Public Law I 2005 Review
Sept. 9/05: What is law?
• Is law a set of rules
intended to govern
behaviour?
• What makes law
legitimate in a
democracy?
• Can you understand
law from a purely
linguistic perspective?
• What role is played by
– Judicial discretion?
– Discretion of lawyers?
– Interpretation by public
servants and elected
politicians?
– Interpretation by
ordinary citizens?
• Need to understand
the system of justice
Schools of jurisprudence
• Judicial positivism (John Austin, A.V. Dicey, H.L.A. Hart)
– The only law that exists is the written law
– Good judges can always interpret the positive law correctly
• Natural law (John Locke, John Rawls, Ronald Dworkin)
– There are “higher” laws that positive law ought to emulate. These higher laws
might be created by religion, logic, or ethical principles.
• Judicial realism (Karl Llewellyn)
– Even if judges try to be impartial, the law can never be perfectly clear. What
makes judges decide the way they do?
– Canadian Judicial realism: Sidney Peck, Peter Russell, many current scholars.
Speluncean Explorers (Lon Fuller of Harvard)
•
•
•
•
•
Four men trapped by cave-in. One suggested cannibalism.
They chose the victim with a game of chance. The one who
suggested cannibalism changed his mind. Nevertheless, he
was chosen and sacrificed.
The three remaining men survived, and were charged and
convicted of murder. They appealed to a panel of five judges.
one judge: apply the established law literally & convict (positivist)
second judge: interpret the principles that ought to be behind the
written law to acquit (natural law adherent, and also a judicial
"activist")
third judge: uphold the conviction, but appeal for clemency
(“restrained,” uphold parliamentary supremacy)
fourth judge: withdrew because he couldn't decide
fifth judge: heard clemency route won’t work; consider the natural law
approach because it leads to a just result. (This judge is a “realist”)
Hohfeldian Scheme:
• If there’s a right held by one person, there’s a
duty for someone else (usually a public official).
• If there’s discretion, there’s no right.
•
Divisions of law:
•
•
•
•
•
•
•
Positive (written) law: domestic and international
Domestic: substantive, and procedural or adjectival
Positive domestic law: public and private
Public law: criminal, administrative, constitutional, tax
Private law: most important divisions are contracts, property and torts
(private wrongs); many other types as well (see Gall)
Common law system compared with civil law system
deductive (civil) vs. inductive (common); weight of precedent; reports
of framers & la doctrine (civil)
Terms and Concepts
• What are "legal persons?”
• People, corporations, and governments
• What's the difference between negative and positive
law?
– Negative law: prohibited from certain behaviours (crim. law)
– Positive law: positive incentive to change behaviour (tax deductions for
donations to political parties) [NOT same sense as judicial positivism]
• Critical Legal Theory
– a branch of “critical theory,” which examines institutions from the
perspective of class analysis.
Public Law I:
September 16, 2005
• Basic concepts regarding the Canadian
Legal System
• The Canadian court structure
Sources of Law
•
•
•
•
Main sources of law:
•
– Written constitution (s. •
52(1) of CA, 1982
•
– statute law (laws created by
legislatures)
•
– case law (created by
•
judges)
Other (informal) sources that
inspired both statute and case
law: Ten Commandments,
Magna Carta (1297), Roman •
law, canon law, writings of legal
scholars (eg. Coke 1552–1634,
and Blackstone 1723-1780),
community standards (eg.
obscenity cases), Hogg's text,
constitutional conventions
ratio decidendi and obiter dicta
common = general
common law judges "find" the law
Constitutional conventions
Parliamentary Sovereignty or
Legislative Supremacy (same).
Separation of powers
Aggregate legislature can do
anything. Seven-fifty-formula;
unanimity formula; some-but-notall formula; provinces alone; feds
alone
Crown prerogative: residue of
discretionary power. Crown
privilege: the claim that the crown
my decide not to present
documents ordered by judges, H
of C or Senate.
Terms and Concepts
•
primary (enacted by a sovereign legislature) and
subordinate legislation (eg. Orders in Council, city
bylaws, CRTC regulations)
•
•
•
•
Manner and form requirements for judges to recognize a law
What are "legal persons?”
People, corporations, and governments
What's the difference between negative and positive law?
–
–
Negative law: prohibited from certain behaviours (crim. law)
Positive law: positive incentive to change behaviour (tax deductions for donations to
political parties) [NOT same sense as judicial positivism]
•
Critical Legal Theory
–
a branch of “critical theory,” which examines institutions from the
perspective of class analysis. (often very cynical about law)
British Legal Tradition
•
Reception: All English statutes enacted
prior to reception are law in Canada, unless
changed in Canada. Date of reception
based on when a colony established a
legislature, or set by statute.
•
•
•
•
•
•
•
•
NB & NS: 1758
Quebec: 1759: French civil law.
1763: English public law
PEI: 1763
Ontario: 1792
Newfoundland: 1832
BC: 1858
Man, Alta., Sask: 1870.
Federal gov't: date depends on
when federal laws were inherited from
former colonies. Eg. Quebec, 1763;
Ont. 1792.
•
“Imperial” statutes (Br laws applying to
whole empire) remained in force until
Statute of Westminster, 1931.
–
•
•
•
•
Development of common law courts
(king’s bench, common pleas) and
courts of equity (remedies other than
damages or punishment – writs,
injunctions). Merged in 1880s.
Preamble to BNA Act: implied Bill of
Rights
Barristers and Solicitors
Judicial Committee of the Privy
Council (JCPC); 1949.
England: specialized appeal j's;
Canada: generalist appeal j's.
Canadian Court Structure
•
____________________________
|
Supreme Court of Canada
|
|
9 judges
|
|___________________________|
_____________________|
|
____|___ ____|____
________________|________
federal |
| |
|
|
| federal
appointments | Tax | | Federal |
| 10 provincial & 3 territorial | appointments,
& admin. | Court | | Court
|
|
courts of appeal
| provincial
| 22 js | | 39 js
|
|
128 judges
| administration
|______| |________|
|_______________________ |
|
|
_____________ |______
|
federal
|
|
|
appointments | provincial superior
|
|
provincial
| trial courts
|
|
administration | 829 judges
|
|
|__________________ |
|
|___________________|
|
|
|
___________ |__________
|
|
(All counts as of 2001)
provincial | pure provincial and
|
appointments | territorial courts
|
& admin. |
984 judges
|
|______________________|
federal appointments
and administration
Adjudication
• Adjudication involves an independent, impartial
and qualified judge authoritatively settling a
dispute, according to law, with reasons. Usually,
decisions can be appealed.
• Other forms of dispute resolution: combat,
negotiation, mediation, arbitration. (ADR refers
to alternatives to the courts – especially
mediation and arbitration.)
Judicial Independence
• Valente decision (1985)
– Security of tenure (can’t be removed unless
there’s been a judicial inquiry)
– Financial security (a right to a salary high
enough to discourage bribes that cannot be
easily tampered with by gov’t)
– Institutional independence (judges control
administrative matters directly related to
adjudication).
Judicial discipline
• For provincially-appointed judges:
complaints can be sent to the Provincial
Judicial Council (usually composed of the
Chief Judges and Justices in the province)
• For federally-appointed judges: the
Canadian Judicial Council investigates
complaints
Appeal courts
• Minor appeals heard by a single judge in a higher court
(summary conviction appeals)
• Major appeals heard by the provincial Court of Appeal
• Ontario has about 18 Court of Appeal judges; usually
they sit in panels of 3 (sometimes 5)
• The Federal Court (Appeal Division) has about a dozen
judges; hear cases in panels of 3.
• Supreme Court (9 judges) most often hears cases in
panels of 7; sometimes panels of 5 or 9.
• per curiam (or per coram) vs. seriatim decisions
Constitutional Crisis of 1981/82
• 1867: Canada independent re its internal affairs
• Balfour Declaration (1926) and Statute of Westminster (1931):
Canada recognized as an independent state re foreign relations
• BNA Act (1867) was an imperial statute, therefore could only be
amended by British Parliament. 1926-1981: many failed
constitutional conferences.
• Victoria Charter nearly successful (1971): Amending formula would
include Parliament, Ontario, Quebec, 2/4 Western provinces, 2/4
Atlantic provinces. Failed when a new gov’t elected in Alberta, and
Quebec premier couldn’t get cabinet to agree.
• Alberta suggested an alternative: Parliament, and 2/3 of provinces
representing 50% of Canadian population.
Public Law I: September 23/05
• Court visit assignment
• Topics for today:
–
–
–
–
–
–
–
Complete British Legal Tradition in Canada
Canadian court structure
Garth Stevenson article
Highlights of the Canadian constitution
Court reform in Ontario
Constitutional Amendment
Cases you need to start reviewing for Skeleton
Outline
– Quebec legal system
Interesting facts
•
•
•
•
circuit judges: “assizes.”
Why don’t judges have to retire
until 70 or 75?
County and District courts now
merged with superior courts
judicial independence: purpose is
to promote judicial impartiality
• Trial Courts:
• Improvisors (~10%)
– no single process, but for most
outcomes would be the same
•
– particular process followed, and
always leads to the same
conclusion.
– Valente decision (1981 - 85)
• security of tenure
• financial security
• judicial control over adjudicative
matters
•
judicial discipline: Canadian Jud
Council & prov. Jud. Councils (eg.
– Hryciuk, suspended from Ont Ct
of Justice after judicial inquiry)
Strict Formalists (~ 20%)
•
Pragmatic formalists (~45%)
– particular process followed (check
list, shifting balance, water rising),
but judges might decide
differently.
•
Intuitivists (~25%)
– “gut feeling”
Courts and Constitution
• Appeal courts:
– Panel process different from
single judges in trial courts
• Supreme Court of Canada
– Primarily a public law court
(~100 cases / year; few pte)
– leave to appeal (~600 apps)
• Problems with justice system
•
– for some litigants and lawyers, a
game
– delay in client’s interest (about
half of trial lawyers)
– judges limited by adversary
system re control of caseflow
Role of courts: dispute resolution,
prevent abuse of power, official const.
philosophers, pawns in other peoples’
battles
•
Canada’s constitution:
•
1. Written parts
a) Canada Act, 1982 (British statute
that makes CA, 1982 law and
declares that no British statute will
in future extend to Canada)
b) S. 52 CA 1982: ~30 statutes and
orders listed in the schedule to
the Schedule to the Const. Act,
1982, most importantly the
Constitution Act, 1867 (formerly
called the BNA Act; contains
division of powers), and the
Constitution Act, 1982 (contains
the Charter and the five amending
formulas)
- Others: statutes & orders
established new provinces, or
amended the BNA Act.
Garth Stevenson: “Origins and Objectives
of Canadian Confederation”
• An analysis of the motives behind the 1978
confederation from a political economy
perspective
• Sheds some light on the political compromises
behind the division of powers in Ss 91, 92, 93 &
95 of the CA, 1867
• Strategic and economic motives
• Opponents of confederation
• Terms of union
• Shortcomings of the written constitution from
Stevenson’s perspective
See “highlights on the Canadian
Constitution” on www.yorku.ca/igreene
•
•
•
•
•
Memorize bolded parts of this document
CONSTITUTION ACT, 1867
Ss. 56, 57 & 90: reservation and disallowance
91. the "preamble" to S.91 is the "POGG" clause (peace, order and
good government): It shall be lawful for [Parliament] to make laws for
the peace, order and good government of Canada, in relation to all
matters NOT coming within the subject-matters assigned exclusively
to the Provinces in S. 92. For greater certainty, Parliament may make
laws with regard to matters covered by the following list. However,
this list merely provides examples, and these examples are not to be
interpreted by courts as limiting Parliament's power.
2. Trade and Commerce
2A. Unemployment insurance (added in 1940)
3. Unlimited taxing powers (direct and indirect)
14. Currency & coinage
15. Banking
24. Indians, and lands reserved for Indians
27. The Criminal Law
92. The provincial legislatures have exclusive power to
make laws regarding the following:
• 92 - 2.
Direct taxation
10. Local works and undertakings EXCEPT
a) interprovincial railways & telegraphs
b) international shipping
c) any works that Parliament has declared are
within federal jurisdiction. (“declaratory power”): eg. Grain
elevators, local railways, canals, bridges, some mines, some factories. Used
470 times, but not since 1961.
13. Property and civil rights (meaning private law)
14. The administration of justice in the province, including
the establishment of all courts except the Supreme
Court of Canada and the Federal Court, and prosecution of criminal
cases.
16. All matters of a merely local or private nature.
92A (added in 1982). The provinces can regulate non-renewable natural
resources, including forestry and electrical energy, and can even regulate
exports. However, the federal government can also regulate exports in this
area, and federal laws are paramount.
Education and concurrent powers
• 93. The provinces control education, except
that the feds can intervene to protect Roman
Catholic schools in Ontario and separate
schools in any province that existed at the time
the province entered Confederation.
• 95. Agriculture and Immigration are
