1. Canadian Constitutional Law Feb 9 Supplemental Ian Greene

2. Monahan Ch 7 -Patrick Monahan’s background -reason why JCPC had difficulty with interpreting division of powers was that the notion of government activities in 1867 was very limited. -some of the tests developed by JCPC for interpreting division of powers were “bright line” tests meant to make it easier to deal with complex subjects. It was easier to deal with very specific provincial categories than broad federal categories. -in past 60 years government has begun to legislate in areas never contemplated in 1867 – environment eg. – so the result is that both fed and prov governments have jurisdiction over a great many matters. The key problem now is creating interjurisdictional schemes that work effectively. It’s not an excuse any more to say “we don’t have jurisdiction.” Similarly, tinkering with the division of powers through constitutional amendment is unnecessary. -rules of interpretation developed by JCPC: watertight compartments, pith and substance, broad interpretation of property and civil rights, aspect or double aspect doctrine, exhaustiveness, exclusiveness, restricting residual power of POGG.

3. Citizens Insurance Co. v. Parsons, 1881 First major 92(13) case. Impugned: Ontario Fire Insurance Policy Act. Fire in Parsons’ warehouse. Parsons wanted insurance payment – Ins Co: you didn’t observe the fine print. – Parsons: the fine print didn’t conform to the Ontario Act. – Ins Co: The act is ultra vires Ontario. Sir Montague Smith discusses how s. 91 & 92 overlap. JCPC will interpret the BNA Act as an ordinary statute, applying similar rules of interpretation. -Smith Invokes presumption that specific takes precedence over general. “Property & Civil Rights” more specific than “Trade & Commerce”. – “cubby hole” doctrine. S. 92(13)? Yes. Also S. 91(2)-T&C? No. Feds can incorporate Co’s with national objective, but this doesn’t prevent provinces from regulating intraprovincial transactions – Three aspects of T&C: international, interprovincial and general. – He doesn’t define these categories. Left for later cases. – What is holding;? What is obiter?

4. Russell v. The Queen, 1882 Impugned legislation: Canada Temperance Act, 1878 – Certiorari; rule nisi – ¼ of electors in a “county or city” may petition for a plebiscite on prohibition. Fredericton went dry Charles Russell: Fredericton pub owner, sold anyway; convicted Previous SCC decision: City of Fr. v. Queen: Can Temp Act intra vires under T&C (91-2) JCPC decision: Sir Montague Smith. Russell’s lawyer: delegation argument – Parliament can’t delegate its powers. Legislation says GG “may,” not “shall.” “cubby hole” doctrine – Is subject-matter of impugned legislation in s.92 (prov)? If so, is it also in 91 (fed)? – If not in s. 92, it must be in s. 91 Russell’s 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. (eg. contageous disease orders with greater impact in some areas) Therefore, not under s.92. No comment on SCC’s decision in Fredericton re s. 91(2), but seems to emphasize POGG Eg of Gap (residual) branch of POGG

5. Case 4: Local Prohibition Case, 1896 Impugned: Ont’s Local Prohibition Act (1890) – Townships, towns, villages (& cities) – Appeal from SCC reference re validity of Ont Local Proh. Act Lord Watson Feds ( under POGG) can trench on s.92 only if incidental to a legitimate fed purpose; otherwise, all of s.92 would fall under s. 91. – s.94 issue (power to unify common law in anglophone provs): meaningless if POGG interpreted broadly. Ontario argued that legis. falls under 92(8): (municipalities). Watson: not a convincing argument Pith & substance: vice of intemperance at local level 92(16): (local) yes. 92(13): no; the law prohibits rather than regulates if conflict: fed. law is paramount conflict of laws: no conflict if strictest obeyed “aspect” (or double aspect) doctrine: a legislative subject- matter can fall under s. 91 for one purpose, and s. 92 for another. National dimension or national concern doctrine of POGG hinted at: a subject matter can become a matter of national concern and then feds can regulate under POGG.

6. TEC v Snider (1925) Ian Greene Impugned legislation: federal Industrial Disputes Investigation Act Viscount Haldane wrote for JCPC Haldane says labour legislation clearly falls under s. 92(13) In this case, the procedure is applied to a municipal transportation agency (TEC, forerunner of TTC, 1923) Does subject-matter also fall under POGG, fed criminal power, or 91(2) (T&C)? Haldane – no. POGG can be used as residual, or emergency power. Here, can’t be residual because 92(13) applies. As well, there’s no emergency. Rule of interpretation: specific (and narrow) takes priority over general. See Haldane’s discussion of specific words, p. 60. How can this decision be squared with Russell v. Queen? Haldane: there must have been an emergency in 1878: – “…evil of intemperance [was] one so great” that parliament intervened to “protect the nation from disaster”

