McGill Faculty of Law: Canadian Constitutional Law: Prof. Colleen Sheppard, 2002-03/Summary by Derek McKee

Canadian Constitutional Law 2002-2003; Prof. Colleen SHeppard

Summary by Derek McKee

Introduction

Fundamental Constitutional Principles

Reference re Secession of Quebec, [1998] 2 SCR 217.

Monahan, chapter 1, pp. 3-28

Casebook, chapter 1, pp. 3-11

The Historical Development of the Constitution

Monahan, chapter 2, pp. 33-55.

Casebook, chapter 3, pp. 55-87.

Jean-François Gaudreault-DesBiens, “The Quebec Secession Reference…” (CBp.57)

Patrick Macklem, “Indigenous Difference and the Constitution of Canada” (CBp.62)

Executive and Legislative Powers and the Rule of Law

Roncarelli v. Duplessis, [1959] SCR 121.

Mack v. Canada (Attorney General), [2002] O.J. No.3488

The Judiciary

An Integrated Court System

Judicial Independence

Reference re Provincial Court Judges [1997] 3 SCR 3. (CBp.504)

Judicial Review Constitutionally Guaranteed

Section 96 and Administrative Tribunals

Reference re Residential Tenancies Act [1981] 1 SCR 714. (CBp.477)

Legitimacy of Judicial Review and Constitutional Interpretation

Robin Elliot, “References, Structural Argumentation and the Organizing Principles of Canada's Constitution” (CBp.32)

Reference re Meaning of the Word “Persons” [1928] SCR 276./Edwards v. A.G. Canada [1930] A.C. 123 (H.L.) (CBp.41)

FEDERALISM

Historical Chapters in Canadian Federalism

The Late Nineteenth Century

Citizens Insurance Company v. Parsons (1880-1881), (CB p.90)

Russell v. The Queen (1882), 7 AC 829 (PC) (CB p.97)

Hodge v. The Queen (1883), 9 AC 117 (PC) (CB p.101)

AG Ontario v. AG Canada (The Local Prohibition Reference) [1896] AC 348 (PC) (CB p.107)

The Compact Theory (CBp.114)

The Early Twentieth Century

Reference re Board of Commerce Act and Combines and Fair Prices Act (1920-1922) (CB p.127)

Fort Frances Pulp and Paper Company v. Manitoba Free Press Company [1923] (CB p. 132)

Toronto Electric Commissioners v. Snider (1925) (CB p.137)

The King v. Eastern Terminal Elevator Co. [1925] (CB p.141)

H.E. Smith, “The Residue of Power in Canada,” (1926) (CBp.146)

J.R. Mallory, “Social Credit and the Federal Power in Canada,” (1954) (CBp.147)

Alan Cairns, “The Judicial Committee and its Critics,” (1971) (CBp.149)

The Depression and the “New Deal”

W.F. O’Connor, The O’Connor Report (1939) (CBp.183)

Proprietary Articles Trade Association v. AG Canada (1929-1931) (CB p.155)

Reference re the Regulation and Control of Aeronautics in Canada (1930-1932) (CB p.157)

Reference re Regulation and Control of Radio Communication in Canada (1931-1932) (CB p.160)

A.G. Canada v. A.G. Ontario (Labour Conventions) (1936-1937) (CB p.168)

F.R. Scott, “The Consequences of the Privy Council Decisions” (1937) (CBp.181)

Federalism and the Modern Canadian State

Richard Simeon, “Criteria for Choice in Federal Systems” (CBp.198)

Bruce Ryder, “The Demise and Rise of the Classical Paradigm” (1991) (CBp.237)

Interpreting the Division of Powers

Validity: Pith and Substance

R v. Morgentaler [1993] 3 SCR 463. (CB p.213)

Katherine Swinton, “The Anatomy of Constitutional Interpretation” (1990) (CBp.205)

W.R. Lederman, “Classification of Laws and the British North America Act” (1981) (CBp.208)

Validity: Necessarily Incidental or Ancillary

General Motors of Canada Ltd. v. City National Leasing[1989] 1 SCR 641. (CB p.225&371)

Validity: Double Aspect

Multiple Access Ltd. v. McCutcheon[1982] 2 SCR 161. (CB p.232 and p.260)

W.R. Lederman, “Classification of Laws and the British North America Act” (1981) (CBp.231)

Applicability: Interjurisdictional Immunity

Commission de la Santé et de la Sécurité du Travail v. Bell (Bell #2)[1988] 1 SCR 749. (CB p.246)

McKay v. The Queen, [1965] SCR 798. (CB p.242)