concurrent powers (both the feds and the
provinces can legislate). If there is a conflict, the
federal legislation is paramount.
Judiciary provisions
• 96. The federal cabinet has the power to appoint all superior
court judges in the provinces.
• 99. Superior court judges cannot be removed except by joint
address of the Senate and House of Commons. Superior court
judges hold office "during good behaviour" to the retirement age of
75 (to protect judicial independence).
• 100. The salaries of superior court judges are set by
Parliament, not by the cabinet (to protect judicial independence).
• 101. Parliament may establish a Supreme Court of Canada (which
it did in 1875) and other courts to adjudicate federal laws other than
the Criminal Code (eg. the
Federal Court, which hears federal administrative law cases, and
the Tax Court.)
Other important provisions in CA,
1867
• 109. The provinces own the natural resources within
them.
• 121. There shall be no customs duties or restrictions
of trade between provinces.
• 132. Parliament can make any law to implement British
Empire treaties, even if the law invades provincial
jurisdiction. However, after 1931 the courts interpreted
this section to mean that provincial approval is required
for any non-British Empire treaty which affects matters
under provincial control.
• 133. English and French can be used in Parliament,
and Canada's laws must be in both languages. Likewise,
English or French may be used in Quebec's National
Assembly, and Quebec's laws must be in both
languages. Either language may be used in the courts
of Quebec, the Supreme Court of Canada, the Federal
Court and the Tax Court.
CA, 1982
• Ss 1-34: The Charter of Rights (you
don’t need to know the content of the
Charter until January – April course)
• S. 35: Aboriginal rights (don’t need to
know until January – April)
• S. 36: commitment to equalization
payments, so that poorer provices can
provide adequate services.
Canadian Constitutional Amendment
• In Canada, there are 5
amending formulas for the
constitution:
– Unanimity formula (Queen,
GG, LGs, composition of
SCC, senate floor rule, federal
language rights, amending
formulas
– “some but not all” (eg.
language within province,
denominational school rights,
change in prov. borders)
– Provinces can amend own
constitutions
– Fed gov’t can amend its
internal constitution
– General amending formula
(seven-fifty): the rest of the
constitution (incl div of powers
& Charter) can be amended
with Parliament, 7 out of 10
provinces representing 50% of
pop. Dissenting provinces
may opt out, and get
reasonable compensation if
amendment affects culture or
education.
AMENDING FORMULAS (more detail)
•
38-40 & 42. The 7-50 formula. Most of the narrow constitution,
including the Charter of Rights and the division of powers in ss. 91
and 92 of the C.A., 1867, can be amended with the agreement of seven
provinces representing 50% of Canada's population and
Parliament. (That is, either Ontario or Quebec must be included.) Up
to 3 provinces could opt out of such an amendment. If they opt out of
an amendment which transfers educational or cultural matters to
Ottawa, these provinces shall be compensated financially by Ottawa
(Ottawa must give to the opting-out provinces what they are spending,
per capita, on the opting-in provinces).
•
There is a 3-year time limit which begins with the first resolution for
amendment (which could be in any provincial legislature or
Parliament). No amendment may take effect according to this
procedure until at least one year after the first resolution has passed
(unless all governments have passed resolutions).
7-50 formula continued
• No province can opt out of an
amendment affecting:
• a) proportionate representation of the
provinces in
the House of Commons
b & c) the Senate
d) the Supreme Court of Canada
e) the extension of existing provinces
north
f) establishment of new provinces
Amending forumlas (cont’d)
• 41. The unanimity formula. Unanimous agreement of all
provincial legislatures and Parliament is required for
amendments affecting:
• a) the Queen, Governor General and Lieutenant-Governors
b) the "Senate floor rule" (no province can have fewer MPs
than Senators).
c) the use of English or French in S. 133 or the Charter
d) the composition of the Supreme Court, and
e) changes to the amending formulas.
• 43. The "some but not all" forumla: Amendments which affect
some but not all provinces need by approved only by the
provincial legislatures affected and Parliament.
• 44. Parliament may amend parts of the constitution that affect
only Parliament.
• 45. Legislatures may amend parts of their constitutions that
affect only them.
U.S. & Canada: Comparison of Constitutional
amendment process
•
•
•
U.S.: Congress proposes
amendments (2/3 of both houses)
Proposals have to be ratified by ¾
of state legislatures, or ¾ of state
constitutional conventions
Comparison:
– U.S. constitution amended 17
times in 21 decades (rate
.08/year)
– Canadian constitution amended
32 times in 13 decades (.23 to
1982, and 9 after) (rate .24/year)
– Canada’s constitution is more
flexible
•
Major Can. amendments:
– 1940: unempl ins
– 1951: old age pensions
– 1964: old age pensions
broadened to include
supplementary, survivors,
disability (CPP)
– 1982: Charter and amending
formulas
– 1983: S. 35.1: must be a
constitutional conf including native
peoples before native rights
amended
– 1987-1998: 3 amendments to
den school rts in Nfld
– 1997: den school rts Quebec
– 1993: equality of Fr & Eng in New
Brunswick
Amendment failures
• Canada
– 1927-1982: six failed
attempts to find a domestic
amending formula
•
• 1971 – Victoria charter
came close
• 1982: success achieved
after SCC decision
(discussed later in course)
•
– Meech Lake &
Charlottetown Accords
(discussed later)
U.S.: 6 amendments proposed by
Congress but not ratified by
states, including ERA (equal
treatment of women in all
legislation)
Impact of court decisions:
– 1940, 1951 amendments in
Canada a reaction to court
decisions
– Civil war amendments in U.S. a
reaction to court decisions
– 1918: SCUS decision led to
amendment to prohibit child
labour. 1938: Roosevelt
threatened to “pack” court. Court
overruled 1918 decision.
Informal constitutional amendment
• United States
•
Canada
– Feds assume they have power to
do something under POGG, or
provinces assume they have
power to do something under
92(13)
– After 1995, fed legislation passed
to prevent cabinet ministers from
proposing amendments under 750 without support of Quebec,
Ont, B.C., 2/3 prairie provinces,
2/4 Atlantic; Quebec recognized
as distinct society
– Clarity Act (2000)
– Washington: cabinet advisory
& responsible to president
– Jefferson: declared that U.S.
could purchase new territory;
never challenged in court
– Political parties developed
without constitutional
amendment
– Congress assumed vast
powers over economy in
1930s and 1940s
•
Was Dicey right that in the U.S.,
judges are supreme because they
declare the constitution? Does
Dicey’s analysis apply to Canada?
Unwritten parts of the constitution
1. Constitutional conventions
-Rule of law
-Judicial independence
-Responsible government
-cabinet responsible to the legislature
-Ministerial accountability
-Cabinet solidarity
-Gov Gen and Lieut Gov’s must act according to the advice of
the first minister, unless that advice is unconstitutional
-The leader of the group in H of C or prov leg that can
command the support of the majority of members becomes first
minister and chooses cabinet. First minister tells GG or LG when to
call election, unless another group can form gov’t
2. The ratio in the judicial decisions about the meaning of the
constitution (eg. the ratio in the cases we’ll be studying in this
course)
The role of courts in Canada
• Why do we have “open”
courts?
• There are some
exceptions to open courts
– Young offenders
– Application to a judge for a
closed hearing
– Sexual assault trials
– Preliminary hearings in
notorious cases – to permit
fair jury selection
– Is closing the court justified
in these situations?
• Does open court concept
impact presumption of
innocence?
• Dignity and decorum
– Gowns, address to judge
– Dress codes
• Television
• Adversary system
• ADR (alternate dispute
resolution)
Reforms in Ontario
• Zuber report (1987)
– Create administrative
regions
– Give judges, lawyers, and
public more input into court
administration
• AG Ian Scott (1989)
– Created 7 regions to
administer superior and
inferior courts
– Merged High Court and
County/District Courts to
form Superior Court of
Ontario
• Provincial Court renamed
Ontario Court of Justice, with
criminal & family divisions
• Eventually, Scott wanted to
merge the Ontario Court and
the Superior Court into one
trial court. Give all provincial
court judges S. 96
appointments.
• Unified trial court idea
abandoned by NDP and
Conservatives. Will it be
revived by AG Michael Bryant?
Cases from course for mock trial
(summaries on www.yorku.ca/igreene)
• Meaning of “Peace,
Order and Good
Government (POGG)
(some refer to federal
criminal power):
– Russell v. the Queen
– Local Prohibition Case
– Re Board of
Commerce Act
– Snider
– Employment and Social
Insurance Act Reference
(1937)
– A.G. Ont. v. Canada
Temperance Federation
(1946)
– Johannesson v. West St.
Paul (1952)
– Reference re Offshore
Mineral Rights (1967)
– Ref re Anti-Inflation Act
(1976)
– Queen v. Crown Zellerbach
(1988)
Property & Civil Rights vs. Trade and
Commerce
• Parsons
• Proprietary Articles
Trade Assoc.
Reference
• Natural Products
Marketing Reference
• Ontario Farm
Products Marketing
Act Reference
• Chicken and Egg
Reference
• Labatt
Treaty-making cases
• -Aeronautics Case
(1932) Canada was
implementing a British Empire Treaty,
but federal gov't has the power to
implement a treaty on aeronautics
under several heads of S. 91, such as
defence, post office.
• -Radio Case (1932)
Section 132 is now obsolete.
Therefore, the treaty-making and
treaty-implementation powers are new,
and fall under POGG.
• Labour Conventions
Case (1937)
– Matters that fall under
S. 92 can only be
implemented by the
provinces.
Quebec and Civil Law Approach
• Codification of laws
–
–
–
–
–
–
Coutume de Paris (1580)
Confusion after 1759
Royal Proclamation (1763)
Quebec Act 1774
Codification: 1866: CCLC
1994: CCQ
Deductive Reasoning
Inquisitorial System (not
in Quebec)
Code, la doctrine,
precedent
• Quebec courts:
– Court of Appeal (s.96)
– Superior Court (s.96)
– Court of Quebec
(provincial)
– 1994 CCQ: ten books
– Civil and common law
approaches coming
closer together
Public Law I: September 30, 2005
• Topics covered today:
– The role of courts in
Canada
– Reforms in Ontario
Courts
– Provincial court judges
remuneration
reference (1997)
– Stare decisis
– Natural Justice &
Fairness
– Rules of statutory
interpretation
– legal presumptions
– Articles by Waddams
and McCormick
The role of courts in Canada
• Why do we have “open”
courts?
• There are some
exceptions to open courts
– Young offenders
– Application to a judge for a
closed hearing
– Sexual assault trials
– Preliminary hearings in
notorious cases – to permit
fair jury selection
– Is closing the court justified
in these situations?
• Does open court concept
impact presumption of
innocence?
• Dignity and decorum
– Gowns, address to judge
– Dress codes
• Television
• Adversary system
• ADR (alternate dispute
resolution)
Reforms in Ontario Courts
• Zuber report (1987)
– Create administrative
regions
– Give judges, lawyers, and
public more input into court
administration
• AG Ian Scott (1989)
– Created 7 regions to
administer superior and
inferior courts
– Merged High Court and
County/District Courts to
form Superior Court of
Ontario
• Provincial Court renamed
Ontario Court of Justice, with
criminal & family divisions
• Eventually, Scott wanted to
merge the Ontario Court and
the Superior Court into one
trial court. Give all provincial
court judges S. 96
appointments.
• Unified trial court idea
abandoned by NDP and
Conservatives. Will it be
revived by AG Michael Bryant?
Role of Judges and Lawyers
• Training lawyers (Quebec and
elsewhere)
• Careers
• Officer of court
• Codes of Ethics (Gall)
• Honesty
• Avoid conflicts of interest
• Inter-provincial law firms
• Judges: interpreters or
legislators?
• Judicial appointments:
– Federal (see link)
– Provincial (see link)
• Qualities of a good judge
• Judicial ethics (see link)
• Judicial Discipline
– Provincial judicial councils (for
provincially-app’d j’s)
– Canadian judicial council (for
S. 96 & S. 101 judges)
• (see link on web page)
Prov Court Judges Remuneration Reference
[1997]
• Background: budget cuts of
1990s
• Gov’ts in PEI, Man & Alta
reduced salaries of Prov Ct
judges as part of general
salary reduction plan, but
failed to follow correct
procedures, according to many
judges, who thought govt’s
violated jud ind.
• Prov gov’t’s sent reference
questions to their Prov. Courts.
• What is a reference question?
•
•
Holding (Lamer+5): judicial
compensation commissions must
be established to protect judicial
independence (11(d) of Charter
and convention). The JCCs act as
a “buffer” between governments
and judiciaries re salary issues.
Governments are not required to
implement the recommendations
of the JCCs, but are required to
take the recommendations
seriously. The govt’s of PEI, Man
and Alta acted unconstitutionally
by not going through JCCs to
reduce judicial salaries.
La Forest dissent
Stare Decisis
• Stare decisis: a rigid
form of doctrine of
precedent
• Ways around stare
decisis:
–
–
–
–
Distinguish
Ratio is really obiter
Per incuriam
Emphasize different
majority opinion
– ignore
• Hierarchy of courts
determining
application of stare
decisis
• SCC can choose not
to follow precedent.
Ont CA: policy: follow
• What if conflicting
precedents?
Natural Justice & Fairness

