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Public Law I 2005 Review Sept. 9/05: What is law? Is law a set of rules intended to govern behaviour? What makes law legitimate in a democracy? Can you.

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Presentation on theme: "Public Law I 2005 Review Sept. 9/05: What is law? Is law a set of rules intended to govern behaviour? What makes law legitimate in a democracy? Can you."— Presentation transcript:

1 Public Law I 2005 Review Sept. 9/05: What is law? Is law a set of rules intended to govern behaviour? What makes law legitimate in a democracy? Can you understand law from a purely linguistic perspective? What role is played by –Judicial discretion? –Discretion of lawyers? –Interpretation by public servants and elected politicians? –Interpretation by ordinary citizens? Need to understand the system of justice

2 Schools of jurisprudence Judicial positivism (John Austin, A.V. Dicey, H.L.A. Hart) –The only law that exists is the written law –Good judges can always interpret the positive law correctly Natural law (John Locke, John Rawls, Ronald Dworkin) –There are higher laws that positive law ought to emulate. These higher laws might be created by religion, logic, or ethical principles. Judicial realism (Karl Llewellyn) –Even if judges try to be impartial, the law can never be perfectly clear. What makes judges decide the way they do? –Canadian Judicial realism: Sidney Peck, Peter Russell, many current scholars.

3 Speluncean Explorers (Lon Fuller of Harvard) Four men trapped by cave-in. One suggested cannibalism. They chose the victim with a game of chance. The one who suggested cannibalism changed his mind. Nevertheless, he was chosen and sacrificed. The three remaining men survived, and were charged and convicted of murder. They appealed to a panel of five judges. one judge: apply the established law literally & convict (positivist) second judge: interpret the principles that ought to be behind the written law to acquit (natural law adherent, and also a judicial "activist") third judge: uphold the conviction, but appeal for clemency (restrained, uphold parliamentary supremacy) fourth judge: withdrew because he couldn't decide fifth judge: heard clemency route wont work; consider the natural law approach because it leads to a just result. (This judge is a realist)

4 Hohfeldian Scheme: If theres a right held by one person, theres a duty for someone else (usually a public official). If theres discretion, theres no right. Divisions of law: Positive (written) law: domestic and international Domestic: substantive, and procedural or adjectival Positive domestic law: public and private Public law: criminal, administrative, constitutional, tax Private law: most important divisions are contracts, property and torts (private wrongs); many other types as well (see Gall) Common law system compared with civil law system deductive (civil) vs. inductive (common); weight of precedent; reports of framers & la doctrine (civil)

5 Terms and Concepts What are "legal persons? People, corporations, and governments What's the difference between negative and positive law? –Negative law: prohibited from certain behaviours (crim. law) –Positive law: positive incentive to change behaviour (tax deductions for donations to political parties) [NOT same sense as judicial positivism] Critical Legal Theory –a branch of critical theory, which examines institutions from the perspective of class analysis.

6 Public Law I: September 16, 2005 Basic concepts regarding the Canadian Legal System The Canadian court structure

7 Sources of Law Main sources of law: –Written constitution (s. 52(1) of CA, 1982 –statute law (laws created by legislatures) –case law (created by judges) Other (informal) sources that inspired both statute and case law: Ten Commandments, Magna Carta (1297), Roman law, canon law, writings of legal scholars (eg. Coke 1552–1634, and Blackstone ), community standards (eg. obscenity cases), Hogg's text, constitutional conventions ratio decidendi and obiter dicta common = general common law judges "find" the law Constitutional conventions Parliamentary Sovereignty or Legislative Supremacy (same). Separation of powers Aggregate legislature can do anything. Seven-fifty-formula; unanimity formula; some-but-not- all formula; provinces alone; feds alone Crown prerogative: residue of discretionary power. Crown privilege: the claim that the crown my decide not to present documents ordered by judges, H of C or Senate.

8 Terms and Concepts primary (enacted by a sovereign legislature) and subordinate legislation (eg. Orders in Council, city bylaws, CRTC regulations) Manner and form requirements for judges to recognize a law What are "legal persons? People, corporations, and governments What's the difference between negative and positive law? –Negative law: prohibited from certain behaviours (crim. law) –Positive law: positive incentive to change behaviour (tax deductions for donations to political parties) [NOT same sense as judicial positivism] Critical Legal Theory –a branch of critical theory, which examines institutions from the perspective of class analysis. (often very cynical about law)

9 British Legal Tradition Reception: All English statutes enacted prior to reception are law in Canada, unless changed in Canada. Date of reception based on when a colony established a legislature, or set by statute. NB & NS: 1758 Quebec: 1759: French civil law. 1763: English public law PEI: 1763 Ontario: 1792 Newfoundland: 1832 BC: 1858 Man, Alta., Sask: Federal gov't : date depends on when federal laws were inherited from former colonies. Eg. Quebec, 1763; Ont Imperial statutes (Br laws applying to whole empire) remained in force until Statute of Westminster, –Development of common law courts (kings bench, common pleas) and courts of equity (remedies other than damages or punishment – writs, injunctions). Merged in 1880s. Preamble to BNA Act: implied Bill of Rights Barristers and Solicitors Judicial Committee of the Privy Council (JCPC); England: specialized appeal j's; Canada: generalist appeal j's.

10 Canadian Court Structure ____________________________ federal appointments | Supreme Court of Canada | and administration | 9 judges | |___________________________| _____________________| | ____|___ ____|____ ________________|________ federal | | | | | | federal appointments | Tax | | Federal | | 10 provincial & 3 territorial | appointments, & admin. | Court | | Court | | courts of appeal | provincial | 22 js | | 39 js | | 128 judges | administration |______| |________| |_______________________ | | | _____________ |______ | federal | | | appointments | provincial superior | | provincial | trial courts | | administration | 829 judges | | |__________________ | | |___________________| | | | ___________ |__________ | | (All counts as of 2001) provincial | pure provincial and | appointments | territorial courts | & admin. | 984 judges | |______________________|

11 Adjudication Adjudication involves an independent, impartial and qualified judge authoritatively settling a dispute, according to law, with reasons. Usually, decisions can be appealed. Other forms of dispute resolution: combat, negotiation, mediation, arbitration. (ADR refers to alternatives to the courts – especially mediation and arbitration.)

12 Judicial Independence Valente decision (1985) –Security of tenure (cant be removed unless theres been a judicial inquiry) –Financial security (a right to a salary high enough to discourage bribes that cannot be easily tampered with by govt) –Institutional independence (judges control administrative matters directly related to adjudication).

13 Judicial discipline For provincially-appointed judges: complaints can be sent to the Provincial Judicial Council (usually composed of the Chief Judges and Justices in the province) For federally-appointed judges: the Canadian Judicial Council investigates complaints

14 Appeal courts Minor appeals heard by a single judge in a higher court (summary conviction appeals) Major appeals heard by the provincial Court of Appeal Ontario has about 18 Court of Appeal judges; usually they sit in panels of 3 (sometimes 5) The Federal Court (Appeal Division) has about a dozen judges; hear cases in panels of 3. Supreme Court (9 judges) most often hears cases in panels of 7; sometimes panels of 5 or 9. per curiam (or per coram) vs. seriatim decisions

15 Constitutional Crisis of 1981/ : Canada independent re its internal affairs Balfour Declaration (1926) and Statute of Westminster (1931): Canada recognized as an independent state re foreign relations BNA Act (1867) was an imperial statute, therefore could only be amended by British Parliament : many failed constitutional conferences. Victoria Charter nearly successful (1971): Amending formula would include Parliament, Ontario, Quebec, 2/4 Western provinces, 2/4 Atlantic provinces. Failed when a new govt elected in Alberta, and Quebec premier couldnt get cabinet to agree. Alberta suggested an alternative: Parliament, and 2/3 of provinces representing 50% of Canadian population.

16 Public Law I: September 23/05 Court visit assignment Topics for today: –Complete British Legal Tradition in Canada –Canadian court structure –Garth Stevenson article –Highlights of the Canadian constitution –Court reform in Ontario –Constitutional Amendment –Cases you need to start reviewing for Skeleton Outline –Quebec legal system

17 Interesting facts circuit judges: assizes. Why dont judges have to retire until 70 or 75? County and District courts now merged with superior courts judicial independence: purpose is to promote judicial impartiality –Valente decision ( ) security of tenure financial security judicial control over adjudicative matters judicial discipline: Canadian Jud Council & prov. Jud. Councils (eg. – Hryciuk, suspended from Ont Ct of Justice after judicial inquiry) Trial Courts: Improvisors (~10%) –no single process, but for most outcomes would be the same Strict Formalists (~ 20%) –particular process followed, and always leads to the same conclusion. Pragmatic formalists (~45%) –particular process followed (check list, shifting balance, water rising), but judges might decide differently. Intuitivists (~25%) –gut feeling

18 Courts and Constitution Appeal courts : –Panel process different from single judges in trial courts Supreme Court of Canada –Primarily a public law court (~100 cases / year; few pte) –leave to appeal (~600 apps) Problems with justice system –for some litigants and lawyers, a game –delay in clients interest (about half of trial lawyers) –judges limited by adversary system re control of caseflow Role of courts: dispute resolution, prevent abuse of power, official const. philosophers, pawns in other peoples battles Canadas constitution: 1. Written parts a)Canada Act, 1982 (British statute that makes CA, 1982 law and declares that no British statute will in future extend to Canada) b) S. 52 CA 1982: ~30 statutes and orders listed in the schedule to the Schedule to the Const. Act, 1982, most importantly the Constitution Act, 1867 (formerly called the BNA Act; contains division of powers), and the Constitution Act, 1982 (contains the Charter and the five amending formulas) - Others: statutes & orders established new provinces, or amended the BNA Act.

19 Garth Stevenson: Origins and Objectives of Canadian Confederation An analysis of the motives behind the 1978 confederation from a political economy perspective Sheds some light on the political compromises behind the division of powers in Ss 91, 92, 93 & 95 of the CA, 1867 Strategic and economic motives Opponents of confederation Terms of union Shortcomings of the written constitution from Stevensons perspective

20 See highlights on the Canadian Constitution on Memorize bolded parts of this document CONSTITUTION ACT, 1867 Ss. 56, 57 & 90: reservation and disallowance 91. the "preamble" to S.91 is the "POGG" clause (peace, order and good government): It shall be lawful for [Parliament] to make laws for the peace, order and good government of Canada, in relation to all matters NOT coming within the subject-matters assigned exclusively to the Provinces in S. 92. For greater certainty, Parliament may make laws with regard to matters covered by the following list. However, this list merely provides examples, and these examples are not to be interpreted by courts as limiting Parliament's power. 2. Trade and Commerce 2A. Unemployment insurance (added in 1940) 3. Unlimited taxing powers (direct and indirect) 14. Currency & coinage 15. Banking 24. Indians, and lands reserved for Indians 27. The Criminal Law

21 92. The provincial legislatures have exclusive power to make laws regarding the following: Direct taxation 10. Local works and undertakings EXCEPT a) interprovincial railways & telegraphs b) international shipping c) any works that Parliament has declared are within federal jurisdiction. (declaratory power): eg. Grain elevators, local railways, canals, bridges, some mines, some factories. Used 470 times, but not since Property and civil rights (meaning private law) 14. The administration of justice in the province, including the establishment of all courts except the Supreme Court of Canada and the Federal Court, and prosecution of criminal cases. 16. All matters of a merely local or private nature. 92A (added in 1982). The provinces can regulate non-renewable natural resources, including forestry and electrical energy, and can even regulate exports. However, the federal government can also regulate exports in this area, and federal laws are paramount.

