Canadian Constitutional Law
February 9, 2013
Ian Greene
Preliminary
• Assignments handed in today
– Will have them graded by March 9; if sooner will send you
individual comments. Please send as an unprotected Word
document by email.
• Presentations today
– In order of presentations on sign-up sheet. After each
presentation we’ll have a class discussion and I’ll also raise
points I think are important.
• Did you succeed in spreading out the readings over a
month?
• Questions from last month’s class?
– We went over some of the powerpoint slides quickly. Is there
anything you are unclear about from any of the slides?
– French for Public Administration: will be offered to the students
who signed up; dates TBA
Civil Liberty Cases prior to Can Bill of Rts
• B.C.: disc leg against Orientals
– 1899: JCPC stuck down law
restricting employment of
Orientals as ultra vires prov.
Jurisdiction
– 1902: JCPC upheld denial of vote
to Orientals - leg sup
• Private suits by Blacks against pte
disc: some succeeded, most
didn’t because cts emphasized
private right to contract
• Sask: disc leg ag Orientals:
upheld by SCC, 1914
• “Persons” case: 1930
• Alberta Press Case (1938)
– impugned: package of Social
Credit legislation: unanimously
struck down
– “Duff doctrine”: because Can.
const is “similar in principle” to
that of U.K., courts can strike
down legislation violating trad.
human rights. Also, Canada is a
democracy: H of C is
representative. “Free public
discussion … is the breath of life
for parliamentary institutions”
Civ Liberty Cases prior to Can Bill of Rts (2)
• Treatment of Japanese Canadians
during WWII: courts did not
intervene
• “Gouzenko affair” in 1945: secret
trials of 26 under War Measures
Act without usual procedural
protections. Led to Can Civ
Liberties Association
• Duplessis era: SCC used division
of powers to protect human
rights
– Saumur, 1953: SCC struck down
Quebec City bylaw about
littering, but aimed at Jehovah’s
Witnesses
– Switzman v. Elbling, 1957: SCC
struck down Padlock Law
because it trenched on Parl’s
crim law jurisdiction
Roncarelli v. Duplessis, 1959 (Ian Greene)
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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
Roncarelli), and won. Duplessis (even though the Premier) was found by Supreme
Court to have abused his power in violation of the rule of law. (Remember Dicey’s
definition of rule of law & abuse of power.) Roncarelli had not violated any of the
conditions of having a liquor license. The law was being applied arbitrarily.
Quebec Union Nationale government then enacted legislation that meant
Roncarelli would lose his liquor license again; by then he had gone bankrupt.
“Quiet revolution” began in 1960 with defeat of Union Nationale.
The case demonstrates how the application of the rule of law by courts can protect
human rights (Dicey). It also demonstrates that enforcement of human rights
through the courts is sometimes not timely.
Canadian Bill of Rights
• Spearheaded by PM John
Diefenbaker, and enacted in 1960
• S. 1: rights to life, liberty, sec of
person, enjoyment of property,
equality before law, freedom of
religion, speech, assembly,
association and press have
existed and continue to exist
without discrimination by reason
of race, national origin, colour,
religion or sex
• S. 2: lists traditional common law
legal rights: habeas corpus, no
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arbitrary detention or imprisonment,
no cruel or unusual punishment, no
arrest without lawful reason, right to
retain lawyer without delay, right not
to be forced to incriminate self,
innocent until proven guilty, ind and
imp tribunal, reasonable bail,
interpreter. Right to a fair hearing in
accord with fundamental justice to
determine rights and obligations.
