3 Supremacy of the Constitution Constitution Act, 1982 s 52 (1)The Constitution of Canada is the supreme law of Canada, and any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect.
4 Canada (AG) v Hislop,  1 SCR 429 FactsIn 1995, Egan found that exclusion of same-sex partners from old age security was not a violation of s. 15(1).In 1999, M v H found that exclusion of same-sex partners from spousal support under the Family Law Act is a violation of s. 15(1).Following M v H, Parliament amended CPP to extend survivor benefits to same- sex partners, with some important limitations:Only applied to those whose spouse died on or after January 1, 1998No payment to same-sex survivors for any month before July 2000
5 Canada (AG) v Hislop,  1 SCR 429 LeBel and Rothstein JJ:Unconstitutional laws are no laws at all.In other words, they are void ab initio. Typically, the result of a finding of unconstitutionality is nullification.Nullification typically operates prospectively and retrospectively.However, the courts can limit the remedies they grant.Where the decision constitutes a significant departure from the pre-existing legal order, it may not be right to give nullification retrospective effect.A significant departure, balancing:Reasonable, good faith reliance by governmentFairness to litigantsRespect for constitutional role of legislaturemay militate in favour of limiting remedies to prospective application.
6 R v Ferguson, 2008 SCC 6FactsRCMP officer shot and killed a detainee with a firearm and was convicted of second degree murder. Mandatory minimum punishment of four years applied for manslaughter with a firearm.Trial judge imposed a conditional sentence of two years less a day, and granted a constitutional exemption from the mandatory minimum, which he found constituted cruel and unusual punishment in violation of s. 12 Charter right.IssuesDoes imposition of the four-year mandatory minimum sentence for manslaughter with a firearm constitute cruel and unusual punishment?Can offender obtain a stand-alone constitutional exemption from the application of that minimum sentence and unusual punishment contrary to s. 12?
7 R v Ferguson, 2008 SCC 6 McLachlin CJ (others concurring): Section 52(2) usually involves nullification. However, there are additional remedies:Severance (where a court excises a discreet and identifiable measure of a challenged law without altering the overall structure or operation of the law in which it is contained)Reading in (where a court adds something to a statute to make it conform to the constitution) and down (where a court gives an over-inclusive statute a sufficiently narrow interpretation to bring it into line with the demands of the constitution)
8 R v Ferguson, 2008 SCC 6 McLachlin CJ (others concurring): Section 24(1) involves exemptions and results in an exemption being granted, but by definition, the rule or law that founded the action remains itself constitutional and on the books.Granted exemptions to laws would violate the rule of law (this would encourage “uneven and unequal application of the laws”) and separation of powers (allowing unconstitutional law to remain on the books deprives Parliament of certainty as to the constitutionality of the law in question and this of the opportunity to remedy it).
9 GVTA v CFS, 2009 SCC 31FactsGVTA refused to post CFS’ political advertisements on buses.The basis for this refusal was GTA’s written transit policies.IssuesWhether the policies of government entities, in managing their property, must comply with the Charter and, if so, whether they violate respondents’ s. 2(b) rights, and whether such a breach can give rise to a s. 52 invalidity declaration?HeldGVTA is a government entity upon which the Charter applies and there is a violation of the respondents’ s. 2(b) rights. The violation is not justified under s. 1 of the Charter.These policies come within the scope of s. 52(1) and are therefore declared of no force or effect to the extent of their inconsistency.
10 GVTA v CFS, 2009 SCC 31 Deschamps J (others concurring): Written policies are law within the meaning of s. 52(1). This means s. 24(1) does not apply to them.Here, the surrounding legal framework, not the decision itself, was unconstitutional.Thus, where a delegated governmental authority “makes law”, this “law” must be in conformity with the Constitution. Failure to do so will result in invalidity pursuant to s. 52(1).
11 General RulesGenerally, invalidity under s. 52(1) or nullification operates both prospectively and retrospectively: Canada (AG) v HislopHowever, where there is a significant departure from previous legal order, it may be acceptable to limit retrospective application, balancing:Reasonable, good faith reliance by governmentFairness to litigantsRespect for constitutional role of legislatureSection 52(1) applies to laws. Section 24(1) apples to actions: R v FergusonTherefore, exemptions cannot be granted to laws: R v FergusonWritten policies that are followed are laws for the purpose of s. 52(1): GVTA v CFSA finding of invalidity can be suspended if needed to secure a constitutional principle, such as the rule of law: Ref Re Manitoba Language Rights
13 Overview“The ‘rule of law’ is a highly textured expression […] conveying, for example, a sense of orderliness, of subjection to known legal rules and of executive accountability to legal authority.” Reference re Proposed Resolution Respecting the Constitution of Canada,  1 SCR 753.The relationship between the state and the individual must be regulated by law – Secession Reference ¶71.Rule of law as a procedural conceptRequires procedural regularity so that one can trace the source of all official acts to an authorizing grant of power in the ConstitutionRule of law as a substantive conceptGoes beyond procedural regularity and requires that the law obligate.Persons can only be obligated by laws that are fundamentally just.