22 Education and concurrent powers 93. The provinces control education, except that the feds can intervene to protect Roman Catholic schools in Ontario and separate schools in any province that existed at the time the province entered Confederation. 95. Agriculture and Immigration are concurrent powers (both the feds and the provinces can legislate). If there is a conflict, the federal legislation is paramount.

23 Judiciary provisions 96. The federal cabinet has the power to appoint all superior court judges in the provinces. 99. Superior court judges cannot be removed except by joint address of the Senate and House of Commons. Superior court judges hold office "during good behaviour" to the retirement age of 75 (to protect judicial independence) The salaries of superior court judges are set by Parliament, not by the cabinet (to protect judicial independence) Parliament may establish a Supreme Court of Canada (which it did in 1875) and other courts to adjudicate federal laws other than the Criminal Code (eg. the Federal Court, which hears federal administrative law cases, and the Tax Court.)

24 Other important provisions in CA, The provinces own the natural resources within them There shall be no customs duties or restrictions of trade between provinces Parliament can make any law to implement British Empire treaties, even if the law invades provincial jurisdiction. However, after 1931 the courts interpreted this section to mean that provincial approval is required for any non-British Empire treaty which affects matters under provincial control English and French can be used in Parliament, and Canada's laws must be in both languages. Likewise, English or French may be used in Quebec's National Assembly, and Quebec's laws must be in both languages. Either language may be used in the courts of Quebec, the Supreme Court of Canada, the Federal Court and the Tax Court.

25 CA, 1982 Ss 1-34: The Charter of Rights (you dont need to know the content of the Charter until January – April course) S. 35: Aboriginal rights (dont need to know until January – April) S. 36: commitment to equalization payments, so that poorer provices can provide adequate services.

26 Canadian Constitutional Amendment In Canada, there are 5 amending formulas for the constitution: –Unanimity formula (Queen, GG, LGs, composition of SCC, senate floor rule, federal language rights, amending formulas –some but not all (eg. language within province, denominational school rights, change in prov. borders) –Provinces can amend own constitutions –Fed govt can amend its internal constitution –General amending formula (seven-fifty): the rest of the constitution (incl div of powers & Charter) can be amended with Parliament, 7 out of 10 provinces representing 50% of pop. Dissenting provinces may opt out, and get reasonable compensation if amendment affects culture or education.

27 AMENDING FORMULAS (more detail) & 42. The 7-50 formula. Most of the narrow constitution, including the Charter of Rights and the division of powers in ss. 91 and 92 of the C.A., 1867, can be amended with the agreement of seven provinces representing 50% of Canada's population and Parliament. (That is, either Ontario or Quebec must be included.) Up to 3 provinces could opt out of such an amendment. If they opt out of an amendment which transfers educational or cultural matters to Ottawa, these provinces shall be compensated financially by Ottawa (Ottawa must give to the opting-out provinces what they are spending, per capita, on the opting-in provinces). There is a 3-year time limit which begins with the first resolution for amendment (which could be in any provincial legislature or Parliament). No amendment may take effect according to this procedure until at least one year after the first resolution has passed (unless all governments have passed resolutions).

28 7-50 formula continued No province can opt out of an amendment affecting: a) proportionate representation of the provinces in the House of Commons b & c) the Senate d) the Supreme Court of Canada e) the extension of existing provinces north f) establishment of new provinces

29 Amending forumlas (contd) 41. The unanimity formula. Unanimous agreement of all provincial legislatures and Parliament is required for amendments affecting: a) the Queen, Governor General and Lieutenant-Governors b) the "Senate floor rule" (no province can have fewer MPs than Senators). c) the use of English or French in S. 133 or the Charter d) the composition of the Supreme Court, and e) changes to the amending formulas. 43. The "some but not all" forumla: Amendments which affect some but not all provinces need by approved only by the provincial legislatures affected and Parliament. 44. Parliament may amend parts of the constitution that affect only Parliament. 45. Legislatures may amend parts of their constitutions that affect only them.

30 U.S. & Canada: Comparison of Constitutional amendment process U.S.: Congress proposes amendments (2/3 of both houses) Proposals have to be ratified by ¾ of state legislatures, or ¾ of state constitutional conventions Comparison: –U.S. constitution amended 17 times in 21 decades (rate.08/year) –Canadian constitution amended 32 times in 13 decades (.23 to 1982, and 9 after) (rate.24/year) –Canadas constitution is more flexible Major Can. amendments: –1940: unempl ins –1951: old age pensions –1964: old age pensions broadened to include supplementary, survivors, disability (CPP) –1982: Charter and amending formulas –1983: S. 35.1: must be a constitutional conf including native peoples before native rights amended – : 3 amendments to den school rts in Nfld –1997: den school rts Quebec –1993: equality of Fr & Eng in New Brunswick

31 Amendment failures Canada – : six failed attempts to find a domestic amending formula 1971 – Victoria charter came close 1982: success achieved after SCC decision (discussed later in course) –Meech Lake & Charlottetown Accords (discussed later) U.S.: 6 amendments proposed by Congress but not ratified by states, including ERA (equal treatment of women in all legislation) Impact of court decisions: –1940, 1951 amendments in Canada a reaction to court decisions –Civil war amendments in U.S. a reaction to court decisions –1918: SCUS decision led to amendment to prohibit child labour. 1938: Roosevelt threatened to pack court. Court overruled 1918 decision.

32 Informal constitutional amendment United States –Washington: cabinet advisory & responsible to president –Jefferson: declared that U.S. could purchase new territory; never challenged in court –Political parties developed without constitutional amendment –Congress assumed vast powers over economy in 1930s and 1940s Canada –Feds assume they have power to do something under POGG, or provinces assume they have power to do something under 92(13) –After 1995, fed legislation passed to prevent cabinet ministers from proposing amendments under without support of Quebec, Ont, B.C., 2/3 prairie provinces, 2/4 Atlantic; Quebec recognized as distinct society –Clarity Act (2000) Was Dicey right that in the U.S., judges are supreme because they declare the constitution? Does Diceys analysis apply to Canada?

33 Unwritten parts of the constitution 1. Constitutional conventions -Rule of law -Judicial independence -Responsible government -cabinet responsible to the legislature -Ministerial accountability -Cabinet solidarity -Gov Gen and Lieut Govs must act according to the advice of the first minister, unless that advice is unconstitutional -The leader of the group in H of C or prov leg that can command the support of the majority of members becomes first minister and chooses cabinet. First minister tells GG or LG when to call election, unless another group can form govt 2. The ratio in the judicial decisions about the meaning of the constitution (eg. the ratio in the cases well be studying in this course)

34 The role of courts in Canada Why do we have open courts? There are some exceptions to open courts –Young offenders –Application to a judge for a closed hearing –Sexual assault trials –Preliminary hearings in notorious cases – to permit fair jury selection –Is closing the court justified in these situations? Does open court concept impact presumption of innocence? Dignity and decorum –Gowns, address to judge –Dress codes Television Adversary system ADR (alternate dispute resolution)

35 Reforms in Ontario Zuber report (1987) –Create administrative regions –Give judges, lawyers, and public more input into court administration AG Ian Scott (1989) –Created 7 regions to administer superior and inferior courts –Merged High Court and County/District Courts to form Superior Court of Ontario Provincial Court renamed Ontario Court of Justice, with criminal & family divisions Eventually, Scott wanted to merge the Ontario Court and the Superior Court into one trial court. Give all provincial court judges S. 96 appointments. Unified trial court idea abandoned by NDP and Conservatives. Will it be revived by AG Michael Bryant?

36 Cases from course for mock trial (summaries on Meaning of Peace, Order and Good Government (POGG) (some refer to federal criminal power): –Russell v. the Queen –Local Prohibition Case –Re Board of Commerce Act –Snider –Employment and Social Insurance Act Reference (1937) –A.G. Ont. v. Canada Temperance Federation (1946) –Johannesson v. West St. Paul (1952) –Reference re Offshore Mineral Rights (1967) – Ref re Anti-Inflation Act (1976) –Queen v. Crown Zellerbach (1988)

37 Property & Civil Rights vs. Trade and Commerce Parsons Proprietary Articles Trade Assoc. Reference Natural Products Marketing Reference Ontario Farm Products Marketing Act Reference Chicken and Egg Reference Labatt

38 Treaty-making cases -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 treaty-implementation powers are new, and fall under POGG. Labour Conventions Case (1937) –Matters that fall under S. 92 can only be implemented by the provinces.

39 Quebec and Civil Law Approach Codification of laws –Coutume de Paris (1580) –Confusion after 1759 –Royal Proclamation (1763) –Quebec Act 1774 –Codification: 1866: CCLC –1994: CCQ Deductive Reasoning Inquisitorial System (not in Quebec) Code, la doctrine, precedent Quebec courts: –Court of Appeal (s.96) –Superior Court (s.96) –Court of Quebec (provincial) –1994 CCQ: ten books –Civil and common law approaches coming closer together

40 Public Law I: September 30, 2005 Topics covered today: –The role of courts in Canada –Reforms in Ontario Courts –Provincial court judges remuneration reference (1997) –Stare decisis –Natural Justice & Fairness –Rules of statutory interpretation –legal presumptions –Articles by Waddams and McCormick

41 The role of courts in Canada Why do we have open courts? There are some exceptions to open courts –Young offenders –Application to a judge for a closed hearing –Sexual assault trials –Preliminary hearings in notorious cases – to permit fair jury selection –Is closing the court justified in these situations? Does open court concept impact presumption of innocence? Dignity and decorum –Gowns, address to judge –Dress codes Television Adversary system ADR (alternate dispute resolution)

42 Reforms in Ontario Courts Zuber report (1987) –Create administrative regions –Give judges, lawyers, and public more input into court administration AG Ian Scott (1989) –Created 7 regions to administer superior and inferior courts –Merged High Court and County/District Courts to form Superior Court of Ontario Provincial Court renamed Ontario Court of Justice, with criminal & family divisions Eventually, Scott wanted to merge the Ontario Court and the Superior Court into one trial court. Give all provincial court judges S. 96 appointments. Unified trial court idea abandoned by NDP and Conservatives. Will it be revived by AG Michael Bryant?