“notwithstanding clause”
Canadian Bill of Rights (2)
• Robertson & Rosetanni v. the
Queen (1963)
– impugned: fed. Lord’s Day Act
– Ritchie (for majority): Freedom
of religion “has existed;”
therefore no violation
– Fr of Rel means an absence of
disabilities, but govt’s can
promote religious practices
– Although Act as a religious
purpose, the effect is purely
secular
– Cartwright dissented: both
purpose & effect of Act compel,
under penal sanction,
observance of a particular
religious holy day
– Courts can strike down laws
under Bill of Rights; otherwise
the “notwithstanding” clause
would not be necessary
Canadian Bill of Rights (3)
• Drybones (1970)
– impugned: section of Indian Act
that made it an offence for an
Indian to be intoxicated off a
reservation. No reservations in
NWT.
– Drybones claimed equality
before the law violated
– Ritchie (for majority): Where it is
“an offence…on account of
race…to do something which all
Canadians who are not members
of that race may do…” there is a
violation of equality.
– Ritchie adopts Cartwright’s
reasoning from Rosetanni that
notwithstanding clause means
Bill of Rights is more than a rule
of construction.
– Cartwright dissented. Said he’d
changed his mind since
Rosetanni. It would be
dangerous for the courts to
usurp legislature’s role by
deciding what statutes violate
Bill of Rights.
Canadian Bill of Rights (4)
• Lavell & Bedard (1974)
– impugned: part of Indian Act
that states that if an Indian man
marries a non-Indian, he retains
status and his children inherit it,
but if an Indian woman marries a
non-Indian, she forfeits her
status, as do her children.
– Ritchie for majority (5-4):
equality before the law,
according to Dicey, means
equality in the administration of
the law.
– If all Indian women are treated
equally, there’s no necessary
discrimination. (Indian women
aren’t compelled by law to marry
non-Indians).
• Bliss (1979):
– impugned: part of Un Ins Act
that stipulated longer qualifying
period for work absence due to
pregnancy. SCC: no
discrimination, as the provision
applies to everyone.
Canadian Bill of Rights (5)
• Oil, Chem and Atomic Workers
case (1963): SCC says it’s OK for
BC gov’t to prohibit union
political contributions if received
from check-off.
• 1969: SCC upholds Alberta
discriminatory legislation against
Hutterites
• Dupond (1978): SCC upholds a
Montreal by-law that allowed
Council to ban all demonstrations
for 30-day periods.
– Beetz: Demonstrations are not
“speech in action,” therefore no
violation of freedom of speech
– Beetz dismissed the Duff
Doctrine
– Laskin: strong dissent
• SCC’s record under Bill
of Rights led to support
for idea of a
constitutional Charter
of Rights
THE COURTS AND
CANADIAN FEDERALISM:
FROM WATERTIGHT
COMPARTMENTS TO
SHARED RESPONSIBILITY
(Richard Stevens)
Chapter 7
Constitutional Law
Patrick J. Monahan
Leading Division of Powers
decisions (2)
• Put a bookmark in p. 553 Russell so you can
remind yourself of the content of the sections
we will refer to.
• The Court and the Constitution: Leading Cases
-Case 1, Citizens Insurance Co. v. Parsons
(fed/prov powers over business, 1881) Nicole
Charles
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-Case 2, Russell v. The Queen (fed/prov
powers over alcohol, 1882) Aydeen Hossni
Case 4: Local Prohibition Case, 1896
(Melissa Miranda)
Case 6: Toronto Electric Commissioners v. Snider
(Jennifer Sevos)
Treaty-Making Cases (prelude to Case 9)
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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.
• Extraterritoriality
– Federal
– Provincial
• Treaty-making powers
– Head of states
– Intergovernmental
– Exchange of notes
Case 9
• AG Canada v. AG Ontario, Labour Conventions
Case (restriction of federal power over
international affairs, 1937):
• Danielle Thiboau
• See Danielle’s powerpoint as a separate file
Cases 12 & 13
• Case 12, AG Manitoba v. Manitoba Egg &
Poultry Assoc (Chicken & Egg Reference; battle
over whether feds or provinces control
marketing boards, 1971): Marian AbsEskharn
• Case 13, Reference re Anti-Inflation Act (first
case in which SCC admitted social science
evidence - from economists, 1976): Ezra
Isaacson
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 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
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During JCPC era, 92(13) , not POGG, 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 in s. 91 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. (Peter Lougheed noted this as one of
his most important achievements.)