Operability: Paramountcy

Ross v. Registrar of Motor Vehicles, [1975] 1 SCR 5. (CB p.255)

Bank of Montreal v. Hall, [1990] 1 SCR 121

Peace, Order and Good Government

Monahan on POGG (pp.255-273)

Reference re Anti-Inflation Act, [1976] 2 SCR 373. (CBp.281)

Katherine Swinton: Laskin and Beetz (CBp.276)

The Beetz-Lederman Thesis (Monahan, p.266)

R. v. Crown Zellerbach Canada Ltd., [1988] 1 SCR 401. (CBp.303)

Friends of the Oldman River Society v. Canada (Minister of Transport), [1992] 1 SCR 3. (CBp.318)

Criminal Law

Federal Powers over Criminal Law

Margarine Reference, [1949] SCR 1. (CBp.390)

RJR MacDonald Inc. v. Canada (Attorney General), [1995] 3 SCR 199. (CBp.392)

R. v. Hydro-Québec, [1997] 3 SCR 213. (CBp.400)

Reference re Firearms Act, [2000] 1 SCR 783. (CBp.413)

Provincial Powers over Criminal Law

Re Nova Scotia Board of Censors v. McNeil, [1978] 2 SCR 662. (CBp.416)

Westendorp v. The Queen, [1983] 1 SCR 43. (CBp.421)

Economic Regulation

Federal Powers over Economic Regulation

The Queen v. Klassen (1960), 20 D.L.R. (2d) 406 (Man.C.A.). (CBp.357)

Caloil Inc. v. A.G. Canada [1971] SCR 543. (CBp.361)

Dominion Stores Ltd. v. The Queen [1980] 1 SCR 844. (CBp.362)

Labatt Breweries of Canada Ltd. v. A.G. Canada [1980] 1 SCR 914. (CBp.366)

Provincial Powers over Economic Regulation

Carnation Co. Ltd. v. Quebec Agricultural Marketing Board [1968] SCR 238. (CBp.330)

Canadian Industrial Gas and Oil Ltd. v. Govt. of Saskatchewan [1978] 2 SCR 545. (CBp.345)

Central Canadian Potash Co. Ltd. v. Govt. of Saskatchewan [1979] 1 SCR 42. (CBp.350)

Mobility Rights and the Economy

Canada Egg Marketing Agency v. Richardson, [1998] 3 SCR 157. (CBp.327)

Policy Instruments and Flexible Federalism

Keith Banting, “The Past Speaks to the Future: Lessons from the Social Union” (1998) (CBp.428)

Andrew Petter, “Federalism and the Myth of the Federal Spending Power” (1989) (CBp.435)

Sujit Choudhry, “Recasting Social Canada: A Reconsideration of Federal Jurisdiction over Social Policy”) (2002) (CBp.437)

Human Rights and the Canadian Constitution

Antecedents of the Charter

Rights, Racism and Federalism

Union Colliery Co. v. Bryden [1899] A.C. 580 (P.C.). (CBp.646)

Cunningham v. Tomey Homma, [1903] A.C. 151 (P.C.). (CBp.648)

Bruce Ryder, “Racism and the Constitution: British Columbia Anti-Asian Legislation, 1872-1923” (CBp.650)

Quong Wing v. The King, [1914], 49 SCR 440. (CBp.651)

The Implied Bill of Rights and the Canadian Bill of Rights

Reference Re Alberta Statutes, [1938] SCR 100. (CBp.657)

Saumur v. City of Quebec, [1953] 2 SCR 299. (CBp.662)

Switzman v. Elbling, [1957] SCR 285. (CBp.668)

AG Canada v. Dupond, [1978] 2 SCR 770. (CBp.672)

The Canadian Charter of Rights and Freedoms

The Merits of Entrenchment and the Legitimacy of Judicial Review

W.A. Bogart, “Courts and Country” (1994) (CBp.701)

Andrew Petter, “The Charter’s Hidden Agenda” (1987) (CBp.704)

Patrick Monahan, “Politics and the Constitution” (1987) (CBp.708)

Lorraine Weinrib, “ ‘Limitations on Rights’ in a Constitutional Democracy” (1996) (CBp.711)

Alan Hutchinson, “Waiting for Coraf: A Critique of Law and Rights” (1995) (CBp.713)

Peter Hogg and Alison Bushell, “The Charter Dialogue Between Courts and Legislatures” (1997) (CBp.715)

Approaches to Interpretation

The Application of the Charter: State Action

Retail, Wholesale and Department Store Union, Local 580 v. Dolphin Delivery Ltd. [1986] 2 SCR 573. (CBp.781)

McKinney v. University of Guelph, [1990] 3 SCR 229. (CBp.787)