43 Role of Judges and Lawyers Training lawyers (Quebec and elsewhere) Careers Officer of court Codes of Ethics (Gall) Honesty Avoid conflicts of interest Inter-provincial law firms Judges: interpreters or legislators? Judicial appointments: –Federal (see link) –Provincial (see link) Qualities of a good judge Judicial ethics (see link) Judicial Discipline –Provincial judicial councils (for provincially-appd js) –Canadian judicial council (for S. 96 & S. 101 judges) (see link on web page)

44 Prov Court Judges Remuneration Reference [1997] Background: budget cuts of 1990s Govts in PEI, Man & Alta reduced salaries of Prov Ct judges as part of general salary reduction plan, but failed to follow correct procedures, according to many judges, who thought govts violated jud ind. Prov govts sent reference questions to their Prov. Courts. What is a reference question? Holding (Lamer+5): judicial compensation commissions must be established to protect judicial independence (11(d) of Charter and convention). The JCCs act as a buffer between governments and judiciaries re salary issues. Governments are not required to implement the recommendations of the JCCs, but are required to take the recommendations seriously. The govts of PEI, Man and Alta acted unconstitutionally by not going through JCCs to reduce judicial salaries. La Forest dissent

45 Stare Decisis Stare decisis: a rigid form of doctrine of precedent Ways around stare decisis: –Distinguish –Ratio is really obiter –Per incuriam –Emphasize different majority opinion –ignore Hierarchy of courts determining application of stare decisis SCC can choose not to follow precedent. Ont CA: policy: follow What if conflicting precedents?

46 Natural Justice & Fairness Natural Justice –Nemo judex in sua causa –Audi alteram partem Functions of Admin. Agencies: –Legislative –Administrative –Executive –Judicial or quasi-jud. Judicial review –Jurisdictional –Abuse of power –Natural justice Jud or quasi-jud –Doctrine of fairness Privative clauses –Cant hide behind priv clause if const issue, or patently unreasonable

47 Rules of Statutory Interpretation (1) Why are rules needed? Intent of legislature reasonable person test 1.Plain meaning rule 2.golden rule: avoid absurdity & inconsistency 3.What was the mischief & remedy? Specific words help explain general ones nearby Express inclusion of some items implies exclusion of items not mentioned Aids: –Interpretation statutes –Definition sections of statutes

48 Rules of Statutory Interpretation (2) More Aids: –Context in statute –Other similar statutes –Legislative history Minimal weight. Why? Books on rules of interpretation, & legal dictionaries French & English text International conventions & treaties (sometimes) Preamble (but not marginal notes) Headings (except in Ontario – excluded by statute)

49 Presumptions Criminal law: in favour of accused Taxation law: in favour of taxpayer Against alteration of common law Mens rea (guilty mind), unless express absolute liability Against retroactivity Against ousting jurisdiction of courts For crown immunity (now mostly replaced by statutes allowing suits against crown) Every word is deliberate Specific given precedence over general More recent > older Leg. did not intend drafting error (cts can correct)

50 Waddams Law is a continuing process of attempting to solve the problems of a changing society, not just a set of rules. Law is both academic and practical Ignorance is no excuse (necessary fiction) Differences between justice and the law –Should judges try to get around stare decisis to avoid bad results? Hard cases make bad law. The rule of law. Should public officials be allowed to act outside the law? Rationality vs. consistency Providing reasons promotes rationality & consistency Can a judge ever be impartial? Judicial independence leads to jud. Isolation Public policy is an unruly horse, dangerous to ride Like cases should be decided alike ( acad dishonesty precedents ) Harrison v. Carswell (1976): Dickson (majority) v. Laskin (minority) Conflict between individual and group rights Social change: law cannot lag far behind, or get too far ahead, of social change. (marital property) Law reform commissions

51 McCormick: Courts, Law & Society McCormick presents a social science study of courts Judicial power = impact & discretion. Existed before 1982 Western conception of law: lawyers have a distinct way of thinking. –Abstraction: legal process filters out irrelevant details, simlifies –Focus on general rules: the punishment fits the rule (not the crime) –Reasoning by analogy to fill in gaps in rules (whoever picks the examples wins the argument) –Legal system is highly procedural, with severe consequences for breach of procedure. Hence, delays, technicalities. Lawyers & judges shape rather than discover outcomes economy of judicial resources (Should highly-paid appeal court judges hear sentence appeals? Or should sentencing be carried out by sentencing boards, not judges?) The legal/judicial system is a serious attempt, administered in the main by conscientious individuals, to deal with intractable problems.

52 Public Law I October Rules of statutory interpretation Legal Presumptions in judicial decision- making Peace Order and Good Government (I) –Russel v. the Queen –Local Prohibition Case –Board of Commerce –TEC v Snider Review for Midterm Exam Oct. 14

53 Rules of Statutory Interpretation (1) Why are rules needed? Intent of legislature reasonable person test 1.Plain meaning rule 2.golden rule: avoid absurdity & inconsistency 3.What was the mischief & remedy? Specific words help explain general ones nearby Express inclusion of some items implies exclusion of items not mentioned Aids: –Interpretation statutes –Definition sections of statutes

54 Rules of Statutory Interpretation (2) More Aids: –Context in statute –Other similar statutes –Legislative history Minimal weight. Why? Books on rules of interpretation, & legal dictionaries French & English text International conventions & treaties (sometimes) Preamble (but not marginal notes) Headings (except in Ontario – excluded by statute)

55 Presumptions Criminal law: in favour of accused Taxation law: in favour of taxpayer Against alteration of common law Mens rea (guilty mind), unless express absolute liability Against retroactivity Against ousting jurisdiction of courts For crown immunity (now mostly replaced by statutes allowing suits against crown) Every word is deliberate Specific given precedence over general More recent > older Leg. did not intend drafting error (cts can correct)

56 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, convicted Previous SCC decision: City of Fr. v. Queen: intra vires under T&C (91-2) JCPC decision: Sir Montague Smith. Russells lawyer: delegation argument – Parliament cant delegate its powers. Legislation says GG may … 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 p&s? Central subject matter is public order & safety, not T&C Not local because of local option. (analogy: health orders) Therefore, not under s.92. No comment on SCCs decision in Fredericton re s. 91(2), but seems to emphasize POGG Gap (residual) branch of POGG

57 Local Prohibition Case, 1896 Impugned: Onts Local Prohibition Act (1890) –Townships, towns, villages (& cities) –Appeal from SCC ref Lord Watson Feds ( under POGG) can trench on s.92 only if incidental to a legit fed purpose –otherwise, all of s.92 falls in s. 91. –s.94 issue (unify common law in anglophone provs) Ontario argued that legis. falls under 92(8): (municipalities). Watson: not a convincing argument Pith & sub: 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 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 hinted at: a subject matter can become a matter of national concern and then feds can regulate under POGG.

58 Board of Commerce & Combines & Fair Practices Acts (1922) Impugned legislation: fed anti- profiteering & anti-hoarding legis. after WW I (1919) Board stated case to SCC re Ottawa clothing stores Appeal from SCC: Duff (BC) vs. Anglin (judges evenly divided) Viscount Haldane for JCPC Pith & substance: combines & hoarding in peace-time Cubby-hole: 92(13) S. 91 too?: –Crim power? No – not like incest (important decision for those writing about criminal power in writing assignment) –T&C: no; T&C is supplemental to other federal powers –POGG? Only in highly exceptional circumstances [emergency doctrine] (see p. 66) Ultra vires 3 aspects of POGG: national concern (obiter in Local Prohibition), emergency (B of C), residual (Russell)

59 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, cant be residual because 92(13) applies. As well, theres no emergency. Rule of interpretation: specific takes precedence over general. See Haldanes 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

60 October 21/05 POGG II October 21/05 Today: Mr. Justice Michael Tulloch, Supreme Court of Ontario, Brampton Employment and Social Insurance Act Reference (1937) A.G. Ont. v. Canada Temperance Federation (1946) Johannesson v. West St. Paul (1952: SCC no longer a captive court.) Reference re Offshore Mineral Rights (1967) Ref re Anti-Inflation Act (1976) Queen v. Crown Zellerbach (1988) Beginning with Can Temp Fed., cases, these cases demonstrate an expansion of judicial interpretation of POGG, as compared with its diminution during the Watson- Haldane era.

61 Employment & Soc Ins Ref (1937) Impugned legislation: Employment & Social Insurance Act, 1935 (part of new deal legislation to get Canada out of depression). It created an unemployment insurance program in Canada, for the first time. Opposition Leader Mackenzie King: it's good legislation, but ultra vires. When he became Prime Minister later in 1935, King referred the question of the validity of the Act to the SCC, which in fact ruled the legislation ultra vires. Lord Atkin at JCPC: agreed Atkin: the subject matter, unemployment insurance," falls under s. 92(13). Therefore, neither POGG nor T&C can be used to justify the legislation as federal. Louis St. Laurent (future PM) was the lawyer for the federal crown. He argued that the impugned legislation can be supported under fed. taxation and spending power. Atkin did not agree. Result: constitutional amendment in 1940 supported by all the provincial premiers and the federal Parliament, which gave the federal government the power to create an unemployment insurance program.

62 AG Ont. v. Can Temperance Federation (1946) Impugned: Canada Temperance Act, 1927 Ont Referred question of validity of Act to Ont CA. Lost there and in SCC. Appeal to JCPC by Ont (supported by AB & NB) Issue: given Snider decision, should JCPC overrule Russell (1882)? 1927 Canada Temperance Act essentially same as 1882 Canada Temperance Act. In Snider, Haldane wrote that there must have been an emergency in Ontario argued that there was no emergency in Viscount Simon: Russell "decision firmly embedded in Canadian constitutional law." Simon wrote that Haldane's explanation in Snider was "too narrowly expressed." There 1878 Act was permanent, not emergency legislation. Subject of legislation was really a matter of inherent national concern. This case represents the revival of the national concern branch of POGG.

63 Johannesson v. West St. Paul, 1952 (SCC) Impugned: the part of the Man. Municipal Act allowing municipalities to regulate aerodromes. Johannesson needed a particular location on Red River to repair his bush planes. Mun. of West St. Paul opposed his proposed aerodrome: would be too noisy. Aeronautics case (1932) upheld fed regulation under S. 132 of BNA Act (feds re Br Empire treaties) Current fed regs are under Chicago Convention (1947), not a Br Empire Treaty (but 3 judges thought this didnt matter) Five decisions: Kerwin, Locke, Rinfret, Kellock & Estey (seriatim), all reaching the same conclusion: the impugned legislation is ultra vires the province (ratio). Two other judges concurred, but didnt write separate decisions. Does aeronautics fall under S. 92 (13) or (16)? Yes, but aeronautics transcends them as a matter of national concern under POGG. (What does inter alia mean?) This case further strengthens the national concern branch of POGG.