Natural Justice

– Nemo judex in sua
causa
– Audi alteram partem

– Jurisdictional
– Abuse of power
– Natural justice
• Jud or quasi-jud
Functions of Admin.
Agencies:
–
–
–
–
Legislative
Administrative
Executive
Judicial or quasi-jud.
Judicial review
– Doctrine of fairness

Privative clauses
– Can’t hide behind
priv clause if const
issue, or patently
unreasonable
Rules of Statutory Interpretation (1)





Why are rules
needed?
Intent of legislature
“reasonable person”
test
1.Plain meaning rule
2.“golden rule”: avoid
absurdity & inconsistency

3.What was the
mischief & remedy?



Specific words help
explain general ones
nearby
Express inclusion of
some items implies
exclusion of items not
mentioned
Aids:
– Interpretation statutes
– Definition sections of
statutes
Rules of Statutory Interpretation (2)

More Aids:

International
conventions &
– Context in statute
treaties (sometimes)
– Other similar statutes
– Legislative history
 Preamble (but not
• Minimal weight.
marginal notes)
Why?
 Headings (except in
 Books on rules of
Ontario – excluded
interpretation, & legal
dictionaries
by statute)
 French & English
text
Presumptions





Criminal law: in favour
of accused
Taxation law: in favour
of taxpayer
Against alteration of
common law
Mens rea (guilty mind),
unless express absolute
liability
Against retroactivity


Against ousting
jurisdiction of courts
For crown immunity (now
mostly replaced by statutes
allowing suits against crown)

Every word is deliberate
 Specific given
precedence over
general
 More recent > older
 Leg. did not intend
drafting error (cts can
correct)
Waddams
•
•
•
•
Law is “a continuing process of
attempting to solve the problems
of a changing society,” not just a
set of rules.
Law is both academic and
practical
Ignorance is no excuse
(necessary fiction)
Differences between “justice” and
the law
– Should judges try to get around
stare decisis to avoid bad results?
“Hard cases make bad law.”
•
•
•
The rule of law. Should public
officials be allowed to act outside
the law?
Rationality vs. consistency
Providing reasons promotes
rationality & consistency
•
•
•
•
•
•
•
•
Can a judge ever be impartial?
Judicial independence leads to
jud. Isolation
Public policy is an “unruly horse,
dangerous to ride”
Like cases should be decided
alike (acad dishonesty precedents)
Harrison v. Carswell (1976):
Dickson (majority) v. Laskin
(minority)
Conflict between individual and
group rights
Social change: law cannot lag far
behind, or get too far ahead, of
social change. (marital property)
Law reform commissions
McCormick: Courts, Law & Society
•
•
•
McCormick presents a social
science study of courts
Judicial power = impact &
discretion. Existed before 1982
Western conception of law:
lawyers have a distinct way of
thinking.
– Abstraction: legal process filters
out “irrelevant” details, simlifies
– Focus on general rules: the
punishment fits the rule (not the
crime)
– Reasoning by analogy to fill in
gaps in rules (whoever picks the
examples wins the argument)
– Legal system is highly procedural,
with severe consequences for
breach of procedure. Hence,
delays, technicalities.
•
•
•
Lawyers & judges “shape” rather
than “discover” outcomes
“economy of judicial resources”
(Should highly-paid appeal court
judges hear sentence appeals?
Or should sentencing be carried
out by sentencing boards, not
judges?)
The legal/judicial system is “a
serious attempt, administered in
the main by conscientious
individuals, to deal with intractable
problems.”
Public Law I
October 7 2005
• Rules of statutory interpretation
• Legal Presumptions in judicial decisionmaking
• Peace Order and Good Government (I)
– Russel v. the Queen
– Local Prohibition Case
– Board of Commerce
– TEC v Snider
• Review for Midterm Exam Oct. 14
Rules of Statutory Interpretation (1)





Why are rules
needed?
Intent of legislature
“reasonable person”
test
1.Plain meaning rule
2.“golden rule”: avoid
absurdity & inconsistency

3.What was the
mischief & remedy?



Specific words help
explain general ones
nearby
Express inclusion of
some items implies
exclusion of items not
mentioned
Aids:
– Interpretation statutes
– Definition sections of
statutes
Rules of Statutory Interpretation (2)

More Aids:

International
conventions &
– Context in statute
treaties (sometimes)
– Other similar statutes
– Legislative history
 Preamble (but not
• Minimal weight.
marginal notes)
Why?
 Headings (except in
 Books on rules of
Ontario – excluded
interpretation, & legal
dictionaries
by statute)
 French & English
text
Presumptions





Criminal law: in favour
of accused
Taxation law: in favour
of taxpayer
Against alteration of
common law
Mens rea (guilty mind),
unless express absolute
liability
Against retroactivity


Against ousting
jurisdiction of courts
For crown immunity (now
mostly replaced by statutes
allowing suits against crown)

