Canadian Constitutional Law
October 29 Supplemental
Ian Greene
Monahan Ch 7
• -reason why JCPC had difficulty with interpreting division of powers
was that the notion of government activities in 1867 was very limited.
• -some of the tests developed by JCPC for interpreting division of
powers were “bright line” tests meant to make it easier to deal with
complex subjects. It was easier to deal with very specific provincial
categories than broad federal categories.
• -in past 60 years government has begun to legislate in areas never
contemplated in 1867 – environment eg. – so the result is that both
fed and prov governments have jurisdiction over a great many matters.
The key problem now is creating interjurisdictional schemes that work
effectively. It’s not an excuse any more to say “we don’t have
jurisdiction.” Similarly, tinkering with the division of powers through
constitutional amendment is unnecessary.
• -rules of interpretation developed by JCPC: watertight compartments,
pith and substance, broad interpretation of property and civil rights,
aspect or double aspect doctrine, exhaustiveness, exclusiveness,
restricting residual power of POGG.
Citizens Insurance Co. v. Parsons, 1881
• First major 92(13) case.
• Impugned: Ontario Fire
Insurance Policy Act.
• Fire in Parsons’ warehouse.
Parsons wanted insurance
payment
– Ins Co: you didn’t observe
the fine print.
– Parsons: the fine print didn’t
conform to the Ontario Act.
– Ins Co: The act is ultra vires
Ontario.
• Sir Montague Smith discusses
how s. 91 & 92 overlap. JCPC will
interpret the BNA Act as an
ordinary statute, applying similar
rules of interpretation.
-Smith Invokes presumption that
specific takes precedence over
general. “Property & Civil Rights”
more specific than “Trade &
Commerce”.
– “cubby hole” doctrine. S.
92(13)? Yes. Also S. 91(2)-T&C?
No. Feds can incorporate Co’s
with national objective, but this
doesn’t prevent provinces from
regulating intraprovincial
transactions
– Three aspects of T&C:
international, interprovincial and
general.
– He doesn’t define these
categories. Left for later cases.
– What is holding;? What is obiter?
Russell v. The Queen, 1882
• Impugned legislation: Canada
Temperance Act, 1878
•
– Certiorari; rule nisi
•
•
•
•
•
– ¼ of electors in a “county or
city” may petition for a
plebiscite on prohibition.
Fredericton went dry
Charles Russell: Fredericton pub
owner, sold anyway; convicted
Previous SCC decision: City of Fr.
v. Queen: Can Temp Act intra
vires under T&C (91-2)
JCPC decision: Sir Montague
Smith.
Russell’s lawyer: delegation
argument – Parliament can’t
delegate its powers. Legislation
says GG “may,” not “shall.”
•
•
•
•
•
•
•
“cubby hole” doctrine
– Is subject-matter of impugned
legislation in s.92? If so, is it also
in 91?
– If not in s. 92, it must be in s. 91
Russell’s lawyer: argued legis. Falls in
s. 92: 9, 13 or 16
“pith and substance”
– Smith: Nearly anything could fall
under 92(13); what is p&s?
Central subject matter is public order
& safety, not T&C
Not local because of local option.
(eg. contageous disease orders with
greater impact in some areas)
Therefore, not under s.92.
No comment on SCC’s decision in
Fredericton re s. 91(2), but seems to
emphasize POGG
Eg of Gap (residual) branch of POGG
Local Prohibition Case, 1896
• Impugned: Ont’s Local
Prohibition Act (1890)
– Townships, towns, villages (&
cities)
– Appeal from SCC reference re
validity of Ont Local Proh. Act
• Lord Watson
• Feds (under POGG) can trench on
•
s.92 only if incidental to a legitimate
fed purpose; otherwise, all of s.92
would fall under s. 91.
– s.94 issue (power to unify
common law in anglophone
provs): meaningless if POGG
interpreted broadly.
Ontario argued that legis. falls under
92(8): (municipalities). Watson: not a
convincing argument
• Pith & substance: vice of
intemperance at local level
• 92(16): (local) yes.
• 92(13): no; the law prohibits
rather than regulates
• if conflict: fed. law is paramount
• conflict of laws: no conflict if
strictest obeyed
• “aspect” (or double aspect)
doctrine: a legislative subjectmatter can fall under s. 91 for one
purpose, and s. 92 for another.
• National dimension or national
concern doctrine of POGG hinted
at: a subject matter can become
a matter of national concern and
then feds can regulate under
POGG.
TEC v Snider (1925)
• Impugned legislation: federal
Industrial Disputes
Investigation Act
• Viscount Haldane wrote for
JCPC
• Haldane says labour legislation
clearly falls under s. 92(13)
• In this case, the procedure is
applied to a municipal
transportation agency (TEC,
forerunner of TTC, 1923)
• Does subject-matter also fall
under POGG, fed criminal
power, or 91(2) (T&C)?