64 Ref re Offshore Min Rights of BC (1967) Reference to SCC from fed cabinet: who owns & can exploit the ocean floor below the low water mark to a 3 mile limit? A hot political issue in the 1960s; feds hoped this reference would settle the issue in their favour. Opinion of "the court." (Why are some opinions per curiam?) S. 109: provincess own "lands, mines & minerals." Where was BC boundary in 1871? Did it extend beyond low water mark? Conflicting precedents existed. SCC: British Crown retained control over Canada's territorial sea until Statute of Westminster Now territorial sea part of territory of Canada, not BC : Quebec & Atl prov's applied pressure on Ottawa for undersea resource royalties. 1984: SCC ruled that Canada owns Hibernia. Mulroney govt negotiated "Atlantic accord:" Nfld offshore treated like land based resources by feds.

65 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), & T&C, so its intra vires. Ont. order-in-council is ultra vires; needs primary legislation.

66 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 Haldanes emergency doctrine. Inflation is not a matter of national concern. Legislation is ultra vires.

67 Queen v. Crown Zellerbach (1988) Impugned: federal Ocean Dumping Control Act, pursuant to int. treaty of CZ dumped wood waste in "internal" salt waters in a strait on Vancouver Island CZ claims fed legislation is overbroad because the wood waste did not pollute. Feds: defend under POGG "national concern" doctrine Feds won 4-3 Le Dain (+3 judges): Created "provincial inability" test. Ocean pollution is a matter of national concern. It can't be regulated effectively by provinces. If coordinated provincial regulation were possible, there would be no provincial inability. Fed regulator should decide what does or does not pollute. La Forest (+2judges): dissents; agrees with CZ. No evidence that it's necessary to monitor everything dumped.

68 Oct. 28: Decisions dealing with Trade & Commerce [91(2)] vs. Property & Civil Rights [92(13)] Cases discussed today: –Citizens Insurance Co. v. Parsons (1881) [Kit, p. 218] –Board of Commerce & Combines & Fair Practices Acts (1922) [review] –Proprietary Articles of Trade Assoc. (1931) [Kit, p. 235] –Natural Prods Marketing Ref (1937) [Kit, p. 248] –Ontario farm products marketing case (1957) [not in kit] –Chicken and Egg Reference (1971) [Kit, p. 274] –Labatt v. A.-G. Canada (1980) [not in kit] –General Motors v. City National Leasing (1989) [WebCT]

69 Citizens Insurance Co. v. Parsons, 1881 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 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. -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 incorp. Cos with national objective, but doesnt prevent provinces from regulating intraprovincial transactions –Three aspects of T&C: international, interprovincial and general. –He doesnt define these categories. Left for later cases.

70 Board of Commerce & Combines & Fair Practices Acts (1922) [review] Impugned: fed anti- profiteering legis. after WW I Board stated case to SCC re Ottawa clothing stores Appeal from SCC: Duff (BC) vs. Anglin Viscount Haldane wrote decision Pith & substance: combines & hoarding in peace-time Cubby-hole: 92(13) S. 91 too?: –Crim power? No – not like incest –T&C: no; T&C is supplemental to other federal powers –POGG? Only in highly exceptional circumstances [emergency doctrine] Ultra vires 3 aspects of POGG: nat concern, emerg, residual

71 PATA; Nat Prods Marketing Ref Proprietary Articles Trade Assoc ref. (1931) –Impugned: federal anti- combines legislation (akin to Bd of Commerce case) –Lord Atkin for JCPC –Intra vires under fed. Criminal power (91[27]) –Test: penal consequences –Bd of Commerce case distinguished. Proper due process safeguards in instant case –Haldane wrong (Bd of Com & Snider) that T&C is subordinate Natural Products Marketing Act Ref, 1937 –Impugned: fed marketing legis as part of new deal –All provinces supported and had dovetailing legislation –Lord Atkin: ultra vires because it trenches on intra-provincial marketing in 92(13) –But provincial marketing legis had also been struck down as trenching in interprovincial T&C power. –Can any marketing legislation be intra vires?

72 Ontario farm products marketing case (1957) Fed govt referred Ontario marketing legislation to SCC. Majority: intra vires, if extra-provincial trade not affected. Judges explored the reality of the movement of produce being traded more than previous courts. Invoked aspect doctrine: trade can be a provincial matter for one purpose, and a federal matter for another. Judges seemed to want to find a way out of the stalemate created by the Natural Products reference of 1937.

73 Chicken & Egg Reference (1971) 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: (all agreed ultra vires) –Martland: Pith and substance: interprovincial T&C.

74 Chicken & Egg (2) Laskins first major decision. –Annoyed that case is fabricated. Why? –Obiter since Parsons led to attenuation of literal interp of T&C. –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 T&C Scholarly analysis both of case law and realities of trade in eggs & other goods Not necessary to invoke s. 121

75 Labatt v. A.-G. Canada (1980) Impugned legis: Fed food & drug act regs setting standards for light beer. In several recent cases, SCC failed to allow feds to use general aspect of T&C to regulate fair practice, or regulate grades of apples. Estey (+5): impugned legis. Really local in character. Not international, and not really interprovincial Laskin (+2): dissents. Feds can equalize competitive advantage under interprov T&C. Also, S. 121 prohibits interprov trade barriers.

76 General Motors v. City National Leasing (1989) Impugned: S. 31(1) of the federal Combines Investigation Act (CIA), which creates a civil cause of action for some infractions of the Combines Investigation Act. Normally, the subject-matter, civil causes of action, is in S. 92(13). The CIA prohibits discrimination or favouritism when selling products in Canada. CNL claimed that GM was giving preferential interest rates to CNLs competitors Ontario trial judge (on a motion) found s. 31(1) ultra vires Parliament, as it trenches on 92(13). Motion ruling appealed to Ontario Court of Appeal, which overruled trial judge and found s. 31(1) intra vires Parliament.

77 General Motors v. City National Leasing (1989) (2) Supreme Court of Canada (Dickson for unanimous 7- judge panel): S. 31(1) is intra vires Parliament under the second branch of S. 91(2) of CA 1867 (Trade & Commerce): general trade and commerce. S. 31(1) does fall within 92(13). In order for federal legislation that falls under 92(13) to be valid: –Must be part of a general federal regulatory scheme –Scheme must be monitored by the federal regulatory agency –Legislation must be concerned with trade as a whole, not the regulation of a particular industry regulated by the provinces –provincial incapability: provinces constitutionally incapable of enacting similar legislation –Failure to include one or more provinces or localities in the general regulatory scheme would jeopardize successful operation of scheme.

78 Public Law I: Nov. 4/05 Criminal Law, Cooperative & Executive Federalism R. v. Hydro Quebec (1997) Ref re Firearms Act (2000) Bedard v. Dawson Westendorp v. The Queen Nova Scotia Interdelegation Case PEI Potato Marketing Board Case Aeronautics Case Radio Case Labour Conventions Case Stevenson article on federalism (Kit, 124)

79 R. v. Hydro-Quebec (1997) Impugned: Canadian Environmental Protection Act, SC 1988, ss 34-35, and regulations issued by L. Bouchard in Hydro Quebec charged in 1990 with releasing PCBs contrary to regs. HQ claimed Act and regs ultra vires. Claim: dont fall under any heads in s. 91. Won at trial and Q Ap Ct. Granted leave to appeal to SCC in decision: leg and regs intra vires. Majority: –La Forest, LHeureux- Dube, Gonthier, Cory, McLachlin. –Environment is not a distinct subject-matter that falls under ss. 91 or 92. If pith and substance of leg falls under s. 91 or 92, legislation is valid. (Do you see double aspect doctrine here?)

80 Hydro Quebec (2) Does leg fall under 91(27) [crim law]? –Feds can decide what evils they want to supress, with penal sanction. –Fed criminal power subject to fundamental justice safeguards in Charter; higher level of mens rea required for true (serious) crimes. –Criminal power may not be employed colourably (used as an excuse to invade provincial powers.) Test: does a legitimate public purpose underlie the prohibition? –Protection of environment is a legitimate public purpose for criminal law. –Prot of Environ is an international problem, requiring action by all govts. –Provinces are not precluded from acting as well.

81 Hydro Quebec (3) –Hydro Quebec argued that the legislation is regulatory, not criminal. Crim. Leg. simply prohibits. –Majority: the prohibition is limited and targeted and avoids resort to unnecessarily broad prohibitions. –Impugned sections of Act do not deal with prot of environment generally, but control of toxic substances. This requires precision because of complexity of subject. –Act targets only subjects dangerous to the environment. –Therefore, individual assessment of dangers is needed. –Regulations are appropriate because of complexity, and need for ongoing assessment and fine-tuning. –Because intra vires under 91(27), not necessary to consider POGG argument.

82 Quebec Hydro (4): Dissent Lamer, Sopinka, Iacobucci, Major –Criminal power argument: prot of environment is a legit public purpose under crim law under prot of human health, but this leg goes well beyond the goal of protecting health. –Regs are not really intended merely to protect health, but to regulate environmental pollution. A valid criminal law must establish a prohibition. Ss dont; they regulate. –Ministers of Health & Envirnoment can, through reg (OC), place specific substances on a list, and regulate their use. –Its an odd crime where a Minister has discretion to prohibit certain conduct from time to time.

83 Hydro Quebec (5) –Provinces can be exempted from leg if they have the same regulations. Prov. Legislation cannot be criminal. –Giving feds the power to define toxic and thus regulate allows feds to invade prov jurisdiction unfairly. POGG national concern? –Must be a new matter with singleness, distinctiveness and indivisibility. Dn of toxic substance is too broad to meet this test. –POGG National Concern? The dn includes substances that cross prov boundaries, but also includes substances that dont. Provincial control is possible. Therefore, Prov inability test (Cr Zellerbach) not met. T&C: no.

84 Reference re Firearms Act (2000) Early 1990s: an increase in firearms-related killings, especially men killing former spouses. Each year, there were about 1000 deaths from firearms. Federal response: Firearms Act of 1995, which required registration of all firearms. A great deal of opposition from gun owners in Western and Northern Canada (farmers, hunters), eg. Ted Morton (who hunts for recreation). Alberta government: sent reference question to Alberta Court of Appeal: is Firearms Act intra vires federal jurisdiction? Albertas argument: the regulation of firearms falls under 92(13), property and civil rights, and the Act is therefore ultra vires. Alberta CA upheld the law in a 3-2 decision.