14 Reference re Manitoba language rights,  1 SCR 721 FactsSection 23 of the Manitoba Act, 1870 required all acts to be promulgated in French and English.The Official Languages Act, 1890 permitted acts to be promulgated in just English.Since that time, all acts had been promulgated and printed in just English.
15 Reference re Manitoba language rights,  1 SCR 721 HeldThe Official Languages Act 1890 is unconstitutional. Any acts passed in only English are of no force and effect.However, in order to uphold the rule of law, rights, obligations, and other effects arising under the unconstitutional enactments will continue with the same force and effect as if the enactments had been valid for a period of time to permit the Manitoba legislature to comply with its constitutional duty under s. 23.Any future enactments, however, will need to be promulgated in both official languages to have any force and effect.
16 Reference re Manitoba language rights,  1 SCR 721 The Rule of Law:The rule of law requires, at the very minimum, the maintenance of positive law.The rule of law is implicit in the Constitution, as it too sets out a system of positive law, and constitutes the foundation of our Constitution.The rule of law will not permit the creation of legal chaos: “The Constitution will not suffer a province without laws.”
17 British Columbia v Imperial Tobacco Canada Ltd et al,  2 SCC 49 FactsThe BC Legislature passed the Tobacco Damages and Health Care Costs Recovery Act authorizing a direct action by the BC government against manufacturers of tobacco products.HeldThe Act foes not implicate the rule of law in the sense that the Constitution understands that term. It follows that the Act is not unconstitutional by reason of interference with it.
18 British Columbia v Imperial Tobacco Canada Ltd et al,  2 SCC 49 Major J.Imperial Tobacco argues that, in addition to holdings in prior cases, the rule of law requires:Laws to be prospectiveLaws to be general in natureLaws not confer special privileges on the government except where necessary for effective governanceA fair civil trialThe requirements stemming from the rule of law render aspects of the written constitution redundant.Democracy and constitutionalism, two other principles recognized in the Secession Reference, mitigate against recognition of such requirements.
19 British Columbia v Imperial Tobacco Canada Ltd et al,  2 SCC 49 Prospectivity of the lawSection 11(g) implies that there is not a blanket exemption.The common law has always been prospective and retrospective.Generality in the lawLaws can be aimed at specific entities: Air Canada; Authorson v Canada (AG).
20 NAPE v AG (Nfld),  2 SCR 204 Facts Chase crossed illegal picket line blocking courthouse.His union commenced disciplinary action.The AG sought a declaration that picketing a courthouse is unconstitutional and sought to have the disciplinary action injuncted.Held“Any action taken to prevent, impede or obstruct access to the courts runs counter to the rule of law and constitutions a criminal contempt. The rule of law, enshrined in our Constitution, can only be maintained if persons have unimpeded, uninhibited access to the courts of this country.”
21 General RulesThe rule of law is a constitutional principle: Secession ReferenceThe role of law requires the maintenance of laws: Reference re Manitoba Language RightsThe rule of law requires free, physical access to courts: NAPE v AG (Nfld)The rule of law DOES NOT require:All laws be prospective onlyLaws to be general in character onlyLaws to not confer special privileges on government
22 Limited authorityGovernment officials only have authority to act as granted to them by law
23 Roncarelli v Duplessis,  SCR 121 FactsSection 35 of the Liquor Licensing Act provided: “The Commission may cancel any permit at its discretion.”Roncarelli’s license was cancelled by the Commissioner on instructions from the Premier on the basis of his religious beliefs.IssueCan a public officer, who is given statutory power to act at his discretion, exercise that discretion without limits in accordance with personal preference?HeldDecision in favour of Roncarelli. There is no absolute discretion in public law. Discretion must always be exercised in accordance with statutory purpose.
