturing plant could not be characterized as a federal undertaking service or business; therefore the Canada Labour Code was not applicable. The enterprise was an ordinary industrial activity which clearly came under provincial legislative authority for labour relations purposes. The status of Indians was not involved. Section 88 of the Indian Act provided that “all laws of general application from time to time in force in any province are applicable to and in respect of Indians in the province” except where inconsistent with the Act. The fact that the plant was located on the reserve had no bearing on the issue as the power of Parliament to make laws in relation to Indians was the same whether they were on or off a reserve. SCC expresses a real reluctance to expand s. 91(24) so that absolutely everything that has to do with Indians is swept into federal jurisdiction. The fact that parliament has some jurisdiction under s. 91(24) doesn’t mean that everything to do with Indians comes under the section – provincial laws will apply as long as they don’t deal specifically and only with Indians. 163 SCC rejects the theory that reserves are federal enclaves – the power of parliament to make laws in relation to Indians is the same whether they are on or off the reserve. 164
