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.

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.

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.

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 reg’s are under Chicago Convention (1947), not a Br Empire Treaty (but 3 judges thought this didn’t 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 didn’t 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.

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 1972 ‑ 1980: Quebec & Atl prov's applied pressure on Ottawa for undersea resource royalties. 1984: SCC ruled that Canada owns Hibernia. Mulroney gov’t negotiated "Atlantic accord:" Nfld offshore treated like land ‑ based resources by feds.

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 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. (Beginning of use of soc sci evidence in court.) Fed power supported by 91 (14 ‑ 21 except 17), & T&C, so it’s intra vires. Ont. order-in-council is ultra vires; needs primary legislation.

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 Haldane’s emergency doctrine. Inflation is not a matter of national concern. Legislation is ultra vires.

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.