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Constitutional Law
Constitutional Law Course Summary
The Colonial Laws Validity Act, 1865
Constitution Act of 1867
The Statute of Westminster, 1931
The Canada Act 1982 (P174)
The Constitution Act, 1982 (P174)
Terms – Constitutional Law, Conventions, Constitution
Campbell v. A.G.B.C.
Dicey (P1)
Bell v. Town of Burlington [1915] 34 O.L.R. 619 (P3)
Separation of Powers (P4)
Regina v. Governor of Her Majesty’s Prison Brockhill Ex Parte Evans
Kleinwort Benson v. Lincoln City Council, Mayor of Southwark, Birmingham City Council, Mayor of Kensington and Chelsea
Earldom of Norfolk Peerage Claim
Bentham, Jeremy
A.G. Alberta v. A.G. Canada [1943] A.C. 356 (P35)
B.C. Power Corp. v. B.C. Electric Co. [1962] 34 D.L.R. (2nd) 196 (P27)
Amax Potash v. Government of Saskatchewan [1976] 71 D.L.R. (3rd) 1 (P29)
Singer v. Ministry of Community and Social Services (Handout)
F. Hoffman-La Roche v. Secretary of State for Trade and Industry [1974] 2 All E.R. 1128 (P41)
R. v. Swain [1991] 5 C.R. (4th) 253 (P57)
R. v. Brydges [1990] 74 C.R. (3rd) 129 (P60)
A.G. Quebec v. Blaikie [1979] 101 D.L.R. (3rd) 394 (P353) “Blaikie 1”
A.G. Quebec v. Blaikie [1981] 123 D.L.R. (3rd) 15 (P359) “Blaikie 2”
Manitoba
Patriation
Re Manitoba Language Rights [1985] 1 S.C.R. 721 (P371)
Issues related to the de facto doctrine and res judicata
Bilodeau v. A.G. Manitoba [1986] 3 W.W.R. 673 (P389)
Severance
Textual Severance
Substantial Severance
Severance Clause
Pith and Substance
Notre Dame de Bonsecours
A.G.B.C. v. A.G. Canada [1937] A.C. 377 (P89)
A.G. Alberta v. A.G. Canada [1947] A.C. 503 (P62)
Madden v. Nelson and Fort Sheppard Ry. Co.
A.G. Saskatchewan v. A.G. Canada [1949] A.C. 110 (P68)
Dunkley v. Evans [1981] 3 All E.R. 285 (P74)
Daymond v. South West Water Authority [1976] 1 All E.R. 39 (P74)
D.P.P. v. Hutchinson [1990] 2 All E.R. 836 (P72)
Constitutional Exemption from Legislation
Canadian Charter of Rights and Freedoms, s.1 – “Reasonable Limits”
Canadian Charter of Rights and Freedoms, s.12 – “Cruel & Unusual”
Canadian Charter of Rights and Freedoms, s.24(1) – “Inoperative”
Constitution Act, 1982, s.52(1) – “Supremacy of Consitution”
R. v. Chief [1989] 74 C.R. (3rd) (P78) – Charter s.24(1)
Schacter v. The Queen [1992] 93 D.L.R. (4th) 1 (P92) – CA 1982 s.52(1)
McKay v. The Queen [1965] S.C.R. 798 (P82) – Ultra Vires
NY Wine Statute Found Unconstitutional (Handout)
Ladore v. Bennett [1939] A.C. 468 (P120)
Board of Trustees of Lethbridge v. Independent Order of Foresters [1940] A.C. 513 (P125)
Bill of Rights – Assented to on August 10, 1960
A.G. Ontario v. Barfried Enterprises [1963] 5 C.R. 570 (P115)
Carnation Company v. Quebec Agricultural Marketing Board [1968] S.C.R. 238 (P109)
Self-imposed restraints on legislative power
Condition Precedent
Condition Subsequent
In Re The Initiative and Referendum Act [1919] A.C. 935 (P193)
McCawley v. The King [1920] A.C. 691 (P183)
A.G. N.S.W. v. Trethowan [1932] A.C. 526 (P228)
Ellen Street Estates v. Minister of Health [1934] 1 K.B. 590 (P179)
The Commission of Marcel Faribault [1967] (P181, 182)
Re Ontario Public Service Employees Union v. A.G. Ontario [1987] 41 D.L.R. (4th) 1 (Handout)
Re Eurig Estate [1998] 2 R.C.S. 565 (Handout)
Amendment Considerations
Constitutional issues
Division of Powers
Characterization: Steps of Interpretation (P215)
Morgentaler “Province does not have criminal jurisdiction”
Division of Powers Doctrines
GM v. City National Leasing [1989] 1 SCR 641 (P225)
Multiple Access v. McCutcheon [1982] 2 SCR 161 (P232) “Double aspect”
McKay v. The Queen [1965] S.C.R. 798 (P82) – Ultra Vires
Sante Securite du Travail v. Bell [1988] 1 SCR 749 (P246) “Inter-jurisdictional immunity, reading down”
Irwin Toy
Inter-jurisdictional Immunity
Classical Model of Divison of Powers
Modern Model of Division of Powers
Paramountcy
Ross v. Registrar of Motor Vehicles
Incompatibility of Policy\Purpose
Bank of Montreal v. Hall (1990) 1 SCR 121 (P264)
Why should federal laws prevail?