Every word is deliberate
 Specific given
precedence over
general
 More recent > older
 Leg. did not intend
drafting error (cts can
correct)
Russell v. The Queen, 1882
• Impugned legislation: Canada
Temperance Act, 1878
– Certiorari; rule nisi
– ¼ of electors in a “county or
city” may petition for a
plebiscite on prohibition.
• Fredericton went dry
• Charles Russell: Fredericton pub
owner, convicted
• Previous SCC decision: City of
•
•
–
–
•
•
•
Fr. v. Queen: intra vires under
T&C (91-2)
•
JCPC decision: Sir Montague Smith.
•
•
• Russell’s lawyer:
delegation
argument – Parliament can’t delegate
its powers. Legislation says GG “may”
…
“cubby hole” doctrine
•
Is subject-matter of impugned
legislation in s.92? If so, is it also in
91?
If not in s. 92, it must be in s. 91
Russell’s lawyer: argued legis.
Falls in s. 92: 9, 13 or 16
“pith and substance”
– Smith: Nearly anything could fall
under 92(13); what is p&s?
Central subject matter is public order &
safety, not T&C
Not local because of local option.
(analogy: health orders)
Therefore, not under s.92.
No comment on SCC’s decision in
Fredericton re s. 91(2), but seems to
emphasize POGG
Gap (residual) branch of POGG
Local Prohibition Case, 1896
• Impugned: Ont’s Local
Prohibition Act (1890)
– Townships, towns, villages (&
cities)
– Appeal from SCC ref
• Lord Watson
• Feds (under POGG) can trench
•
on s.92 only if incidental to a legit
fed purpose
– otherwise, all of s.92 falls in s.
91.
– s.94 issue (unify common law
in anglophone provs)
Ontario argued that legis. falls
under 92(8): (municipalities).
Watson: not a convincing
argument
•
•
•
Pith & sub: vice of intemperance
at local level
92(16): (local) yes.
92(13): no; the law prohibits rather
than regulates
•
•
•
•
if conflict: fed. law is paramount
conflict of laws: no conflict if
strictest obeyed
“double aspect” doctrine: a
legislative subject-matter can fall
under s. 91 for one purpose, and s. 92
for another.
National dimension or national
concern doctrine hinted at: a subject
matter can become a matter of
national concern and then feds can
regulate under POGG.
Board of Commerce & Combines &
Fair Practices Acts (1922)
• Impugned legislation: fed antiprofiteering & anti-hoarding
legis. after WW I (1919)
• Board stated case to SCC re
Ottawa clothing stores
• Appeal from SCC: Duff (BC)
vs. Anglin (judges evenly
divided)
• Viscount Haldane for JCPC
• Pith & substance: combines &
hoarding in peace-time
• Cubby-hole: 92(13)
• S. 91 too?:
– Crim power? No – not like incest
(important decision for those
writing about criminal power in
writing assignment)
– T&C: no; T&C is supplemental to
other federal powers
– POGG? Only in “highly
exceptional circumstances”
[emergency doctrine] (see p. 66)
•
•
Ultra vires
3 aspects of POGG: national
concern (obiter in Local
Prohibition), emergency (B of C),
residual (Russell)
TEC v Snider (1925)
• Impugned legislation: federal
Industrial Disputes
Investigation Act
• Viscount Haldane wrote for
JCPC
• Haldane says labour
legislation clearly falls under s.
92(13)
• In this case, the procedure is
applied to a municipal
transportation agency (TEC,
forerunner of TTC, 1923)
• Does subject-matter also fall
under POGG, fed criminal
power, or 91(2) (T&C)?
Haldane – no.
•
•
•
POGG can be used as residual, or
emergency power. Here, can’t be
residual because 92(13) applies.
As well, there’s no emergency.
Rule of interpretation: specific
takes precedence over general.
See Haldane’s discussion of
specific words, p. 76.
How can this decision be squared
with Russell v. Queen? Haldane:
there must have been an
emergency in 1878:
– “…evil of intemperance [was]
one so great” that parliament
intervened to “protect the
nation from disaster”
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 WatsonHaldane 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 1882.
Ontario argued that there was no
emergency in 1946.
• 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 1972.
• 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.
Oct. 28: Decisions dealing with Trade &
Commerce [91(2)] vs. Property & Civil Rights
[92(13)]
• Cases discussed today:
– Citizens Insurance Co. v. Parsons (1881) [Kit, p. 218]
– Board of Commerce & Combines & Fair Practices
Acts (1922) [review]
– Proprietary Articles of Trade Assoc. (1931) [Kit, p.
235]
– Natural Prod’s Marketing Ref (1937) [Kit, p. 248]
– Ontario farm products marketing case (1957) [not in
kit]
– Chicken and Egg Reference (1971) [Kit, p. 274]
– Labatt v. A.-G. Canada (1980) [not in kit]
– General Motors v. City National Leasing (1989)
[WebCT]
Citizens Insurance Co. v. Parsons, 1881
• Impugned: Ontario Fire
•
•
Insurance Policy Act.
Fire in Parsons’ warehouse.
Parsons wanted insurance
payment
– Ins Co: you didn’t observe the
fine print.
– Parsons: the fine print didn’t
conform to the Act.
– Ins Co: The act is ultra vires
Ontario.
Sir Montague Smith discusses
how s. 91 & 92 overlap. JCPC will
interpret the BNA Act as an
ordinary statute.
-Smith Invokes presumption that
specific takes precedence over
general. “Property & Civil Rights”
more specific than “Trade &
Commerce”.
– “cubby hole” doctrine. S. 92(13)?
Yes. Also S. 91(2)-T&C? No.
Feds can incorp. Co’s with
national objective, but doesn’t
prevent provinces from regulating
intraprovincial transactions
– Three aspects of T&C:
international, interprovincial and
general.
– He doesn’t define these
categories. Left for later cases.
Board of Commerce & Combines &
Fair Practices Acts (1922) [review]
• Impugned: fed antiprofiteering legis. after
WW I
• Board stated case to
SCC re Ottawa clothing
stores
• Appeal from SCC: Duff
(BC) vs. Anglin
• Viscount Haldane wrote
decision
• Pith & substance:
combines & hoarding in
peace-time
• Cubby-hole: 92(13)
• S. 91 too?:
– Crim power? No – not like
incest
– T&C: no; T&C is
supplemental to other
federal powers
– POGG? Only in “highly
exceptional circumstances”
[emergency doctrine]
• Ultra vires
• 3 aspects of POGG: nat
concern, emerg, residual
PATA; Nat Prods Marketing Ref
• Proprietary Articles Trade
Assoc ref. (1931)
– Impugned: federal anticombines legislation (akin
to Bd of Commerce case)
– Lord Atkin for JCPC
– Intra vires under fed.
Criminal power (91[27])
– Test: penal consequences
– Bd of Commerce case
distinguished. Proper due
process safeguards in
instant case
– Haldane wrong (Bd of Com
& Snider) that T&C is
subordinate
• Natural Products
Marketing Act Ref, 1937
– Impugned: fed marketing
legis as part of “new deal”
– All provinces supported
and had dovetailing
legislation
– Lord Atkin: ultra vires
because it trenches on
intra-provincial marketing in
92(13)
– But provincial marketing
legis had also been struck
down as trenching in
interprovincial T&C power.
– Can any marketing
legislation be intra vires?
Ontario farm products marketing case
(1957)
• Fed gov’t referred Ontario marketing legislation
to SCC. Majority: intra vires, if extra-provincial
trade not affected.
• Judges explored the reality of the movement of
produce being traded more than previous courts.
• Invoked “aspect” doctrine: trade can be a
provincial matter for one purpose, and a federal
matter for another.
• Judges seemed to want to find a way out of the
stalemate created by the Natural Products
reference of 1937.
Chicken & Egg Reference
(1971)
• In 1970, Que gov’t
authorized Que egg
marketing agency to
restrict import of eggs
from out of province
• Ont and Man were
suppliers of eggs to Que
• Que supplied chickens to
other provinces; they
restricted Quebec
chickens
• Man passed egg
marketing legis identical
to Quebec’s and referred
it to Mn CAp
• Man legis. struck
down; appealed to
SCC (What if leg
upheld?)
– 9 judges on panel: 6 +
2 + 1 (all agreed ultra
vires)
– Martland: Pith and
substance:
interprovincial T&C.
Chicken & Egg (2)
• Laskin’s first major decision.
– Annoyed that case is fabricated. Why?
– Obiter since Parsons led to attenuation of literal interp
of T&C.
– Prov. Marketing legislation OK if producers in other
provinces treated the same a local producers
– Purpose of this legislation: to control the import of
eggs. Therefore it is ultra vires; trenches in fed
control over interprovincial T&C
• Scholarly analysis both of case law and realities
of trade in eggs & other goods
• Not necessary to invoke s. 121
Labatt v. A.-G. Canada (1980)
• Impugned legis: Fed
food & drug act reg’s
setting standards for
“light beer.”
• In several recent cases,
SCC failed to allow feds
to use “general” aspect of
T&C to regulate fair
practice, or regulate
grades of apples.
• Estey (+5): impugned
legis. Really local in
character.
• Not international, and not
really interprovincial
• Laskin (+2): dissents.
Feds can equalize
competitive advantage
under interprov T&C.
Also, S. 121 prohibits
interprov trade barriers.
General Motors v. City National
Leasing (1989)
• Impugned: S. 31(1) of the federal Combines
Investigation Act (CIA), which creates a civil cause of
action for some infractions of the Combines Investigation
Act. Normally, the subject-matter, “civil causes of
action,” is in S. 92(13). The CIA prohibits discrimination
or favouritism when selling products in Canada.
• CNL claimed that GM was giving preferential interest
rates to CNL’s competitors
• Ontario trial judge (on a motion) found s. 31(1) ultra vires
Parliament, as it trenches on 92(13).
• Motion ruling appealed to Ontario Court of Appeal, which
overruled trial judge and found s. 31(1) intra vires
Parliament.
General Motors v. City National
Leasing (1989) (2)
• Supreme Court of Canada (Dickson for unanimous 7judge panel): S. 31(1) is intra vires Parliament under the
“second branch” of S. 91(2) of CA 1867 (Trade &
Commerce): general trade and commerce.
• S. 31(1) does fall within 92(13). In order for federal
legislation that falls under 92(13) to be valid:
– Must be part of a general federal regulatory scheme
– Scheme must be monitored by the federal regulatory agency
– Legislation must be concerned with trade as a whole, not the
regulation of a particular industry regulated by the provinces
– “provincial incapability”: provinces constitutionally incapable of
enacting similar legislation
– Failure to include one or more provinces or localities in the
general regulatory scheme would jeopardize successful
operation of scheme.
Public Law I: Nov. 4/05
Criminal Law, Cooperative & Executive Federalism
•
•
•
•
•
•
•
•
•
•
R. v. Hydro Quebec (1997)
Ref re Firearms Act (2000)
Bedard v. Dawson
Westendorp v. The Queen
Nova Scotia Interdelegation Case
PEI Potato Marketing Board Case
Aeronautics Case
Radio Case
Labour Conventions Case
Stevenson article on federalism (Kit, 124)
R. v. Hydro-Quebec (1997)
• Impugned: Canadian
Environmental Protection
Act, SC 1988, ss 34-35,
and regulations issued by
L. Bouchard in 1989.
• Hydro Quebec charged in
1990 with releasing PCBs
contrary to regs. HQ
claimed Act and regs
ultra vires. Claim: don’t
fall under any heads in s.
91. Won at trial and Q Ap
Ct. Granted leave to
appeal to SCC in 1995.
• 5-4 decision: leg and
regs intra vires.
• Majority:
– La Forest, L’HeureuxDube, Gonthier, Cory,
McLachlin.
– “Environment” is not a
distinct subject-matter that
falls under ss. 91 or 92. If
“pith and substance” of leg
falls under s. 91 or 92,
legislation is valid. (Do you
see “double aspect”
doctrine here?)
Hydro Quebec (2)
• Does leg fall under
91(27) [crim law]?
– Feds can decide what
“evils” they want to
supress, with penal
sanction.
– Fed criminal power subject
to “fundamental justice”
safeguards in Charter;
higher level of “mens rea”
required for “true” (serious)
crimes.
– Criminal power may not be
employed “colourably”
(used as an excuse to
invade provincial powers.)
Test: does a “legitimate
public purpose” underlie
the prohibition?
– Protection of environment
is a legitimate public
purpose for criminal law.
– Prot of Environ is an
“international problem,”
requiring action by all
gov’ts.
– Provinces are not
precluded from acting as
well.
Hydro Quebec (3)
– Hydro Quebec argued that
the legislation is regulatory,
not criminal. Crim. Leg.
simply prohibits.
– Majority: the prohibition is
limited and targeted and
“avoids resort to
unnecessarily broad
prohibitions.”
– Impugned sections of Act
do not deal with prot of
environment generally, but
control of toxic substances.
This requires precision
because of complexity of
subject.
– Act targets only subjects
dangerous to the
environment.
– Therefore, individual
assessment of dangers is
needed.
– Regulations are
appropriate because of
complexity, and need for
ongoing assessment and
fine-tuning.
– Because intra vires under
91(27), not necessary to
consider POGG argument.
Quebec Hydro (4): Dissent
• Lamer, Sopinka,
Iacobucci, Major
– Criminal power argument:
prot of environment is a
legit public purpose under
crim law under prot of
human health, but this leg
goes well beyond the goal
of protecting health.
– Regs are not really
intended merely to protect
health, but to regulate
environmental pollution.
• A valid criminal law must
establish a prohibition.
Ss 34-35 don’t; they
regulate.
– Ministers of Health &
Envirnoment can, through
reg (OC), place specific