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, for anyone anywhere. Under Canada’s Crimes
Against Humanity and War Crimes Act, anyone anywhere in the world who commits a war crime or
genocide can be tried in a Canadian court – eg. Jacques Mungwarere charged in Ontario Superior
Court May 2012 with genocide and crimes against humanity regarding Rwandan genocide.
Monahan, Constitutional Law, Ch 11:
Criminal Law (Ian Greene)
• In contrast to U.S., criminal law is a federal power in Canada
(91[27]); in U.S. – state law. But in Canada, provinces control
enforcement (most police & prosecutions)
• Case law: a criminal law prohibits with a penalty, and is for a
“criminal … public purpose” including “peace, order, security,
health, morality.” (Margarine ref, 1949 – defined criminal law.
Prohibition of margarine not a criminal law, but a valid law
under Trace & Commerce)
• 1993: Tobacco Products Control Act within federal criminal
power
• 1997: Can Environmental Protection act valid criminal law
• 2000: Federal Firearms Act valid criminal law
• 1980: Federal regulation of “light beer” not valid criminal law
Monahan, Constitutional Law, Ch 11:
Criminal Law (Ian Greene) – slide 2
• Provincial power to enact penal laws
– S. 92(15) gives provinces the power to impost “punishment by fine, penalty or
imprisonment” for enforcing provincial laws. “Quasi-criminal” legislation.
(Provincial laws – imprisonment up to 2 years; federal criminal law – up to life.
Prov laws – prosecuted by way of summary conviction (relaxed procedures);
fed criminal law – prosecution by either summary conviction or indictment
(full procedure; harsher sentences). Provinces build jails for offenders
sentenced to less than 2 years; feds build penitentiaries for long-term
prisoners.) Issue of current govt’s mandatory minimum sentences & cost.
– SCC case law separating criminal law from valid provincial law is contradictory
and confusing – eg cases about criminal law and municipal bylaws regulating
strip joints.
– Police functions under the criminal code are provincial jurisdiction under
92(14). RCMP has the power to enforce federal laws other than the criminal
law. Eight provinces “rent” (not Ontario or Quebec) the RCMP from the
federal gov’t for provincial police services; the RCMP in these provinces is
under the control of the provincial Attorney General. But investigation of
complaints is a federal responsibility for the RCMP.
– SCC has held that the federal government can prosecute drug cases; thus, a
confusing array of federal prosecutors, at first appointed for patronage
reasons. Monahan claims that the federal government could extend the role
of federal prosecutors into criminal cases (Greene – would be a disaster).
Monahan, Constitutional Law, Ch 12:
The Constitution and Transportation: Ian Greene
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Feds: interprovincial & international transportaion; beacons, buoys, lighthouses, navigation
& shipping, ferries outside one province; Sable Island. Criminal power affects motor vehicles,
ships and aircraft.
Provinces: transportation within the province
92(10): Local works & undertakings provincial EXCEPT for those in (a) and (b), & (c) those
declared by the Parliament to be for the general advantage of Canada (“declaratory power”
used ~ 500 times up to 25 years ago [grain elevators, nuclear plants]).
1989: SCC ruled that local and provincial telephone companies fall under federal authority.
The internet is subject to both federal regulations (92-10 exemption – “telegraphs”) and
provincial regulation (92 -13).
POGG: most litigation relates to air travel & related matters
Navigation & Shipping (91-10): broad source of power interpreted expansively by courts.
(eg. new Canadian boating license)
Provinces began to license motor vehicle drivers; feds had no interest. JCPC declared that
those who cross provincial borders require a federal license. The feds then delegated to the
provincial licensing boards the power to grant interprovincial licenses! That’s why our
licenses state Ontario and Canada.