24 Roncarelli v Duplessis,  SCR 121 Rand J:“In public regulation […] there is no such thing as absolute and untrammeled ‘discretion’, that is that action can be taken on any ground or for any reason that can be suggested to the mind of the administrator […]. ‘Discretion’ necessarily implies good faith in discharging public duty; there is always perspective within which statute is intended to operate; and any clear departure from its lines or objects is just as objectionable as fraud or corruption.”
25 R v Catagas,  1 WWR 282 (Man CA) FactsAppeal from trial court judge who held that the accused, an Indian, should be acquitted on a charge under the Migratory Birds Convention Act, not on the grounds that the Act did not apply to Indians, but on the grounds that, because the Department of Indian Affairs, following the decision in Daniels v. White, had made a policy of not charging Indians with such an offence, the charge was an abuse of process.HeldAppeal allowed. The Crown may not dispense with laws by executive action; the dispensation was therefore void and not available to the accused as a defence.
27 Development of the doctrine “When the legislative and executive powers are united in the same person, or in the same body of magistrates, there can be no liberty […] Again, there is no liberty, if the judiciary power be not separated from the legislative and executive” – L’Esprit des Lois
28 American Implementation The American Constitution created the “presidential model” of government.It establishes rigorous separation of powers in the history of government, with entrenched constitutional status and powers for each of the three branches of government.
30 Separation of powers in Canada Canadian constitutional conventions integrates the executive and legislative branches of government because:The formal executive, the Governor General, is controlled by ministers of the Crown, andIn practice, the legislatures powers are controlled by other executive instrumentalities (i.e. PMO, PCO, and Cabinet).De jureDe factoExecutiveGGPM & CabinetLegislativeHoC, Senate, GGJudiciaryCourts*Third point* at the conventional level, where the constitution actually functions, it is accurate to say that the Canadian government is characterized by a high degree of control by the executive over the legislative branch, particularly when compared to presidential systems.
31 Separation of powers in Canada The Supreme Court of Canada has only made passing references to the doctrine of separation of powers in several cases.However, every now and then the Court uses definitive language. As seen in Operation Dismantle v The Queen,  1 SCR 441 at para 104: “[Section 1 of the Charter] embodies through its reference to a free and democratic society the essential features of our constitution including the separation of powers, responsible government and the rule of law.”In Canada, legal invocation of the separation of powers has been invoked primarily to limit what the courts do. This involves a sense of self-preservation on the parts of the courts – the desire to remain soundly within their own judicial jurisdiction and appear to be doing so.
32 R v Power,  1 SCR 601FactsAt trial, the Crown had elected not to proceed with the trial by calling evidence, and it now sought to appeal.IssueWhether, with respect to a verdict on a trial by a judge and jury, s. 686(4) of the Criminal Code includes a residual discretion for a court of appeal to refuse to order a new trial where there was an error at trial which could reasonably have affected the verdict?HeldCrown appeal dismissed. No abuse of process occurred here.
33 R v Power,  1 SCR 601L’Heureux-Dubé J (La forest, Gonthier and McLachlin JJ concurring):A court of appeal is not empowered to inquire into the exercise of prosecutorial discretion, unless it amounts to an abuse of process.“There are other dangers, not the least of which involves the possibility of interfering with the separation of powers under our Constitution.”If the exercise of prosecutorial discretion fails the test in Roncarelli v Duplessis, remedy will likely lie pursuant to s. 24(1).
34 Doucet-Boudreau v NS (Min of Ed),  3 SCR 3 FactsThe government of NS failed to prioritize and deliver on homogeneous French- language facilities for Francophone communities despite acknowledging the existence of such rights under s. 23 of the Charter.Judge ordered provision of programs and retained jurisdiction to hear reports on the status of the efforts.IssueWhether a trial judge may, after ordering that a provincial government use its best efforts to build French-language school facilities by given dates, retain jurisdiction to hear reports on the progress of those efforts?HeldAppeal allowed and trial judge’s order restored. Section 24(1) of the Charter provides responsive and effective remedies, which may be creative.
35 Doucet-Boudreau v NS (Min of Ed),  3 SCR 3 Iacobucci and Arbour JJ:Courts “must… be sensitive to the separation of function among the legislative, judicial and executive branches.”Ordering of a Charter remedy must respect this separation.“Courts do take actions to ensure that rights are enforced and not merely declarative”“Although it may not be common in the context of Charter remedies, the reporting order issued… was judicial in the sense that it called on the functions and powers known to the courts…”The decision, was therefore, not inconsistent with the judicial function.