substances on a list, and
regulate their use.
– It’s an “odd crime” where a
Minister has discretion to
prohibit certain conduct
from time to time.
Hydro Quebec (5)
– Provinces can be
exempted from leg if
they have the same
regulations. Prov.
Legislation cannot be
criminal.
– Giving feds the power
to define “toxic” and
thus regulate allows
feds to invade prov
jurisdiction unfairly.
• POGG national concern?
– Must be a “new” matter
with “singleness,
distinctiveness and
indivisibility.” Dn of “toxic
substance” is too broad to
meet this test.
– POGG National Concern?
The dn includes
substances that cross prov
boundaries, but also
includes substances that
don’t. Provincial control is
possible. Therefore, “Prov
inability” test (Cr
Zellerbach) not met.
• T&C: no.
Reference re Firearms Act (2000)
• Early 1990s: an increase in firearms-related killings, especially
men killing former spouses. Each year, there were about 1000
deaths from firearms.
• Federal response: Firearms Act of 1995, which required
registration of all firearms.
• A great deal of opposition from gun owners in Western and
Northern Canada (farmers, hunters), eg. Ted Morton (who hunts
for recreation).
• Alberta government: sent reference question to Alberta Court
of Appeal: is Firearms Act intra vires federal jurisdiction?
• Alberta’s argument: the regulation of firearms falls under
92(13), “property and civil rights,” and the Act is therefore ultra
vires.
• Alberta CA upheld the law in a 3-2 decision.
Ref re Firearms Act (cont’d)
•
•
•
•
Supreme Court: all 9 judges heard the case; decision was by
“The Court.”
Supreme Court: “The law in pith and substance is directed
to enhancing public safety by controlling access to firearms
through prohibitions and penalties. This brings it under the
federal criminal law power [s. 91(27)]. While the law has
regulatory aspects, they are secondary to its primary criminal
law purpose. The intrusion of the law into the provincial
jurisdiction over property and civil rights is not so excessive as
to upset the balance of federalism.”
“legislation may be classified as criminal law if it possesses
three prerequisites: a valid criminal law purpose backed by a
prohibition and a penalty”
–
The gun control law has a valid criminal purpose (promote
public safety)
–
The law creates a criminal prohibition (can’t possess a gun
unless it’s registered) backed by penalties (summary
conviction criminal code offence).
Double aspect doctrine also applies: provinces can also
regulate property such as guns.
Bedard v. Dawson (1923)
• In early 1900s, Quebec gov’t passed
legislation prohibiting any property (home,
apartment, or other building) from being used
for disorderly purposes. A conviction for
prostitution or gambling under the criminal
code, if the prostitution or gambling occurred
in that building, was proof that the building
was being used for disorderly purposes. If
the prohibited use continued, then any person
could apply for an injunction to stop the
building from being so used, and if it
continued to be so used, the building could
be locked up by the authorities.
Bedard vs. Dawson (cont’d)
• Bedard objected to an injunction – claimed that
the Quebec legislation was really criminal
legislation under 91(27)
• Dawson: the Quebec legislation is valid under
92(13).
• Supreme Court of Canada: 5-0 seriatim
decision: the Quebec legislation is valid as a
regulation of property and civil rights. The
mischief is having a disorderly house in one’s
neighbourhood. The remedy is to prohibit such
establishments. The feds can’t regulate property
in this way.
Westendorp v. The Queen
(1983)
• In 1974, the City of Calgary passed a by-law to
control use of streets and sidewalks (vendors,
walking on sidewalks, clearing streets, parades, etc.)
It had the authority to enact this secondary
legislation because of the primary legislation: The
Municipal Government Act [Alberta].
• In 1981, Calgary amended the by-law to add s. 6.1,
which prohibited anyone from approaching anyone
on a city street or sidewalk “for the purpose of
prostitution.”
• Lenore Westendorp was charged under the by-law,
and pleaded not guilty on the grounds that the bylaw was ultra vires provincial powers.
Westendorp (continued)
• Westendorp was acquitted
at trial in the Provincial
Court; judge found s. 6.1 of
the by-law ultra vires.
• Crown appealed; AB Ct of
Appeal found the by-law
intra vires.
• AB Ct Ap decision by Roger
Kerans: pith and substance
of by-law is to control a
nuisance, not to prohibit
prostitution. Prostitutes can
still operate elsewhere, off
the streets.
• Appeal by Westendorp to
Supreme Court of Canada.
• 9 judge panel; decision
written by Chief Justice
Laskin.
• Laskin: Kerans is wrong.
The by-law regulates public
morality, so it is a crimininal
law. It is colourable,
because it is dressed up to
look like a simple regulation
of the use of streets.
Kerans’ reasoning is
“baffling.”
• Charter issue: not relevant
because the by-law is ultra
vires the province and
therefore the City.
Delegation
• Legislation can be primary
(created by a sovereign
legislature) or subordinate
– Subordinate powers can be
delegated to cabinets, reg.
agencies, municipalities in
same jurisdiction
– Delegation outside judisdiction
(eg. To another sovereign
legislative body) called
interdelegation
• Judicial rule: avoid overbroad
delegation
• Manitoba initiative and
referendum Act, 1916
• Alberta initiative & referendum
act, 1913 (tested in 1916)
• Remember anti-inflation
reference (1976): ON OC
invalid: no primary legislation
• Senate reference: 1979
– Parliament can’t create a new
legislative body and delegate
primary powers
• Depression: all gov’ts wanted
old-age pensions
• Rowell-Sirois Report 1939:
recommendated
interdelegation
• Nova Scotia first prov to pass
necessary interdelegation
legislation. Referred to SCC.
Nova Scotia Interdelegation
Case (1951)
• 7 judges wrote separate
opinions. Decisions of Rinfret
and Taschereau presented in
course kit
• Rinfret: we have a right not to
be subjected to laws unless
passed by appropriate
legislature. (Also, specificity
rule: interdelegation not
specifically mentioned in BNA
Act.)
• Lord Atkin in Labour
Conventions: “shop of
state…watertight
compartments.”
• Taschereau: if interdelegation
were possible, everything
might get interdelegated. This
would turn confederation on its
head.
• A constitutional amendment
gave feds the right to enact old
age pension legislation
concurrently with provinces,
with provincial paramountcy.
PEI Potato Marketing Bd v Willis (1952)
• Fed Ag Products
Marketing Act (1949)
– Feds could delegate power
to reg interprov marketing
to a prov bd
• OC in 1950 delegated
interprov power to reg
PEI pot’s to PEI PMB
• PEI ref’d Q of validity to
PEI Sup Ct in banco.
Conclusion: ultra vires,
following NS InterDel.
• In SCC: NS InterDel
disginguished. 9 js, 6
dec’s.
– Rinfret: Act clearly in fed
juris (T&C interprov, Ag)
– NS Case just applies to del
to legislatures.
– Feds can choose own
board or agency
(precedents)
– Praises fed-prov
cooperation
PEI Potato Marketing Bd cont’d
• Rand: would be valid if
Feds created a separate
interprov marketing bd,
and appointed same
people to it as on PEI Bd.
• “Twin phantoms of this
nature must, for practical
purposes, give way to
realistic necessities.”
• Last JCPC decision:
Winner (1954) declared
that only feds can license
vehicles for
interprovincial purposes.
Feds delegated interprov
transport regs to prov.
transport boards.
• Couglin (1968): Fed
transport del upheld.
• No need for const amen’t
re interdelegation
Treaty-Making Cases
•
•
Treaty-signing power, and treatyimplementation power, are two
different powers. The feds had
them both until 1926, under S. 132
of the BNA Act. In 1926, Canada
became equal to Great Britain in
handling foreign affairs (Balfour
Declaration, later confirmed by
Statute of Westminster, 1931),
and so S. 132 became obsolete.
Aeronautics Case (1932) Canada
was implementing a British Empire
Treaty, but federal gov't has the
power to implement a treaty on
aeronautics under several heads
of S. 91, such as defence, post
office.
• Radio Case (1932) Section
132 is now obsolete.
Therefore, the treaty-making
and treaty-implementation
powers are new, and fall under
POGG.
Labour Conventions Case
(1937)
– Lord Atkin - wrote decision
– Distinguished Aeronautics and
Radio cases. He said that the
Radio case decided that
power to regulate radio
transmissions is new, and
therefore falls under POGG.
(Is that what you think was
decided?) The treaty-signing
power falls to the feds under
POGG, but the treatyimplementation power
depends on the subject-matter
of the treaty. Matters that fall
under S. 92 can only be
implemented by the provinces.
• Extraterritoriality
– Federal
– Provincial
• Treaty-making
powers
– Head of states
– Intergovernmental
– Exchange of notes
Garth Stevenson
Fed’ism & IntGov Rels
• Is decentralization
only a result of
JCPC?
• Since 1949, SCC
balanced
• Prov revenues
– 5.9% of GNP (1960)
– 17.1% GNP (1995)
– Feds: 16.5 – 19.1%
• Causes of
decentralization:
–
–
–
–
–
–
Institutions
Geography
Cultural diversity
Quebec nationalism
Party system
Jurisdictional conflict
• Immigration, pensions,
fisheries, ab land claims,
prosecutions, training
programs
Stevenson continued
– Fiscal conflict
• Free trade, tax collection,
cond grants, energy, trans
payments
• Intergovernmental
mechanisms for dispute
resolution
– Judicial review
– Cooperative federalism
(WWII – 1960)
– Executive federalism
(1960 – present)
• Central agencies
• Intergovernmental
affairs departments
– First Ministers
Conferences
• Why is Canada the
most decentralized
country in the
industrialized world?
Public Law I: Nov. 11/05
The Regulation and Taxation of Natural Resources, The Environment and
Other Division of Powers Issues
• Canadian Industrial Gas
and Oil [Kit, p. 303]
• Central Canada Potash
[Kit, p. 306]
• O’Harra v. B.C. [Kit, p.
397]
• CN v. Courtois [Kit, p.
398]
• AGT v. Canada [Kit, p.
399]
• Friends of Oldman
River v. Canada [Kit,
p. 403]
• Ont. Hydro v. Lab.
Rel’s Broad [Kit, p.
407]
Can. Ind Gas & Oil v. Sask, 1977 (CIGOL)
• 1973: OPEC inc’d world
price of oil
– Windfall gains by oil
companies in Canada
– Sask gov’t wanted diff
between old price and new
price
– Expropriated oil & gas land
tracts, and imposed royalty
surcharge equal to diff
• 7-2: Sask leg ultra vires
• Martland + 6:
– Indirect tax, because paid
for by consumers
– Tax really an export tax;
98% of Sask oil exported to
US, E Can
– Dickson: S. 109
– Price sets the tax, so tax
paid by the companies, not
consumers
– Decision led to S. 92A
(amendment in 1982)
Section 109, CA 1867
• S.109
– All Lands, Mines, Minerals,
and Royalties belonging to
the several Provinces of
Canada, Nova Scotia, and
New Brunswick at the
Union, and all Sums then
due or payable for such
Lands, Mines, Minerals, or
Royalties, shall belong to
the several Provinces of
Ontario, Quebec, Nova
Scotia, and New Brunswick
in which the same are
situate or arise,
subject to any Trusts
existing in respect
thereof, and to any
Interest other than that
of the Province in the
same.
Cent Can Potash & AG Can v Sask, 1979
• Background
– 1960s: potash mines
developed in Sask; Sask
can supply world for 1500
years.
– Other major producer:
New Mexico, but mines
less efficient
– By 1967, Sask potash
selling in US at well below
NM prod price
– Most NM companies had
interests in Sask mines
– NM and Sask worked out a
pro-rationing scheme to
restrict Sask output so that
NM mines could operate
Gov’t in Ottawa not
opposed, so no court
challenge
• 1971: Sask changed prorationing formula;
• Cent Can Potash tried to
force gov’t to honour old
plan through mandamus.
• CCP went to court;
Ottawa intervened
Cent Can Potash continued
• All 7 judges on panel, led by
Chief Justice Laskin, found the
Sask scheme unconstitutional.
• Provinces own natural
resources, but this does not
give them the power to control
interprovincial or international
trade and commerce.
• Any legislation that is in pith
and substance an attempt to
regulate interprovincial and
international trade and
commerce is ultra vires
provincial powers.
• These two decisions led to a
great deal of resentment on
the part of the Western
provinces, and led directly to
the demand to include S. 92A
in the constitutional package
agreed to in November, 1981.
• (See Section 92A on web page
under "Constitution Acts, 1867
to 1982.")
Section 92A: NON-RENEWABLE NATURAL RESOURCES,
FORESTRY RESOURCES AND ELECTRICAL ENERGY
• 92A. (1) In each province, the legislature may
exclusively make laws in relation to (a)
exploration for non-renewable natural resources
in the province; (b) development, conservation
and management of non-renewable natural
resources and forestry resources in the
province, including laws in relation to the rate of
primary production therefrom; and (c)
development, conservation and management of
sites and facilities in the province for the
generation and production of electrical energy.
Section 92a (cont’d)
• (2) In each province, the legislature may make
laws in relation to the export from the province to
