Canadian Constitutional Law October 20 Supplemental

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Canadian Constitutional LawOctober 20
Supplemental

• Ian Greene

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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 didnt observe the fine print.
• Parsons the fine print didnt 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)-TC? No. Feds can incorporate Cos with
  national objective, but this doesnt prevent
  provinces from regulating intraprovincial
  transactions
• Three aspects of TC international,
  interprovincial and general.
• He doesnt define these categories. Left for
  later cases.
• What is holding? What is obiter?

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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 TC (91-2)
• JCPC decision Sir Montague Smith.
• Russells lawyer delegation argument
  Parliament cant 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
• Russells lawyer argued legis. Falls in s. 92
  9, 13 or 16
• pith and substance
• Smith Nearly anything could fall under 92(13)
  what is ps?
• Central subject matter is public order safety,
  not TC
• Not local because of local option. (eg.
  contageous disease orders with greater impact in
  some areas)
• Therefore, not under s.92.
• No comment on SCCs decision in Fredericton re s.
  91(2), but seems to emphasize POGG
• Eg of Gap (residual) branch of POGG

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Case 4 Local Prohibition Case, 1896 (Ian Greene)

• Pith substance vice of intemperance at local
  level
• 92(16) (local) yes.
• 92(13) no the law prohibits rather than
  regulates
• if conflict fed. law is paramount
• conflict of laws no conflict if strictest
  obeyed
• aspect (or double aspect) doctrine a
  legislative subject-matter can fall under s. 91
  for one purpose, and s. 92 for another.
• National dimension or national concern doctrine
  of POGG hinted at a subject matter can become a
  matter of national concern and then feds can
  regulate under POGG.

• Impugned Onts 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

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

• Lord Atkin - wrote decision
• Distinguished Aeronautics and Radio cases. He
  said that the Radio case decided that power to
  regulate radio transmissions is new, and
  therefore falls under POGG. (Is that what you
  think was decided?) The treaty-signing power
  falls to the feds under POGG, but the
  treaty-implementation power depends on the
  subject-matter of the treaty. Matters that fall
  under S. 92 can only be implemented by the
  provinces.

• Extraterritoriality
• Federal
• Provincial
• Treaty-making powers
• Head of states
• Intergovernmental
• Exchange of notes

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Chicken Egg Reference - 1971 (Ian Greene)

• In 1970, Que govt authorized Que egg marketing
  agency to restrict import of eggs from out of
  province
• Ont and Man were suppliers of eggs to Que
• Que supplied chickens to other provinces they
  restricted Quebec chickens
• Man passed egg marketing legis identical to
  Quebecs and referred it to Mn CAp

• Man legis. struck down appealed to SCC (What if
  leg upheld?)
• 9 judges on panel 6 2 1 (all agreed ultra
  vires)
• Martland Pith and substance interprovincial
  TC.

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Chicken Egg (2)

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

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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 Ritchies interpretation of POGG,
  leaving the Courts 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
  its not up to SCC to decide. (Beginning of use
  of soc sci evidence in court.)
• Fed power supported by 91 (14-21 except 17),
  TC, so its intra vires.
• Ont. order-in-council is ultra vires needs
  primary legislation.

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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.)

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Monahan, Constitutional Law, Ch 11 Criminal Law
(Ian Greene)

• In contrast to U.S., criminal law is a federal
  power in Canada (91-27) in U.S. state law.
  But in Canada, provinces control enforcement
  (most police prosecutions)
• Case law a criminal law prohibits with a
  penalty, and is for a criminal public purpose
  including peace, order, security, health,
  morality. (margarine ref, 1949)
• 1993 Tobacco Products Control Act within
  federal criminal power
• 1997 Can Environmental Protection act valid
  criminal law
• 2000 Federal Firearms Act valid criminal law
• 1980 Federal regulation of light beer not
  valid criminal law

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Monahan, Constitutional Law, Ch 11 Criminal Law
(Ian Greene) slide 2

• Provincial power to enact penal laws
• S. 92(15) gives provinces the power to impost
  punishment by fine, penalty or imprisonment for
  enforcing provincial laws. Quasi-criminal
  legislation. (Provincial laws imprisonment up
  to 2 years federal criminal law up to life.
  Prov laws prosecuted by way of summary
  conviction fed criminal law prosecution by
  either summary conviction or indictment.
  Provinces build jails for offenders sentenced to
  less than 2 years feds build penitentiaries.)
• SCC case law separating criminal law from valid
  provincial law is contradictory and confusion
  eg cases about criminal law and municipal bylaws
  regulating strip joints.
• Police functions under the criminal code are
  provincial jurisdiction under 92(14). RCMP has
  the power to enforce federal laws other than the
  criminal law. Eight provinces rent the RCMP
  from the federal govt 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.