Peace, Order, Good Gov't
Concerns
Reference re Anti-Inflation Act “Inflation not a national concern”
National Concerns Dimensions “Inflation not national concern”
Functions of Judicial Review
Philip Bobbett's Judiciary Functions
R. v. Crown Zellerbach Canada [1988] 1 S.C.R. 401 (P303) “Small aggregates can be single matters of national concern”
Le Dain J. on POGG and National Concern doctrine
Brun and Tremblay (P315) “Crown Zellerbach sucks”
La Forest J.
Environmental Regulation
Friends of the Oldman River Society v. Canada (M. of Transport)
R. v. Hydro-Québec “Federal Criminal Law Power”
Ontario Hydro v. Ontario (Labor Relations Board) “Nuclear labor”
Delegation
Nova Scotia DelegationCase
Delegated/subordinate legislation
Limitations on delegation
Economic Regulation
Objectives
Parsons “Property and civil rights reg. most local commerce”
Economic reg
Home Oil
Shannon (1938)
Carnation Company v. Quebec Agricultural Marketing Board [1968] S.C.R. 238 (P109)
Manitoba Egg (1971)
Paul Weiler: Carnation and Manitoba Egg are the same. (P338)
Burns Foods (1975) “Characterization”
Re Agricultural Mkting Act (1978) “Good faith inter-delegation”
Monahan, Patrick
Federal Economic Regulation
Leading case is Citizens’ Insurance Co. v. Parsons (1881)
91.2 Trade and Commerce
Prof. Swinton
Labatt
Canadian Nat'l Transport
GM v. City National Leasing “National Economic Union”
Natural Resources
CIGOL v. Gov't of Saskatchewan [1978]
Central Canada Potash v. Sask. [1979] “International price fixing bad”
Criminal Law
Federal
Provincial
Board of Commerce
P.A.T.A
Margarine
Recent expansions under 91.27
MacDonald v. Canada “Health is a criminal law purpose”
Arguments against validity of MacDonald
Arguments for validity of MacDonald (Majority)
R. v. Hydro-Québec (P400)
Firearms Act
Arguing a criminal law legislation
Provincial reach to criminal law
Nova Scotia Board of Censors v. McNeil (P416)
Dupont
Westendorp v. The Queen (P421)
Power to enforce comes from power to legislate
Federalism and Spending Power
Measures taken under spending power
Conditions for health funding
Arguments against conditions
Pro conditions
1937 Unemployment insurance reference
Quebec Sovereignty
Quebec Secession Reference
Four Constitutional Principles
John Major (Globe and Mail)
The court rejected two extreme positions
Young
Reactions
What should be the majority vote in order to negotiate?
Who else should be at the table?
Other constitutional principles
Application of Charter
Offered measures of protection
BNA 1867
Rights and liberties were not MATTERS for which there were jurisdictional claims
Minority Rights
All provinces have enacted human rights codes as of Ontario 1952, after WW2.
Canadian Bill of Rights
Canadian Charter of Rights and Freedoms Influenced by
Concern about legitimacy of judicial review. (Weimer?)
Veterans Affairs Act “Pension Administration”
1. Is right/freedom infringed?
2. Is infringement justified?
Nova Scotia Case (P752)
Oakes Test (Leading case on s.1)
Hogg
Ronald Dworkin
Dickson (P757): Factors to consider
Edmonton Journal Case
Charter Issues
PRO Entrenchment of Charter
CON Entrenchment of Charter
Gold
Weinrib
Monahan
Hogg
S.33 Override
Ford v. Québec (AG)
Weinrib, Lorraine
Morton
Hogg
Framework of Charter
Local 580 v. Dolphin Delivery (1986) (early case) “Expression”
Courts struggling to understand the purpose of the charter.