Haldane – no.
• POGG can be used as residual, or
emergency power. Here, can’t be
residual because 92(13) applies.
As well, there’s no emergency.
• Rule of interpretation: specific
takes precedence over general.
See Haldane’s discussion of
specific words, p. 76.
• How can this decision be squared
with Russell v. Queen? Haldane:
there must have been an
emergency in 1878:
– “…evil of intemperance [was]
one so great” that parliament
intervened to “protect the
nation from disaster”
Treaty-Making Cases
•
•
Treaty-signing power, and treatyimplementation power, are two
different powers. The feds had them
both until 1926, under S. 132 of the
BNA Act. In 1926, Canada became
equal to Great Britain in handling
foreign affairs (Balfour Declaration,
later confirmed by Statute of
Westminster, 1931), and so S. 132
became obsolete.
Aeronautics Case (1932) Canada was
implementing a British Empire Treaty,
but federal gov't has the power to
implement a treaty on aeronautics
under several heads of S. 91, such as
defence, post office.
• Radio Case (1932) Section 132 is
now obsolete. Therefore, the
treaty-making and treatyimplementation powers are new,
and fall under POGG.
Labour Conventions Case (1937)
– Lord Atkin - wrote decision
– Distinguished Aeronautics and
Radio cases. He said that the
Radio case decided that power to
regulate radio transmissions is
new, and therefore falls under
POGG. (Is that what you think
was decided?) The treaty-signing
power falls to the feds under
POGG, but the treatyimplementation power depends
on the subject-matter of the
treaty. Matters that fall under S.
92 can only be implemented by
the provinces.
• Extraterritoriality
– Federal
– Provincial
• Treaty-making powers
– Head of states
– Intergovernmental
– Exchange of notes
Ref re Anti-Inflation Act (1976)
•
•
•
•
Trudeau campaigned against wage & price
controls during 1974 election. After his
election victory, he reversed his position.
1975: federal Anti-Inflation Act enacted.
All prov's cooperated. Ont public
employee unions challenged in court, so
the feds sent a ref question to the SCC to
settle the issue.
AG of Canada defended Act under nat
concern branch of POGG, and also argued
that an economic crisis equals an
emergency.
There were two decisions for the majority,
by Laskin and Ritchie. However, the
dissenters agreed with Ritchie’s
interpretation of POGG, leaving the
Court’s interpretation of POGG unclear.
•
•
Laskin (+3 judges): Laskin had been a law
prof, and wrote the leading text (before
Hogg) on Can. const. law.
Reviewed history of POGG
–
–
•
•
•
•
Const must adapt to change.
If judges can defend as crisis, not nec to
look at national concern argument.
Evidence shows there is a rational basis
for believing a crisis exists (Stats Can)
Lipsey & 39 economists in an affidavit
argued that 1975 inflation is not a crisis.
Laskin: there is disagreement amongst
economists, and it’s not up to SCC to
decide. (Beginning of use of soc sci
evidence in court.)
Fed power supported by 91 (14-21 except
17), & T&C, so it’s intra vires.
Ont. order-in-council is ultra vires; needs
primary legislation.
Anti-Inflation Reference continued
• Ritchie (+2 judges),
separate concurring
decision:
• Rejects Laskin's crisis
doctrine.
• There is evidence of an
emergency (white paper).
• An emergency can occur in
peace time.
• Therefore, impugned
anti-inflation act intra vires.
• Beetz (+1 judge), dissenting:
• Anti-inflation act invades
92(13).
• Parliament has not declared
an emergency, so there's no
emergency. Stick with
Haldane’s emergency
doctrine.
• Inflation is not a matter of
national concern.
• Legislation is ultra vires.
Monahan Chapter 8
• -Branches of POGG:
•
Emergency: Developed by Viscount Haldane on JCPC; Haldane
claimed it was the only interpretation of POGG; later overruled by
JCPC. In Anti-inflation, the court expanded on the emergency
doctrine – included “crisis.” The federal Emergencies Act would be
valid federal legislation under the emergency branch. A true
emergency gives the federal government the right to trench on
provincial jurisdiction for a temporary period – until the emergency
is over.
•
Residual power: weakened in late 1800s and early 1900s by
JCPC because of its expansive interpretation of 92(13). However,
the provinces are limited to controlling matters “within the
province,” so matters falling outside of provincial boundaries are
likely to fall under the residual power (eg. Canadian land or water
that is not within a province), like the continental shelf, the federal
Official Languages Act. The residual branch is very narrow.
Monahan Chapter 9:
Trade and Commerce (91-2)
• Parsons created 2 categories of T&C & interpreted them narrowly. Since
1949 SCC has begun to expand these categories.
• International and Interprovincial T&C
– Feds can regulate any matter that is clearly international or interprovincial, but
cannot interfere with local trade and provincial regulations over local business.
