Constitutional Quiz PDF

Constitutional Quiz -- 1 ======================== **[Canadian Constitution -- Lecture 1 ]** **What is a constitution? (From the lecture)** - Constitution: - Comes from Latin Word: Consituere -- which is made up of two roots - **Con:** means together - **Stat...

Constitutional Quiz -- 1 ======================== **[Canadian Constitution -- Lecture 1 ]** **What is a constitution? (From the lecture)** - Constitution: - Comes from Latin Word: Consituere -- which is made up of two roots - **Con:** means together - **Statuere:** means to establish a constitution - Therefore, can be established as 'the act of establishing something together' - A constitution is a set of fundamental principles that outline the organizational framework of the state and the nature, scope, and limitations on the exercise of state authority - It is the supreme law of the land against which ordinary legislation is measured - The constitution is an assortment of: - Important rules, principles, and practices relating to the governance of society - Typically, constitutions deal with the structures, procedure, and powers, of governmental institutions and the nature and scope of individual rights and responsibilities in the face of public power - Constitutional provisions perform several kinds of functions - They establish legally enforceable obligations - They serve to ground judicial decisions concerning the constitutionally of the exercise of power - They perform a significant symbolic role, setting out the fundamental values and aspirations of a country - Constitutional law is an open-ended set of rules, principles and practices that represent effort to identify, define, and reconcile competing rights, responsibilities, and functions of governments, communities, and individuals **The Elements of The Canadian Constitution** - The Canadian constitution is generally made up of 5 components that interact in complex ways: - Parliamentary Democracy - based on parliamentary sovereignty or supremacy (supreme power or authority) - means that parliament, which is the democratically elected legislative body, has extensive authority on executive bodies (cabinets) to enact any law and executive and courts are subject to its supremacy - Ensures that our general laws are made by elected legislative bodies - Federalism - is the division of governmental powers and legislative jurisdictions along territorial lines - federal parliament has power to enact laws over matters of national concern - provincial legislatures have power to enact laws in relation to matters of local concern - Individual and Group Rights - Constitutional rights could be asserted against the state by individuals or groups based on the charter - 11 rights in the Charter - Freedom to express your opinion & religion, associate with any group of people, the right to vote, the right to move, stay, enter or leave Canada, etc. - Aboriginal Rights - Aboriginal rights are enshrined in the constitution - The Principle of Constitutionalism - state power is limited to procedures and rules set out in the constitution. - Governmental action, including legislation enacted by parliament and the provincial legislatures can be held by the courts to be "of no force or effect" if the courts find that action to be inconsistent with a provision of the constitution of Canada - Related to the principle of the rule of law: an exception that governments will exercise power according to the law and not in an arbitrary manner **Sources of the Canadian constitution** - Made up of a variety of sources, often generated over a long period of time: - Textual instruments listed in s.52(2) of the constitution act, 1982 (non-exhaustive -- not everything included): - More parts of the constitution can be emerged through case law or common law - The Constitution Act, 1867 - Originally enacted as the British North American Act, 1867 - The Canada Act, 1982 - The Constitution Act, 1982 (includes the charter of rights and freedoms) - Several amendments to the British North American act -- such as changing the name - Uncodified parts of the constitution entrenched by reference (such as, the Royal Proclamation 1763, The Supreme Court Act, Canadian Bill of Rights and Freedoms) - Unwritten constitutional principles developed by courts - Judges can find/infer more principles of the constitution - Constitutional conventions (political, not legal) - Sometimes contradict the law -- are not part of our constitution - Rules that have developed from government practice over time and that are enforced not by the courts but by political sanction (-impose a penalty on) Hi**storical Evolution of the Canadian Constitution** - Royal Proclamation of 1763 - The Quebec Act, 1774 - Constitutional Act, 1791 - divided territory between the British and French, creating two provinces, Quebec and Ontario. - The British North America Act, 1867 - later renamed the Constitution Act, 1867 - gave effect to confederation of the colonies of British North America, creating the 'Dominion' of Canada. - The Statute of Westminster, 1931 - restricted British Parliament's jurisdiction to legislate for Canada. - The Canada Act, 1982 - led to signing of the proclamation of The Constitution Act, 1982 which includes the Charter. **[The Royal Proclamation of 1763, indigenous constitutionalism, & the Doctrines of Discovery and Terra Nullius -- Lecture 2 ]** **[Terra Nullius ]** - Literally means, 'Nobody's land or no man's land' - European nations asserted sovereignty over the lands newley discovered in the Americas by relying on this Doctrine - The doctrine of *Terra Nullius*: - Indigenous peoples did not have ownership over lands in North America -- they only occupied them. - Indigenous peoples lived in North America in organized societies exercising law -- making authority over territory and persons since time immemorial - Although the laws of these societies did not resemble European models of legality, they were laws nevertheless - Traditional Legal Systems: Indigenous legal orders - oral traditions and customs, modelling radically different views of the relationship between human beings and the world - The law in much of Europe was customary, and it was only in the 12^th^ century, with the rediscovery of Rome's Corpus Juris Civilis, that the idea of written law was rekindled - Indigenous Peoples were 'uncivilized' and insufficiently Christian, and they also did not make use of these lands in a European and capitalist agricultural way.  - An Aboriginal nation does *not* constitute 'a legal unit in international law' - i.e., they had no sovereignty ---due to Europe's superior civilization - international law deemed North America to be unoccupied -- doctrine of discovery - *per* CJ Marshall in *Johnson v McIntosh* (1823).  - *Re: Southern Rhodesia*, Privy Council (1919)*:* - "Some tribes are so low in the scale of social organization that their usages and conceptions of rights and duties are not to be reconciled with the institutions or legal ideas of civilized society. - Such a gap cannot be bridged."    **['Rescind the Doctrine' \[of Discovery\] Doctrine of Discovery ]** - The Doctrine of Discovery: - The legal means by which Europeans claimed rights of sovereignty in the New World. - It held that when a European Christian nation discovered new lands, it *automatically* gained sovereign and property rights over the non-Christian, non-European peoples, even if the latter were already occupying and using these lands.  - Sovereignty over occupied territory could be acquired only by conquest or cession - Because North America was treated as vacant, neither conquest nor cession was necessary to transfer sovereignty from aboriginal nations to European powers - Indigenous peoples had no *sovereign* claim to any land 'discovered' by Europeans. - They *only* had limited rights of occupation and use.  - Europeans found no difficulty in convincing themselves that they made ample compensation to the inhabitants of the new, by bestowing on them civilization and Christianity, in exchange for unlimited independence - The Doctrine could be traced to Pope Nicholas V's papal bulls *Dum Diversas* (1452) and *Romanus Pontifex* (1455), which sanctioned the conquest of North Africa by the Portuguese. **[Treaty of Tordesillas (1494) ]** - The Doctrine of Discovery could be traced to the Treaty of Tordesillas of 1494, which divided the non-European world between the kingdoms of Spain and Portugal under the legitimacy of the Church.  - CJ Marshal: "\[I\]t was necessary, to avoid conflicting settlements, and consequent war with each other, to establish a principle, which all should acknowledge as the law by which the right of acquisition, which they all asserted, should be regulated as between themselves. - This principle was, that discovery gave title to the government by whose subjects, or by whose authority, it was made, against all other European governments, which title might be consummated by possession."  - "They were admitted to be the rightful occupants of the soil, with a legal as well as just claim to retain possession of it, and to use it according to their own discretion; but their rights to complete sovereignty, as independent nations, were necessarily diminished, and their powers to dispose of the soil at their own will, to whomsoever they pleased, was denied by the original fundamental principle, that discovery gave exclusive title to those who made it." --- *Johnson v M'Intosh* 21 US (8 Wheat) 543 (1823).  - Johnson purchased native American land and Mcintosh bought the same land from the US government. - Trial went to the supreme court and according to terra nullis and doctrine of discovery, McIntosh won (Europeans owned the land not native Americans) **[*The Royal Proclamation* of 1763 the Covenant Chain Wampum: Treaty of Niagara (1764) ]** - In the meeting at Niagara, the British Crown and First Nations formalized the principles that would govern their relationship for the future in oral statements and with the exchange of gifts and belts of wampum.  - Royal Proclamation: Indians will have possession of those lands until someone purchases them - Developed constitution rights for these lands and courts to resolve issues - The principles of the *Treaty of Niagara* (1794) were based on mutual non-interference and included: - peace, - friendship - respect - After this meeting, the *Royal Proclamation* was transformed from a unilateral proclamation to a *treaty* between two *autonomous nations*. ' - Largest assembly of native people here - Agreements between natives and Canadian government - Gave wampum as a symbol of a better relationship between natives and the crown - This is why indigenous peoples say 'We are all Treaty People'.    ***[Catherine's Milling and Lumber Co v. The Queen (1888)]*** - Action by Attorney General of Ontario against St. Catherine's Milling and Lumber Company to prevent cutting and carrying away timber on Ontario lands.  - Claimed that they were trespassers and wrongdoers in cutting the timber - The land in question was part of lands subject to Treaty \#3 of 1873 with indigenous peoples.  - The Attorney General claimed that the lands were public lands of Ontario, while the Milling Company argued that it had a license from the federal government, who have title over the land.  - The province and the crown were successful at trial. - The milling company appealed to the Supreme Court of Canada.   - In the Supreme Court, provincial title over the lands was upheld.  - CJ Ritchie argued that 'all ungranted lands in the province of Ontario belong to the Crown as part of the public domain.... the Indians possessing only the right of occupancy, with the absolute exclusive right to extinguish the Indian title either by conquest or by purchase' - The basis of the decision was a racist interpretation of the facts by Chancellor Boyd at trial, who argued that the Crown acquired the lands from the French king because of the Treaty of Paris (1763) and not by treaty with the indigenous peoples, who were considered uncivilized with no organized system of government or law.   - Because Indian people's way of life was inferior its destruction was of no consequence   **[Supreme Court of Canada decision appealed to the Privy Council in London. ]** - Lord Watson: 'the fact that the power of legislating for Indians, and for lands which are reserved to their use, has been entrusted to the Parliament of the Dominion is not in the least degree inconsistent with the right of the provinces to a beneficial interest in these lands, available to them as a source of revenue whenever the estate of the Crown is disencumbered of the Indian title'. \[107\]. - The land, therefore, was held to remain *with* the Crown in *right* of province.   ***[Truth and Reconciliation Commission of Canada ]*** - *Declaration on the Rights of Indigenous Peoples* adopted in the United Nations on September 13, 2007.  - Called for member states to maintain a set of "minimum standards for the survival, dignity and well-being of indigenous peoples of the world". - The Declaration was grounded on the principle of *self-determination*, which was argued was the only framework that would lead to reconciliation with indigenous peoples.  - The Indian Residential Schools Settlement Agreement led to the formation of the Truth and Reconciliation Commission in 2008 with the purpose of documenting the history and lasting impacts of the residential school system. (the parties of the Indian residential schools settlement agreement formed the commission) **[*Truth and Reconciliation Commission of Canada Report* (2015)]** - Canada committed 'cultural genocide' against Aboriginal peoples with its systemic policies of: - Assimilation - its breaking of treaties - suppression of Aboriginal rights.   - Cultural Genocide - \[T\]he destruction of those \[cultural\] structures and practices that allow the group to continue as a group'.  - Canada outlawed Aboriginal spiritual practices, banned Aboriginal languages, and separated children from their parents sending them to residential schools with the aim of breaking 'their link to their culture and identity,' so that they would 'acquire the habits and modes of thought of white men'. - 150,000 children were forced to attend residential schools during its 120-year history. - Close to 4,000 of those children died or disappeared, and there were nearly 40,000 cases of sexual assault and abuse.   **[Reconciliation ]** - The Truth and Reconciliation Commission issued 94 'calls to action' urging federal and provincial governments to work with Aboriginal peoples to change policies and legislation to repair the harm caused by residential schools and bring forth reconciliation.  - The 94 Calls to Action is comprehensive and covers: - Child welfare - education, language - culture protection - healthcare - justice.  - The 'Calls to Action' is available online: [[https://s3.documentcloud.org/documents/2091412/trc-calls-to-action.pdf]](https://s3.documentcloud.org/documents/2091412/trc-calls-to-action.pdf) - The Truth and Reconciliation Commission called for Canada to adopt the United Nations *Declaration on the Rights of Indigenous Peoples* as the framework for reconciliation.  - It also called for the Canadian government to develop **a Royal Proclamation of Reconciliation** issued by the Crown that would be built on the *Royal Proclamation of 1763* and the Treaty of Niagara of 1764 **to reaffirm the nation-to-nation relationship between Aboriginal peoples and the Crown.** - The Truth and Reconciliation Commission also called for the **repudiation (rejection of idea) of the legal concepts** used to justify European sovereignty over indigenous peoples and lands, **such as the Doctrine of Discovery and Terra Nullius*   ***   ***[S. 35 Constitution Act, 1982]*** \(1) The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed.  - **to reaffirm the nation-to-nation relationship between Aboriginal peoples and the Crown.** \(2) In this Act, 'aboriginal peoples of Canada' includes the Indian, Inuit, and Metis peoples of Canada.  - S. 25 of the *Charter*, which stipulates that 'the guarantee in this Charter of certain rights and freedoms shall not be construed so as to abrogate (repeal a law) or derogate (detract) from any aboriginal, treaty or other rights or freedoms that pertain to the aboriginal peoples of Canada'.   - s\. 91(24) *Constitution Act, 1867*: Exclusive legislative authority of the Federal government extends to all matters in relation to "Indians, and Lands reserved for the Indians".   **[The Courts, the Judiciary and Constitutional Interpretation -- Lecture 3 ]** **[Superior Courts (s.96 courts)]** - Provincial courts or Superior Courts established under s.92 (14) of the Constitution Act, 1867 - make laws in relation to the 'administration of justice in the province'.  - Provinces are responsible for the administration of superior courts. - Superior Courts (also called s.96 courts) - are the only courts that have 'inherent jurisdiction'. - Inherit jurisdiction: unless expressly removed by statute, their jurisdiction was plenary - extending to any type of legal case - have jurisdiction over federal, provincial, and constitutional matters.  - The federal government appoints, renumerates, and safeguards the security of tenure of the judges of the Superior Courts. - This reinforces judicial independence.  - On top of the superior courts are the provincial courts of appeal, an appeal over goes to the Supreme Court of Canada.  - Composed of 9 judges - The federal executive (through the governor general) appoints judges to the court - Appointments of associate justices are based on the recommendation of the minister of justice - For the position of chief justice, the prime minister makes the recommendation personally **[Federal Courts ]** - S. 101 empowers Parliament to create its own statutory courts 'for the better Administration of the Laws of Canada'.  - The Federal Courts Act provides for the creation of Federal Courts, which deals with matters arising from federal legislation, such as taxation, citizenship, and copyright.  - The Federal Court has concurrent jurisdiction with Superior court. - concurrent jurisdiction with the provincial superior courts to adjudicate constitutional cases so long as they arise within the courts area of statutory cases - On top of the federal court is the federal court of appeal, an appeal over goes to the Supreme Court of Canada.   **[Constitutional Interpretation ]** - S. 52(1) *Constitution Act, 1867*: the 'Constitution of Canada is the supreme law of Canada'. - 'Any law that is inconsistent with the provisions of the Constitution is...of no force or effect'.  - The sources of the constitution are both written and *unwritten*: - *Reference re Succession of Quebec*, \[1998\] 2 SCR 217 (scroll down) - Underlying unwritten principles of the Constitution include federalism, democracy, the rule of law, the protection of minorities and judicial independence.  (scroll down)   **[Methods of Legal Argumentation/Analysis  ]** - Historical Argument (also known as 'originalism'): - looks into intention of the drafters of the constitution.  - Textual Argument: - looks into the present sense of the words in the provisions.   - Doctrinal Argument: - looks into previously accepted precedents.  - It is probably the predominant form of argumentation in Canada - Prudential Argument: - balances the costs and benefits of any piece of legislation.   - Ethical Argument: - a holistic approach derived from a certain ideal sense of what Canadian society should look like.   - Structural Argument: - makes inferences from the overall constitutional *structures* that make up the constitutional order rather than one of its parts   [***Reference re Meaning of the Word "Persons" in s.24 of the BNA Act, 1867* \[1928\] SCR 276** ] - A reference: - is a question referred by the Federal government to the Supreme Court for an opinion - The question was whether the word "Persons" in s.24 of the *British North American Act, 1867* included female persons - CJ Anglin: s.24 of the British North American Act refers to appointments to the Senate of "fit and qualified persons". - So the question is whether "female persons could be considered "fit and qualified".  - The court's duty merely to construe (interpret) the relevant provisions of the British North American Act. - CJ Anglin: proper method of constitutional interpretation is *historical -* looks into intention of the drafters of the constitution.  - ---i.e. the court must construe 'not merely the words of the Act of Parliament but the *intent* of the Legislature'. - Two rules of construction of statutes:  - \(1) if the statute could be interpreted in more than one meaning, in the absence of express language, an intention to abrogate (repeal of Law) the ordinary rules of law is not to be imputed (ignorance of the law does not excuse) by Parliament (per *Wear Commissioners v. Adamson* (1876) 1 QBD 546 at 554). - \(2) The language of the provisions must be 'considered in its ordinary and popular sense' of the time (per *Chorlton v. Lings* (1868), LR 4 CP 374).   - CJ Anglin: under the law of the time, women were considered under 'legal incapacity' to vote in elections and unfit to take part in government and public affairs.  - Therefore, the word "Persons" in s.24 of the Act should not be construed as including women because women are not eligible for appointment to the Senate and are not considered as "qualified persons" within the meaning of the section.     **[*Edwards v. Canada (AG)* 1929 CanLII 438 UKPC 86 \[*The Persons Case*\]]** - Lord Sankey: two points need to be considered to interpret the meaning of a particular word in a particular Act of Parliament: - \(1) The external evidence derived from extraneous (unrelated) circumstances, such as previous legislation and decided cases. - \(2) The internal evidence derived from the Act itself. - The 'external' or historical evidence suggests that women have been excluded from public office. - "\[T\]heir Lordships do not think it right to apply rigidly to Canada of today the decisions and the reasons...to those who had to apply the law in different circumstances, in different centuries, to countries in different stages of development" (p.27). - Lord Sankey rejects the historical method of interpretation of statutes. - The 'internal evidence': Lord Sankey describes the British North American Act as a constitution akin to a 'living tree'. - "The *British North American Act* planted in Canada a living tree capable of growth and expansion within its natural limits. - The object of the Act was to grant a Constitution to Canada. - 'Like all written constitutions it has been subject to development through usage and convention'". - The provisions of the Act must therefore be given 'a large and liberal interpretation' rather than a narrow one. - Applying this method to the case, he concludes that if Parliament intended to limit the word "persons" in s.24 to male persons, it would have done so expressly to make its intent clear as it has done in s.41 and s.84.   - The word "persons" in s.24 of the *BNA Act*, therefore, includes both males and females and women are eligible to be members of the Senate.       **[*Reference re Remuneration of Judges of the Prov Court of PEI*; *Ref re Independence and Impartiality of Judges of the Prov Court of PEI* \[1997\] 3 SCR 3, 1997 CanLII 317]**   - The question of the extent to which the independence of provincial courts is constitutionally guarantee. - The Supreme Court held that the Constitution contained an 'unwritten constitutional principle' of judicial independence for superior court judges.  - Three provincial statutes reducing the salaries of provincial court judges was unconstitutional because they violated judicial independence.  - CJ Lamer: the courts have a 'constitutional role' which involves acting as 'umpire' (enforcing the rules and arbitrate matters arising) of the fundamental laws of society and of disputes involving the state. - This applies to provincial courts who have 'institutional independence'.  - "The institutional independence of the courts emerges from the *logic* of federalism, which requires an impartial arbiter to settle jurisdictional disputes between federal and provincial orders of government. - Institutional independence also inheres in adjudication under the *Charter* because the rights protected by that document are rights against the state.... The preamble and the judicature provisions of the *Constitution Act, 1867* \[are\]...additional sources of judicial independence. - Taken together, the institutional independence of the judiciary is 'definitional to the Canadian understanding of Constitutionalism'"    - "But the institutional independence of the judiciary \[also\] reflects a deeper commitment to the separation of powers between and amongst the legislature, executive, and judicial organs of government...\]although judicial independence had historically developed as a bulwark (defense wall) against the abuse of executive power, it equally applied against 'other potential intrusions, including any from the legislative branch' as a result of legislation."  - What is CJ Lamer's method of constitutional interpretation in this case? - Structural argument? -- Zlatas opinion -- that's also what it says below    **[Textual sources of judicial independence:]** - Judicature provisions in Part VII of the Constitution Act, 1867. - Preamble of the Constitution Act, 1867.  - The legal and institutional structure of constitutional democracy in Canada should be similar to that of the legal regime of which the Canadian Constitution emerged - The *Charter:* source *'*inhering' in s.11(d). - This is an 'architectural' as opposed to textual argument focusing on the function of the Charter and the overall source of the Constitution.    **[Unwritten (non-textual) legal principles]:** - The 'logic of federalism' (explained on first page) - The 'separation of powers': - requires that the relationship between the courts and other branches of government to be 'depoliticized'. - It provides that different functions will be performed by different branches of government - Legislative, executive, judicial - The courts must be free of external influence. - **Foundational constitutional doctrine** - The 'rule of law': -- exercise of all public powers must find source in a legal rule - the separation of powers and judicial independence are institutional manifestations of the rule of law.   - Three legal [rules] derived from these principles: - These legal rules are [inherent] legal properties of the more abstract unwritten legal constitutional principles.  - The *Judges Reference* was resolved using [unwritten] constitutional principles and the method of **structural argumentation.** - First, the very basic [abstract] requirements of a society under the law demand a 'constitutional role' be performed by the courts. - Second, this rule of law requirement mandates institutional separation. - Third, this separation requires 'depolitization'. - This leads to the derivation of [concrete legal rules] that effectively protect the courts so that they could perform their role under the Constitution.        **[*Reference re Succession of Quebec* \[1998\] 2 SCR 217, 1998 CanLII 793 ]** - The three questions posed by the Federal government:  - **Does Quebec have the right to under the Constitution to declare its sovereignty from Canada unilaterally? ** - \(2) Does international law permit Quebec to unilaterally secede (withdraw from federal union) from Canada?  - \(3) Does domestic law or international law prevail in Canada in the event of a conflict between them?  - The Constitution of Canada includes written constitutional texts enumerated in s.52(2) of the *Constitution Act, 1982*. - These texts are not exhaustive.  - The Constitution also embraces unwritten rules, which the courts could identify to 'fill the gaps in the express terms of the constitutional text'.  - There are four fundamental and organizing principles of the Constitution: - Federalism (also described on first page) - The principle of federalism is 'inherent in the structure of constitutional arrangements. - Federalism recognizes 'the diversity of the component parts of Confederation and the autonomy of provincial governments to develop their societies within their respective spheres of jurisdiction'. - Democracy - The principle of [democracy] is 'a fundamental value in our constitutional law and political culture'. - Canada is a constitutional democracy with freely elected legislative bodies on the federal and provincial levels. - The principle has 'an essential interpretative' role in relation to the constitution. - The relationship between federalism and democracy means that there could be different majorities in different provinces and the federal level, and no one majority is more legitimate than the other. - Democracy cannot exist without the rule of law as it requires a legal foundation for democracy to operate. rule of law  - an exception that governments will exercise power according to the law and not in an arbitrary manner - Constitutionalism - Constitutionalism concerns how government action should be undertaken and should always comply with the law.   - The rule of law.  - The elements that make up the principle the rule of law include: - \(1) the law is supreme over acts of government and private persons. - \(2) the principle requires the creation of a legal order which preserves and embodies the more general principles of the normative order. - \(3) the exercise of political power must find its source in a legal rule. - Respect for minorities.  - The protection of minorities is an underlying part of the constitutional order, a constitutional value of the *Charter* and has considerable influence on the interpretation of the Constitution.   - The four principles make up a part of the spirit and foundation of the Constitution and 'it would be impossible to conceive of our constitutional structure without them'.  - The Court ruled that unilateral secession would be unconstitutional, but a clear majority by the people of Quebec to secede would impose a reciprocal obligation on all parties of the Confederation to negotiate the constitutional changes needed. - Do you agree with the court's reasoning? Do you think the court crossed the line by deciding a 'political' question using a legal analysis?   - Yes, I do agree with the court's reasoning -- Zlatas opinion   ***[How did the SC use the method of structural argumentation in this case?]*** - The court begins by isolating four unwritten principles inherent to the architecture of the constitution that are implicit in the issue of succession: (federalism, democracy, rule of law, constitutionalism, and minority rights).   -  From the *dynamic* of these four principles, the court identifies four concrete rules: - \(1) An expression of the popular will of citizens of a province to secede is both politically and legally significant and cannot be ignored by the rest of the country. - \(2) There is no absolute legal entitlement to secede.  - \(3) An obligation to negotiate does arise from the will to secede.  - \(4) Such negotiations must be conducted pursuant to the four underlying principles.   - "There are many important reasons for the preference for a written constitution over an unwritten one, not least of which is the promotion of legal certainty and through it the legitimacy of the constitutional judicial review. - Given these concerns, which go to the heart of the project of constitutionalism, it is of the utmost importance to articulate what the source of those unwritten norms within it  -  \[T\]he preamble does have important legal effects... - In the words of Rand J, the preamble articulates "the political theory which the Act embodies": *Switzman*... It recognizes and affirms the basic principles which are the very source of the substantive provisions of the Constitution Act, 1867. - **As I have said above, those provisions merely elaborate those organizing principles in the institutional apparatus they create or contemplate.** - **As such, the preamble is not only a key to construing the express provisions of the Constitution Act, 1867, but also invites the use of those organizing principles to fill out gaps in the express terms of the constitutional scheme.** - It is how the underlying logic of the act can be given force of law."     ***[Judges Reference ]*** - Three basic propositions could be drawn from this passage:  - \(1) Unwritten principles are the source of the entire Canadian Constitution.  - \(2) Authoritative written texts are derived from these principles through a process of formal enactment.  - \(3) Unwritten rules are also derived from these principles through the mechanism of the Preamble.    - Formally enacted rules are always preferable due to their express democratic source and legal certainty. - **But both written and unwritten rules 'merely elaborate' the foundational 'organizing principles' of the constitution and where written rules prove unable to protect vital constitutional interests, the courts can respond by determining relevant unwritten rules. ** - "Our Constitution has an internal architecture, or what the majority of this Court in *OPSEU*...called "a basic constitutional structure". - The individual elements of the Constitution are linked to the others and must be interpreted by reference to the structure of the Constitution as a whole. - As we recently emphasized in the Provincial Judges Reference, certain underlying unwritten principles infuse our Constitution and breathe life into it. - Speaking of the rule of law principle in the Manitoba Language Rights Reference...we held that "the principle is clearly implicit in the very nature of a constitution". - The same may be said of the other three constitutional principles (constitutsunalism, federalism, democracy, respect for minorities) we underscore today. - Although these underlying principles are not explicitly made part of the Constitution by any written provisions... it would be impossible to conceive of our constitutional structure without them. - The principles dictate major elements of the architecture of the Constitution itself **[Federalism and The Division of Powers -- Lecture 4 ]** - Part IV of the Constitution Act 1867 is made up sections 91 to 95, which distribute legislative powers between the Parliament of Canada and the legislatures of the provinces - Sections 91 defines the legislative powers of Parliament - Peace, order, and good government (POGG) clause states that Parliament may 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 - Thirty specific classes of subjects over which exclusive legislative authority has been allocated to **Parliament** including Public Debt and Property \[s.91(4)\], the borrowing of Money on Public Credit \[s.91(4)\], taxation \[s.91(3)\] and the regulation of trade and commerce \[s.91(2)\] - S.92 under the heading 'Exclusive Powers of Provincial Legislatures' provides that provincial legislatures may 'exclusively make Laws in relation to Matters **coming within the Classes of Subjects next hereinafter enumerated'.** - A list of 16 classes of subjects is set out, including administration of justice and economic matter within the province.  - And 'Property and Civil Rights in the Province' construed broadly.   - Although described as exclusive the reality is that **the powers of Parliament and province always tend to overlap.** - This when courts some to modify the jurisdiction of these powers by interpreting sections 91 and 92 - The courts generally interpreted provincial powers very broadly going against the intention of the drafters - S.95 granted Parliament and provincial legislatures concurrent powers over agriculture and immigration     **[Theories/Paradigms of Federalism ]** - Classic Federalism: the division of powers between federal and provincial governments are clear cut - the authority to regulate matters under their jurisdiction is exclusive \[i.e., watertight compartments\]. - Courts are arbiters. - No space for flexibility or overlap - Modern Federalism: accommodates and expects overlap between the two orders of government. - Overlap is tolerated and role of courts is reduced - Cooperative Federalism: federal and provincial governments complement each other and allows for tacit agreements - The courts play a part in accommodation and intergovernmental cooperation to avoid conflicts - Cooperative federalism is an interpretative aid that is used when interpreting constitutional texts to consider how different interpretations impact the balance between federal and provincial interests" (R. v Comeau, 2018 SCC 15, para. 78). - Where possible, courts should favor a harmonious reading of statutes enacted by the federal and provincial governments which allows for them to operate concurrently...**The principle is based on the presumption that "Parliament intends its laws to co-exist with provincial laws"** (Alberta (AG) v. Moloney, 2015 SCC 51 at para. 27)' \--*Reference re Pan-Canadian Securities Regulation* - While Canadian federalism requires some separation between each level of government, this rule is absolute - Canadas federal system is a flexible one, and the constitution does not create enclaves (a place or group that is different) around federal and provincial actors - Westbank First Nations v BV Hydro & Power 3 SCR 453 (1999)   **[What are the advantages and disadvantages of Federalism]** - Advantages - Democracy - citizens have more participation - Unity and economic growth - Disadvantages - Competition between provinces - More expensive - Delay in decision making process   **[Pith and Substance ]** - The Pith and Substance: the matter of the legislation - it's true meaning or essential character - its core - its most important feature or its dominant characteristic - court uses the pith and substance doctrine to determine whether the action is legal in areas where both level of government have claimed authority - The Pith and Substance Test was recently summarized by Supreme Court of Canada in *Reference re Greenhouse Gas Pollution Pricing Act 2021 SCC 11* - **Step 1: identify the purpose of the statute.** - To determine the purpose, consider the intrinsic evidence (such as preamble/derived from the Act itself) and extrinsic evidence (such as Hansard -- the official record of debates/unrelated circumstances) - **Step 2: identify the effect of the statute.** - To determine the effect, consider both, the legal effects (flow directly from the application of the statute) and the practical effects (side effects that flow from the application of the statute). - The Pith and Substance of the statute (it's essential character) must be described as precisely as possible - The test is not technical or formalistic - For example, the court can look at the background and circumstances of a statute's enactment - This court could also consider the legislative choice of means in the definition of a statute Pith and Substance - The characterization and classification stages of the analysis are and must be kept distinct **[R v Morgentaler \[1993\] 3 SCR 453]** - The first part of the analysis of the court was to identify the matter \[i.e. Pith and Substance\] of the law followed by assigning it to the classes or subjects under s.91 and 92 of the Constitution Act - Pith and Substance is not a formalistic test - it must be flexible - Look at the purpose and effect of the legislation - Effect could be legal effect and practical effect - Legal effects focus on the wording of the legislation - Not always enough to investigate the four corners of the legislation - analysis could go beyond legal effects by looking into its **background and circumstances** - **Extrinsic evidence such as legislative history and could include Hansard** (the official record of debates) - Applying this analysis to the case, Sopinka held that Hansard evidence was properly admitted by trial judge as it demonstrates the intent of legislature - to prohibit Dr M\'s proposed clinic on basis of common opposition to abortion - Medical Service Act and Medical Service D Aact: the central purpose and dominant characteristic is the restriction of the abortion as a socially undesirable practice which should be suppressed and punished - Extrinsic evidence: the legislation replicates language in the criminal code - the more exact the reproduction the stronger the inference - So, it's clear that this legislation was designed to serve a criminal law purpose - **Background and surrounding circumstances**: The 'principal purpose' of the legislation was to respond to Dr M's intention to open an abortion clinic.  - Hansard evidence demonstrates that prohibition of Dr M's clinic was the central concern of members of the legislature.  - **Based on extrinsic evidence**: strong inference that 'purpose of the legislation and its true nature relate to a matter within the federal head of power in respect to criminal law'. - Dismissed the appeal.   **[Ref re Employment Insurance Act SS 22 and 23 ]** - The question: do the provisions dealing with maternity and parental benefits in the employment insurance act (1971,1984) fall within s.92(13) property and civil rights or s. 92(16) generally all matters of a merely local or private nature in the province? - Federal government argues that they were directed at providing replacement income for working mothers and parents when their employment was interrupted and so fell within federal jurisdiction of s.91(2A) employment insurance - The Quebec C of A agreed with the Quebec argument and struck down the provisions - The federal government appealed - **The Supreme Court of Canada allowed the appeal and upheld the impugned provisions** - In constitutional interpretation the essential elements of a power are determined by adopting a generous reading of the words used, taken in their strictly legal context - The jurisdiction over unemployment insurance must be interpreted progressively and generously - It must be considered in the context of a measure that applies throughout Canada and the purpose of which is to curb the destitution caused by unemployment and provide a framework for workers re-entry into the labour market - The extent of the protection required by Canadian society changes with the needs of the labour force - A growing portion of the labour force is made up of women, and women have needs that are a concern to society as a whole - An interpretation of employment due to maternity can no longer be regarded as a matter of individual responsibility - So, although the act was measured to assist families - this is not its Pith and Substance, which is to govern the entitlements to benefits   **[General Motors of Canada Ltd v City National Leasing \[1989\] 1 SCR 641]** - Ancillary doctrine: permits the federal and provincial governments to intrude on the other level of governments jurisdiction if the most important features of their laws remain within their jurisdiction i.e., if it remains secondary to the overall legislation - City National Leasing brought civil action against General Motors arguing that it suffered losses due to its discrimatory pricing policy prohibited under Combines Investigative Act (1970). - **General Motors argues that s.33.1 of Act was beyond jurisdiction of Parliament because creation of civil suites falls within provincial jurisdiction of 'Property and Civil Rights'** - Dickens CJ: Rational and Functional Connection Standard Test - **first step:** consider extent to which impugned provision can be characterized as intruding into provincial powers - If it cannot be characterized as such investigation stops here - If provision is found constitutionally unimpeachable but the act assessed on its own is found as intruding, then the claim needs to be made against the Act rather than the provision - If it is found that the provision was intruding on provincial powers, the question becomes to what extent by focusing on provision on its own - Finally determine whether provision can be justified by reason of its connection with valid legislation (Case by case analysis) - **Applying the test to the case, Dickson finds that the provision s.31.1 encroaches on a provincial power but its remedial (giving remedy) one (i.e., its purpose is to help enforce the substantive aspects of the Act).** - So, encroachment is limited, and provision does not create a general cause of action.  - Moving to next step, since the intrusion of s.31.1 is limited, there is no need for a strict test and the correct test is whether provision is 'functionally related' to the general objective of the legislation.  - Dickson concludes that s.31.1 is 'an integral, well-conceived component' of the economic regulation strategy of the Combines Investigation Act and so passes the test of functionally relationship to the Act.   **[Quebec (AG) v Lacombe 2010 SCC 38]** - A refinement of the ancillary doctrine (a more relaxed rationale and functional connection standard in this step of the doctrine) is developed in this case: the ancillary powers doctrine is not to be confused with the incidental effects rule - The ancillary powers doctrine applies whereas here a provision is in Pith and Substance outside the competence of its enacting body - The potentially invalid provision will be saved where it is an important part of a broader legislative scheme that is within the competence of the enacting body - The incidental effects rule applies when a provision, in Pith and Substance, lies within the competence of the enacting body but touches on a subject assigned to the other level of government - **It holds that such a provision will not be invalid merely because it has incidental on a legislative competence that falls beyond the jurisdiction of its enacting body** - Mere incidental effects will not warrant the invocation of ancillary - Applying this doctrine to the case, the question is whether the by-law 260 -- dealing with banning aerodromes is 'rationally and functionally connected to by-law 210 -- dealing with zoning, that it should be considered as 'a functional part of the whole' piece of legislation. - There is a lack of connection between the two by-laws do not correlate with the nature of affected areas affected by bans of aerodromes.   - By-law 260 treats 'different parcels differently' by permitting the use of aerodromes in one parcel but not another. - By-law By law 210 treats different parcels of the land the same by broadly banning aerodromes throughout the municipality not only those used by vacationers.  - Therefore, by-law 260 does not function as zoning legislation, but as a stand-alone prohibition - it is not integrated in the overall zoning scheme.  - The amendments brought by by-law 260 do not meet the rational function connection in General Motors. - Held: the amendment brought by by-law 260 does not meet the rational and functional connection standard test and is therefore invalid.   - The impugned provision is **ultra vires** the province (fails ancillary powers doctrine)   [Interjurisdictional Immunity & Federalism Paramountcy -- Lecture 5 ] --------------------------------------------------------------------------------- - Interjurisdictional Immunity and Paramountcy emphasize the exclusivity of jurisdiction - They are remnants of the watertight compartments approach to constitutional interpretation (classic federalism) - They are exceptions to the **Pith and Substance and ancillary doctrines, which are more dominant approaches to constitutional interpretation** - The principle of interjurisdictional immunity emphasizes that there is a core or a basic minimum and unassailable (unable to be questioned) content of legislative powers that cannot be encroached upon by the other level of government - Although in theory interjurisdictional immunity (IJI) could be used to protect provincial legislative jurisdiction, the **courts have generally used it to protect federal powers** - When Interjurisdictional immunity is applied the courts read down (that a law is no longer valid because it has been proven to violate one or more charter rights) provincial legislation to protect the core areas of federal powers - The issue in Interjurisdictional Immunity is applicability of the law - Validity is assumed - Interjurisdictional Immunity was first developed by the Parliament of Canada in *John Deere Plow Co v Wharton \[1915\] AC 33*0, which held that the otherwise valid provincial laws cannot sterilize or impair the essential powers of a federally incorporated company - **This was the restrictive approach to the application of Interjurisdictional Immunity** - As we shall see this approach was later relaxed in *Quebec (commission du salaire minimum) v Bell Telephone Co of Canada \[1966\] SCR 767 \[Bell 1966\] (below)* - In impairment was abandoned for the lesser standard that a law affects a vital part of the management and operation of the undertaking - Affecting a vital part continued to be the test for Interjurisdictional Immunity for the next four decades and affirmed in the trilogy of cases: *Bell Canada v Quebec \[1988\] 1 SCR 749; Canadian National Railway Co v Courtois \[1988\] 1 SCR 868; and Altran\'s Express v BC 9workers compensation board), \[1988\] 1 SCR 897* - In *Canadian Western Bank v. Alberta* \[2007\] 2 SCR 3 and *BC v Lafarge* \[2007\] 2 SCR 86, the Supreme Court reverted to a more restrictive approach to Interjurisdictional Immunity **rejecting the 'affects' standard for an 'impairment' standard**. - The doctrine is now restricted to a case where a 'core' competence of Parliament or a 'vital' part of a federal undertaking would be 'impaired' by a provincial law - The issue was whether Bell Canada could apply a Quebec law giving a right to protective reassignment to pregnant workers - The court held that provincial legislation regulating labour relations, working conditions and occupational health and safety all affect vital aspects of federally regulated undertaking - J Beetz begins his analysis by stating that although labour relations and working conditions fall within exclusive jurisdiction of provincial legislature, **Parliament is vested with exclusive jurisdiction when the jurisdiction is an integral part of its primary and exclusive jurisdiction over another class of subjects such as working conditions in federal undertakings** - Therefore, this federal exclusive jurisdiction precludes the application of these undertaking of provincial statutes relating to labour relations and working conditions - Legislation on the management of federal undertaking and their working conditions...is legislation on matters falling within an exclusively federal class of subjects that of federal undertakings - The effect of general provincial laws that would result from their application to federal undertaking would in the **case at bar constitute an encroachment on the exclusive jurisdiction of Parliaments** - Working conditions and labour relations cannot be divorced from the management of a federal undertaking - Beetz concludes that the provincial law needs to be read down so as not to apply to federally regulated undertaking like Bell Canada - **Provincial legislation can be inapplicable based on Interjurisdictional Immunity if it affects vital or essential part of federal undertaking without necessarily impairing or paralyzing it** - The Supreme Court reverted to the language of impairment by stating that a provincial law **must impair as opposed to affect** a vital and essential part of federal work or undertaking for the doctrine Interjurisdictional Immunity to apply - And the activity in question must be dispensable or necessary for it to be immune - Binnie and Lebel J: - **Interjurisdictional Immunity is a doctrine of limited application, but its existence is supported both textually and by the principle of federalism** - In theory, Interjurisdictional Immunity could be applied to protect provincial heads of powers from federal encroachment - Invoking flexible federalism, the court criticizes a broad interpretation of the doctrine, arguing that **the Pith and Substance, ancillary doctrine and double aspect doctrines are most consistent with contemporary views of federalism which recognizes the inevitably of overlap and emphasizes cooperation** - The excessive reliance on interjurisdictional Immunity would create uncertainty and risk creating legal vacuums - A more incremental approach is desirable - Parliament could always use the Paramountcy doctrine when it sees fit - The court does not favour an overreliance on Interjurisdictional Immunity - **Interjurisdictional Immunity should be applied in rare circumstances and with restraint** - **If the case could be resolved using Pith and Substance and Paramountcy, then it would be preferable** Ratio - Banks are subject to laws of general application, including those that affect the bank - Not problematic because provincial actor is acting **intra virus** (within jurisdiction) - **The banks choice on entering insurance makes them subject to provincial laws** - A private airstrip was constructed on a lot in a farm - Under the federal Aeronautics Act, if the airfield is registered (which it was) it is subject to federal standards - The land in question was within an agricultural region subject to the provincial act of preservation of agricultural land - s.26 of which prohibits the use of agricultural land for any other purpose than agriculture unless permission was granted, which it was not - **The federal commission argues that s26 of the provincial act was ultra vires** (beyond one's legal authority) or alternatively inapplicable applying to Interjurisdictional Immunity - **The first step is to determine whether the provincial law s.26 of the Act trenches on the protected core of a federal competence** - **Applying the test, she finds that local aspects of aviation come under federal jurisdiction -** the subject matter of aerial navigation is non-severable - Federal jurisdiction over aeronautics encompasses the power to determine the location of aerodromes - Moving to the next step the justice finds that the location of aerodromes is an essential and indivisible part of aeronautic and so attracts Interjurisdictional Immunity - **If it does the second step is to determine whether the provincial laws effect on the exercise of the federal protected power is sufficiently serious to invoke Interjurisdictional Immunity** - The final question is whether s.26 is sufficiently serious to attract Interjurisdictional Immunity - The court finds that is - s.26 of the Act impinges on the federal competence of aeronautics - **When the provincial law shuts out/interferes with exclusive federal jurisdiction it undermines the core purpose -- interjurisdictional immunity applies** - If a validly enacted federal and provincial laws dealing with the same matter conflict, the Federal Paramountcy doctrine provides that federal law prevails - The provincial law is rendered inoperative to the extent that it is inconsistent with the federal law - The term conflict has been construed in several ways by the Supreme Court: - Impossibility of dual compliance - proposes federal paramountcy - One enactment says yes and the other says no - This asks whether it is impossible for the people who are subject to the federal and provincial enactments in question to comply with both - Duplication - This asks whether the provincial legislation duplicates the federal legislation - Double Aspect Doctrine? - Impossibility of giving dual effect - This asks whether a judge or other government decision maker whom both enactments are relied on by contesting parties can give effect to both - Had hardly ever been used by the supreme court - Frustration -- proposes federal paramountcy - This asks whether permitting the provincial enactment to operate in the circumstances in question would serve to frustrate the purpose underlying the federal enactment - Federal intention to cover the field - This asks whether parliament by legislating in a particular area has enacted a code that was intended to be complete and thus by implication was intended to oust the operation of any provincial laws - The Supreme Court has taken a narrow approach to Federal Paramountcy - Conflict for the purposes of Federal Paramountcy may arise in two ways - An impossibility of dual compliance (one enactment says yes and the other says no) or - Frustration of a federal legislative purpose by the provincial law - Even if it is possible to comply with valid federal law, the provincial law will be suspended to the extent necessary to prevent it from undermining the purpose of federal law - Ross was convicted under s.234 of the criminal code for driving impaired - **S.238(1) of the Canadian Constitution allowed the judge discretion to prohibit Ross from driving a period of 6 months except when going to work** - **The order did not suspend the license** - **The registrar of motor vehicles in Ontario suspended his license under s.21 of the Ontario Highway Traffic Act** - Ross sought a declaration that s.21 of the Highway Traffic Act was inoperative because it was in conflict w s238 of the Canadian Constitution. - The province responded that s.238(1) was ultra vires (beyond jurisdiction) - The Supreme Court had to deal with three questions: - Was the provincial Law valid - Was the federal law valid - If both were valid, was there a conflict that required the application of Federal Paramountcy with the result that the provincial law would be inoperative - The court held both pieces of legislation were valid - the Highway Traffic Act dealt with licensing for the purposes of regulating highway traffic and was not in true character an attempt to prescribe further penalties for criminal offences - The federal law did not encroach on provincial law - It was held that there was no conflict - both laws could operate simultaneously - The Ontario securities act prohibited insider trading in all shares trading in the Toronto stock exchange - The Canada corporations act had identical provisions applicable to trading of shares in corporations incorporated under federal law - The respondents argue that based on the doctrine of Interjurisdictional Immunity, the Ontario statute could not apply to their case because trading in shares of a federally incorporated company falls in federal jurisdiction - In the alternative they argued that the doctrine of Federal Paramountcy applies in this case - **The Supreme Court held that both enactments were valid, and that the provincial legislation could apply to federally incorporated companies** - They then turned to the question whether the Ontario law is inoperative by virtue of the doctrine of Federal Paramountcy - **It was held that although the provincial legislation duplicates the federal, it does not contradict it** - **The fact that a plaintiff may have a choice of remedies does not mean that the provisions of both levels of government cannot live together and operate concurrently** - There is no true repugnancy in the case of merely duplicative provisions since it does not matter which statute is applied. - The legislative purpose of Parliament will be fulfilled regardless of which statute is invoked by a remedy-seeker - application of the provincial law does not displace the legislative purpose of Parliament - **Duplication is the ultimate harmony and without conflict cannot invoke the doctrine of Federal Paramountcy** - The insider trading provisions are intra vires parliaments jurisdiction and provincial jurisdiction. - The two types of provisions are near duplicates and do not conflict, therefore they do not call for the doctrine of paramountcy but the **doctrine of double aspect** - Both are valid - Hall was a farmer who granted the bank a security interest on a piece of farm machinery for a bank loan pursuant to s.178 of the federal bank act - Hall defaulted on the loan and the bank, pursuant to the provisions of the federal bank act, seized the machinery and brought an action to enforce its real property mortgage loan agreement - **The bank did not follow the s.27 of limitations of civil rights act where it was required to give notice of intention, or the security interest would be terminated, and the debater released of all obligations** - On appeal from the court of queen's bench, the Supreme Court considered the validity of both provisions of the act and whether a security interest under the Bank Act was subject to the provincial statute - La Forest held that ss 19 to 36 of the Limitations of Civil Rights Act came within property and civil rights under s.92(13) and were therefore intra vires (within proper jurisdiction) - **He also concluded that ss.178 and 179 if the bank act were also intra vires under s.91(15)** - **La forest found that there was a conflict between the two enactments** - The bank act provides that a lender may on the default of the borrower seize his security whereas the Limitation of Civil rights act forbids a creditor from immediately repossessing the secured article on pain of determination of the security interest - there could be no clearer instance of a case where compliance with a federal statute necessarily entails defiance of its provincial counterparts... to require the bank to defer to the provincial legislation is to displace the legislative intent of parliament. - La forest concludes that there is no room for the operation of the provincial legislation and so it should be construed as inapplicable to the extent that it encroaches on federal banking system -- federal paramountcy - The question in this case was whether s.6 of the provincial The Tobacco Control Act is sufficiently inconsistent with s.30 of the federal Tobacco Act to be rendered inoperative pursuant to the doctrine of Federal Paramountcy. - **Justice Major stated that the doctrine of Federal Paramountcy dictates that where there is an inconsistency between validly enacted but overlapping provincial and federal legislation, the provincial legislation is inoperative.** - However, 'impossibility of dual compliance is not the sole mark of inconsistency. - Provincial legislation that displaces or frustrates Parliament's legislative purpose is also inconsistent for the purposes of the doctrine'. - A provincial enactment must not frustrate the purpose of a federal enactment. - So the question in this case is whether first, a person could simultaneously comply with s.6 of the Tobacco Control Act and s.30 of the Tobacco Act and second whether s.6 of the Tobacco Control Act frustrates Parliaments purpose in enacting s.30 of the Tobacco Act - Major concludes that in demarcating the scope of s.19 prohibition through s.30 parliament did not grant retailers a positive entitlement to display tobacco products. - The Tobacco Act is directed at public health evil and contains prohibitions accompanied by penal sanctions - **Therefore, it falls within the scope of Parliaments criminal power, and provisions enacted pursuant to this power do not create freestanding rights that limit the ability of the provinces to legislate more strictly than Parliament** - Dual compliance in this case is possible - A retailer could comply with both act either admitting no one under 18 on the premises or by not displaying tobacco products - S.6 of Tobacco Control Act therefore does not frustrate the legislative purpose of s. 20 of the Tobacco Act - Both federal and provincial legislation are made intra vires by the concurrence of purposes in the two pieces of legislation - **The paramountcy doctrine does not apply in this case** - The case concerned an alleged conflict between the federal bankruptcy and insolvency act and Alberta\'s traffic safety act - The respondent got into an accident while uninsured contrary to s.54 of the Traffic Safety Act - The province compensated the injured party and sought to recover the amount from the respondent - The respondent however made a claim of bankruptcy. - Under Bankruptcy and Insolvency Act upon discharge, the respondent is released of all debts. - Alberta suspended the Respondents' license until he pays pursuant to the Traffic Safety Act. - The Respondents contested the suspension arguing that the Traffic Safety Act conflicted w the Bankruptcy and Insolvency Act in that it frustrated the federal purpose of bankruptcy. - The province replied that there is no conflict since Traffic Safety Act is merely regulatory - Justice Gascon set out the current Federal Paramountcy test: - A conflict could arise in two situations: - There is an operational conflict because it is impossible to comply with both laws or - Although it is possible to comply with both laws, the operation of the provincial law frustrates the purpose of federal enactment - Absent a genuine inconsistency, court will favour an interpretation of federal legislation that allows the concurrent operation of both laws. - Conflict must be defined narrowly so that each level of government may act as freely as possible within its respective sphere of authority - The focus of a Federal Paramountcy analysis should be the effect of the provincial law rather than its purpose - The laws in question give inconsistent powers - one says yes and the other says no - **One provides for release of all claims and prohibits creditors from enforcing the while the other disregards the release and allows for debt enforcement - this is true incompatibility** - **Both laws cannot operate concurrently** - Gascon concludes that s.102 of the Traffic Safety Act conflicts with s.178(2) of the Bankruptcy and Insolvency Act - There is therefore an operational conflict, and the former (traffic safety act) frustrates the latter (Bankruptcy and Insolvency Act) - Federal Paramountcy only applies to the extent of a conflict or inconsistency between federal and provincial law and does not affect the operation of those parts of the provincial law which are not inconsistent with federal law. - Interjurisdictional Immunity is a restriction on the constitutional authority of the provincial legislatures. - When the doctrine applies, the provincial law is invalid its application to a core federal subject matter. - It does not matter if Parliament has enacted conflicting federal legislation or any legislation at all. - The province is constitutionally barred from going there. - This is when province makes laws outside of its jurisdiction - Federal Paramountcy, on the other hand, only comes into play where there is valid federal legislation and valid provincial legislation and there is a conflict between the two. - When Federal Paramountcy applies the provincial law is not invalid but merely *inoperative*. - If the federal law were repealed or amended to remove the conflict, the provincial law which was always valid would spring back in operation. - This is when province makes laws in its jurisdiction, but it goes against the federal government which has the final say **[Peace Order and Good Government (POGG) -- Lecture 6]** - s\. 91 of the *Constitution Act 1867*: Parliament is authorized to enact laws 'for the Peace, Order and Good Government, in relation to all Matters not coming within the Classes of Subjects by this Act assigned exclusively to the Legislatures of the provinces.' - Parliament of Canada adopted a very narrow interpretation of POGG power, construing it as a residual power that **came into operation only with respect to matters not falling within enumerated (listed) subjects in ss.91 and 92.