another part of Canada of the primary
production from non-renewable natural
resources and forestry resources in the province
and the production from facilities in the province
for the generation of electrical energy, but such
laws may not authorize or provide for
discrimination in prices or in supplies exported to
another part of Canada.
Section 92A (cont’d)
• (3) Nothing in subsection (2) derogates from the
authority of Parliament to enact laws in relation to the
matters referred to in that subsection and, where such a
law of Parliament and a law of a province conflict, the
law of Parliament prevails to the extent of the conflict.
• (4) In each province, the legislature may make laws in
relation to the raising of money by any mode or system
of taxation in respect of (a) non-renewable natural
resources and forestry resources in the province and the
primary production therefrom, and (b) sites and facilities
in the province for the generation of electrical energy and
the production therefrom….
O’Harra v. British Columbia (1987)
•
•
•
•
Impugned: a prov cabinet order
under the B.C. Inquiry Act
appointing a prov commission to
inquire into injuries sustained by a
man while in custody at a police
station.
Issue: does the inquiry invade
federal jurisdiction over criminal
law?
Police officers thought it did, and
petitioned B.C. Sup Ct to declare
order ultra vires. Police lost in BC
Sup Ct, BC CA, and appealed to
SCC.
Dickson +7:
– inquiry does not invade federal
jurisdiction
•
•
– Inquiry’s purpose to “get to the
bottom”of alleged police
misconduct for disciplinary
purposes.
– If inquiry had been to
determine criminal liability, or
to inquire into a federal
institution, or had violated
rights, it would be ultra vires.
Estey (dissenting): real
purpose of inquiry is to identify
wrongdoers preliminary to
prosecution. Therefore, order is
ultra vires.
This decision is a precedent for
the Westray decision of 1995.
CN v. Courtois (1988)
• Impugned: Quebec
Occupational Health and
Safety Act, as it applies to an
investigation of an accident
involving two CN trains.
• Issue: Can a province
investigate an industry under
federal jurisdiction, and make
recommendations for changes
to ensure safety?
• Quebec CA: an investigation
by a provincial body might be
OK if recommendations not
binding on fed. Undertakings.
• SCC (Beetz + 6, unanimous):
the real issue is whether the
province has the constitutional
authority to investigate a
federal undertaking. Provinces
do not have this power. The
federal Occupational Health
and Safety Act applies, not the
provincial one.
• (summons duces tecum – a
summons to attend with
particular documents)
AGT v. Canada (CRTC) (1989)
• Impugned: authority of CRTC
over Alberta Government
Telephones (AGT)
• AGT (now Telus) was a
provincial crown corp,
provincially regulated. CNCP
telecommunications wanted an
order from CRTC in 1982 to
facilitate interchange of
communications. AGT
objected, claiming crown
immunity.
• Questions: a) is AGT an
interprovincial undertaking
under 92(10)(a)? B) If so, is
AGT subject to CRTC
regulations?
• Dickson + 4: AGT falls under
federal jurisdiction under
92(10)(a). Although AGT does
not have services outside
Alberta, its customers can all
make long-distance calls, and
so the services it sells are
really interprovincial in nature.
AGT can claim crown
immunity, but CRTC
regulations can be changed to
include it.
• This decision astounded many
lawyers, according to Hogg.
• Wilson (dissenting): AGT
cannot claim crown immunity.
Friends of Oldman River v.
Canada
• Friends of Oldman River - an environmental group opposed to AB
Gov’t’s plan to build a dam on the Oldman River west of Lethbridge
(on Indian res) to store water for irrigation. (Supported by folk singer
Ian Tyson, who has a ranch in Southern Alberta.)
-AB gov’t did its own environmental assessment.
-Feds have regulatory authority under:
-S. 91(10), “navigation & shipping”
-S. 91(12), “sea coast & inland fisheries,” &
-S. 91(24), “Indians, and lands reserved for Indians”
-Fed. Environmental Assessment & Review Process Guidelines
Order requires fed. Dept’s of Transport & Fisheries to screen
“undertakings” for env impact. Only navigation impact reviewed; fed
dept’s of Env & Fisheries didn’t do env assessment. 1987: fed Min
of Transport approved
-1988: project commenced. 1989: Friends asked Fed Ct for orders
of certiorari of fed approval, & mandamus. Friends lost in trial div.,
but won in appeal div; fed approval order quashed. Appealed to
SCC by fed gov’t
Oldman River continued
• SCC: 8-1 upheld order for cert & order to quash (but here
mandamus inappropriate)
-La Forest + 7: Fed Guidelines Order requires fed gov’t to assess
env impact of an undertaking under all relevant heads of fed
power. In this case, impact on fisheries and Indian lands was not
reviewed. The Alberta crown is not immune; otherwise provinces
could ignore fed jurisdiction
-“The environment” is not a separate head of power. Both prov’s
and fed’s can regulate aspects that fall within their own powers. Fed
Guidelines Order only pertains to fed powers -- 91(10), (12) & (24).
-The aspect of the Guidelines Order order which regulates fed
agencies is intra vires either under 91(10), (12) & (24), or POGG.
-Fed powers can’t be used in a colourable fashion to interfere with
prv powers.
-Legitimate use of Guidelines may impact prov powers as long as
the pith and substance of the fed action takes place under 91(10),
(12) or (24). The Friends acted as expeditiously as possible; the fed
& prov gov’t’s caused unnecessary delays to their litigation.
Ontario Hydro v. Ontario (Labour Relations Board) (1993)
•
•
A society of employees of Ont
Hydro applied for certification to
represent employees to Ont Lab
Rels Bd; opposed by a coalition of
employees. Coalition argued that
because nuclear power plants are
federal undertakings under
92(10)(c), they must be certified
under Canada Labour Code. Ont
LRB agreed. Decision challenged
by Society (supported by unions),
and Ont Hydro.
La Forest + 2, & Lamer: an
industry under 92(10)(c) is under
federal jurisdiction for labour
relations.
•
Sopkina +2 (dissenting):
Parliament’s jurisdiction over a
“declared” work extends only to
what is integral to the federal
interest in the work. Parliament is
interested in regulating nuclear
power, not labour relations. (La
Forest, however, argues that the
two subjects are intricately
connected.)
Nov. 18: Indians and the
Division of Powers in
Canada
By: Kristopher Crawford-Dickinson
BA (Hons), M.A., Dip. D.A., Dip. J.A., LL.B., PhD(c)
The views expressed in this lecture (both the lecture notes and any
accompanying commentary) are strictly those of the author. They should
not be construed as any official or unofficial policy of any government
body.
Objectives of Lecture
1)
Provide the constitutional and legislative framework for
how jurisdiction over Indians in Canada operates.
2)
Define who is an “Indian” and what is meant by “Lands
Reserved for Indians”.
3)
Examine key judicial decisions regarding jurisdiction
over Indians in Canada.
Constitutional Framework
The Constitution Act, 1867, (U.K.) 30 & 31 Vict., c.3.
91. It shall be lawful for the Queen, by and with the Advice and
Consent of the Senate and the House of Commons, to make
Laws for the Peace, Order and good Government of Canada,
in relation to all Matters not coming within the Classes of
Subjects by this Act assigned exclusively to the Legislatures of
the Provinces, and for greater Certainty, but not so as to
restrict the Generality of the foregoing Terms of this Section, it
is hereby declared that (notwithstanding anything in this Act)
the exclusive Legislative Authority of the Parliament of
Canada extends to all Matters coming within the Classes of
Subject next hereinafter enumerated; that is to say, –
…
24.
Indians and Lands reserved for Indians.
Constitutional Framework
Canadian Charter of Rights and Freedoms, Being
Schedule B to the Canada Act, 1982, (U.K.) 1982,
c.11.
25. The guarantee in this Charter of certain rights and
freedoms shall not be construed so as to abrogate or
derogate from any aboriginal treaty or other rights or
freedoms that pertain to the aboriginal peoples of
Canada including
(a) any rights or freedoms that have been recognized
by the Royal Proclamation of October 7, 1763; and
(b) any rights or freedoms that now exist by way of land
claims agreements or may be so acquired.
Constitutional Framework
Constitution Act, 1982, Being Schedule B to the
Canada Act, 1982, (U.K.) 1982, c.11.
35. (1) The existing aboriginal and treaty rights of the
aboriginal peoples of Canada are hereby recognized and
affirmed.
(2) In this Act, “aboriginal peoples of Canada” includes
the Indian, Inuit and Métis peoples of Canada.
(3) For greater certainty, in subsection (1) “treaty rights”
includes rights that now exist by way of land claims
agreements or may be so acquired.
(4) Notwithstanding any other provision of this Act, the
aboriginal treaty rights referred to in subsection (1) are
guaranteed equally to male and female persons.
Constitutional Framework
Important Notes About Constitutional Framework:
The following is important to note about the constitutional
framework regarding jurisdictional issues over Aboriginals
in Canada:
Federal Jurisdiction: The federal government has
jurisdiction over Indians and lands reserved for
Indians
under s. 91(24) of the Constitution Act, 1867.
Constitutional Entrenchment of Aboriginal
Rights:
Section 35(1) of the Constitution Act, 1982
constitutionally
entrenches Aboriginal rights. Prior to
1982 Aboriginal
rights existed at common law and
therefore could be altered and/or extinguished by the
federal government
through “ordinary” legislation.
Legislative Framework
Indian Act, R.S.C., 1985, c. I-5.
88. Subject to the terms of any treaty and any other Act of
Parliament, all laws of general application from time to
time in force in any province are applicable to and in
respect of Indians in the province, except to the extent
that those laws are inconsistent with this Act or any order,
rule, regulation or by-law made thereunder, and except to
the extent that those laws make provision for any matter
for which provision is made by or under this Act.
Legislative Framework
Section 88 of the Indian Act in “Regular Language”
Provincial laws of general application apply to Aboriginals
except under the following circumstances:
•
•
•
•
If they conflict with existing treaty rights
If they conflict with any existing federal legislation
If they conflict with any provisions in the Indian Act
If they conflict with any order, rule, regulation or by-law
made under the Indian Act
Who Is An “Indian”?
Are Indians “Indians”?
Are the Inuit “Indians”?
Are the Métis “Indians”?
Who Is An “Indian”?
Indians May Not Be “Indians”
Indian Act, R.S.C., 1985, c. I-5.
7.(1) The following persons are not entitled to be registered:
(a) a person who was registered under paragraph 11(1)(f), as it
read immediately prior to April 17, 1985, or under any former
provision of this Act relating to the same subject-matter as that
paragraph, and whose name was subsequently omitted or
deleted from the Indian Register under this Act; or
(b) a person who is the child of a person who was registered or
entitled to be registered under paragraph 11(1)(f), as it read
immediately prior to April 17, 1985, or under any former
provision of this Act relating to the same subject-matter as that
paragraph, and is also the child of a person who is not entitled
Who Is An “Indian”?
Inuit May Not Be “Indians”
Reference re: British North America Act, 1867 (U.K.),
s. 91 (The “Eskimo Reference), [1939] S.C.R. 104.
Facts: A controversy arose between Parliament and the
Legislature of Quebec over who had jurisdiction over the
Eskimo living in Northern Quebec. The Province of
Quebec argued that the Eskimo were “Indians” under s.
91(24) of the Constitution Act, 1867 while Parliament
argued that the Eskimo were not “Indians”. To resolve this
problem, Parliament sent a Reference Question to the
Supreme Court of Canada.
Issue: Are the Eskimo “Indians” under s. 91(24) and
therefore under federal jurisdiction?
Who Is An “Indian”?
Inuit May Not Be “Indians”
Decision: The reference question was answered in the
affirmative and the Eskimos are “Indians”.
Ratio: Three decisions were issued in this case (none of
which gained a majority perspective).
Duff C.J. (Plurality Decision): Eskimos must be
considered “Indians” because the official documents
at the
time referred to Eskimos as “Savages”, which
was how Indians were referred to at that time.
Who Is An “Indian”?
Inuit May Not Be “Indians”
Cannon J. (Crocket J. Concurring): The Eskimo
are “Indians” because the French word “Sauvages”
(English
for Savages) includes all present and future
aborigines native subjects of the proposed Confederation
of British North America.
Kerwin J. (Cannon J. and Crocket JJ. Concurring)
(Another Plurality Decision): The common
definition of
“Indian” at Confederation equated
Eskimos with Indians
and therefore Eskimos must be
“Indians”.
The historical record indicates that the Eskimo were