Godbout v. Longueuil, [1997] 3 SCR 844 (CBp.795)

Limitations on Charter Rights

Freedom of Religion

Richard Moon, “The Secularization of Religious Freedom” (CBp.817)

R. v. Big M Drug Mart Ltd., [1985] 1 SCR 295. (CBp.822)

Edwards Books and Art Ltd. v. The Queen, [1986] 2 SCR 713. (CBp.830)

B.(R.) v. Children’s Aid Society of Metropolitan Toronto [1995] 1 SCR 315. (CBp.887)

Freedom of Expression

Richard Moon, “The Constitutional Protection of Freedom of Expression” (2000) (CBp.896)

Irwin Toy Ltd. v. Quebec (AG), [1989] 1 SCR 927. (CBp.907)

R. v. Keegstra, [1990] 3 SCR 697. (CBp.941)

Catherine MacKinnon, “Not a Moral Issue” (1984) (CBp.963)

Robin West, “The Feminist-Conservative Anti-Pornography Alliance…” (1987) (CBp.964)

R. v. Butler, [1992] 1 SCR 452. (CBp.968)

Little Sisters Book and Art Emporium v. Canada, [2000] 2 SCR 1120. (CBp982)

Life, Liberty and Security of the Person

Reference re Section 94(2) of the Motor Vehicle Act (BC), [1985] 2 SCR 486. (CBp.1073)

R. v. Morgentaler, [1988] 1 SCR 30. (CBp.1077)

Rodriguez v. British Columbia (A.G.), [1993] 3 SCR 519. (CBp.1091)

Equality Rights

M. Schwartzschild, “Constitutional Law and Equality” (1996) (CBp.1133)

W. Black and L. Smith, “The Equality Rights” (1996) (CBp.1135)

Andrews v. Law Society of British Columbia, [1989] 1 SCR 143. (CBp.1150)

Peter Hogg, 10 rules for discrimination under s.15: (Hogg p.993):

Law v. Canada (Minister of Employment and Immigration), [1999] 1 SCR 497. (CBp.1162)

Corbière v. Canada (Minister of Indian and Northern Affairs), [1999] 2 SCR 203. (CBp.1197)

Diane Pothier, “Connecting Grounds of Discrimination to Real People’s Experiences” (2001) (CBp.1194)

Eldridge v. British Columbia (A.-G.), [1997] 3 SCR 624. (CBp.799 and 1181)

Colleen Sheppard, “Of Forest Fires and Systemic Discrimination” (2001) (CBp.1190)

Lovelace v. Ontario, [2000] 1 SCR 950. (CBp.1213)

Remedies

Kent Roach, “Constitutional Remedies in Canada” (1994) (CBp.1264)

Schacter v. Canada, [1992] 2 SCR 679. (CBp.1267)

Language Rights

A. Braën, “Language Rights” (1987) (CBp.1222)

P.A. Coulombe, “Language Rights in French Canada” (1987) (CBp.1222)

Mahe v. Alberta, [1990] 1 SCR 342. (CBp.1239)

Ford v. Quebec (AG), [1988] 2 SCR 712. (CBp.1253)

Aboriginal Rights

R v. Sparrow, [1990] 1 SCR 1075. (CBp532)

R v. Van der Peet, [1996] 2 SCR 507. (CBp545)

R v. Gladstone, [1996] 2 SCR 723. (CBp565)

Constitutional Renewal and Reform

Amending the Constitution

Vriend v. Alberta, [1998] 1 SCR 493. (CBp.722) Move this case somewhere else in the summary!

9/9/02 and 11/9/02

Introduction

Fundamental Constitutional Principles

  • According to s.52[CA1982], “The Constitution of Canada is the supreme law of Canada, and any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect.”
  • The preamble to CA1867 lacks any inspiring language—it talks only of a union of colonies with a constitution “similar in principle to that of the United Kingdom”; it talks of the “welfare of the provinces,” the “interests of the British Empire.” The preamble to CA1982 is equally uninspiring.
  • s.91-92 [CA1867] lay out federal and provincial jurisdiction
  • [CA1982] important aspects: Part 1: the Charter; Part 2: Aboriginal Peoples
  • There is an interplay between the “federalism” and “rights” aspects of the constitution: Although the Charter is federal, it applies equally to provincial legislation.
  • The constitution includes:
  • contitutional texts
  • quasi-constitutional statutes
  • constitutional conventions (the existence of which lends support for the notion of “unwritten principles)
  • Quebec Secession Reference: “legality and legitimacy are linked”

