CONSTITUTIONAL LAW CAN - WINTER 2013
Contents
FEDERALISM 5
DIVISION OF POWERS 5
PITH AND SUBSTANCE/INCIDENTAL EFFECTS 7
ANCILLARY DOCTRINE/NECESSARILY INCIDENTAL 7
TEST FOR ANCILLARY DOCTRINE 7
DOUBLE ASPECT 8
Test for Double Aspect 8
PARAMOUNTCY 8
TEST FOR PARAMOUNTCY 8
INTERJURISDICTIONAL IMMUNITY 9
THE CURRENT TEST FOR IJI 9
POGG 10
Test for national concern 10
PROVINCIAL ECONOMIC REGULATION 11
ABORIGINAL PEOPLES 13
Timeline 13
Introduction 14
Section 35, Constitution Act 1982 15
St. Catharines Milling and Lumber Company v. The Queen (1888) 15
Copper v. Stuart 15
Calder 1973 15
Guerin v. The Queen [1984] 15
Aboriginal Rights Test 16
S. 35 Framework: Sparrow Test 16
Aboriginal Rights Cases 19
R v. Sparrow (1990) 19
Van der Peet (1993) BC Court of Appeal - Sources of AR, integral to distinctive culture, purpose of s.35, ten principles 20
Gladstone [1996] 22
Delgamuukw v British Columbia (1997) 23
R v. Sappier; R. v. Gray (2006) 23
Commercial Rights 24
Lax Kw'Alaams Indian Band v Canada (AG) (2011) 25
Tsilhqot’in, 2012 26
Metis Rights 26
Test for Metis Rights 28
Aboriginal Self-Government 28
Caismel v. Insurance Corporation of British Columbia (1993) 28
Pamajewon [1996] 28
Patrick Macklem, Indigenous Differences and the Constitution of Canada 29
Campbell v AG BC (2000) 29
Mitchellv. MNR [2001] 29
ABORIGINAL TITLE 31
Test for Aboriginal Title 31
Delgamuukw (1997) 31
R v. Marshall/R v. Bernard 31
Tsilhqot'in Nation v. British Columbia (2007) 32
Aboriginal Treaty Rights 32
Patrick Macklem, "First Nations Self-Government and the Borders of the Canadian Legal Imagination" 32
R v. Marshall (1999) 33
R v. Badger (1996) 34
R v. Marshall, R v. Bernard (2005) 35
Moses (2010) 35
Duty to Consult and Accommodate 35
Haida Nation v. BC (Minister of Forests) (2004) 36
Taku River Tlingit First Nation v. BC (Project Assessment Director), [2004] 37
Mikisew Cree First Nation v. Canada (Minister of Canadian Heritage), [2005] 37
Rio Tinto Alcan Inc v Carrier Sekani Tribal Council (2010) 37
Beckman v Little Salmon/Carmacks First Nation (2010) 38
Possible Essay Questions: 41
V. THE CHARTER HISTORY AND FRAMEWORK 42
Rights Protection in Pre-Charter Canada 42
Union Colliery Co. of BC Ltd. v. Bryden [1899] 42
Cunningham v. Tomey Homma [1903] 43
Quong-White v. R. (1914) 43
Reference Re Alberta Legislation [1938] 43
Boucher v. R. [1951] 43
Saumar v. Quebec (City) [1953] 43
Switzman v. Elbling [1957] 43
Roncarelli v. Duplessis (1959) 43
1960 The Canadian Bill of Rights 43
R. v. Drybones (1969) 43
Rights Protection After The Charter 44
Judicial Review of Rights and Dialogue 44
Pro-Rights Entrenchment Position (advocated by Weinrib) 44
Anti-Rights Entrenchment Position (advocated by Petter) 45
Vriend v Alberta (1998) 45
s.33: The Override 46
Ford v Quebec (Attorney General) (1988) 46
Format of Charter Analysis 46
Applicability of the Charter 47
Retail, Wholesale and Department Store Union Local 580 v Dolphin Delivery (1986) 48
McKinney v University of Guelph (1990) 48
Slaight Communications Inc v Davidson (1989) 49
Stoffman (1990) 49
Douglas College (1990) 49
Godbout v Longueuil (1997) 50
Eldridge v British Columbia (AG) (1997) 50
Vriend v Alberta (1998) 50
BCGEU v British Columbia (AG) (1988) 51
Hill v Church of Scientology of Toronto (1995) 51
R v Salituro (1991) 52
Territorial Limits on the Application of the Charter: The Principle of Comity 52
R v Cook (1998) 52
R v Hape (2007) 52
Canada (Justice) v Khadr (2008) 52
Possible Essay Questions: 53
Charter Enforcement - Remedies 53
Schacter v Canada (1992) 55
Vriend v Alberta (1998) 55
M v H (1999) 56
STANDING TO RAISE A CHARTER CHALLENGE 56
SECTION 1 JUSTIFICATION 56
Oakes Test 57
R v Big M Drug Mart Ltd (1985) 58
Edwards Books and Art Ltd v The Queen (1986) 59
R v Oakes (1986) 59
R v Butler (1992) 60
Edmonton Journal v Alberta (Attorney General) (1989) 60
Irwin Toy Ltd v Quebec (Attorney General) (1989) SCC 61
Alberta v Hutterian Brethren of Wilson Colony (2009) 61
Big M Drug Mart (1985) 62
Edwards Books (1986) 62
Trinity Western (2001) 62
Surrey School Board 63
Amselem (2004) 63
Wilson Colony (2009) 63
Multani (2006) 64
S.15: Equality Rights 64
S.15 Test Summary 65
Andrews v Law Society of British Columbia (1989) 66
Eldridge v. B.C. (AG) (1997) 67
Law v Canada (Minister of Employment and Immigration) (1999) 67