** - Also broadly interpreted provincial power over property and civil rights in s.92(13) as all-encompassing. - There are three main branches of the POGG power: - **The emergency branch:** permits the federal government to do whatever necessary to address certain emergencies. - Clearest example: state of war. - Leading case on scope of emergency branch of POGG is *Ref Re Anti-Inflation Act* 1975 2 SCR 373. - The Act imposed a comprehensive program of controls of wages, prices, and profits. - The programme applied to federal public sector, to provincial government employees where province opted into scheme and to large private-sector firms. - **The regulation of** **interprovincial activities had always been regarded by courts as falling within exclusive provincial jurisdiction pursuant to the property and civil rights power in s.92(13).** - Several public sector unions launched a constitutional challenge to the legislation on the basis that it regulated matters coming within the exclusive jurisdiction of the provinces. - The federal government referred the matter to Supreme Court. - The federal government's argument was that inflation was a problem of inherent national concern and therefore the legislation could be justified under the national dimensions branch of POGG power. - Most of the court rejected this argument holding that **the legislation could be upheld on the basis of the emergency branch of the POGG.** - Laskin CJ held that the fact that inflation had exceeded 10 percent in 1974 and 1974 supported the conclusion that Parliament had a rational basis for deciding that there was a national emergency. - **The case upheld that in the context of an emergency, the divisions of powers between Parliament and the legislatures set out in ss. 91 and 92 is effectively (temporarily) suspended for the duration of the emergency.** - **The residual or 'gap' branch:** the power to legislate in relation to matters not included within any enumerated classes of subjects in ss. 91 and 92. - Preserves the notion that POGG contains residue of all powers not expressly allocated to provinces. - Very limited because the main provincial powers are expressed in general terms. - **Used to uphold matters such as legislation establishing official languages within federal institutions; legislation concerning seabed that falls within Canadian territory and yet not within boundaries of province; and the incorporation of companies with federal objects.** - **The national concern branch:** the power to legislate in relation to distinct matters of 'inherent national concern'. - Viscount Simon in *Ontario (AG) v Canada Temperance Federation* \[1946\] AC 193: '\[T\]he true test must be found in the real subject-matter of the legislation: if it is such that it goes beyond local or provincial concern or interests and must from its inherent nature be the concern of the Dominion as a whole...then it will fall within the competence of the Dominion Parliament as a matter affecting the peace, order and good government of Canada'. - The branch serves as a residual power conditioned by the need to demonstrate a pan-Canadian dimension. - It is not temporary. - **Once a power is upheld under this branch, the subject is added to the powers assigned to federal jurisdiction.** - Applied to the field of aeronautics national capital, radio communications, and atomic energy. - The precise scope of the national concern branch remained somewhat uncertain until the recent decision of *Ref re Greenhouse Gas Pollution Act*. - **Possible fourth branch implicit in Supreme Court case law:** matters of inter-provincial concern. **[*Re: Anti-Inflation Act* \[1976\] 2 SCR 373]** - Leading case on scope of emergency branch of POGG - The majority held the Act was valid under POGG power as an emergency legislation. - And the existence of an emergency was essential to the Act's validity. - Four judges dissented on this point leaving it open on whether the Act was valid under the national dimensions branch. - The Attorney Generals of Canada and Ontario argued that the Act concerned a matter that went beyond local or provincial concern and was of a nature which engaged vital national interests. - **Laskin: If the Act is valid under the emergency branch of the POGG, there is no need to consider the national concern branch.** - Laskin writing for majority put forward the 4 main questions that are raised in the case: - 1**) Did the Act itself contradict the federal contention (argument)?** - Laskin states that he does not regard the provisions regarding provincial sector as an indicator that the federal government was not seized with urgency, since provincial concern over inflation was a matter of public record. - And 'Co-operative federalism may be consequential upon a lack of federal legislative power, but it is not a ground for denying it.' - **2) Is the federal contention assisted by the preamble of the statute?** - although the word emergency was not used, it was clear from its words that the legislation meant to deal with 'the containment and reduction of inflation \[which\] has become a matter of *serious* national concern'. - **3) Does the extrinsic evidence show there was a rational basis for the Act as a crisis measure?** - the extrinsic evidence needs to go only so far as to persuade the court that there is a rational basis for the legislation -- it does not need to provide any proof of an emergency. - The statistics show double digit inflation and together with unemployment were prime reason for Parliament's decision to pass the Act. - So, Parliament had a 'Rational Basis' for regarding the Act as a measure that was 'temporarily necessary to meet a situation of economic crisis imperiling the well-being of the people of Canada as a whole'. - **4) Is it a tenable (able to be maintained) argument that the Act rose beyond local or provincial concerns?** - The fact that there has been rising inflation at the time federal action was taken, that inflation is regarded as a monetary phenomenon and that **monetary policy is admittedly within exclusive federal jurisdiction persuades me that the Parliament of Canada was entitled...to act as it did** from the springboard of its jurisdiction over monetary policy...' - **The Act is therefore valid legislation for the POGG of Canada.** - Justice Beetz (**dissenting**) argued that the Act and Guidelines interfere with classes of matters within exclusive provincial jurisdiction. - It is therefore **'*tanto ultra vires*** of the Parliament of Canada under s.91 -- the regulation of local trade commodity pricing and profit margins in the provincial sectors short of a national emergency lie within exclusive provincial jurisdiction. - **Could be a slippery slope that would lead to the disappearance of the division of powers between federal and provincial legislatures which is a fundamental feature of the constitution**. - Beetz argues that the subject-matter of the Act in Pith and Substance is not inflation or the containment of inflation. - 'In order to characterize an enactment, one must look at its operation, at its effects and at the scale of its effects rather than its ultimate purpose where the purpose is practically all-embracing'. - The Act is clearly a law relating to the control of profit margins, prices, dividends, and compensation that is with respect of provincial private sector, a law relating to the regulation of local trade, to contract and to property and civil rights in the provinces enacted as a part of a programme to combat inflation. - **It is 'an aggregate of several subjects of which form a substantial part of provincial jurisdiction.'** - It is therefore too pervasive and 'knows no bounds. - It would render most provincial powers nugatory (no value or importance). - For Parliament to invoke emergency power, it must give 'an unmistakable signal'. ' - The courts cannot decide that a suspension \[of the Constitution\] is legitimate unless the highly exceptional power to suspend it has been expressly invoked by Parliament'. - Otherwise, the constitution receives its normal application. ' - Since, the use of a national emergency allows for federal government to override provincial laws, ***it must be explicit'*.** - **Act fails this test.** - **The Act is therefore *ultra vires* of Parliament.** **[*R v Crown Zellerbach Ltd* \[1988\] 1 SCR 401]** - The respondent, Crown Zellerbach, was charged under the Ocean Dumping Control Act, which prohibits dumping of substances at sea except in accordance with terms and conditions of a permit. - The respondent challenged the constitutionality of the Act in its application to provincial marine waters on federalism grounds. - Justice Le Dain rejected the challenge finding that marine pollution was a single matter of national concern. - He rejected the argument that the federal government does not have jurisdiction to control dumping in provincial waters of substances that are not shown to have a pollutant effect in extra-provincial waters. - Le Dain sets out four propositions on the **national concern doctrine** of the POGG power: - The national concern doctrine is separate and distinct from the national emergency doctrine of POGG power. - **The national concern doctrine applies to both new matters which did not exist at the time of confederation as well as to matters which, although originally under provincial jurisdiction, have since become matters of national concern.** - To qualify as a matter of national concern, a matter must have 'a singleness, distinctiveness and indivisibility that clearly distinguishes it from matters of provincial matters or provincial concern and a scale of impact on provincial jurisdiction that is reconcilable with the fundamental distribution of legislative power under the Constitution'. - It is *relevant* \[i.e., merely a factor\] to consider what would be the effect on extra provincial interests of a failure to deal effectively with the control or regulation of the interprovincial aspects of the matter. - The fourth factor was described as the 'provincial inability' test: - 'By this approach, a national dimension would exist whenever a significant aspect of a problem is beyond the provincial reach because it falls within the jurisdiction of another province or the federal Parliament.' - Applying the national concern doctrine to the case, Le Dain found that marine pollution has an extra-provincial and international character that makes it clearly a matter of concern to Canada as a whole. - It is a single indivisible matter distinct from the control of water pollution in general. - La Forest (**dissent**): Ocean pollution fails to meet the test of singleness, distinctiveness, and indivisibility. - Slippery slope argument. - Amounts to creation of a broad federal power on unclear geographical grounds. **[*References Re Greenhouse Gas Pollution Pricing Act* \[2021\] SCC 11