85 Ref re Firearms Act (contd) Supreme Court: all 9 judges heard the case; decision was by The Court. Supreme Court: The law in pith and substance is directed to enhancing public safety by controlling access to firearms through prohibitions and penalties. This brings it under the federal criminal law power [s. 91(27)]. While the law has regulatory aspects, they are secondary to its primary criminal law purpose. The intrusion of the law into the provincial jurisdiction over property and civil rights is not so excessive as to upset the balance of federalism. legislation may be classified as criminal law if it possesses three prerequisites: a valid criminal law purpose backed by a prohibition and a penalty –The gun control law has a valid criminal purpose (promote public safety) –The law creates a criminal prohibition (cant possess a gun unless its registered) backed by penalties (summary conviction criminal code offence). Double aspect doctrine also applies: provinces can also regulate property such as guns.

86 Bedard v. Dawson (1923) In early 1900s, Quebec govt passed legislation prohibiting any property (home, apartment, or other building) from being used for disorderly purposes. A conviction for prostitution or gambling under the criminal code, if the prostitution or gambling occurred in that building, was proof that the building was being used for disorderly purposes. If the prohibited use continued, then any person could apply for an injunction to stop the building from being so used, and if it continued to be so used, the building could be locked up by the authorities.

87 Bedard vs. Dawson (contd) Bedard objected to an injunction – claimed that the Quebec legislation was really criminal legislation under 91(27) Dawson: the Quebec legislation is valid under 92(13). Supreme Court of Canada: 5-0 seriatim decision: the Quebec legislation is valid as a regulation of property and civil rights. The mischief is having a disorderly house in ones neighbourhood. The remedy is to prohibit such establishments. The feds cant regulate property in this way.

88 Westendorp v. The Queen (1983) In 1974, the City of Calgary passed a by-law to control use of streets and sidewalks (vendors, walking on sidewalks, clearing streets, parades, etc.) It had the authority to enact this secondary legislation because of the primary legislation: The Municipal Government Act [Alberta]. In 1981, Calgary amended the by-law to add s. 6.1, which prohibited anyone from approaching anyone on a city street or sidewalk for the purpose of prostitution. Lenore Westendorp was charged under the by-law, and pleaded not guilty on the grounds that the by- law was ultra vires provincial powers.

89 Westendorp (continued) Westendorp was acquitted at trial in the Provincial Court; judge found s. 6.1 of the by-law ultra vires. Crown appealed; AB Ct of Appeal found the by-law intra vires. AB Ct Ap decision by Roger Kerans: pith and substance of by-law is to control a nuisance, not to prohibit prostitution. Prostitutes can still operate elsewhere, off the streets. Appeal by Westendorp to Supreme Court of Canada. 9 judge panel; decision written by Chief Justice Laskin. Laskin: Kerans is wrong. The by-law regulates public morality, so it is a crimininal law. It is colourable, because it is dressed up to look like a simple regulation of the use of streets. Kerans reasoning is baffling. Charter issue: not relevant because the by-law is ultra vires the province and therefore the City.

90 Delegation Legislation can be primary (created by a sovereign legislature) or subordinate –Subordinate powers can be delegated to cabinets, reg. agencies, municipalities in same jurisdiction –Delegation outside judisdiction (eg. To another sovereign legislative body) called interdelegation Judicial rule: avoid overbroad delegation Manitoba initiative and referendum Act, 1916 Alberta initiative & referendum act, 1913 (tested in 1916) Remember anti-inflation reference (1976): ON OC invalid: no primary legislation Senate reference: 1979 –Parliament cant create a new legislative body and delegate primary powers Depression: all govts wanted old-age pensions Rowell-Sirois Report 1939: recommendated interdelegation Nova Scotia first prov to pass necessary interdelegation legislation. Referred to SCC.

91 Nova Scotia Interdelegation Case (1951) 7 judges wrote separate opinions. Decisions of Rinfret and Taschereau presented in course kit Rinfret: we have a right not to be subjected to laws unless passed by appropriate legislature. (Also, specificity rule: interdelegation not specifically mentioned in BNA Act.) Lord Atkin in Labour Conventions: shop of state…watertight compartments. Taschereau: if interdelegation were possible, everything might get interdelegated. This would turn confederation on its head. A constitutional amendment gave feds the right to enact old age pension legislation concurrently with provinces, with provincial paramountcy.

92 PEI Potato Marketing Bd v Willis (1952) Fed Ag Products Marketing Act (1949) –Feds could delegate power to reg interprov marketing to a prov bd OC in 1950 delegated interprov power to reg PEI pots to PEI PMB PEI refd Q of validity to PEI Sup Ct in banco. Conclusion: ultra vires, following NS InterDel. In SCC: NS InterDel disginguished.9 js, 6 decs. –Rinfret: Act clearly in fed juris (T&C interprov, Ag) –NS Case just applies to del to legislatures. –Feds can choose own board or agency (precedents) –Praises fed-prov cooperation

93 PEI Potato Marketing Bd contd Rand: would be valid if Feds created a separate interprov marketing bd, and appointed same people to it as on PEI Bd. Twin phantoms of this nature must, for practical purposes, give way to realistic necessities. Last JCPC decision: Winner (1954) declared that only feds can license vehicles for interprovincial purposes. Feds delegated interprov transport regs to prov. transport boards. Couglin (1968): Fed transport del upheld. No need for const ament re interdelegation

94 Treaty-Making Cases Treaty-signing power, and treaty- implementation 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 treaty-implementation powers are new, and fall under POGG.

95 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 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

96 Garth Stevenson Fedism & IntGov Rels Is decentralization only a result of JCPC? Since 1949, SCC balanced Prov revenues –5.9% of GNP (1960) –17.1% GNP (1995) –Feds: 16.5 – 19.1% Causes of decentralization: –Institutions –Geography –Cultural diversity –Quebec nationalism –Party system –Jurisdictional conflict Immigration, pensions, fisheries, ab land claims, prosecutions, training programs

97 Stevenson continued –Fiscal conflict Free trade, tax collection, cond grants, energy, trans payments Intergovernmental mechanisms for dispute resolution –Judicial review –Cooperative federalism (WWII – 1960) –Executive federalism (1960 – present) Central agencies Intergovernmental affairs departments –First Ministers Conferences Why is Canada the most decentralized country in the industrialized world?

98 Public Law I: Nov. 11/05 The Regulation and Taxation of Natural Resources, The Environment and Other Division of Powers Issues Canadian Industrial Gas and Oil [Kit, p. 303] Central Canada Potash [Kit, p. 306] OHarra v. B.C. [Kit, p. 397] CN v. Courtois [Kit, p. 398] AGT v. Canada [Kit, p. 399] Friends of Oldman River v. Canada [Kit, p. 403] Ont. Hydro v. Lab. Rels Broad [Kit, p. 407]

99 Can. Ind Gas & Oil v. Sask, 1977 (CIGOL) 1973: OPEC incd world price of oil –Windfall gains by oil companies in Canada –Sask govt wanted diff between old price and new price –Expropriated oil & gas land tracts, and imposed royalty surcharge equal to diff 7-2: Sask leg ultra vires Martland + 6: –Indirect tax, because paid for by consumers –Tax really an export tax; 98% of Sask oil exported to US, E Can –Dickson: S. 109 –Price sets the tax, so tax paid by the companies, not consumers –Decision led to S. 92A (amendment in 1982)

100 Section 109, CA 1867 S.109 –All Lands, Mines, Minerals, and Royalties belonging to the several Provinces of Canada, Nova Scotia, and New Brunswick at the Union, and all Sums then due or payable for such Lands, Mines, Minerals, or Royalties, shall belong to the several Provinces of Ontario, Quebec, Nova Scotia, and New Brunswick in which the same are situate or arise, subject to any Trusts existing in respect thereof, and to any Interest other than that of the Province in the same.

101 Cent Can Potash & AG Can v Sask, 1979 Background –1960s: potash mines developed in Sask; Sask can supply world for 1500 years. –Other major producer: New Mexico, but mines less efficient –By 1967, Sask potash selling in US at well below NM prod price –Most NM companies had interests in Sask mines –NM and Sask worked out a pro-rationing scheme to restrict Sask output so that NM mines could operate Govt in Ottawa not opposed, so no court challenge 1971: Sask changed pro- rationing formula; Cent Can Potash tried to force govt to honour old plan through mandamus. CCP went to court; Ottawa intervened

102 Cent Can Potash continued All 7 judges on panel, led by Chief Justice Laskin, found the Sask scheme unconstitutional. Provinces own natural resources, but this does not give them the power to control interprovincial or international trade and commerce. Any legislation that is in pith and substance an attempt to regulate interprovincial and international trade and commerce is ultra vires provincial powers. These two decisions led to a great deal of resentment on the part of the Western provinces, and led directly to the demand to include S. 92A in the constitutional package agreed to in November, (See Section 92A on web page under "Constitution Acts, 1867 to 1982.")

103 Section 92A: NON-RENEWABLE NATURAL RESOURCES, FORESTRY RESOURCES AND ELECTRICAL ENERGY 92A. (1) In each province, the legislature may exclusively make laws in relation to (a) exploration for non-renewable natural resources in the province; (b) development, conservation and management of non-renewable natural resources and forestry resources in the province, including laws in relation to the rate of primary production therefrom; and (c) development, conservation and management of sites and facilities in the province for the generation and production of electrical energy.

104 Section 92a (contd) (2) 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 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.

105 Section 92A (contd) (3) Nothing in subsection (2) derogates from the authority of Parliament to enact laws in relation to the matters referred to in that subsection and, where such a law of Parliament and a law of a province conflict, the law of Parliament prevails to the extent of the conflict. (4) In each province, the legislature may make laws in relation to the raising of money by any mode or system of taxation in respect of (a) non-renewable natural resources and forestry resources in the province and the primary production therefrom, and (b) sites and facilities in the province for the generation of electrical energy and the production therefrom….

106 OHarra v. British Columbia (1987) Impugned: a prov cabinet order under the B.C. Inquiry Act appointing a prov commission to inquire into injuries sustained by a man while in custody at a police station. Issue: does the inquiry invade federal jurisdiction over criminal law? Police officers thought it did, and petitioned B.C. Sup Ct to declare order ultra vires. Police lost in BC Sup Ct, BC CA, and appealed to SCC. Dickson +7: –inquiry does not invade federal jurisdiction –Inquirys purpose to get to the bottomof alleged police misconduct for disciplinary purposes. –If inquiry had been to determine criminal liability, or to inquire into a federal institution, or had violated rights, it would be ultra vires. Estey (dissenting): real purpose of inquiry is to identify wrongdoers preliminary to prosecution. Therefore, order is ultra vires. This decision is a precedent for the Westray decision of 1995.