R v Kapp (2008) 68
Corbiere v. Canada (Minister of Indian and Northern Affairs) (1999) SCC 69
Withler v Canada (Attorney General) (2011) 69
Eldridge v British Columbia (Attorney General) (1997) 70
M v H (1999) 71
Comparator Groups 71
Auton v. BC (2004) 72
Hodge v. Canada (Minister of HR Development) (2004) 72
Withler 72
s.2(b): Freedom of Expression 72
Framework of Analysis for s.2b 73
Before the Charter 73
Reference Re: Alberta Statutes (1938) 73
After the Charter 73
R v Keegstra (1990) 73
Retail, Wholesale and Department Store Union, Local 580 v Dolphin Delivery Ltd (1986) 74
UFCW, Local 1518 v KMart Canada Ltd (1999) SCC 74
RWDSU, Local 558 v Pepsi-Cola Canada Beverages (West) Ltd (2002) 74
Irwin Toy Ltd v Quebec (AG) (1989) 74
Commercial Expression 75
Ford v Quebec (AG) (1988) 75
Irwin Toy v Quebec (AG) (1988) 75
Rocket v Royal College of Dental Surgeons (1990) 75
Re: ss.193 and 195.1(1)(c) of the Criminal Code (1990) 75
Montreal (City) v 2952-1366 Quebec Inc 75
Haig v Canada (1993) 76
Native Women's Assn. Of Canada v Canada (1994) 76
Baier v Alberta (2007) 77
S.7: Life, Liberty, and Security of the Person 78
Lochner v New York (1905) 78
Re: s.94(2) of the Motor Vehicle Act (BC) (1985) 78
R v Morgentaler (1988) 79
Rodriguez v British Columbia (AG) (1993) 81
Gosselin v Quebec (AG) (2002) 81
Chaoulli v Quebec (AG) (2005) 82
FEDERALISM
DIVISION OF POWERS
· The Constitution is a living tree (Persons case)
· Feds can’t implement treaty legislation involving prov powers w/o prov cooperation (Labor Conventions)
· Unwritten principles of the Constitution - Reference Re: Secession of Quebec (SCC 1998)
1. Federalism
a. Diversity, autonomy, democratic participation all create obligations to the other provinces
b. Provincial governments and the federal government are equal, and each is sovereign within their sphere
2. Democracy
3. Constitutionalism and Rule of Law
a. There is a positive body of laws that regulates the individual’s relationship with the state and with other individuals, and these laws are subject to the constitution
b. Does not include a fair civil trial or prevent the legislature from granting special legal privileges to the gov like a reverse onus (Imperial Tobacco)
i. In Imperial Tobacco, the court limited the four unwritten principles, affirming that a textual basis for review must be submitted because of the stability and predictability provided by a written constitution
c. Doesn’t include a right to legal services beyond the criminal context (Christie)
4. Protection of Minorities
“Rule of Law” in Secession Reference / “Rule of Law” in Imperial TobaccoLaw is supreme over the acts of both government and private persons: one law for all. / The first principle requires that legislation be applied to all those, including government officials, to whom it, by its terms, applies.
Requires the creation and maintenance of an actual order of positive laws which preserves and embodies the more general principle of normative order. / The second principle means that legislation must exist.
The exercise of all public power must find its ultimate source in a legal rule. I.e., the relationship between the state and the individual must be regulated by law. / The third principle, which overlaps somewhat with the first and second, requires that state officials’ actions must be legally founded…
THE COURT SYSTEM
S. 96 Courts / Non- s. 96 courts (superior, inferior, admin tribunals)Jurisdiction to review of leg and exec acts for legality? (i.e. are acts within statutory and/or constitutional authority?) / YES, a matter of inherent jurisdiction (re statutory) and s. 52 of the constitution (re constitutional review) / Depends on statutory mandate; jurisdiction to consider questions of law (and therefore, constitutional questions) is not the same as jurisdiction to review.
“Core” jurisdiction that cannot be “exclusively” transferred to other courts, admin agencies? / Lamer CJC, Mac Blo –YES / NO
Judicial independence required? / YES, an unwritten constitutional principle, and grounded in s. 96-100 / YES except for admin tribunals for which lesser protections may be appropriate (Ocean Port). JI may be secured by statutory protections, backed up/gaps filled by the unwritten principles.