Reference re Secession of Quebec, [1998] 2 SCR 217.
Issues / The federal government asked the SCC to rule on the legality of a potential unilateral secession by Quebec, (1) under the Canadian constitution, and (2) under international law. The Quebec government refused to take part, and the amicus curiae appointed to represent the case for secession argued that the case was not justiciable.
Holding / The court unanimously found that the case was justiciable, and went on to rule that neither the Canadian constitution nor international law provided for Quebec’s unilateral secession. However, it also found that in the event that a clear majority of Quebeckers voted “yes” to a clear question about secession, the federal government and the other Canadian provinces would be obliged to negotiate constitutional changes with Quebec.
Ratio / 1. There was no explicit answer in the text, so the SCC used a structural approach. It began by giving a potted history of Confederation, emphasizing its voluntary nature, the balancing of regional interests, and how the federal-provincial arrangements had been devised. It said, “The vision of those who brought about Confederation was to create a unified country, not a loose alliance of autonomous provinces.”
It then went on to describe four “underlying principles,” which it called the “lifeblood” of the constitution (it said this list was not exhaustive):
  • federalism: The SCC applauds both the “democracy” and “community” aspects of federalism, noting how it has given Quebec significant autonomy.
  • democracy: The SCC says that democracy means more than majority rule; it has an “institutional” and an “individual” aspect. It drew on the principles laid out in Oakes.
  • constitutionalism and the rule of law: “The law is supreme over the acts of both government and private persons. There is, in short, one law for all.” There needs to be an order of positive law which reflects the normative order. And the relationship between the state and the individual must be regulated by law. Constitutions are entrenched beyond the reach of simple majority rule in order to safeguard human rights, protect minorities against assimilation, and divide power between different levels of government.
  • respect for minorities: The fact that many of Canada’s regimes for protecting minority rights arose out of historical compromises does not detract from the principle behind them. Although “Canada’s record of upholding the rights of minorities is not a spotless one,” it has been the goal all along.
The court emphasized also that none of these principles is absolute to the exclusion of the others.
2. The international law questions are have to do with balancing principles of “territorial integrity and political unity” with the “right of self-determination of all peoples”: they are really interesting but beyond the scope of this course.
Comments / The Supreme Court’s decision in QSR was based on one particular reading of history—it’s important to be aware of the other readings.
It’s also worth noting that the QSR was a reference initiated by the federal government, that the Quebec government refused to take part, and that the amicus curae arguing in place of Quebec argued that the issue was not “justiciable.” Nevertheless, the decision was signed by “the court.”
Monahan, chapter 1, pp. 3-28
  • This section defines the Canadian constitution. Monahan refers to the constitutional texts, which are defined by s.52(2) [CA1982]. Interestingly, many documents we think of as fundamental are not mentioned:
  • documents from prior to Confederation (e.g. the Quebec Act, 1774)
  • the Supreme Court Act
  • the Canada Elections Act
  • the Indian Act
  • treaties between the Crown and Aboriginal peoples
  • etc.
  • Nor does the constitution mention constitutional conventions, which are fundamental rules of political behaviour (but are not enforceable by the courts), such as the office of the prime minister.
  • However, s.52(2) uses the word “includes,” which means that its list of constitutional documents is not necessarily exhaustive.
  • The fact that these other documents are not included may be because they are not meant to be supreme over other laws. The fact that they are not mentioned in the constitution also allows for flexibility in amending them.
  • Monahan lists the “key characteristics of the Canadian constitution”:
  • federalism
  • constitutional monarchy
  • guarantees for individual and group rights
  • no “separation of powers”
  • less flexibility since 1982 (however, informal change still possible and likely)

Casebook, chapter 1, pp. 3-11
  • This section indroduces the Casebook’s view of the Canadian constitution, including “four major features”:
  • parliamentary democracy
  • federalism
  • individual and group rights
  • Aboriginal rights
  • As for “the sources of the constitution,” the Casebook deals with the long evolution from the Royal Proclamation of 1763 to the Quebec Secession Reference.

18/9/02

The Historical Development of the Constitution

  • Some important issues to take away from the history of the constitution are:
  • English-French conflict
  • The British used law (a court decision) to justify the Acadian expulsions; they then used legislation to deny the Acadians’ property claims.
  • Following the conquest of Canada, the Royal Proclamation of 1763 imposed English law (although French law continued to be used in practice). The Royal Proclamation promised Canada a legislature, but the government withheld the privilege; the governor governed through a council with no French Catholics.
  • The Quebec Act of 1774 restored French law, but denied the province an assembly (because of the fear of a French majority). However, some French Catholics were appointed to the council.
  • Aboriginal peoples
  • Early Europeans in North America were inconsistent in how they dealt with Aboriginal peoples. Sometimes they recognized Aboriginal natinons enough to make treaties; sometimes they considered the land “terra nullius.”
  • The Royal Proclamation of 1763 crystallized the Crown’s relationship with Aboriginal peoples. It recognized Aboriginal nations as autonomous and capaple of treaty-making; it also recognized their rights to their lands.