107 CN v. Courtois (1988) Impugned: Quebec Occupational Health and Safety Act, as it applies to an investigation of an accident involving two CN trains. Issue: Can a province investigate an industry under federal jurisdiction, and make recommendations for changes to ensure safety? Quebec CA: an investigation by a provincial body might be OK if recommendations not binding on fed. Undertakings. SCC (Beetz + 6, unanimous): the real issue is whether the province has the constitutional authority to investigate a federal undertaking. Provinces do not have this power. The federal Occupational Health and Safety Act applies, not the provincial one. (summons duces tecum – a summons to attend with particular documents)

108 AGT v. Canada (CRTC) (1989) Impugned: authority of CRTC over Alberta Government Telephones (AGT) AGT (now Telus) was a provincial crown corp, provincially regulated. CNCP telecommunications wanted an order from CRTC in 1982 to facilitate interchange of communications. AGT objected, claiming crown immunity. Questions: a) is AGT an interprovincial undertaking under 92(10)(a)? B) If so, is AGT subject to CRTC regulations? Dickson + 4: AGT falls under federal jurisdiction under 92(10)(a). Although AGT does not have services outside Alberta, its customers can all make long-distance calls, and so the services it sells are really interprovincial in nature. AGT can claim crown immunity, but CRTC regulations can be changed to include it. This decision astounded many lawyers, according to Hogg. Wilson (dissenting): AGT cannot claim crown immunity.

109 Friends of Oldman River v. Canada Friends of Oldman River - an environmental group opposed to AB Govts plan to build a dam on the Oldman River west of Lethbridge (on Indian res) to store water for irrigation. (Supported by folk singer Ian Tyson, who has a ranch in Southern Alberta.) -AB govt did its own environmental assessment. -Feds have regulatory authority under: -S. 91(10), navigation & shipping -S. 91(12), sea coast & inland fisheries, & -S. 91(24), Indians, and lands reserved for Indians -Fed. Environmental Assessment & Review Process Guidelines Order requires fed. Depts of Transport & Fisheries to screen undertakings for env impact. Only navigation impact reviewed; fed depts of Env & Fisheries didnt do env assessment. 1987: fed Min of Transport approved -1988: project commenced. 1989: Friends asked Fed Ct for orders of certiorari of fed approval, & mandamus. Friends lost in trial div., but won in appeal div; fed approval order quashed. Appealed to SCC by fed govt

110 Oldman River continued SCC: 8-1 upheld order for cert & order to quash (but here mandamus inappropriate) -La Forest + 7: Fed Guidelines Order requires fed govt to assess env impact of an undertaking under all relevant heads of fed power. In this case, impact on fisheries and Indian lands was not reviewed. The Alberta crown is not immune; otherwise provinces could ignore fed jurisdiction -The environment is not a separate head of power. Both provs and feds can regulate aspects that fall within their own powers. Fed Guidelines Order only pertains to fed powers -- 91(10), (12) & (24). -The aspect of the Guidelines Order order which regulates fed agencies is intra vires either under 91(10), (12) & (24), or POGG. -Fed powers cant be used in a colourable fashion to interfere with prv powers. -Legitimate use of Guidelines may impact prov powers as long as the pith and substance of the fed action takes place under 91(10), (12) or (24). The Friends acted as expeditiously as possible; the fed & prov govts caused unnecessary delays to their litigation.

111 Ontario Hydro v. Ontario (Labour Relations Board) (1993) A society of employees of Ont Hydro applied for certification to represent employees to Ont Lab Rels Bd; opposed by a coalition of employees. Coalition argued that because nuclear power plants are federal undertakings under 92(10)(c), they must be certified under Canada Labour Code. Ont LRB agreed. Decision challenged by Society (supported by unions), and Ont Hydro. La Forest + 2, & Lamer: an industry under 92(10)(c) is under federal jurisdiction for labour relations. Sopkina +2 (dissenting): Parliaments jurisdiction over a declared work extends only to what is integral to the federal interest in the work. Parliament is interested in regulating nuclear power, not labour relations. (La Forest, however, argues that the two subjects are intricately connected.)

112 Nov. 18: Indians and the Division of Powers in Canada By: Kristopher Crawford-Dickinson BA (Hons), M.A., Dip. D.A., Dip. J.A., LL.B., PhD(c) The views expressed in this lecture (both the lecture notes and any accompanying commentary) are strictly those of the author. They should not be construed as any official or unofficial policy of any government body.

113 Objectives of Lecture 1)Provide the constitutional and legislative framework for how jurisdiction over Indians in Canada operates. 2)Define who is an Indian and what is meant by Lands Reserved for Indians. 3)Examine key judicial decisions regarding jurisdiction over Indians in Canada.

114 Constitutional Framework The Constitution Act, 1867, (U.K.) 30 & 31 Vict., c It shall be lawful for the Queen, by and with the Advice and Consent of the Senate and the House of Commons, to make Laws for the Peace, Order and good Government of Canada, in relation to all Matters not coming within the Classes of Subjects by this Act assigned exclusively to the Legislatures of the Provinces, and for greater Certainty, but not so as to restrict the Generality of the foregoing Terms of this Section, it is hereby declared that (notwithstanding anything in this Act) the exclusive Legislative Authority of the Parliament of Canada extends to all Matters coming within the Classes of Subject next hereinafter enumerated; that is to say, – … 24.Indians and Lands reserved for Indians.

115 Constitutional Framework Canadian Charter of Rights and Freedoms, Being Schedule B to the Canada Act, 1982, (U.K.) 1982, c 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.

116 Constitutional Framework Constitution Act, 1982, Being Schedule B to the Canada Act, 1982, (U.K.) 1982, c (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 treaty rights referred to in subsection (1) are guaranteed equally to male and female persons.

117 Constitutional Framework Important Notes About Constitutional Framework: The following is important to note about the constitutional framework regarding jurisdictional issues over Aboriginals in Canada: Federal Jurisdiction: The federal government has jurisdiction over Indians and lands reserved for Indians under s. 91(24) of the Constitution Act, Constitutional Entrenchment of Aboriginal Rights: Section 35(1) of the Constitution Act, 1982 constitutionally entrenches Aboriginal rights. Prior to 1982 Aboriginal rights existed at common law and therefore could be altered and/or extinguished by the federal government through ordinary legislation.

118 Legislative Framework Indian Act, R.S.C., 1985, c. I Subject to the terms of any treaty and any other Act of Parliament, 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 those laws are inconsistent with this Act or any order, rule, regulation or by-law made thereunder, and except to the extent that those laws make provision for any matter for which provision is made by or under this Act.

119 Legislative Framework Section 88 of the Indian Act in Regular Language Provincial laws of general application apply to Aboriginals except under the following circumstances: If they conflict with existing treaty rights If they conflict with any existing federal legislation If they conflict with any provisions in the Indian Act If they conflict with any order, rule, regulation or by-law made under the Indian Act

120 Who Is An Indian? Are Indians Indians? Are the Inuit Indians? Are the Métis Indians?

121 Who Is An Indian? Indians May Not Be Indians Indian Act, R.S.C., 1985, c. I-5. 7.(1) The following persons are not entitled to be registered: (a) a person who was registered under paragraph 11(1)(f), as it read immediately prior to April 17, 1985, or under any former provision of this Act relating to the same subject-matter as that paragraph, and whose name was subsequently omitted or deleted from the Indian Register under this Act; or (b) a person who is the child of a person who was registered or entitled to be registered under paragraph 11(1)(f), as it read immediately prior to April 17, 1985, or under any former provision of this Act relating to the same subject-matter as that paragraph, and is also the child of a person who is not entitled to be registered.

122 Who Is An Indian? Inuit May Not Be Indians Reference re: British North America Act, 1867 (U.K.), s. 91 (The Eskimo Reference), [1939] S.C.R Facts: A controversy arose between Parliament and the Legislature of Quebec over who had jurisdiction over the Eskimo living in Northern Quebec. The Province of Quebec argued that the Eskimo were Indians under s. 91(24) of the Constitution Act, 1867 while Parliament argued that the Eskimo were not Indians. To resolve this problem, Parliament sent a Reference Question to the Supreme Court of Canada. Issue: Are the Eskimo Indians under s. 91(24) and therefore under federal jurisdiction?

123 Who Is An Indian? Inuit May Not Be Indians Decision: The reference question was answered in the affirmative and the Eskimos are Indians. Ratio: Three decisions were issued in this case (none of which gained a majority perspective). Duff C.J. (Plurality Decision): Eskimos must be considered Indians because the official documents at the time referred to Eskimos as Savages, which was how Indians were referred to at that time.

124 Who Is An Indian? Inuit May Not Be Indians Cannon J. (Crocket J. Concurring): The Eskimo are Indians because the French word Sauvages (English for Savages) includes all present and future aborigines native subjects of the proposed Confederation of British North America. Kerwin J. (Cannon J. and Crocket JJ. Concurring) (Another Plurality Decision): The common definition of Indian at Confederation equated Eskimos with Indians and therefore Eskimos must be Indians. The historical record indicates that the Eskimo were categorized with Indians for census purposes.

125 Who Is An Indian? Inuit May Not Be Indians According to the Re Eskimo, the Inuit are Indians. However, according to s. 4(1) of the Indian Act, the Inuit are not Indians Section 4(1) of the Indian Act reads: 4.(1) A reference in this Act to an Indian does not include any person of the race of aborigines commonly referred to as Inuit.

126 Who Is An Indian? Inuit May Not Be Indians Are the Inuit Indians?

127 Who Is An Indian? The Métis may not be Indians R. v. Blais, [2003] 3 S.C.R Facts: The Appellant was charged for hunting without a license. At trial, the Appellant argued that he was exercising an Aboriginal (in this case Métis) right, which was protected under the Natural Resource Transfer Agreement. The Respondent Crown argued that the Natural Resource Transfer Agreement does not apply to the Appellant since the term Indian does not refer to the Métis Issue: Doe the term Indian in the Natural Resource Transfer Agreement include the Métis?

128 Who Is An Indian? The Métis may not be Indians Decision: Judgment for the Respondent, the appeal was dismissed. Ratio: The Métis are not considered Indians under para. 13 of the Natural Resource Transfer Agreement, which applies to Manitoba, Saskatchewan and Alberta as a result of the way in which the term Indian was used in the 1930s (i.e. the Métis were considered separate from other Indians in the 1930s).

129 Who Is An Indian? The Métis may not be Indians Note: In Blais, the Supreme Court did not decide whether the Métis were Indians for the purposes of s. 91(24) of the Constitution Act, In fact, the Court specifically stated it was not deciding that issue. What is interesting to note, however, is that the Court discussed some of the evidence used in Re Eskimo to conclude the Métis were not Indians for the Natural Resource Transfer Agreement. Note: As of right now, the constitutional status of the Métis is undecided. Parliament claims that the Métis are not Indians while the provincial legislatures claim that the Métis are Indians

130 Who Is An Indian? The Métis may not be Indians Why is each level of government claiming the other has jurisdiction over the Métis? Do you think the Métis areIndians?