Feds can establish a standard for “Canada Fancy No. 1 apples” and “light beer,
if sold interprovincially or internationally, but the legislation does not apply to
products manufactured and sold within one province.
– JCPC almost never let fed regulations incidentally affect local production &
sale. However, in 1993 federal legislation creating safety standards for
vehicles sold interprovincially, and which applied optionally to vehicles sold
within a province, could validly enforce federal regulations even for vehicles
sold provincially if the vendor opted in to the scheme.
• General Trade and Commerce: After Parsons, little valid use of power until
1980s (1937: feds allowed to approve trade marks). Then SCC approved
federal use of General T&C power if the legislation truly regulated trade in
general, and the regulatory scheme was effective and comprehensive.
Trade treaties & Economic Union
• Thanks to Labour Conventions decision, feds cannot
enforce international treaties that fall within provincial
jurisdiction. However, international trade agreements
are concerned with tariffs (fed power) & international
trade, so if carefully crafted (eg FTA & NAFTA) are valid.
• Economic union: 2 cases in 1990s concluded that
mutual recognition of court judgments across Canada
“is inherent in a federation.” S. 121 states that all
goods shall be “admitted free” between provinces.
Courts now seem disposed to strike down provincial
laws that prevent economic integration, and to support
federal legislation that prohibits such barriers.
Monahan, Chapter 10: Property & Civil Rights (92-13)
within provinces
•
•
•
•
•
During JCPC era, 92(13) was the de facto residual clause
Federal legislation directly relating to one of the enumerated heads of power in S. 91 was
upheld, even if it had an incidental effect on provincial powers; other legislation was usually
declared ultra vires. The enumerated heads were no longer examples of federal power, but
nearly the whole of federal power.
Even though the Chicken & Egg reference prevented provinces from using 92(13) to interfere
with interprovincial marketing, an interprovincial egg marketing scheme with federal and
provincial dovetailing legislation was later held to be constitutional.
Earlier decisions (Carnation, 1968) supported provincial regulation of trade within provinces.
In later decisions in the ‘70s, the court looked into whether provincial legislation worded to
control only trade within a province might be designed to impact interprovincial or
international trade; if so the provincial legislation could be struck down. In reaction to these
decisions, the provinces demanded that S. 92A be added to the Constitution Act, 1867 –
giving provinces more control over production and export of non-renewable natural
resources.
Sometimes provincial laws have an incidental impact outside the province. If the pith and
substance of the law is intended to have a purely provincial impact, then the SCC will uphold
the law (eg. BC legislation to hold extraprovincial tobacco companies liable for health care
costs in B.C. of B.C. residents made sick by tobacco - 2005). (In contrast, federal laws can
have extraterritorial application if practical. It is a criminal offence to hijack a Canadian plane
inside or outside of Canada.)
Aboriginal Issues and Federalism
• Monahan, Constitutional Law, Part Five, 439-460
– Royal Proclamation of 1763: aboriginal lands recognized and lands for
settlers would need to be purchased by British government. (One of the
grievances of the 13 colonies that rebelled a few years later)
– Treaties were signed with some native bands. However, the treaties were
often treated by courts as “international law,” not recognized by courts
unless enacted into domestic (federal or provincial) law. Thus, many
treaty rights were abrogated or ignored.
– 1973 in Calder case: SCC for the first time recognized some aboriginal
rights at least to the use of traditional lands where treaties had not been
signed.
– Marshall case (1999): SCC accepted evidence of the aboriginal
understanding of a treaty, rather than relying simply on the official
British/Canadian interpretation.
– 91(24): federal jurisdiction over “Indians, and lands reserved for the
Indians.”
– Provincial legislation applies on Indian reserves unless federal legislation
supersedes it. This includes health, education, and social welfare
legislation, unless there is a federal substitute.
Roncarelli v. Duplessis, 1959
•
•
•
•
•
Roncarelli posted bail for Jehovah’s Witnesses charged with distributing literature
without a permit (which they would never get). Roncarelli owned a restaurant in
Montreal.
Premier Duplessis cancelled his restaurant liquor license, realizing that any
restaurant in Montreal without a liquor license would go bankrupt.
Roncarelli sued Duplessis for violation of rule of law (Frank Scott represented
Ron.), and won. Duplessis (even though the Premier) was found by Supreme Court
to have abused his power in violation of the rule of law. Roncarelli had not
violated any of the conditions of having a liquor license. The law was being
applied arbitrarily.
Quebec government then enacted legislation that meant Roncarelli would lose his
liquor license again; by then he had gone bankrupt.
The case demonstrates how the application of the rule of law by courts can protect
human rights. It also demonstrates that enforcement of human rights through the
courts is sometimes not timely.