categorized with Indians for census purposes.
Who Is An “Indian”?
Inuit May Not Be “Indians”
According to the Re Eskimo, the Inuit are “Indians”.
However, according to s. 4(1) of the Indian Act, the Inuit
are not “Indians”
Section 4(1) of the Indian Act reads:
4.(1) A reference in this Act to an Indian does not include
any person of the race of aborigines commonly referred to
as Inuit.
Who Is An “Indian”?
Inuit May Not Be “Indians”
Are the Inuit “Indians”?
Who Is An “Indian”?
The Métis may not be “Indians”
R. v. Blais, [2003] 3 S.C.R. 237.
Facts: The Appellant was charged for hunting without a
license. At trial, the Appellant argued that he was
exercising an Aboriginal (in this case Métis) right, which
was protected under the Natural Resource Transfer
Agreement. The Respondent Crown argued that the
Natural Resource Transfer Agreement does not apply to
the Appellant since the term “Indian” does not refer to the
Métis
Issue: Doe the term “Indian” in the Natural Resource
Transfer Agreement include the Métis?
Who Is An “Indian”?
The Métis may not be “Indians”
Decision: Judgment for the Respondent, the appeal was
dismissed.
Ratio: The Métis are not considered “Indians” under para.
13 of the Natural Resource Transfer Agreement, which
applies to Manitoba, Saskatchewan and Alberta as a
result of the way in which the term “Indian” was used in
the 1930s (i.e. the Métis were considered separate from
other “Indians” in the 1930s).
Who Is An “Indian”?
The Métis may not be “Indians”
Note: In Blais, the Supreme Court did not decide whether
the Métis were “Indians” for the purposes of s. 91(24) of
the Constitution Act, 1867. In fact, the Court specifically
stated it was not deciding that issue. What is interesting
to note, however, is that the Court discussed some of the
evidence used in Re Eskimo to conclude the Métis were
not “Indians” for the Natural Resource Transfer
Agreement.
Note: As of right now, the constitutional status of the
Métis is undecided. Parliament claims that the Métis are
not “Indians” while the provincial legislatures claim that the
Métis are “Indians”
Who Is An “Indian”?
The Métis may not be “Indians”
Why is each level of government claiming the other has
jurisdiction over the Métis?
Do you think the Métis are“Indians”?
Lands Reserved For Indians
Includes Formally Created Indian Reserves: Lands
reserved for Indians includes any and all formally created
Indians Reserves (i.e. they are under federal jurisdiction.
Includes Lands Set Aside by Royal Proclamation,
1763: Lands reserved for Indians includes any lands that
were set aside by the Royal Proclamation, 1763 (i.e. they
are under federal jurisdiction).
Includes Aboriginal Title Land At Assertion of Crown
Sovereignty: Any lands subject to an Aboriginal Title
Claim arising out of the assertion of Crown Sovereignty
are under federal jurisdiction.
Judicial Decisions On
Jurisdiction
R. v. Sutherland, [1980] 2 S.C.R. 451.
Facts: The Respondents were treaty Indians. The
Respondents were apprehended while hunting deer for
food. The Respondents were charged under s. 19(1) of
the Wildlife Act for hunting with the aid of a spotlight. They
were convicted at trial, but were successful on appeal
when the Manitoba Court of Appeal held that s. 49 of the
Wildlife Act was ultra vires because it directly limited
where Indians could hunt. The Crown appealed.
Issue: Two issues were raised in this case. They were:
1)
Can a provincial law directly apply to Indians?
2)
Do provinces have the authority to enact
hunting laws of general application that affect Indians?
Judicial Decisions On
Jurisdiction
Decision: Judgment for the Respondent, the appeal is
dismissed.
Ratio: There are three important ratios to note about this
case. They are:
1)
Provincial Laws Cannot Directly Apply to
Indians: The provinces do not have
the
constitutional authority to enact
legislation that
directly applies to
Indians (i.e. legislates Indians
qua
Indians).
A)
Laws That Single Out Indians Cannot
Be Of General Application: Any laws
that purposefully single out Indians cannot
be of general application.
Judicial Decisions On
Jurisdiction
2)
Provinces Have Constitutional Authority To
Enact Hunting Laws Of General
Application:
There is no doubt that the
provinces have the
authority to
enact hunting laws of general
application, even if those laws have an indirect
effect Indians.
3)
Legislation Must Be Interpreted In Favor of
Indians: If any doubt exists within the
legislation, that doubt must be interpreted in favor
of the Indians.
Judicial Decisions On
Jurisdiction
Four B. Manufacturing
Ltd. v. United Garment Works of
America, [1980] 1 S.C.R. 1031.
Facts: The Appellant (Four B.), which was incorporated
under the laws of Ontario and carrying on business on an
Indian Reserve, was owned by four brothers (all of which
were Indians). The Appellant’s business was the
manufacturing of shoes. It was not controlled by the Band
Council, but occupied premises on the Reserve. The
Appellant received money from the Government of
Canada (including funds from various Indian Affairs
Programs). Some of the workers at Four B. wanted to
unionize under provincial legislation. The Appellant
challenged the certification process on the grounds that
the federal legislation was applicable since the company
was owned and operated by Indians.
Issue: Does the provincial or federal labor relations
legislation apply to Four B. Manufacturing Ltd.
Judicial Decisions On
Jurisdiction
Decision: Judgment for the Respondent, the appeal is
dismissed.
Ratio (Majority): There are three important ratios to note about
this case. They are:
1)
Labor Relations Are Usually Exclusively Within
Provincial Jurisdiction: The general rule
is that labor relations falls within provincial jurisdiction.
A)
Exception – Federal Undertaking: The
general exception is if the corporation is a federal undertaking.
2)
Provincial Labor Laws Apply to Indian-Owned
Corporations Not Involved In “Indian”
Activities: An Indian-owned corporation will be subject to
provincial labor laws if its activities do not engage a
“core” of “Indianness”.
Judicial Decisions On
Jurisdiction
3)
Notion of Federal Enclave Should Be
Rejected:
There is no such thing as a federal
enclave (i.e. an
area of jurisdiction that falls
exclusively to the
federal government).
Dissent: Four B. should be considered a federal
undertaking and therefore subject to federal labor laws.
Four B. is owned and operated by Indians on Reserve
Land in a building leased to it by the Band Council.
Judicial Decisions On Jurisdiction
Dick v. R., [1985] 2 S.C.R. 309.
Facts: The Appellant accused was charged under a
provincial regulation for killing a deer during closed
season in the traditional hunting grounds of his people.
The Appellant claimed that the law did not apply because
it violated the constitutional division of power because the
law directly applied to “Indians” and was therefore ultra
vires.
Issue: Two issues were raised in this case. They were:
1)
Does provincial legislation apply of its own
force?
2)
What is the impact of s. 88 of the Indian Act?\
Decision: Judgment for the Respondent, the appeal was
dismissed.
Judicial Decisions On
Jurisdiction
Ratio: There are three important ratios to note about this.
They are:
1)
Provincial Laws of General Intent That Impair
Status/Capacity Of Indians Do Not Apply On
Own Force: Provincial laws of general intent
that impair the status/capacity of Indians does not
apply of its own force.
2)
s. 88 of the Indian Act Applies to Provincial
Laws That Could Not Be Directly Applied If It
Is Of General Application: s. 88 of the Indian
Act allows provincial laws of general application
that cannot be directly applied because it impairs
the status.
Judicial Decisions On Jurisdiction
3)
Disproportionate Impact Not Enough to
Invalidate Law – Must Look to See If Intent to
Effect Aboriginal Interest: A disproportionate
impact caused by the legislation is not enough to
invalidate the law, the courts must look at the
intent of the legislation to effect an Aboriginal
interest.
Judicial Decisions On Jurisdiction
Delgamuukw v. British Columbia, [1997] 3 S.C.R. 1010.
Facts: The Appellant (Delgamuukw) were a group of
Aboriginal hereditary chiefs who claimed ownership to
separate portions of 58,000 square kilometers in British
Columbia. The Respondent (Crown of British Columbia)
argued that the Appellants did not have an interest or right
to claim title to the land. After rejecting the Appellant’s oral
argument (“adaawk”) because they did not comply with
the “ordinary” rules of evidence, the trial judge found the
Appellants had failed to meet the necessary evidentiary
burden of proof to establish their claim and therefore
dismissed it
Issue: One of this issues was how does s. 88 of the
Indian Act apply to Indians?
Decision: Judgment for the Appellant, the appeal was
allowed.
Judicial Decisions On Jurisdiction
Ratio: There are four important ratios to note about this
case. (for this class’ purposes). They are:
s. 91(24) Protects “Core of Indianness”
Through Doctrine of Interjurisdictional
Immunity: Section 91(24) protects a “core” of
Indianness (i.e. anything going to the status and/or
rights of Indians) through the doctrine of
interjurisdictional immunity, which means the
provinces cannot enact legislation that affects this
core.
1)
2)
s. 91(24) Does Not Create Federal
Enclaves: Section 91(24) of the Constitution
Act, 1867 does not create a federal enclave of
power, meaning that the provinces can enact
laws of general application that apply to Indians.
Judicial Decisions On
Jurisdiction
3)
Provincial Laws Of General Application
Cannot Extinguish Aboriginal Title and/or
Aboriginal Rights Under s. 35(1): Provincial
laws of general application are not capable of
extinguishing Aboriginal Title and/or Aboriginal
Rights. This is a result of two facts. They are:
A) Extinguishing Title Requires Clear
Language And Would Therefore Violate
s. 91(24): An extinguishment of
Aboriginal Title and/or Aboriginal rights
requires clear language and would
therefore violate s. 91(24) by directly
applying to Indians.
Judicial Decisions On Jurisdiction
B)
Aboriginal Rights Are At “Core of
Indianness” and Therefore Protected By
Doctrine of Interjurisdictional
Immunity: Aboriginal rights are at the
“core of Indianness” and therefore are
protected by the doctrine of interjurisdictional
immunity.
4)
Section 88 of Indian Act Can Incorporate
Provincial Laws Of General Application:
Section 88 of the Indian Act can incorporate
provincial laws of general application provided
they do not regulate Indians qua Indians.
Summary of Provincial Laws
Of General Application
Ways In Which Provincial Legislation is
Applicable
1)
Apply Of Its Own Force (ex proprrio vigore):
Provincial laws of general application can apply of
their own force, except:
A)
Effect of the Law Directly Related To
Indians or Lands Reserved For Indians:
Under this, provincial laws that are in
direct relation to Indians or lands reserved
for Indians do not apply to Indians (i.e. it
legislates Indians qua Indians or Indian
land qua Indian land).
Summary of Provincial Laws Of
General Application
Ways In Which Provincial Legislation is
Applicable
B)
2)
Law of General Application Impairs
Status Or Capacity of Indians (i.e.
Affects “Core of Indiannness”): Under
this, provincial laws that have the effect of
impairing the status or capacity of Indians
(i.e. affects the “core of Indianness”) do
not apply to Indians.
Referential Incorporation Through s. 88 of
Indian Act: Provincial laws can apply to
Indians if they have been referentially
incorporated into federal legislation through s.
88 of the Indian Act.
Nov. 25: Vaughan, Cairns &
Russell
• After 1949: many
academics condemned
JCPC for bad
jurisprudence, and
decentralist tendencies.
• Browne defended JCPC
as applying correct rules
of construction.
• 1971: Alan Cairns
defended results of JCPC
decisions from a
sociological perspective
• Peter Russell defended
JCPC results from a
“balance” perspective, &
pointed out Fathers of
Confederation had
differing views
• Vaughan claims Browne,
Cairns and Russell are all
wrong; BNA Act was
centralist, and JCPC
guilty of bad
jurisprudence
Vaughan’s argument
• G.P. Browne argues that
the JCPC was correct in
determining that there are
3 bases of power:
POGG, list in s. 91, and
s. 92.
• Vaughan: there are
really just 2 (POGG &
s.91 list are inseparable),
and so JCPC was wrong.
• Browne: JCPC followed
stare decisis.
• Vaughan: JCPC did not
consist of fools or knaves,
but politicians attempting
to “enunciate a basis for
provincial legislative
authority.”
• JCPC ignored the intent
Fathers of Confed., who
created a centralist state
in reaction to U.S. Civil
War.
Section 91
•
•
It shall be lawful for the Queen, by and
with the Advice and Consent of the
Senate and House of Commons, to
make Laws for the Peace, Order, and
good Government of Canada, in
relation to all Matters not coming
within the Classes of Subjects by this
Act assigned exclusively to the
Legislatures of the Provinces;
and for greater Certainty, but not so as
to restrict the Generality of the