131 Lands Reserved For Indians Includes Formally Created Indian Reserves: Lands reserved for Indians includes any and all formally created Indians Reserves (i.e. they are under federal jurisdiction. Includes Lands Set Aside by Royal Proclamation, 1763: Lands reserved for Indians includes any lands that were set aside by the Royal Proclamation, 1763 (i.e. they are under federal jurisdiction). Includes Aboriginal Title Land At Assertion of Crown Sovereignty: Any lands subject to an Aboriginal Title Claim arising out of the assertion of Crown Sovereignty are under federal jurisdiction.

132 Judicial Decisions On Jurisdiction R. v. Sutherland, [1980] 2 S.C.R Facts: The Respondents were treaty Indians. The Respondents were apprehended while hunting deer for food. The Respondents were charged under s. 19(1) of the Wildlife Act for hunting with the aid of a spotlight. They were convicted at trial, but were successful on appeal when the Manitoba Court of Appeal held that s. 49 of the Wildlife Act was ultra vires because it directly limited where Indians could hunt. The Crown appealed. Issue: Two issues were raised in this case. They were: 1)Can a provincial law directly apply to Indians? 2)Do provinces have the authority to enact hunting laws of general application that affect Indians?

133 Judicial Decisions On Jurisdiction Decision: Judgment for the Respondent, the appeal is dismissed. Ratio: There are three important ratios to note about this case. They are: 1)Provincial Laws Cannot Directly Apply to Indians: The provinces do not have the constitutional authority to enact legislation that directly applies to Indians (i.e. legislates Indians qua Indians). A)Laws That Single Out Indians Cannot Be Of General Application: Any laws that purposefully single out Indians cannot be of general application.

134 Judicial Decisions On Jurisdiction 2)Provinces Have Constitutional Authority To Enact Hunting Laws Of General Application: There is no doubt that the provinces have the authority to enact hunting laws of general application, even if those laws have an indirect effect Indians. 3)Legislation Must Be Interpreted In Favor of Indians: If any doubt exists within the legislation, that doubt must be interpreted in favor of the Indians.

135 Judicial Decisions On Jurisdiction Four B. Manufacturing Ltd. v. United Garment Works of America, [1980] 1 S.C.R Facts: The Appellant (Four B.), which was incorporated under the laws of Ontario and carrying on business on an Indian Reserve, was owned by four brothers (all of which were Indians). The Appellants business was the manufacturing of shoes. It was not controlled by the Band Council, but occupied premises on the Reserve. The Appellant received money from the Government of Canada (including funds from various Indian Affairs Programs). Some of the workers at Four B. wanted to unionize under provincial legislation. The Appellant challenged the certification process on the grounds that the federal legislation was applicable since the company was owned and operated by Indians. Issue: Does the provincial or federal labor relations legislation apply to Four B. Manufacturing Ltd.

136 Judicial Decisions On Jurisdiction Decision: Judgment for the Respondent, the appeal is dismissed. Ratio (Majority): There are three important ratios to note about this case. They are: 1)Labor Relations Are Usually Exclusively Within Provincial Jurisdiction: The general rule is that labor relations falls within provincial jurisdiction. A)Exception – Federal Undertaking: The general exception is if the corporation is a federal undertaking. 2)Provincial Labor Laws Apply to Indian-Owned Corporations Not Involved In Indian Activities: An Indian-owned corporation will be subject to provincial labor laws if its activities do not engage a core of Indianness.

137 Judicial Decisions On Jurisdiction 3)Notion of Federal Enclave Should Be Rejected: There is no such thing as a federal enclave (i.e. an area of jurisdiction that falls exclusively to the federal government). Dissent: Four B. should be considered a federal undertaking and therefore subject to federal labor laws. Four B. is owned and operated by Indians on Reserve Land in a building leased to it by the Band Council.

138 Judicial Decisions On Jurisdiction Dick v. R., [1985] 2 S.C.R Facts: The Appellant accused was charged under a provincial regulation for killing a deer during closed season in the traditional hunting grounds of his people. The Appellant claimed that the law did not apply because it violated the constitutional division of power because the law directly applied to Indians and was therefore ultra vires. Issue: Two issues were raised in this case. They were: 1)Does provincial legislation apply of its own force? 2)What is the impact of s. 88 of the Indian Act?\ Decision: Judgment for the Respondent, the appeal was dismissed.

139 Judicial Decisions On Jurisdiction Ratio: There are three important ratios to note about this. They are: 1)Provincial Laws of General Intent That Impair Status/Capacity Of Indians Do Not Apply On Own Force: Provincial laws of general intent that impair the status/capacity of Indians does not apply of its own force. 2)s. 88 of the Indian Act Applies to Provincial Laws That Could Not Be Directly Applied If It Is Of General Application: s. 88 of the Indian Act allows provincial laws of general application that cannot be directly applied because it impairs the status.

140 Judicial Decisions On Jurisdiction 3)Disproportionate Impact Not Enough to Invalidate Law – Must Look to See If Intent to Effect Aboriginal Interest: A disproportionate impact caused by the legislation is not enough to invalidate the law, the courts must look at the intent of the legislation to effect an Aboriginal interest.

141 Judicial Decisions On Jurisdiction Delgamuukw v. British Columbia, [1997] 3 S.C.R Facts: The Appellant (Delgamuukw) were a group of Aboriginal hereditary chiefs who claimed ownership to separate portions of 58,000 square kilometers in British Columbia. The Respondent (Crown of British Columbia) argued that the Appellants did not have an interest or right to claim title to the land. After rejecting the Appellants oral argument (adaawk) because they did not comply with the ordinary rules of evidence, the trial judge found the Appellants had failed to meet the necessary evidentiary burden of proof to establish their claim and therefore dismissed it Issue: One of this issues was how does s. 88 of the Indian Act apply to Indians? Decision: Judgment for the Appellant, the appeal was allowed.

142 Judicial Decisions On Jurisdiction Ratio: There are four important ratios to note about this case. (for this class purposes). They are: 1)s. 91(24) Protects Core of Indianness Through Doctrine of Interjurisdictional Immunity: Section 91(24) protects a core of Indianness (i.e. anything going to the status and/or rights of Indians) through the doctrine of interjurisdictional immunity, which means the provinces cannot enact legislation that affects this core. 2)s. 91(24) Does Not Create Federal Enclaves: Section 91(24) of the Constitution Act, 1867 does not create a federal enclave of power, meaning that the provinces can enact laws of general application that apply to Indians.

143 Judicial Decisions On Jurisdiction 3)Provincial Laws Of General Application Cannot Extinguish Aboriginal Title and/or Aboriginal Rights Under s. 35(1): Provincial laws of general application are not capable of extinguishing Aboriginal Title and/or Aboriginal Rights. This is a result of two facts. They are: A)Extinguishing Title Requires Clear Language And Would Therefore Violate s. 91(24): An extinguishment of Aboriginal Title and/or Aboriginal rights requires clear language and would therefore violate s. 91(24) by directly applying to Indians.

144 Judicial Decisions On Jurisdiction B)Aboriginal Rights Are At Core of Indianness and Therefore Protected By Doctrine of Interjurisdictional Immunity: Aboriginal rights are at the core of Indianness and therefore are protected by the doctrine of interjurisdictional immunity. 4)Section 88 of Indian Act Can Incorporate Provincial Laws Of General Application: Section 88 of the Indian Act can incorporate provincial laws of general application provided they do not regulate Indians qua Indians.

145 Summary of Provincial Laws Of General Application Ways In Which Provincial Legislation is Applicable 1)Apply Of Its Own Force (ex proprrio vigore): Provincial laws of general application can apply of their own force, except: A)Effect of the Law Directly Related To Indians or Lands Reserved For Indians: Under this, provincial laws that are in direct relation to Indians or lands reserved for Indians do not apply to Indians (i.e. it legislates Indians qua Indians or Indian land qua Indian land).

146 Summary of Provincial Laws Of General Application Ways In Which Provincial Legislation is Applicable B)Law of General Application Impairs Status Or Capacity of Indians (i.e. Affects Core of Indiannness): Under this, provincial laws that have the effect of impairing the status or capacity of Indians (i.e. affects the core of Indianness) do not apply to Indians. 2)Referential Incorporation Through s. 88 of Indian Act: Provincial laws can apply to Indians if they have been referentially incorporated into federal legislation through s. 88 of the Indian Act.

147 Nov. 25: Vaughan, Cairns & Russell After 1949: many academics condemned JCPC for bad jurisprudence, and decentralist tendencies. Browne defended JCPC as applying correct rules of construction. 1971: Alan Cairns defended results of JCPC decisions from a sociological perspective Peter Russell defended JCPC results from a balance perspective, & pointed out Fathers of Confederation had differing views Vaughan claims Browne, Cairns and Russell are all wrong; BNA Act was centralist, and JCPC guilty of bad jurisprudence

148 Vaughans argument G.P. Browne argues that the JCPC was correct in determining that there are 3 bases of power: POGG, list in s. 91, and s. 92. Vaughan: there are really just 2 (POGG & s.91 list are inseparable), and so JCPC was wrong. Browne: JCPC followed stare decisis. Vaughan: JCPC did not consist of fools or knaves, but politicians attempting to enunciate a basis for provincial legislative authority. JCPC ignored the intent Fathers of Confed., who created a centralist state in reaction to U.S. Civil War.

149 Section 91 It shall be lawful for the Queen, by and with the Advice and Consent of the Senate and House of Commons, to make Laws for the Peace, Order, and good Government of Canada, in relation to all Matters not coming within the Classes of Subjects by this Act assigned exclusively to the Legislatures of the Provinces; and for greater Certainty, but not so as to restrict the Generality of the foregoing Terms of this Section, it is hereby declared that (notwithstanding anything in this Act) the exclusive Legislative Authority of the Parliament of Canada extends to all Matters coming within the Classes of Subjects next hereinafter enumerated; that is to say, [29 enumerated heads] deeming paragraph: And any Matter coming within any of the Classes of Subjects enumerated in this Section shall not be deemed to come within the Class of Matters of a local or private Nature comprised in the Enumeration of the Classes of Subjects by this Act assigned exclusively to the Legislatures of the Provinces.