36 Doucet-Boudreau v NS (Min of Ed),  3 SCR 3 LeBel and Deschamps JJ (dissenting):“Judicial intervention should end when and where the case of which a judge is seized is brought to a close.”Restraint must be maintained to ensure good compliance by governments and public servants.“Our Court has strongly emphasized and vigorously applied the principle of separation of powers in order to uphold the independence of the judiciary.”“Once [courts] have declared what the law is, issued their orders and granted such relief as they think is warranted by circumstance and relevant legal riles, courts should take care not to unnecessarily invade the province of public administration.”
37 Doucet-Boudreau v NS (Min of Ed),  3 SCR 3 LeBel and Deschamps JJ (dissenting):By adopting a supervisory role, the court assumed an administrative function – something properly within the province of the executive.Here, the court took on a political role of holding the government to account.If the appellants felt that the government was not complying with the order, they could bring a contempt of court claim.
39 Amax Potash Ltd v Sask,  2 SCR 576 FactsIn order to avoid taxes that were imposed ultra vires, the government had enacted a privative clause: s. 5(7) of The Proceedings against the Crown Act, which provided that no proceedings could be taken against the Crown even if the doing of an act was beyond the powers of the province.IssueIs s. 5(7) of The Proceedings against the Crown Act, R.S.S. 1965, c. 87 intra vires the Legislature of Saskatchewan?HeldAppeal allowed. Section 5(7) is ultra vires the Legislature of Saskatchewan, in so far as it purports to bar recovery of taxes paid under a statute or statutory provision which is beyond the legislative jurisdiction of the Legislature of Saskatchewan
40 Amax Potash Ltd v Sask,  2 SCR 576 Dickson J:To permit the government to insulate itself in this way would be to allow it to do indirectly what it cannot do directly.“If a statute is found ultra vires the legislature which enacted it, legislation which would have the effect of attaching legal consequences to acts done pursuant to that invalid law must equally be ultra vires”“If a state cannot take by unconstitutional means, it cannot retain by unconstitutional means.”
41 Kingstreet Investments v NB,  SCJ No 1 FactsKingstreet paid user charge on liquor, in addition to taxes.These user charges were challenged as ultra vires the provincial legislature.IssueWhether money paid to a public authority pursuant to ultra vires legislation is recoverable?HeldTaxpayer who has made a payment pursuant to ultra vires legislation has a right to restitution. However, taxpayer can only recover, with interest, user charges subject to the applicable limitation period.
42 Kingstreet Investments v NB,  SCJ No 1 Dickson J:To permit the government to insulate itself in this way would be to allow it to do indirectly what it cannot do directly.“If a state cannot take by constitutional means, it cannot retain by unconstitutional means.”However, the imposition of a limitation period by general legislation, barring stale actions to reclaim taxes, can apply, and does not violate Amax Potash.
43 General RulesStatues containing privative clauses that insulate from judicial review will be found to be unconstitutional: Amax PotashHowever, general limitations, as embodied in a limitations act, do apply, and do not violate the principle of judicial review: Kingstreet Investments.
44 Reference CasesSection 53 of the Supreme Court Act permits the Governor-in-Council to refer constitutional questions directly to the SCC.Basic points:Reference decisions can only be initiated by governmentsNo orders stem from a reference decisionReference decisions while technically not binding have always been followed in substanceProvincial reference decisions can be appealed to the SCC
45 Reference Re Secession of Quebec,  2 SCR 217 May a Court of Appeal exercise an original jurisdiction?Courts of appeal can exercise original jurisdiction as given to them by statute.Parliament’s power to create a general court of appeal pursuant to s. 101 is plenary, and takes priority over the province’s power under s. 92(14) to control the administration of justice.May a Court of Appeal undertake advisory functions?Unlike the US Constitution, the Canadian Constitution does not require a strict separation of powers (i.e. bringing of cases to it), and therefore, there is no prohibition on it exercising reference jurisdiction to undertake an advisory role.
46 Reference re Same sex Marriage,  3 SCR 698 FactsThe federal government had resolved to change the definition of marriage by way of legislation.Legal actions had been brought in provincial courts. In those cases, the courts had decided that the parties had a legal right to same-sex marriages. The cases were not appealed.In the meantime, Attorneys General of the provinces were consenting to same- sex marriages.
47 Reference re Same sex Marriage,  3 SCR 698 HeldCourts can decline to answer questions where:The question is too ambiguous or imprecise to allow an accurate answer;The parties have not provided the court with sufficient information to provide a complete answerHowever, in addition, the court may not answer questions where:The question is moot (here the government has resolved to change the legislation)To do so would unseat reasonable reliance (married couples had relied on case law and consent of Attorney General)