foregoing Terms of this Section, it is
hereby declared that (notwithstanding
anything in this Act) the exclusive
Legislative Authority of the Parliament
of Canada extends to all Matters
coming within the Classes of Subjects
next hereinafter enumerated; that is to
say, [29 enumerated heads]
• “deeming” paragraph:
• And any Matter coming within
any of the Classes of Subjects
enumerated in this Section
shall not be deemed to come
within the Class of Matters of a
local or private Nature
comprised in the Enumeration
of the Classes of Subjects by
this Act assigned exclusively to
the Legislatures of the
Provinces.
Vaughan (continued)
• Danger of judges becoming
legislators (eg. “Persons” case:
Edwards v. A-G for Canada,
1930). Living tree. “large and
liberal interpretation” for
constitution
• Cairns: “rules of statutory
construction are little more
than a grab bag of
contradictions.” Vaughan:
JCPC smarter than to trip over
vague rules of construction.
The judges had a deliberate
strategy in mind.
• Vaughan criticizes Russell’s
approach in the case book
from which your cases are
taken: says Russell too
sympathetic to decentralists.
• Vaughan claims most fathers
of confederation wanted a
unitary state. Couldn’t get it
because of objections in
Quebec; settled for a quasifederal state.
• Vaughan examined transcripts
of JCPC hearings: JCPC
knew what it was doing
politically.
• JCPC judges are the real
Fathers of Confederation
Cairns & Russell
• Cairns: Criticizing JCPC
had become “thoughtstifling conventional
wisdom.
• Doesn’t agree with JCPC
reasoning, but thank
goodness for the results.
• Russell: JCPC read
classical federalism into
BNA Act
• Fathers were not united
in their views. Vaughan’s
claim of original intent is
too simplistic.
• Russell will approve
activism “if based on
principles that embody
the wisdom of collective
experience.” eg. Duff in
Alta Press case (freedom
of expression is life &
breath of democracy),
and Dickson in Hauser.
John Saywell: The Lawmakers (2002)
•
•
John Saywell: distinguished York
history professor.
The Watson Era (1889-1912)
– Born 1827, Scotland
– Civilian lawyer; didn’t have
reputation as brilliant lawyer
– Supported Conservatives
• Solicitor general in 1874
• 1876: MP for Aberdeen &
Glasgow universities
• 1880: Scots Lord of Appeal in
House of Lords
• Member of JCPC for civil law
appeals from Quebec
• 1888-1899 – the “Canadian
specialist” on JCPC
•
Watson
– Said he believed in applying rules
of statutory interpretation strictly
– In practice, “indulged in wideranging conclusions and
speculations about language,
history, intentions and policy”
– Impressed by arguments of Blake,
the lawyer for Ontario
– St. Catherine’s Milling case: when
aboriginals give up title to land, it
reverts to the provincial crown. (S.
109 – provs have nat resources)
– Maritime Bank case: prov.
Lieutenant-governors are equal in
status with Governor General.
– Local prohibition case: a reinterpretation of Russell to give
more power to provinces.
Haldane
Haldane (1911-1928)
•
•
•
•
•
Born in Edingurgh in 1856
Studied philosophy; scholar of
Hegel (decentralization)
1877: moved to London to study
common law; QC in 1887
Worked as a junior in a number of
Canadian constitutional cases.
Great admirer of Watson
Quotable quotes from Saywell:
– Haldane was so good at most
things yet not superlative in
anything
– Haldane wanted to focus on “big,
working principles,” but insisted on
positivist approach
• Haldane:
– 1911-1928, participated in all
but 63 of 204 appeals from
Canada, and delivered
decision in 24.
– Admitted that the JCPC
shaped the Canadian
constitution – gave it its
“federal” nature
– Provinces are “independent
kingdoms” that have
delegated some powers to the
central government.
– Case in point: Haldane’s reinterpretation of Russell
decision in Snider.
Dec. 2: The Political Dynamics of
Constitutional Reform 1981-Present
•
•
•
•
•
•
•
•
•
•
•
•
•
Senate Reference [Kit, p. 316]
A. Cairns, “Constitutional Change…” [Kit, p. 138]
R. Gibbons, “Shifting Sands…” [Kit, p. 163]
Patriation Reference [Kit, p. 318]
Meech Lake and Charlottetown Accord [Kit, pgs. 375 and 378]
Resolution on Recognition of Quebec… [Kit, p. 389]
An Act Respecting Constitutional Amendment [Kit, p. 390]
A Framework to Improve the Social Union… [Kit, p. 392]
Reference re. Secession of Quebec [Kit, p. 337]
Alan Cairns: Constitutional Change and the Three Equalities [Kit, 138]
K. McRoberts, Misconceiving Canada, Chapter 9, “The 1995 Quebec
Referendum” [Kit, p. 151]
P. Hogg, “The Duty to Negotiate” [Kit, p. 178]
Gall, Ch. 13, and Bogart, “The Administrative State and Judicial Review
(182)”
Main Events surrounding Patriation controversy
•
•
•
•
•
•
•
•
Balfour declaration: 1926
Statute of Westminster: 1931
Quiet Revolution: 1960 +
Trudeau becomes PM, 1968
Victoria Charter: 1971
Senate reference: 1979
Quebec referendum: 1980
Negotiations re patriation &
Charter, 1980-81
• Unilateral attempt to patriate
by Trudeau, 1981
• Patriation reference,
1981
• Agreement of Nov. 5,
1981 (Que not inc’d)
• Canada Act signed, April
1982
• Quebec veto ref, 1982
• Meech Lake Acc, 19871990
• Charlottetown Accord,
1992
• Quebec referendum:
1995
Main events (2)
• Resolution on recognition
of Quebec as a Distinct
Society (1995)
• Act respecting
constitutional
amendment, and
resolution to recognize
Quebec as a “distinct
society.” (1996)
• Calgary Declaration
(1997)
• Quebec secession
reference (1998)
• Social Union
Framework
Agreement (1999)
• Clarity Act (2000)
Senate Reference (1979)
• Already discussed in class on cooperative federalism,
Nov. 4/05
• In 1978, the Trudeau government floated a “trial balloon,”
a paper on Senate reform. Possibilities included
abolishing the Senate, or changing it into a “house of the
provinces” where half of the Senators would be chosen
by the provincial legislatures or governments.
• Does Parliament have the ability to change the Senate in
any of these ways? Reference question sent to
Supreme Court.
• Answer by “the court” (Laskin, CJ): No. To change the
Senate is to abolish the current Parliament (H of C,
Senate, Queen) and replace it with a new Parliament.
That requires a constitutional amendment by UK
Parliament [after 1982, through the unanimity formula].
Patriation reference (1981)
• Would the proposed
amendments affect
provincial powers: Yes
(unanimous)
• Is there a convention of
provincial consultation?
– Yes: Martland, Ritchie,
Dickson, Beetz, Chouinard
& Lamer (substantial, not
unanimous)
– No: Laskin, Estey &
McIntyre: No
• Has the convention
hardened into
constitutional law?
– No: Laskin, Dickson,
Beetz, Estey, McIntyre,
Chouinard & Lamer
– Yes: Martland & Ritchie
Alan Cairns: three equalities [Kit, 138]
• Citizens
• Provinces
• Two nations
• Debate over
assymetrical
federalism
• Charter: a constraint
on federalism
• Charter’s popularity in
Quebec
Meech Lake Accord
– Compensation provided for
any province opting out of
any constitional
amenendment under 7-50
formula that transfers prov
powers to Ottawa.
• Meech Lake Accord:
– “distinct society” clause
– “constitutionalize”
immigration agreements
– Provinces submit names
for vacancies to SCC
– Any province can opt out of
a shared cost program in
areas of prov. jurisdiction &
receive compensation if the
province operates a similar
program that meets
“national standards.”
•
Additions:
– Senate reform: prov’s
nominate Senators to begin
with
– First ministers conf on
economy annually
– Annual constitutional
conferences to discuss
Senate reform, fisheries
and other matters.
Charlottetown Accord
• Everything in Meech
Lake plus:
– Canada Clause
– Aboriginal rights
strengthened, including
right to negotiate selfgovernment
– Non-justiciable social
charter
– Measures to strengthen s.
121
– Senate reform: 6 elected
senators from each
province, and 1 from each
Territory, plus Aboriginal
representation
– SCC appointments: feds
can appoint if provinces
don’t nominate.
– Guarantee of 25% of seats
in H of C for Quebec
– Prov. authority in areas of
prov. Jurisdiction
strengthened.
– Fed powers of
disallowance and
reservation repealed
– Fed declaratory power
limited; require prov.
consent.
Social Union Framework
Agreement (1999)
• All Canadians are
equal
• Needs must be met
everywhere
• Social programs
should be adequate
and sustainable
• Promote mobility
within Canada
• Public accountability and
transparency
• Evaluate results of
programs
• Participative democracy
• Funding predictability
• Fed-prov consultation,
not unilateral action
Québec Secession Reference
(1998)
• Stéphane Dion
– Critical of “yes” side in
1995 referendum
– Asked by PM to become
Min of Intergovernmental
Affairs in 1996 & context
by-election
– Proponent of “Plan B:” fed
gov’t should be active in
opposing Québec
separatism.
•
Guy Bertrand (a former
sovereignist leader in Québec
turned federalist)
– began a litigation process
in which challenged the
Québec government’s
attempts to institute
sovereignty on Charter of
Rights grounds.
– Québec government tried
to block Bertrand’s
challenge, so fed gov’t
continued the litigation
through the reference (part
of “Plan B”)
Québec Secession Reference
(2)
• Argued in Feb, 1998
– Québec gov’t wouldn’t
participate, so SCC
appointed André Joli-Cœur
as amicus curiae.
– Amicus argued that
reference jurisdiction of
SCC is ultra vires.
• Can an appeal court be
given original jurisdiction?
Yes.
• Can an appeal court
advise? In Canada, yes
(despite rule about no
specific mention).
• Justiciability:
– Too theoretical?
– Too political?
– Not ripe?
• Canada does not have
as strict a separation of
powers as U.S.
• Advisory opinion
different from a litigated
case.
Québec Secession Reference
(3)
• Questions:
– 1. Under Can Const, can
Québec secede
unilaterally, without a
constitutional amendment?
– 2. Under Int law, can
Québec secede
unilaterally?
– 3. If conflict between (1)
and (2), which takes
precedence?
• Why did SCC write such
a lengthy judgment?
• 1. Can Québec secede
unilaterally under
constitution?
– Arguments in favour based
on democracy.
– What is democracy?
– Our democracy is based on
shared values, and
unilateral secession puts
these at risk. Thus, duty to
negotiate.
– Was SCC too activist, or
not activist enough re
“clear question” and “clear
majority”?
Québec Secession Reference
(4)
• 2. Does international law
give Québec the right to
secede unilaterlally?
– Amicus: right to selfdetermination belongs to all
“peoples.”
– Do Québeckers constitute
a “people”?
– SCC: not necessary to
decide, because even if
yes, the right only exists
where a “people” is
mistreated.
• right to only arises under
international law where “a
people” is governed as part of
a colonial empire, “is subject to
alien subjugation, domination
or exploitation; and possibly
where ‘a people’ is denied any
meaningful exercise of its right
to self-determination within the
state of which it forms a part.”
Québec Secession Reference
(5)
• Spring of 2000: Bill C-20:
“An Act to give effect to
the requirement for
clarity….”
– Within 30 days of a prov
legislature tabling a
referendum question, H. of
C. must declare whether
question is “clear.”
– If question considered
“clear,” and a majority
votes in favour, H of C
must determine
whether majority is
“clear.” Consider:
• Size of majority
• Proportion voting
• Views of political
parties
• View of Senate
Québec Secession Reference
(6)
• After SCC decision: PQ
gov’t seemed to support
decision.
• Jacques-Yvan Morin
(former Québec
intergovernmental affairs
minister): SCC decision
means feds can’t refuse
to negotiate, but can put
up many obstacles to
Quebec secession.
• Kenneth McRoberts: The
Trudeau strategy for
Canadian unity has
failed.
• Hogg:
– Québec can no longer
claim that it can secede
unilaterally.
– The “duty to negotiate”
secession in face of a
“clear majority” vote in
favour in a province is
unprecedented in world
history.
Gall – last chapter
• New directions:
– Is law the best way to
implement a public policy?
– If so, think about federalism
issues in potential litigation.
What mechanisms are
there for cooperation?
– Technology
• A tool for judges
• Education for lawyers and
judges
• Electronic law library
• Public image of legal
profession
– Public education
– Legal accountability
– Case management, ADR,
mediation
– Legal fees
– Legal insurance
– Continuing education (prof.
Dev. LLM at Osgoode)
– Alternative careers for
lawyers
– Law reform (Canada Law
Commission)
W.A. Bogart, Courts & Country, Ch 4 (The
administrative state and judicial review, kit 182)
• Do courts promote a
fairer society, or act as a
roadblock to
advancement?
– Federal administrative
agencies (eg. CRTC, Hum
Rts Comm): 640.
– Ontario: 36 reg bodies (eg.
Lab rels bd,WSIB – ½
million claims/yr), 44
licensing appeal tribunals,
8 compensation boards, 19
arbitration agencies, 95
advisory boards.
• Leg’s try to keep courts
from supervising admin
agencies too closely.
Why?
• Should courts intervene
in admin trib’s rarely,
when there are clear
issues of fairness?
• Bogart: courts may be
good, at times, in
signaling unfairness, but
are not usually good at
finding solutions.
Descargar

Public Law I: Sept. 9