]** - The precise scope of the national concern branch remained somewhat uncertain until the recent decision of *this case* - The federal government passed the Greenhouse Gas Pollution Pricing Act which established national standards for a carbon price. - The province of Saskatchewan filed an appeal and the Court of Appeal for Saskatchewan ruled in favor of the federal government concluding that the Act was not unconstitutional and was legitimate exercise of POGG power. - The province appealed to the Supreme Court. - Wagner: the subject matter of the Act in Pith and Substance establishes minimum national standards of the Green House Gas price stringency. - Looking into **intrinsic evidence,** the true subject matter of the Act was to mitigate climate change 'through the pan-Canadian application of pricing mechanisms to a broad set of greenhouse gas emission sources. - The relevant mischief that is being targeted is not emissions per se, but **the effects of the failure of some provinces to implement Green House Gas pricing systems.** - This is also confirmed by **extrinsic evidence.** - Moving to legal effects of the Act, Wagner confirms that its focus is on national Green House Gas pricing and its backstop nature. - The Act would not apply to provinces that already have a sufficiently stringent pricing system. - The court concludes that the true subject matter of the Act is establishing minimum national standards of Green House Gas pricing to reduce Green House Gas emissions. -- **The Pith and Substance** - **Wagner moves to the National Concern Doctrine: Courts must approach the doctrine with great caution.** - 1\) The analysis begins by asking as a threshold question, whether the matter is sufficient concern to Canada as a whole. - **A) Threshold Question:** The issue is not regulation of Green House Gas emissions per se but whether establishing minimum national standards of Green House Gas price stringency to reduce emissions is a matter of national concern. - He concludes that it is. - 2\) the federal matter must be specific and readily identifiable and qualitatively different from matters of provincial concern. - **B) Singleness, Distinctiveness, and Indivisibility:** 'Green House Gas emissions are precisely the type of diffuse and persistent substances with serious deleterious (harm) extra provincial effects that...might appropriately be regulated on the basis of the national concern doctrine' - One consideration is the extent to which it is extra provincial and international in character. - It is predominantly extra provincial and international in their character. - The matter must not be an aggregate of provincial matters. - The regulatory mechanism is limited in scope: it only applies to provinces that fail to meet the federal stringency standard. - **Turning to the provincial inability test to deal with this part of the National Concern Doctrine:** - 1\) the legislation should be of a nature that the provinces jointly or severally would be constitutionally incapable of enacting. - provinces acting alone or together, are constitutionally incapable of establishing minimum national standards of Green House Gas price stringency to reduce Green House Gas emissions. - 2\) the failure to include one of more provinces in a legislative scheme would jeopardize the successful operation of the scheme in other parts of the country. - a failure to include one province in the scheme would jeopardize its success in the rest of Canada. - 3\) a province's failure to deal with the matter must have grave extra provincial consequences. - a province's failure to act or refusal to cooperate would have grave consequences for extra provincial interests. - The onus is on the federal government to establish provincial inability. - 4\) The final stage of the National Concern Doctrine is **the scale of impact analysis**, Canada must show that the proposed matter has 'a scale of impact on provincial jurisdiction that is reconcilable with the fundamental distribution of legislative power under the constitution.' - **C) Scale of impact:** Finding that the federal government have jurisdiction over this matter will have clear limited impact on provincial autonomy since it 'is limited to Green House Gas pricing of Green House Gas emissions -- a narrow and specific regulatory mechanism'. - **The provinces are free to implement any pricing system if it meets the standards of price stringency.** - **The Act allows for provincial flexibility.** - 'I am of the view that the scale of impact of this matter of national concern on provincial jurisdiction is reconcilable with the fundamental distribution of legislative power under the Constitution...\[I\]t is necessary to consider the interests that would be harmed...if Parliament were unable to constitutionally address the matter at a national level. - This irreversible harm would be felt across the country and would be borne disproportionally by vulnerable communities and regions, with profound effects on indigenous peoples, on the Canadian Artic and on Canada's coastal regions. - In my view, the impact on those interests justifies the limited constitutional impact on provincial jurisdiction'. - Justice Brown **dissent**: - Criticized the identification of the Pith and Substance of the Act based on 'national minimum standards' which he states is misleading. - Pith and Substance of part 1 must be separated from part 2. - Part 1 is the reduction of Green House Gas emissions by raining the cost of fuel, - while part 2 is the reduction of Green House Gas emissions by pricing emissions. - Applying the National Concern doctrine, Green House Gas emissions does not meet the requirement of Crown - Zellerbach -- **it fails the requirement of distinctiveness.** - Neither of the matters is distinct from matters falling under provincial jurisdiction under s.92. - Rejects the application of double aspect doctrine - **The double aspect doctrine** is a tool of constitutional interpretation used when both levels of government have an equally valid constitutional right to legislate on a specific issue or matter - **It fails to meet the Crown Zellerbach requirements of singleness and indivisibility**. - The matter is divisible as the source of the pollution could not physically be identified and so the jurisdiction of the source is also identifiable. - 'The power to legislate to reduce Green House Gas emissions has the potential to undo Canada's division of powers. - It is in this respect comparable to the broad topics of environmental regulation and inflation, which this Court has expressly refused to recognize as independent legislative subjects.' - Parliament now knows how to ensure that the balance will always tip its way, whenever provinces choose to exercise their legislative authority in a way that impedes the federal agenda'. - Justice Rowe **dissent**: - The national concern branch of POGG power cannot be the basis of the constitutionality of the GGPPA because it is a residual power of last resort. - **The role of the general residual power is to maintain the exhaustiveness of the division of powers, not to centralize important matters that can be legislated by both orders of government.** - **Extra-provincial effects on their own are insufficient to satisfy the provincial inability test** -- these effects must be of the nature that they are beyond the powers of the provinces to deal with on their own. - Some extra-provincial effects are compatible with provincial jurisdiction. - Provincial inability is relevant but not determinative of singleness, distinctiveness, and indivisibility. - It is only one factor in analysis. - The fourth prong of the test should be a litmus test to see whether the new proposed new federal power would be compatible with the federal structure -- *not an independent requirement.* - The notion of scale of impact on the fundamental distribution of powers is a manifestation of the principle of federalism. - The double aspect doctrine should be used carefully to make sure it does not undermine **the modern conception of federalism as increasing overlap could severely disrupt the federal balance** - By means of 'minimum national standards,' a federal aspect is generated, and this federal aspect can be used as a basis to supervise provinces in the exercise of their authority. - This is the antithesis of residual authority (power to remain at the disposal of the governmental authority), as it would operate to encroach on jurisdiction conferred to the province. **Sample Quiz Question** The Applicants purchased 95 acres of land about 1200 meters from the Peele Airport with the intention of building a retirement home. The contractor had undertaken to obtain all necessary permits but thinking it was a mere formality, commenced building expecting to get permits during construction. **The County then advised that construction had to stop until the development permit was granted**. **The development permit was then rejected on the grounds that the house was within the minimum setback requirements of s.24(2) of the new bylaw and that the proposed development may affect the future operations and expansion of the Airport.** The applicants seek a declaration that the local land use bylaw, which has stalled the building of their retirement home near the Peele Airport is ultra vires **the municipal council's lawmaking authority because it is fundamentally aimed at regulating aeronautics, a matter exclusively within federal jurisdiction**. The County and Council argue that the bylaw affects airport lands but that in pith and substance it is aimed at and regulates the beneficial use of lands, which is a matter within provincial jurisdiction notwithstanding any incidental effect on the airport. The relevant subsection of the bylaw reads: - S. 24(2): 'A development permit may not be issued in the vicinity of a railway line, public airport or regional utility where such development would interfere with its normal operation or future upgrading'. - The *Municipal Government Act*, S.A. 1994 in part reads: - 640(1) A land use bylaw may prohibit or regulate and control the use and development of land and buildings in a municipality. - \(4) Without restricting the generality of subsection (1), a land use bylaw may provide for one or more of the following matters, \... - (b)  the ground area, floor area, height, size and location of buildings. - (c)  the amount of land to be provided around or between buildings; \... - (l)   the development of buildings \... 1. The judge began by stating that the question at hand is whether the bylaw is, in , within the competence of the province. If it in Pith and Substance regulates land use then the existence of incidental effects on aeronautics will render it ultra vires. If the bylaw is valid under provincial legislation, but there is some question as to whether its effect on aeronautics is more than merely incidental, then the question is to what extent it's intruding on federal power of aeronautics. If the bylaw is matter that goes at the core of the aeronautics power, then it is intra vires. Is this the correct analysis to take in this case considering the P&S and ancillary doctrines? a\) True b\) False 2. The judge found that it is clear by the very wording of the bylaw that it is not aimed in any way at regulating the beneficial use of land in respect of development or settlement of that land but is concerned with protecting aeronautical interests. Referring to the bylaw's opening statement of purpose, the aim and purpose of the bylaw is directed at the operation and future upgrading of the airport, which is undeniably aeronautic - not just incidentally, but fundamentally so. a\) True b\) False