Pepsi Cola
Gov’t vs. Private Activity
Guelph (P787) “Not subject to Charter: Independent, no coercion”
Community College “Subject to Charter: Gov’t approval req”
Hospital “Not subject to Charter: Day to day ops. run privately”
Slaight “Private actor subject to Charter: Power of compulsion”
Eldridge “Charter applies to Medicare services?”
In the case of non-governmental actors
When does the gov't's failure to act attract the charter?
Vriend : Alberta Human Rights law
Positive Obligations
Who is protected by the charter, aside from human beings?
Sources of remedies and standing
Freedom of Religion
Fundamental freedoms
Division of powers
Big M Drug Mart
Prof. Moon
R. v. Edwards Books and Art (1986) “Retail Business Holiday Act”
Applying S.1: Day of rest
Opening municipal council meeting with prayer?
Sudbury
Freedom of Expression: Commercial Speech (Advertising)
Irwin Toy
Tobacco Act
Why is advertising included in freedom of expression?
Included in Freedom of Expression
Test for constitutionality
Freedom of Expression: Hate Speech
R. v. Keegstra (1990)
Options
Equality Rights
Out with narrow Bill of Rights interpretation (P1141)
Andrews
Law “Survivor’s pension distinction not an equality issue”
Miron v. Trudel
Walsh “Marital status distinction not a violation of dignity”
Goselin “Different welfare payments not a violation of dignity”
M v. H “Gay spouse distinction is a violation of dignity”
Taxation Power
Direct vs. Indirect
Constitutional Law Course Summary
The Colonial Laws Validity Act, 1865
- S.5: Legislature of a colony has full power to make constitutional law, as long as it conforms to appropriate Manner and Form. Scott says this is declaratory of the common law.
- This was the basis for deciding McCawley v. The King. The Governor had the right to appoint McCawley to the Supreme Court, even though the term was not certain.
Constitution Act of 1867
- In 1949, s.91(1) was added, establishes powers of parliament over constitutional changes, subject to certain limitations. (It later became s.44 in the Constitution Act, 1982) This section acts as a check on the broad powers provided by s.5 of the Colonial Laws Validity Act, 1865.
The Statute of Westminster, 1931
- S.2(1): The Colonial Laws Validity Act, 1865, shall not apply to any law made after the commencement of this Act by the Parliament of a Dominion. (Does this repeal the need for appropriate manner and form asserted by s.5 of that act?)
- S.2(2): Parliaments of Dominion are allowed to make acts that are inconsistent with Imperial acts.
- S.7(1):Nothing in this Act shall be deemed to apply to the repeal, amendmentor alteration of the British North America Acts, 1867 to 1930, or any order, rule or regulation made thereunder. [So acts made under s.91(1) or s.91(2) of B.N.A., 1867were amendments to the BNA acts?]
The Canada Act 1982 (P174)
Received royal assent and came into force on March 29, 1982.
- Schedule A is a French version of the Canada Act, equal to the English version.
- Schedule B is the bilingual Constitution Act, 1982.
- S.2 terminates the power of the UK Parliament to legislate for Canada.
The Constitution Act, 1982 (P174)
- Separated into 7 parts.
- Part 1 is the Canadian Charter of Rights and Freedoms.
- Part 2 recognizes aboriginal and treaty rights.
- Part 3 is a federal and provincial commitment to regional equality.
- Part 4 provides for constitutional conference.
- Part 5 is the “Procedure for Amending Constitution of Canada”, replacing s.91(1) and s.92(1) of the British North America Act, 1867 (B.N.A., 1867) with s.44 and s.45.
- Part 6 amended the B.N.A., 1867 (Constitution Act, 1867) by adding a new provincial legislative power under s.92.
- Part 7 includes s.52 (Supremacy and ‘Definition’ of Constitution)
- Subject to s.58 and s.59, came into force April 17, 1982, when the Queen proclaimed it so and was announced in the Canada Gazette.
- The equality guarantees (s.15) did not come into force until April 17, 1985, in accordance with s.32(2).