150 Vaughan (continued) Danger of judges becoming legislators (eg. Persons case: Edwards v. A-G for Canada, 1930). Living tree. large and liberal interpretation for constitution Cairns: rules of statutory construction are little more than a grab bag of contradictions. Vaughan: JCPC smarter than to trip over vague rules of construction. The judges had a deliberate strategy in mind. Vaughan criticizes Russells approach in the case book from which your cases are taken: says Russell too sympathetic to decentralists. Vaughan claims most fathers of confederation wanted a unitary state. Couldnt get it because of objections in Quebec; settled for a quasi- federal state. Vaughan examined transcripts of JCPC hearings: JCPC knew what it was doing politically. JCPC judges are the real Fathers of Confederation

151 Cairns & Russell Cairns: Criticizing JCPC had become thought- stifling conventional wisdom. Doesnt agree with JCPC reasoning, but thank goodness for the results. Russell: JCPC read classical federalism into BNA Act Fathers were not united in their views. Vaughans claim of original intent is too simplistic. Russell will approve activism if based on principles that embody the wisdom of collective experience. eg. Duff in Alta Press case (freedom of expression is life & breath of democracy), and Dickson in Hauser.

152 John Saywell: The Lawmakers (2002) John Saywell: distinguished York history professor. The Watson Era ( ) –Born 1827, Scotland –Civilian lawyer; didnt have reputation as brilliant lawyer –Supported Conservatives Solicitor general in : MP for Aberdeen & Glasgow universities 1880: Scots Lord of Appeal in House of Lords Member of JCPC for civil law appeals from Quebec – the Canadian specialist on JCPC Watson –Said he believed in applying rules of statutory interpretation strictly –In practice, indulged in wide- ranging conclusions and speculations about language, history, intentions and policy –Impressed by arguments of Blake, the lawyer for Ontario –St. Catherines Milling case: when aboriginals give up title to land, it reverts to the provincial crown. (S. 109 – provs have nat resources) –Maritime Bank case: prov. Lieutenant-governors are equal in status with Governor General. –Local prohibition case: a re- interpretation of Russell to give more power to provinces.

153 Haldane

154 Haldane ( ) Born in Edingurgh in 1856 Studied philosophy; scholar of Hegel (decentralization) 1877: moved to London to study common law; QC in 1887 Worked as a junior in a number of Canadian constitutional cases. Great admirer of Watson Quotable quotes from Saywell: –Haldane was so good at most things yet not superlative in anything –Haldane wanted to focus on big, working principles, but insisted on positivist approach Haldane: – , participated in all but 63 of 204 appeals from Canada, and delivered decision in 24. –Admitted that the JCPC shaped the Canadian constitution – gave it its federal nature –Provinces are independent kingdoms that have delegated some powers to the central government. –Case in point: Haldanes re- interpretation of Russell decision in Snider.

155 Dec. 2: The Political Dynamics of Constitutional Reform 1981-Present Senate Reference [Kit, p. 316] A. Cairns, Constitutional Change… [Kit, p. 138] R. Gibbons, Shifting Sands… [Kit, p. 163] Patriation Reference [Kit, p. 318] Meech Lake and Charlottetown Accord [Kit, pgs. 375 and 378] Resolution on Recognition of Quebec… [Kit, p. 389] An Act Respecting Constitutional Amendment [Kit, p. 390] A Framework to Improve the Social Union… [Kit, p. 392] Reference re. Secession of Quebec [Kit, p. 337] Alan Cairns: Constitutional Change and the Three Equalities [Kit, 138] K. McRoberts, Misconceiving Canada, Chapter 9, The 1995 Quebec Referendum [Kit, p. 151] P. Hogg, The Duty to Negotiate [Kit, p. 178] Gall, Ch. 13, and Bogart, The Administrative State and Judicial Review (182)

156 Main Events surrounding Patriation controversy Balfour declaration: 1926 Statute of Westminster: 1931 Quiet Revolution: Trudeau becomes PM, 1968 Victoria Charter: 1971 Senate reference: 1979 Quebec referendum: 1980 Negotiations re patriation & Charter, Unilateral attempt to patriate by Trudeau, 1981 Patriation reference, 1981 Agreement of Nov. 5, 1981 (Que not incd) Canada Act signed, April 1982 Quebec veto ref, 1982 Meech Lake Acc, Charlottetown Accord, 1992 Quebec referendum: 1995

157 Main events (2) Resolution on recognition of Quebec as a Distinct Society (1995) Act respecting constitutional amendment, and resolution to recognize Quebec as a distinct society. (1996) Calgary Declaration (1997) Quebec secession reference (1998) Social Union Framework Agreement (1999) Clarity Act (2000)

158 Senate Reference (1979) Already discussed in class on cooperative federalism, Nov. 4/05 In 1978, the Trudeau government floated a trial balloon, a paper on Senate reform. Possibilities included abolishing the Senate, or changing it into a house of the provinces where half of the Senators would be chosen by the provincial legislatures or governments. Does Parliament have the ability to change the Senate in any of these ways? Reference question sent to Supreme Court. Answer by the court (Laskin, CJ): No. To change the Senate is to abolish the current Parliament (H of C, Senate, Queen) and replace it with a new Parliament. That requires a constitutional amendment by UK Parliament [after 1982, through the unanimity formula].

159 Patriation reference (1981) Would the proposed amendments affect provincial powers: Yes (unanimous) Is there a convention of provincial consultation? –Yes: Martland, Ritchie, Dickson, Beetz, Chouinard & Lamer (substantial, not unanimous) –No: Laskin, Estey & McIntyre: No Has the convention hardened into constitutional law? –No: Laskin, Dickson, Beetz, Estey, McIntyre, Chouinard & Lamer –Yes: Martland & Ritchie

160 Alan Cairns: three equalities [Kit, 138] Citizens Provinces Two nations Debate over assymetrical federalism Charter: a constraint on federalism Charters popularity in Quebec

161 Meech Lake Accord Meech Lake Accord: –distinct society clause –constitutionalize immigration agreements –Provinces submit names for vacancies to SCC –Any province can opt out of a shared cost program in areas of prov. jurisdiction & receive compensation if the province operates a similar program that meets national standards. –Compensation provided for any province opting out of any constitional amenendment under 7-50 formula that transfers prov powers to Ottawa. Additions: –Senate reform: provs nominate Senators to begin with –First ministers conf on economy annually –Annual constitutional conferences to discuss Senate reform, fisheries and other matters.

162 Charlottetown Accord Everything in Meech Lake plus: –Canada Clause –Aboriginal rights strengthened, including right to negotiate self- government –Non-justiciable social charter –Measures to strengthen s. 121 –Senate reform: 6 elected senators from each province, and 1 from each Territory, plus Aboriginal representation –SCC appointments: feds can appoint if provinces dont nominate. –Guarantee of 25% of seats in H of C for Quebec –Prov. authority in areas of prov. Jurisdiction strengthened. –Fed powers of disallowance and reservation repealed –Fed declaratory power limited; require prov. consent.

163 Social Union Framework Agreement (1999) All Canadians are equal Needs must be met everywhere Social programs should be adequate and sustainable Promote mobility within Canada Public accountability and transparency Evaluate results of programs Participative democracy Funding predictability Fed-prov consultation, not unilateral action

164 Québec Secession Reference (1998) Stéphane Dion –Critical of yes side in 1995 referendum –Asked by PM to become Min of Intergovernmental Affairs in 1996 & context by-election –Proponent of Plan B: fed govt should be active in opposing Québec separatism. Guy Bertrand (a former sovereignist leader in Québec turned federalist) – began a litigation process in which challenged the Québec governments attempts to institute sovereignty on Charter of Rights grounds. –Québec government tried to block Bertrands challenge, so fed govt continued the litigation through the reference (part of Plan B)

165 Québec Secession Reference (2) Argued in Feb, 1998 –Québec govt wouldnt participate, so SCC appointed André Joli-Cœur as amicus curiae. –Amicus argued that reference jurisdiction of SCC is ultra vires. Can an appeal court be given original jurisdiction? Yes. Can an appeal court advise? In Canada, yes (despite rule about no specific mention). Justiciability: –Too theoretical? –Too political? –Not ripe? Canada does not have as strict a separation of powers as U.S. Advisory opinion different from a litigated case.

166 Québec Secession Reference (3) Questions: –1. Under Can Const, can Québec secede unilaterally, without a constitutional amendment? –2. Under Int law, can Québec secede unilaterally? –3. If conflict between (1) and (2), which takes precedence? Why did SCC write such a lengthy judgment? 1. Can Québec secede unilaterally under constitution? –Arguments in favour based on democracy. –What is democracy? –Our democracy is based on shared values, and unilateral secession puts these at risk. Thus, duty to negotiate. –Was SCC too activist, or not activist enough re clear question and clear majority?

167 Québec Secession Reference (4) 2. Does international law give Québec the right to secede unilaterlally? –Amicus: right to self- determination belongs to all peoples. –Do Québeckers constitute a people? –SCC: not necessary to decide, because even if yes, the right only exists where a people is mistreated. right to only arises under international law where a people is governed as part of a colonial empire, is subject to alien subjugation, domination or exploitation; and possibly where a people is denied any meaningful exercise of its right to self-determination within the state of which it forms a part.

168 Québec Secession Reference (5) Spring of 2000: Bill C-20: An Act to give effect to the requirement for clarity…. –Within 30 days of a prov legislature tabling a referendum question, H. of C. must declare whether question is clear. –If question considered clear, and a majority votes in favour, H of C must determine whether majority is clear. Consider: Size of majority Proportion voting Views of political parties View of Senate

169 Québec Secession Reference (6) After SCC decision: PQ govt seemed to support decision. Jacques-Yvan Morin (former Québec intergovernmental affairs minister): SCC decision means feds cant refuse to negotiate, but can put up many obstacles to Quebec secession. Kenneth McRoberts: The Trudeau strategy for Canadian unity has failed. Hogg: –Québec can no longer claim that it can secede unilaterally. –The duty to negotiate secession in face of a clear majority vote in favour in a province is unprecedented in world history.

170 Gall – last chapter New directions: –Is law the best way to implement a public policy? –If so, think about federalism issues in potential litigation. What mechanisms are there for cooperation? –Technology A tool for judges Education for lawyers and judges Electronic law library Public image of legal profession –Public education –Legal accountability –Case management, ADR, mediation –Legal fees –Legal insurance –Continuing education (prof. Dev. LLM at Osgoode) –Alternative careers for lawyers –Law reform (Canada Law Commission)

171 W.A. Bogart, Courts & Country, Ch 4 (The administrative state and judicial review, kit 182) Do courts promote a fairer society, or act as a roadblock to advancement? –Federal administrative agencies (eg. CRTC, Hum Rts Comm): 640. –Ontario: 36 reg bodies (eg. Lab rels bd,WSIB – ½ million claims/yr), 44 licensing appeal tribunals, 8 compensation boards, 19 arbitration agencies, 95 advisory boards. Legs try to keep courts from supervising admin agencies too closely. Why? Should courts intervene in admin tribs rarely, when there are clear issues of fairness? Bogart: courts may be good, at times, in signaling unfairness, but are not usually good at finding solutions.


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