7. Case 9, AG Canada v. AG Ontario, Labour Conventions Case (restriction of federal power over international affairs,1937) – Lord Atkin - wrote decision – Distinguished Aeronautics and Radio cases. He said that the Radio case decided that power to regulate radio transmissions is new, and therefore falls under POGG. (Is that what you think was decided?) The treaty-signing power falls to the feds under POGG, but the treaty- implementation power depends on the subject-matter of the treaty. Matters that fall under S. 92 can only be implemented by the provinces. Extraterritoriality – Federal – Provincial Treaty-making powers – Head of states – Intergovernmental – Exchange of notes

8. Chicken & Egg Reference - 1971 (Ian Greene) In 1970, Que gov’t authorized Que egg marketing agency to restrict import of eggs from out of province Ont and Man were suppliers of eggs to Que Que supplied chickens to other provinces; the other provinces restricted Quebec chickens Man passed egg marketing legis identical to Quebec’s and referred it to Man CA Man legis. struck down; appealed to SCC (What would next steps be for Man gov’t if leg had been upheld?) – 9 judges on panel: 6 + 2 + 1 (all agreed ultra vires) – Martland: Pith and substance: interprovincial T&C.

9. Chicken & Egg (2) Laskin’s first major decision. Laskin was a Trudeau appointee; law prof at U of T; wrote main constitutional law text. A champion of human rights & breaking down interprovincial trade barriers. Became Chief Justice. – Annoyed that case is fabricated. Why? – Obiter: Parsons led to attenuation of literal interp of T&C, but interpretation has broadened since. – Prov. marketing legislation OK if producers in other provinces treated the same a local producers – Purpose of this legislation: to control the import of eggs. Therefore it is ultra vires; trenches in fed control over interprovincial T&C Scholarly analysis both of case law and realities of trade in eggs & other goods Not necessary to invoke s. 121 (free trade amongst the provinces) – but sets the stage for future cases mentioning s. 121.

10. Ref re Anti ‑ Inflation Act (1976) Trudeau campaigned against wage & price controls during 1974 election. After his election victory, he reversed his position. 1975: federal Anti-Inflation Act enacted. All prov's cooperated. Ont public employee unions challenged in court, so the feds sent a ref question to the SCC to settle the issue. AG of Canada defended Act under national concern branch of POGG, and also argued that an economic crisis equals an emergency. There were two decisions for the majority, by Laskin and Ritchie. However, the dissenters agreed with Ritchie’s interpretation of POGG, leaving the Court’s 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 it’s not up to SCC to decide. (First use of social science evidence in court.) Fed power supported by s. 91 (14 ‑ 21 except 17), & T&C, so it’s intra vires. Ont. order-in-council is ultra vires; needs primary legislation.

11. Monahan Chapter 8 (Ian Greene) -Branches of POGG: Emergency: Developed by Viscount Haldane on JCPC; Haldane claimed it was the only interpretation of POGG; later overruled by JCPC. In Anti-inflation, the court expanded on the emergency doctrine – included “crisis.” The federal Emergencies Act would be valid federal legislation under the emergency branch. A true emergency gives the federal government the right to trench on provincial jurisdiction for a temporary period – until the emergency is over. Residual power: weakened in late 1800s and early 1900s by JCPC because of its expansive interpretation of 92(13). However, the provinces are limited to controlling matters “within the province,” so matters falling outside of provincial boundaries are likely to fall under the residual power (eg. Canadian land or water that is not within a province), like the continental shelf, the federal Official Languages Act. The residual branch is very narrow.

12. Monahan Chapter 9: (Ian Greene) Trade and Commerce (91-2) Parsons created 2 categories of Trade & Commerce and interpreted them narrowly. Since 1949 SCC has begun to expand these categories. International and Interprovincial T&C – Feds can regulate any matter that is clearly international or interprovincial, but cannot interfere with local trade and provincial regulations over local business. Feds can establish a standard for “Canada Fancy No. 1 apples” and “light beer, if sold inter-provincially or internationally, but the legislation does not apply to products manufactured and sold within one province. – JCPC almost never let fed regulations incidentally affect local production & sale. However, in 1993 federal legislation creating safety standards for vehicles sold inter-provincially, and which applied optionally to vehicles sold within a province, could be validly enforced even for vehicles sold only within a province, if the vendor opted in to the scheme. – Interprovincial drivers’ licenses: a federal responsibility delegated to the provinces through joint federal-provincial licensing boards. General Trade and Commerce: After Parsons, little valid use of power until 1980s (1937: feds allowed to approve trade marks). Then SCC approved federal use of General T&C power if the legislation truly regulated trade in general, and the regulatory scheme was effective and comprehensive.