Canadian Constitutional Law Feb 9 Supplemental

1
Canadian Constitutional LawFeb 9 Supplemental

• Ian Greene

2
Monahan Ch 7

• -Patrick Monahans background
• -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. Its not an excuse any more to say
  we dont 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.

3
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?

4
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
  (prov)? If so, is it also in 91 (fed)?
• 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

• 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

6
TEC v Snider (1925) Ian Greene

• 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) (TC)? Haldane no.

• POGG can be used as residual, or emergency power.
  Here, cant be residual because 92(13) applies.
  As well, theres no emergency.
• Rule of interpretation specific (and narrow)
  takes priority over general. See Haldanes
  discussion of specific words, p. 60.
• 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

7
Case 9, AG Canada v. AG Ontario, Labour
Conventions Case (restriction of federal power
over international affairs,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
  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

8
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 the
  other provinces restricted Quebec chickens
• Man passed egg marketing legis identical to
  Quebecs and referred it to Man CA

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

9
Chicken Egg (2)

• Laskins first major decision. Laskin was a
  Trudeau appointee law prof at U of T wrote main
  constitutional law text. A champion of human
  rights breaking down interprovincial trade
  barriers. Became Chief Justice.
• Annoyed that case is fabricated. Why?
• Obiter Parsons led to attenuation of literal
  interp of TC, but interpretation has broadened
  since.
• 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 (free trade
  amongst the provinces) but sets the stage for
  future cases mentioning 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 national 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. (First use of
  social science evidence in court.)
• Fed power supported by s. 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 8 (Ian Greene)

• -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.

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Monahan Chapter 9 (Ian Greene)Trade and
Commerce (91-2)

• Parsons created 2 categories of Trade Commerce
  and interpreted them narrowly. Since 1949 SCC
  has begun to expand these categories.
• International and Interprovincial TC
• 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
  inter-provincially 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
  inter-provincially, and which applied optionally
  to vehicles sold within a province, could be
  validly enforced even for vehicles sold only
  within a province, if the vendor opted in to the
  scheme.
• Interprovincial drivers licenses a federal
  responsibility delegated to the provinces through
  joint federal-provincial licensing boards.
• 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 TC power if the
  legislation truly regulated trade in general, and
  the regulatory scheme was effective and
  comprehensive.