- S.53(1) and Schedule, Item 17 repealed:
- S.4 of the Statute of Westminster, 1931 as it related to Canada. From then on, no act of the UK Parliament passed after April 17, 1982 shall extend to Canada as part of its law, regardless of Canadian request/consent.
- S.7(1) of the Statute of Westminster, 1931 as it related to Canada. (Does this means that s.5 of the Colonial Laws Validity Act is gone? Was s.7 necessary?)
- The Constitution Acts are protected from repeal by s.7(3) of the Statute of Westminster, 1931 and by s.52(1) and s.52(3) of the Constitution Act, 1982.
Terms – Constitutional Law, Conventions, Constitution
Campbell v. A.G.B.C.
Aboriginal Rights - Is the Nisga'a treaty constitutionally valid?
- Constitution Act 1982 s. 35 establishes rights for Aboriginals.
- Constitution Act 1867 s. 91(24) gives parliament powers over Indians and lands reserved for Indians.
Issues
1. Parliament gives powers to Nisga'a government which prevail over laws of Canada in case of conflict.
2. If treaty becomes entrenched in constitution, it cannot be changed except by amending the constitution through part five (sections 38, 47.1) of Constitution Act 1982.
3. Constitution Act 1867 s. 91(12) gives parliament powers over all fishing, which conflicts with giving those powers to the Nisga'a.
4. It is not in Canada's best interests to have hundreds of self-governing 'mini-states' all independent of federal law.
Dicey (P1)
- A.V. Dicey provides broad definition of what makes up constitutional law, including pretty much all laws. Practical use necessitates a narrower view.
- Dicey makes distinction between laws and conventions. Questions are either of law or fact. Conventions: Rules of custom or behavior that are not legally enforceable, but still adhered to.
Bell v. Town of Burlington [1915] 34 O.L.R. 619 (P3)
Supreme Court of Ontario
- Taxation without representation argued unconstitutional. Answer- there is no legal rule for representation.
Separation of Powers (P4)
- There is no perfect separation of executive, legislative and judicial powers. If judicial decisions are declaratory of the law, then judges make legislative decisions.
Regina v. Governor of Her Majesty’s Prison BrockhillEx Parte Evans
House of Lords
- Prisoner disagrees with release date set by Governor of prison, applies for habeas corpus, judicial review. On 15 November the Queen's Bench division orders her immediate release, agreeing that her release should have been 17 September.
- Damages Awarded: £5000 for 59 extra days imprisonment.
- Tort of false imprisonment is one of strict liability. Should the crown be responsible for the Governor, as parents are for their children, or would that encourage more irresponsible behavior by public servants? Solicitor General stood behind him, even though the treasury paid damages, because he wants to retain the image that the law has been followed where relevant. After the decision, the law is applied retrospectively, as in Earl of Norfolk, and Governor of the prison is liable, even though he was following procedure.
Kleinwort Benson v. LincolnCity Council, Mayor of Southwark, BirminghamCity Council, Mayor of Kensington and Chelsea
House of Lords
- Kleinwort Benson is a bank that engaged in a series of interest rate swaps with the respondents. The appellant argued that money was paid under mistake of law and, though contrary to prevailing law, should be recoverable.
- Lord Goff of Chieveley allowed the appeal holding that:
- There is a general right to recover money paid under a mistake, whether of fact or law, subject to defenses available in the law of restitution. The basis is that of unjust enrichment.
- The claim that one honestly believed they were entitled to the money received cannot be used as a defense for keeping the money.
- Fulfilling a contract that turns out to be void does not preclude the other party’s recovery of money paid under mistake of law.
- Lord Lloyd of Berwick dismisses the appeals, though he would like to do otherwise.
Earldom of Norfolk Peerage Claim
- Peerage surrendered in 1302 and re-granted in 1312.
- In 1906, the law was declared such that peerage could not and could never have been surrendered. The surrender was bad; the re-grant was bad, 600 years later. More commonly, you can't bring an action after certain time has passed, 6 years in many cases. This redefinition of the law is not done very often, because precedent is a necessary stabilizer of law.
Bentham, Jeremy
P9 - “When your dog does anything you want to break him of, you wait till he does it, and then beat him for it. This is the way you make laws for your dog: and this is the way the judges make law for you and me.” (Open civil code portrayed to be better than secretive common case law, in his opinion.)
- Constitution Act 1867 s. 91.27 Criminal law under federal jurisdiction.