23/9/02

  • The Aboriginal peoples are not mentioned anywhere in CA1867 except s.91(24): “Indians, and lands reserved for the Indians.”
  • the gradual rise of self-government and democracy
  • The Constitutional Act of 1791 divided Upper and Lower Canada (for reasons of language and religion). It also created legislatures with no power (the executive council had power).
  • Lord Durham’s report of 1839 led to “responsible government” in the 1840s: the blending of the legislative and executive branches, with governors bound to follow the advice of the executive council.
  • The Durham report is infamous however because it was anti-French and advocated the assimilation of French Canadians. It led to the Act of Union of 1840, which reunited Upper and Lower Canada (as “Canada West” and “Canada East”) and gave each one equal representation in a single unilingual parliament (even though the population of Canada East was greater).
  • However, things did not remain so bad for the French Canadians. Official bilingualism returned in 1848, and the Union parliament practiced “duality” with its cabinet posts, by alternating between French and English ministers or appointing two at a time. There was often a political stalemate.
  • With the Compensation Bill, 1849, Governor Lord Elgin gave royal assent to a bill he disagreed with—the supremacy of the legislature was clear.
  • The explicit principles of CA1867:
  • federalism

centralizing aspects / decentralizing aspects
  • a strong central government
  • residual powers to centre
  • important enumerated powers
  • disallowance
/
  • enumerated powers (some of which became more important later, such as health, education
  • “property and civil rights”=almost a residual clause
  • matters important to local self-government

  • under the Crown
  • a constitution “similar in principle to that of the United Kingdom.” (This opens the door to the idea of “unwritten principles.”)
  • There was still tremendous deference to the British Crown and Parliament: CA1867 did not break the chain of sovereignty.
  • Colonial Laws Validity Act, 1865:
  • UK Parliament statutes only apply to colonies if expressly specified (“imperial statutes”).
  • Colonial legislatures could change laws for colonies (as long as they did not contradict imperial statutes).
  • Statute of Westminster, 1931:
  • No UK Parliament statute would apply to the dominions without the express consent and request of dominion parliaments.
  • Dominions gained the power to amend imperial statutes (except for the BNA Act in the case of Canada).

Monahan, chapter 2, pp. 33-55.
  • This chapter tells the history of Canada’s constitution up to 1867. Monahan divides this history into two major stages, the evolution of “representative government” (pre-contact to 1840s) and the development of “responsible government” (1840s to 1864-67). Monhan’s definitions (p.34) :
  • representative government: “laws can only be made by a legislature that is elected by the people”
  • responsible government: “the powers of the Crown can be exercised only in accordance with the advice or instructions of political leaders who control a majority of votes in the legislature.”
  • Responsible government did not appear in Lord Durham’s report or the Union Act, 1840. Neither mentioned the principle. However, political pressure for responsible government grew during the 1840s until it was accepted by the Executive Council of Canada in 1848 and by Governor Lord Elgin in 1849 (when he gave assent to the Compensation Bill).
  • Cabinet government emerged in the 1850s. This meant that the governor was no longer present at meetings of the Executive Council.

Casebook, chapter 3, pp. 55-87.
  • This whole chapter would be worth returning to.
  • There is a discussion of “legal positivism” on pp. 56-59 which would be worth returning to.
  • In the section on Confederation, it is interesting to look at the threat of American invasion as well as the influence of the banks and railways. (p.78-79)
  • I also find it interesting to consider Stevenson’s point about the theoretical incompatibility of monarchy and federalism. (p.81)
  • It is also fascinating to consider the French-Canadian perspective. (p.83-87)

Jean-François Gaudreault-DesBiens, “The Quebec Secession Reference…” (CBp.57)
  • Gaudreault-DesBiens says that the QSR turns on conflicting notions of history and memory, especially memory as intertwined with the identity narrative of the community. Gaudreault-DesBiens says that one cannot seriously approach constitutional interpretation while ignoring these narratives. This leads him to three observations:
1. Identity narratives are material and legitimate, and courts should be open to them.
2. This does not mean that courts should accept mythologies uncritically.
3. Narratives are often contested within a community.
Patrick Macklem, “Indigenous Difference and the Constitution of Canada” (CBp.62)
  • European international law deemed North America to be terra nullius.

25/9/02