· Courts of Inherent Jurisdiction (s.96 courts): Superior courts from the provinces and territories (i.e. BC Supreme Court). Can hear cases concerning any area of law except those which are specifically reserved by legislation for the lower courts. Have greater freedom than statutory courts to be flexible and creative in the delivering of legal remedies and relief. Cannot be abolished without a constitutional amendment.
· Statutory Courts: SCC (s.101, Supreme Court Act), federal courts (s.101, Federal Court Act), provincial appeal courts, and lower courts. Powers are expressly defined and cases that can be heard are limited by legislation. Practical implication: cannot provide a type of legal remedy or relief that is not expressly or implicitly referred to in a statute.
· Judicial independence is an unwritten principle; includes financial independence, administrative independence and security of tenure - Reference Re: Provincial Judges (SCC 1997)
o “Ability of judges function free from improper influence of legislatures or executives, to be able to render judgments based solely on the requirements of law and justice” (Imperial Tobacco)
· Test for transfer of jurisdiction from a s.96 court to a non-court (Residential Tenancies): (You only need to answer “No” to one of the questions for the transfer of jurisdiction to be ok) Also applies to the transfer of jurisdiction to an inferior court (MacMillan Bloedel)
1. Historical Setting: Was the transferred jurisdiction exclusively exercised by s. 96 courts at the time of confederation? (Note: changed to “broadly conformable” in Sobeys)
a. Historical inquiry should look at the historical conditions of 4 original provinces at the time of confederation (produce uniformity)
b. Exclusive or mainly Superior Court jurisdiction at Confederation both result in a failure on step one. If there was shared jurisdiction “in a practical way” between s.96 courts and inferior courts, then that is ok. (Sobeys)
c. The court found that the powers exercised by the Commission (landlord tenancy issues) were very similar to the ones exercised by courts at the time of confederation.
2. The Judicial Function: Are the questions the tribunal decides ‘judicial’ in nature?
a. The check is whether the tribunal adjudicates between private parties through an application of recognized rules in a manner consistent with fairness and impartiality.
b. Policy is what’s the best for the common good, whereas judicial is what’s best between the two parties.
c. If experts are sitting on the tribunal, it does not look like adjudication (judges are impartial/generalists/no connection to the parties)
d. The court found that the commission dealt with private disputes on matters of law, a judicial function.
3. The Institutional Setting: Is the judicial function primary, as opposed to ancillary, relative to the administrative function? There is no jurisdictional issue if the only role of the judicial function is to assist in a larger administrative scheme.
a. The court found that the primary role of the commission was to adjudicate
b. Sobeys – judicial function was a necessarily incidental aspect of the broader goal of the social policy of providing protection for non-unionized employees
4. Is the exclusive grant of jurisdiction permissible/is it core to s.96 courts? Added in MacMillan Bloedel (SCC 1995) Exclusive areas of core:
a. Contempt of court
b. Supervisory power over the inferior bodies
c. Power over “maintaining the integrity of the courts”
i. If core = concurrent jurisdiction is permissible, exclusive delegation prohibited.
ii. If not core = can delegate exclusively. However, there is a remaining power of superior courts to review the exercise of the powers of tribunals and inferior courts in relation to administrative law and jurisdictional error, absence of evidence, bad faith, etc.
· If novel, transfer of jurisdiction OK - Reference Re: Amendments to the Residential Tenancies Act (SCC 1996)
· Neither government can give away s.96 powers even if they are working together - McEvoy (SCC 1983)
o Under the Constitution the superior courts are independent of both levels of government and even if the governments are acting together they cannot give away s.96 powers (short of a constitutional amendment)
Centralizing / DecentralizingLate 19th cent / Russell (POGG) / Parsons (T&C, 92- P&C rights)
Hodge ( coordinate sov.)
Local Prohibitions Ref (POGG)
1920s / Bd of Commerce (T&C, POGG)
1930-32 / PATA (Crim power, POGG)
Aeronautics (s. 132, POGG)
Radio Ref ( POGG, s. 132)
1937 / Labour Conventions (s. 132, POGG)
Employ’t & Soc Insurance (POGG)
Natural Products (T&C, 92-P&C rights)
PITH AND SUBSTANCE/INCIDENTAL EFFECTS
· “Identification of the matter of the statute, delineation of the scope of the competing classes, and then a determination of the class into which the challenges statute falls.” (Employment and Social Insurance Act applied in Morgentaler 1993)
· Applied in Reference re Employment Insurance Act (SCC 2005)
o In P+S, the legislation was about “providing replacement income when an interruption of employment occurs” so it fell under the federal jurisdiction
1. What is the matter of the impugned law? Dominant characteristic? (Morgentaler)
a. Purpose of the legislation - What “mischief” or social ill we want to solve? How does it affect rights/liabilities of those subject to it-look at title, what it grants, criteria, penalties
i. Within the four corners of the statute
ii. Statutory context, looking at the legislation as a whole
iii. Extrinsic evidence (Hansard, legislative history, government reports, motivating events)