- 1892 Canadian Criminal Code established, but did not abolish common law crimes. It was influenced by English Draft Code
- 1955 Canadian Criminal Code established which abolished common law crimes.
A.G. Alberta v. A.G. Canada [1943] A.C. 356 (P35)
Privy Council
- Depression, drought in western N.A. Province steps in with the Debt Adjustment Act, 1937 and rules that no one can bring suits or executions against Alberta resident debtors. Those wishing to sue debtors must apply for permits, subject to veto by juries.
- Constitution Act s. 92(13) Property and civil rights lie under provincial jurisdiction.
- Constitution Act s. 91(21) Bankruptcy and insolvency are federally governed.
- Does the Act relate to property or bankruptcy? Is the province trying to protect people who can't pay? Of course, and so it is ultra vires and invalid.
- The “Catch-22”: S.11 of Debt Adjustment Act includes an extension on the statute of limitations to bring suit (if a creditor can't get a permit), so theoretically creditors can sue when the dust settles. In reality, if the Debt Adjustment Act is deemed to have been invalid, so is s.11 protection, and those who haven't been able to sue are out of luck.
B.C. Power Corp. v. B.C. Electric Co. [1962] 34 D.L.R. (2nd) 196 (P27)
Supreme Court of Canada
- Parliament creates BC Power, which is holding company for BC Electric. BC decides to expropriate Hydro operations. Shares of BC Electric would belong to Queen in right of BC. All assets of BC Electric go to BC Hydro.
- The main issue in this decision is that shares of B.C. Electric would be mixed with those of Hydroduring litigation, transformed like ‘an omeletwhich cannot be unmade'. B.C. Power is asking for an order of receivership to protect assets it does not own, pending determination of the case. A receiver can appoint directors. The Crown contended that such an order cannot be made because it would affect the property and interests of the Crown.
- Kerwin C.J.C held that the Crown could not claim immunity based on an interest in property that was established through legislation which may be invalid. To do so would “achieve the same results as if the legislation were valid.”
- Abbott J. dissented with the opinion that such an order was outside court jurisdiction.
Amax Potash v. Government of Saskatchewan[1976] 71 D.L.R. (3rd) 1 (P29)
Supreme Court of Canada
- The appellants, including Amax, produce potash for national and international sale.
- In 1974, Saskatchewan passed “an Act to Amend The Mineral Taxation Act”, 1973-74 (Sask.), c.65, which gave powers to the Lt. Governor in Council to make orders for the taxation of potash producers (s.25a). Shortly thereafter, the Lt. Governor made Potash Reserve Tax Regulations, 1974, imposing a quarterly tax on potash, based on a percentage of the value of production. The tax could amount to $120,000,000 annually.
- If companies didn’t pay tax, they would be subject to fines and seizures, even though the validity of the tax was in litigation as it may have beenindirect. Percentage taxes are indirect because they tend to be passed on. If it were a property tax, it would be direct and therefore valid for a province to levy.
- Direct Tax: Tax whose natural tendency is to be borne by the person who first pays it.
- Indirect Tax: Tax intended to be shifted to others.
- In correspondence with the Minister of Natural Resources of Saskatchewan, Amax established their intent to pay the tax under protest, and requested an assurance that the money would be returned in the event that the tax was declared ultra vires. Their argument is that money paid under mistake of law is treated as money paid under mistake of fact, which is recoverable. The Minister refused that assurance and threatened unspecified action if the money were not paid.
- The appellants had requested that the money be paid pursuant to a court order and not the statute, so that it might be recoverable. This motion was dismissed by Johnson J.
- Amax requested that the action be declared ultra vires and that they get back their cash. The province argued that s.5(7) of the Proceedings Against the Crown Act prohibits legal action and retrieval of cash paid, pursuant to s.92(1), (13), (14) and (16) of the British North America Act, 1867. Amax suggested that s.5(7) may be ultra vires.
- Dickson J. agreed with the appellants with regard to s.5(7). He stated that the provision would give both parliament and provincial legislatures the right to act in violation of the constitution and then make their actions constitutionally valid, doing indirectly what they could not do directly. "If a state cannot take by unconstitutional means, it cannot retain by unconstitutional means." He referenced B.C. Electric and held the s.5(7) is ultra vires.
- Though Amax succeeded in having s.5(7) declared ultra vires, they were denied their motion for an order of interim preservation of property. The money would have to be paid to the province and repayment would be decided when the litigation is completed.
Problem Set related to Amax: