Interpretation:

TEST

Validity  Pith and Substance  Incidental Effects  Necessarily Incidental  Double Aspect

Applicability  IJI

Operability  Paramountcy

Criminal law

Regulations (S. 92 (13) and (16) need prevention and prior restraint, regulation, license revocation, and private property

Criminal: need a valid criminal purpose and form: prohibition and penal sanction/punishment, and affect public property; few exemptions (LaForest (Hydro-Quebec)) Only real exception is colourability:

Crim must NOT be fundamentally regulatory; must be about prohibition, not control

The more intricate, the more likely it’s regulator

Indians and Lands Reserved for Indians (S. 91 (24))

Anticipatory incorporation by reference: allowed in S. 88: you refer to others’ rules and say they apply. Hard to distinguish from delegation, but is not delegation

Provincial laws of general application apply proprio vigore but are invalid if they single out a core of Indianness (family, hunting, etc.), OR if they conflict with treaties, valid federal laws, rest of Indian Act etc.

Peace, Order and Good Government

TEST for National Concern:(Beetz in Ref Re Anti-Inflation Act)

1)Has to be a brand new matter (IE aeronautics), not just a renamed matter (inflation is just currency)

2)Must have a uniform, indivisible character distinct from provincial concerns. Sloppy framing will allow for encroachment.

3)Cannot swallow provincial jurisdictions.

4)Provincial inabilities test (supplementary criterion to determine national concern)

(If others opt out, will it screw the whole plan?)

(Is it that they can’t deal with it or that they just won’t?)

Test for Emergencies:

1)Parliament needs a rational basis to believe there’s an emergency, based on extrinsic evidence, rational beliefs of politicians; challenger must prove otherwise

2)Need “crisis legislation” but do not need to call it an “emergency” per se.’

3)Legislation must be temporary

4)Doesn’t matter if…

  1. Legislation addresses a small part of the problem
  2. Provinces can opt in or out
  3. The preamble doesn’t explicitly mention an emergency (serious concern is enough)
  4. Parliament delays enacting the legislation
  5. If the legislation is useless

Charter

Aids to interpretation:

1)Interpretive provision: social/historical context, judicial boundaries, S. 27 (multiculturalism), S. 28 (male-female equality), enhancing rights. (D. Gibson: look to UNHRC, UNESCO declarations etc.)

2)Pre-Charter Jurisprudence

3)International sources – Bills of Rights, UN Covenant, etc.

4)Parliamentary debates

5)Charter values

6)Rights enhancing, modern purposive and contextual approach looking to “the nature of the interests the right is meant to protect”

TEST: 1) In Limine: Does the Charter apply? 2) Rights analysis – burden on applicant i) Scope of right, ii) was it infringed? 3) Justification Analysis (OAKES Test). 4) Remedy

OAKES TEST

S. 1 (OAKES) (p. 756): two functions:

1) Guarantees Charter rights; 2) States criteria government must meet to violate rights according to a civil standard of proof: limited by law; demonstrably justifiable.

OAKES TEST:

1)Must be a pressing and substantial purpose (almost never fails, except with Big M Drug Mart)

2)Violation must be demonstrably justified

  1. Must be rationally connected
  2. Must minimally impair the right in question
  3. Must be proportional – does the benefit outweigh the harm?

3)Must balance objectives with the effects of infringement (redundant given the above)

Judicial Review: (R. v. Chandler [1868]: yes, it’s okay)

Rules of standing (p. 47):

1)Is there a serious issue at play?

  1. Can claim rights were infringed
  2. Collateral issue re something ongoing
  3. Public interest claim for standing

2)Do you have a genuine interest in the case?

Borowski v. The Queen: Got standing to argue against abortion.

Thurson: bilingualism; MacNeil: Last Tango in Paris.

3)Is there no other reasonable and effective way to get this before the court? (This is the big one)

Edwards v. A.G. (Canada) [1930] (p. 37, 41)

Anglin at SCC (historical argument): Principles are static; in 1867, women were not envisioned as political participants, ergo ‘persons’ does not include ‘women’ in this context. Common law holds women as incapable of holding office; Chorlton v. Lings said the word “men” is specific enough to exclude “women”.

Lord Sankey at JCPC (structural, ethical, prudential): original meaning of “persons” is neutral; only because of custom is it masculine, but custom is now an anachronism. “Qualified” is itself a gender-neutral adjective. Masculinist UK precedents should not influence Canadian law, so let Canada evolve as a country (living tree doctrine: liberal interpretation).

Prentice: History of women’s rights, p. 35.

Sources of Constitutional Law:

1)Written Documents (C.A. 1867, 1982; 19 imperial statutes, 4 orders in council; Canadian statutes such as those that accepted new provinces)

Doctrine of Reception: English law gets applied. Domestic UK statutes at the point of reception, then local laws, then imperial statutes.

Doctrine of Suitability: some laws don’t work in an area.

2)Common Law (IE Persons Case)

3)Crown prerogative: power to appoint individuals, dissolve parliament; Royal Proclamation 1763

4)Conventions: not enforceable at law. (Disallowance has no legitimacy; GG useless)

5)Unwritten Principles: Democracy, Rule of Law, Minorities, Federalism: These are legally enforceable.

Abel: identify the matter, find the scope, determine the class

Scope: lots of double aspect doctrine stuff. Lots of overlap these days.

Lederman: Lots of overlap in BNA Act. Just have to figure out what they’re really going for.

Resnick: We assume one Canadian identity, but French Canadians view themselves on their own; first nations had their own nation-states. We all have multiple identities. We’ve wrongly ignored Aboriginals, Western Alienation.

Ryder:

Classical Paradigm: strong notion of exclusivity; strong provincial autonomy, strongly opposed to encroachment. Clear but inefficient and nonexhaustive.

Modern Paradigm: weaker idea of exclusivity, allows spillover, intra vires based on dominant power (expansive for feds). More exhaustive, but compromises prov authority.

Simeon: 3 values in classification and division of federal powers: community, functionalism, democracy

Smith: Judicial review started with John A. who proposed it to assuage fears of centralism (also as a peaceful means of disallowance). Others said it was moot because of the JCPC. Bleus worried it’d be anglo dominance. Some wanted a Belgian-style court for Constitutional issues.

Unwritten Constitutional Principles: As seen in Ref Re Secession of Quebec:

Prevent tyrannies of majority; popular or majority votes cannot equal sovereignty because of respect for minorities.

Ref Re Secession of Quebec

Democracy (Rights and procedures of legislatures; division of powers)

Needs rule of law a priori; consensus and majorities.

Federalism (division of powers etc.)

Dominant principle in Canadian law: original respect for minorities (see Quebec)

1)Centralist Model: original Sir John A model (disallowance, residuals, etc)

2)Compact Model: central power is a creation of the provinces

3)Dualist Model: “Deux Nations” theory

4)Coordinate Federailsm: Each level is supreme in its own jurisdiction

  1. Symmetrical Federalism: all provinces are formal and equal partners
  2. Certain provinces are better than others – see Quebec.

Respect for Minorities (duh, also state can’t abrogate rights etc.; Aboriginals here first)

Rule of Law: on which the first three are based.

1)Law is supreme over all, private and public

2)Need an order of positive laws to reinforce order

3)State-individual rapport must be regulated by law

4)Breaches do not necessarily invalidate (Hogg)

BC v. Imperial Tobacco [2005]: BC suing for H.C. costs related to smoking. D says the legislation is unconstitutional because it’s retroactive, arbitrary, and violates the rule of law as per Ref Re Secession of Quebec. Given the first three points of rule of law, BC didn’t violate it. Even if it did, see point four. People tend to see what they want to see.

Democracy also recognized as a right in Ref Re Quebec, and current law reflects this.

John Whyte: All important things in the Constitution (rights, separation of powers, nationhoods etc.) require multilateral consultation, especially for changes.

Secession nullifies citizenship, drastically changes federalism and nationhood.

Canada has guaranteed rights of minorities in Quebec; international tribunals have no jurisdiction; Gaps in legal order can be filled in on the fly (see Geo. III regency).

Beverly McLachlin: just like natural law of norms, like in international law: Dicey etc.

Look to individual moral consciences to uphold these norms.

Interpretation:

Simeon: Criteria for Choice (p. 198): community, democracy, function

TEST

Validity  Pith and Substance  Incidental Effects  Necessarily Incidental  Double Aspect

Applicability  IJI

Operability  Paramountcy

Validity:is the legislation even in governmental jurisdiction? If not, strike it all down.

Consider purpose, preamble, legislative debates, practical effects of legislation?

Swinton, p. 205; Lederman, p. 208; Ryder, p. 237.

Pith and Substance: Determine the “matter” and therefore validity:

1) Identify the matter (see Validity);

2) Set out the scopes of relevant heads of power;

3) Compare the two to find the best fit.

Presumption of Constitutionality:

1)With a number of plausible interpretations, you take the one leaving the law valid

2)Where validity demands a certain fact be found, the court defers to rational proof

3)Where the law can be read widely or narrowly, courts will read narrowly.

Classic approach: all about exclusivity, frowns upon pith and substance.

Citizens Insurance Co. v. Parsons (1881) (p. 90): provincial statute re insurance regulation requires different coloured ink for certain clauses. D seeks to enforce on this basis (private property), P is federally incorporated and says the legislation is ultra vires (trade and commerce). Pith and substance is closer to private local insurance even with a federal company, so it’s valid provincial legislation.

JCPC: “If “T&C were broad enough, it would include civil contracts etc; it should not be so broad as to render S. 92 redundant.”

Modern Approach:Far less exclusivity

Colourability:

R. v. Morgenthaler [1993] p. 213: D has private abortion clinic in Nova Scotia contrary to provincial health care law banning them. Purpose, legislative debates, effects and scope, even wording of legis all look criminal: prohibiting and penalizing an activity for the sake of public order. Province does have hospitals, health and local matters under S. 92 (7) (13) and (16), but that’s clearly not what this is. Law has been coloured to look like it wasn’t usurping federal powers.

Incidental Effects Doctrine:for very minor overlaps in jurisdiction. Ignore them.

But a government cannot do indirectly what it can’t do directly.

Necessarily Incidental Doctrine (Ancillary Effects Doctrine):

if there’s a significant intrusion, you might retain it as an integral part of the whole

R v. Eastern Terminal Elevator Co [1925] (p. 225) – first attempt (unsuccessful) at this.

General Motors of Canada v. City National Leasing [1989] (p. 225): City National suing GM for pricing issues, using federal legislation creating civil causes of action against federal companies. GM says that provision is ultra vires.

SCC says that this is validly connected to trade and commerce powers; affirms the validity of necessarily incidental doctrine and modern approach.

TEST: Necessarily Incidental

1)(a) Is the statute ultra vires? If no, then:

1)(b) Is the pith and substance of the provision ultra vires? If yes, then ask:

2)What is the degree of the intrusion?

3)How well does the intrusion complement or integrate with the larger valid statutory framework?

  1. High intrusiveness = need close connection, “truly necessary” to whole legislative scheme
  2. Medium intrusiveness = needs to be “necessarily incidental”
  3. Minimal intrusiveness = just need a “rational connection”

Double Aspect Doctrine (p. 231):Rare (Bell 2): two pieces of legislation conflict for power over the same thing; Challenged law should only have an “incidental affectation” with the other competing sphere. Lederman (p. 231)

Multiple Access v. McCutcheon [1982] (p. 232) federally incorporated P trying to smack D with provincial laws regarding insider trading. D argues that the stricter provincial laws with broader limitation period are ultra vires because of paramountcy. Dickson says they’re okay because they regulate different fields of activity: federal laws regulate corporate relationships, provincial laws regulate securities. Ontario legislation is valid viz property.

IJI argument rejected: provincial legislation only invalid to the extent it sterilizes or impairs federal law, and it doesn’t. Provincial law is of general application (all companies, not just fed companies).

Global Securities Corp. v. BC SC [2000]: P refuses to produce records as ordered by D because D says the relevant legislation is ultra vires. SCC finds it’s about securities regulation and therefore about property and civil rights.

Canada Western Bank: does provincial consumer protection legislation apply to federal banks? Yes. There’s always going to be some overlap in Canada due to federalism.

Applicability (p. 239): If it’s still valid, are parts of it inapplicable (ultra vires)? Read down inapplicable provisions to the extent they violate jurisdiction. Whoso wants it must prove it (CWB)

Doctrine of Interjurisdictional Immunity: Any law affecting a “vital or essential part” outside of the government’s jurisdiction is read down and narrowed to the extent of the violation. Exception to the Pith and Substance rule; part of classical paradigm. Very much classical paradigm; heavy emphasis on exclusivity and not pith and substance.

Singles out area of fed jurisdiction

Postal service, banking, aeronautics, navigation, military, Aboriginals, federal parks, federal works and undertakings.

McKay v. The Queen [1965] SCC (p. 242)

McKay displayed an election sign on his lawn in violation of a contrary municipal bylaw. Cartwright’s two rules:

1) Interpret legislation in a way which best fits with the scope meaning and intent of the statute;

2) Adopt the construction that renders the legislation intra vires.

This is really about federal electoral laws, and provincial / municipal legislation can’t regulate that indirectly when they can’t regulate it directly.

Martland (Diss): Bylaw doesn’t target federal signs; no rulings as of yet, nothing says either level of Parliament can’t do this.

(Bell#1) Commission de Salaire Minimum v. Bell Telephone Co of Canada [1966] SCC (p. 240): Federal undertakings (telecommunications) are exclusive, beyond jurisdiction of provincial minimum wage laws. Provincial law is invalidated to the extent of the inconsistency. Hogg (criticism): inconsistent with pith and substance; feds can already enact a dominant law if need be.

(Bell 2) Commission de la Santé et de la Securité de Travail v. Bell Canada [1988] (p. 246): Quebec laws allowing protective reassignment of pregnant female worker are challenged by D.

Beetz: 1) health is provincial; 2) labour is provincial; 3) working and labour conditions in federal works and undertakings are federal; 4) worker’s comp in federal undertakings is exclusive unto the feds; 5) Double Aspect theory should be applied cautiously. Federal control over their own works is an obvious immunized core.

Ergo, this is just like Bell 1: the provincial laws affect a vital aspect of federal works and undertakings, and therefore provincial laws are inapplicable thereto. Double aspect does not apply because each law regulates labour conditions. Irrelevant that there is no federal legislation with which to conflict because it impairs a fundamental area of the immunized core.

Shifts analysis from “impairs” to “affects” a vital area. (This is changed back in CWB)

R. v. CN Pacific Ltd. [1995] SCC (p. 253): D liable under ON environmental statutes for smoke consequent to controlled burn on a right of way. Presumably it did not impair a vital part of the work or undertaking.

Irwin Toy Ltd. v. Quebec (Attorney General) [1989] (p. 253): Regulation of advertising to children does not equal the regulation of advertising of telecommunications per se. This does not impair or sterilize broadcasting. Yes, advertising is a “vital part” of broadcasting, but (Court is doing bullshit nuance here):

Extent of Encroachment / Directly / Indirectly
Affects vital or essential part / Read Down / DO NOT Read Down
Sterilizes or impairs / Read Down / Read Down

Ordon Estate v. Grail [1998] (p. 252): Local maritime law comes under navigation

R. v. Canadian Pacific Ry [1995] (p. 253) ignores IJI

Canadian Western Bank: reins it back in.

1)Yes, there are some powers which must be immunized from even legitimate intrusions; exclusivity still has some use, but this is vague and must be restrained.

2)Rein in IJI: Only applies to works, things, persons; case by case basis.

Concerns:

  1. Don’t want legislative vacuum by striking a provincial law.
  2. IJI shifts balance of power back to the feds
  3. Paramountcy already protects federal

3)Bell 2, which struck down any provincial effect on an entity in a federal field, no matter how minor, is far too strict. Pace Irwin Toy, it needs to “impair a vital or essential part”.

Operability (p. 254): does any portion of a (provincial) law conflict with a federal statute?

Paramountcy: Used restrictively in favour of double aspect, necessarily incidental doctrines.. If there’s a federal-provincial conflict, paramountcy suspends (does not strike down) provincial provisions to the extent they conflict. Repealing of federal law re-enacts provincial legislation

TEST: 1) Are each of the competing laws equally valid on their own?

2) If so, what is the conflict between the two? What is the definition?

3) Is it impossible to dually comply? (Rothman’s)

4) Does it frustrate Parliamentary intent? (Rothman’s)

IF YES, three options

1)“Occupying the field” test: a federal law in a field = feds take jurisdiction. (JCPC era; must be clear (CWB) to be effective)

2)Impossibility of dual compliance (just one example of frustration) (More modern)

3)Overriding principle: is federal purpose frustrated? (Nuclear option; try and interpret in a way that doesn’t fuck with any statutes (CWB))

Dual Compliance:

Ross v. Registrar of Motor Vehicles [1975] SCR (p. 255)

Criminal Code lets judges prohibit driving for up to three years, as well as other penalties for drink driving. Judge prohibited driving (except going to and from work) for ½ year. D uses provincial regulations to suspend P’s licence anyway. SCC says P fails because:

1)The legislation is permissive; it does not mandate exceptions in the driving ban; this legislation was never indended to be paramount per se

2)Federal statute (permission, not mandate, to drive) can operate subject to provincial ban.

Diss: valid punishment made under the CCC should take priority over valid punishment made by the province.

Multiple Access v. McCutcheon [1982] (p. 260): federally incorporated P trying to smack D with provincial laws regarding insider trading. D argues that the stricter provincial laws with broader limitation period are ultra vires because of paramountcy.