Constitutional Lawfall 12 James Wegener

Constitutional LawFall – 12’James Wegener

Contents

Federalism

Five Basic Features

Reference re Secession of Quebec [1998]

Four Fundamental Organizing Principles of the Constitution (SCC)

Interpretation Doctrines

PITH AND SUBSTANCE DOCTRINE

R v. Morgentaler (1993) SCC

Reference re Employment Insurance Act [2005] SCC

ANCILLARY DOCTRINE

General Motors of Canada v. City National Leasing (1989) SCC

Lacombe

DOUBLE ASPECT DOCTRINE

Multiple Access Ltd. v. McCutcheon (1982) SCC

INTERJURISDICTIONAL IMMUNITY

Bell #1 [1966]

Bell #2 [1988]

Canadian Western Bank v. Alberta (2007)

Quebec v. COPA (2010) SCC

PHS (Insite) (2011) SCC

FEDERAL PARAMOUNTCY

Ross v. Registrar of Motor Vehicles (1975) SCC

Multiple Access v. McCutcheon (1982)

Rothmans, Benson & Hedges Inc. v. Saskatchewan (2005) SCC

Bank of Montreal v. Hall [1990] SCC

Heads of Power

POGG

National Concern Doctrine

R v. Crown Zellerbach Canada Ltd. (1988)

Emergency Doctrine

Reference re Anti-Inflation Act (1976)

Criminal Law – s. 91(27) vs. 92(13) and 92(16)

Margarine Reference (1949)

RJR MacDonald Inc v. Canada (1995)

R v. Hydro-Quebec (1997)

Reference re Firearms Act (2000)

Provincial Cases

Reference re Assisted Human Reproduction Act(2010)

General Scheme

Economic Regulation – s. 91(2) vs. s. 92(13)

Citizens Insurance Company v. Parsons (1881)

Reference re Board of Commerce Act [1922]

Marketing Cases

Natural Resource Cases

Inter-provincial and International Cases

General Scheme

Flexibility in the Federation

Spending Power

Intergovernmental Agreements

Delegation

Federalism

Five Basic Features

Parliamentary Democracy
Has a British heritage
In the preamble of the 1867 Act, it states that Canada would have "a Constitution similar in Principle to that of the United Kingdom"
Federalism
Coordinates of sovereignty
The Constitution does not recognize municipal gov'ts (the provinces delegate powers to municipal gov'ts)
Individual and Group Rights
Individual Charter rights
Union rights
Religious groups
Language rights
Aboriginal Rights
Constitutionalism
The government itself is also ruled by law
Rule of law is an unwritten principle of constitutional law - potentially could be a grounds for overturning legislation on its own

Reference re Secession of Quebec [1998]

RATIO:

There is no right of unilateral secession. There is a right to secede provided that the province has a referendum with a clear question and a clear answer. Once it has that, it has a duty to negotiate with the other provinces the terms of separation within the terms of a constitutional amendment (and there is an amending formula in 1982 Act that would have to be followed).

FACTS:

Quebec wanted to separate from Canada unilaterally. Canada put the issue to the SCC to decide.

ISSUES & HOLDING:

Under the constitution of Canada, can Quebec separate unilaterally? – No.
Does Quebec have a right of unilateral secession under the Constitution of Canada? – No.
Does Quebec have a right of unilateral secession under international law? – No

REASONING:

-SCC enumerated (4) unwritten principles arising from Confederation; courts to turn principals into the premises of a constitutional argument that culminates in the filing of gaps in the express terms of the constitutional text:

Federalism – political power is shared by two orders of government: division of powers (s.91&s.92)

Democracy – means more than simple majority rule (not explicitly in constitution – underlying principle), functioning democracy requires compromise, negotiation and deliberation.

Constitutionalism and the Rule of Law – Rule of law provides a shield for individuals vs. the state.

Provides that law is supreme over acts of both government and private persons (one law for all)
Requires the creation & maintenance of an actual order of positive laws.
The exercise of all public power must find its ultimate source in a legal rule.

Constitutionalism: embodied in s.52 (1) of the Constitution Act, 1982 - Requires that all government action comply with the Constitution.

Protection of Minorities – protecting minority language, religion and education rights – Charter & other sections (not directly in constitution – court implied in this case)

-Legal Outcomes:

Is the ability to secede under the Constitution an obligation to “negotiate”?

Questions regarding “unwritten” constitutional principles – how are they applied?

This case left open issue of constitutional challenges based on these principles.

Four Fundamental Organizing Principles of the Constitution (SCC)

Federalism . . .

“was the political mechanism by which diversity could be reconciled with unity.”

“is a political and legal response to underlying social and political realities”

“facilitates democratic participation by distributing power to the government thought to be most suited to achieving the particular societal objective having regard to this diversity”

“facilitates the pursuit of collective goals by cultural and linguistic minorities which form the majority within a particular province.”

Democracy

Institutions, process and substance, continuous process of discussion.

More than voting, more than simply majority rule.

Constitutionalism & Rule of Law

Rule of Law – similar, but broader

Conveys “a sense of orderliness, of subjection to known legal rules and of executive accountability to legal authority. At its most basic level, the rule of law vouchsafes to the citizens and residents of the country a stable, predictably and ordered society in which to conduct their affairs. It provides a shield for individuals from arbitrary state action.”

(3) Elements:

That law is supreme over the acts of both government and private persons/one law for all;
The order of law is preserved & embodied by creation & maintenance of a body of positive law;
Exercise of public power must be based in a legal rule/relationship between the state and the individual must be regulated by law.

Protection of Minorities

A long history, part of the story before the Charter.

“Although Canada’s record of upholding the rights of minorities is not spotless, that goal is one which Canadians have been striving since Confederation, and the process has not been without successes.”

Interpretation Doctrines

A law that purports to apply to a matter outside the jurisdiction of the enacting legislative body maybe attacked in three different ways. The attack may go to:

The validity of the law: a law may be invalid if the PS of the law comes within a class ofsubjects that is outside the jurisdiction of the enacting legislative body. If invalid under P&S it may be still shown valid under Ancillary Doctrine or the Double Aspect Doctrine.
The applicability of the law: if a law purports to apply to a matter outside the jurisdictionof the enacting body, then court can acknowledge that the law is valid in most of itsapplications, but the law should be interpreted so as not to apply to the matter that is outsidethe jurisdiction of the enacting body. If this argument succeeds, the law is not held to beinvalid, but simply inapplicableto the extra-jurisdictional matter. (IJI)
The operability of the law: a law that applies to a matter outside thejurisdiction of the enacting body isinoperative through the doctrine of paramountcywherethere are inconsistent federal and provincial laws.It is the federal law that prevails;paramountcy renders the provincial law inoperative to the extent of the inconsistency .

PITH AND SUBSTANCE DOCTRINE

The first step in judicial review is to identify the “matter” of the challenged law in order to determinewhether the law is constitutional or not. Courts have to make a judgment as to which is the most important feature of the law and tocharacterize the law by that feature: that dominant feature is the “pith and substance” of the law; theother feature is merely incidental, irrelevant for constitutional purposes.

Two Step Process

Step 1: Characterization of the Matter [Morgentaler]

What is the matter of the law?
What are the legal and practical effects of the law?
What head of power(s) does the provision fall under?

Step 2: Scope of a Head of Power [EI Reference]

What is the scope of the head of power?
Does the provision fall within the scope of the head of power?

Purpose

Within the “4 corners” of the statute:(Internal)

Text of the statute
Looking at legislation as a whole

External to the “4 corners”: (External)

legislative history, Hansard
gov’t reports, motivating events

Effect

Within the “4 corners”:

Legal effect– how does the legislation impact the rights and liabilities of those it regulates
Specific effect of provision

External to the “4 corners”:

Practical effect– actual or predicted impact of the legislation in operation

Constitutional LawFall – 12’James Wegener

R v. Morgentaler (1993) SCC

The SCC struck down a NS statute that required “designated” medical procedures to beperformed in a hospital
The statute declared the purpose was to prohibit the privatization of certainmedical services in order to maintain a single high-quality health-care delivery system forall NS- so on the face of it seemed it seemed to be a health measure
But the SCC held that the stimulus for the statute came from a proposal by Dr. Morgentalerto establish an abortion clinic in the province, and the court quoted evidence of thelegislators’ preoccupation with stopping the establishment of the Morgentaler clinic
The court held that the statute and regulation were aimed primarily at suppressing the perceived harm or evil of abortion clinics and so were invalid criminal laws
This legislation falls in the domain of criminal law, a matter of federal jurisdiction
The “abortion” legislation is ultra vires, and is not valid

Colourability

The colourability doctrine is invoked when a statute bears the formal trappings of a matter within jurisdiction, but in reality is addressed to a matter outside jurisdiction. Applies the maxim that a legislative body cannot do indirectly what it cannot do directly.

Reference re Employment Insurance Act [2005] SCC

Challenge to the validity of the provisions of the federal Employment Insurance Act that granted maternity benefits to pregnant workers who left work to have a baby and parental benefits to mothers and fathers (natural or adoptive) who left work to care for a baby
Federal power over ‘unemployment insurance’ was contained in s. 91(2A), added by amendment in 1940
The first statute under s. 91(2A) did not provide for either maternity or parental benefits
Que. argued that supporting families with children fell under provincial jurisdiction and the original intent of the federal head of power didn’t fit these qualifications
SCC declared that the Constitution can be adapted to reflect new social realities
Applied Living Tree Doctrine to s. 91(2A)
The maternity provision was in P&S the same as the rest of the EI Act

Need for Flexible Interpretation

Living Tree Doctrine: the general language used to describe the classes of subjects (or heads of power) is not to be frozen in the sense in which it would have been understood in 1867. On the contrary, the words of the Act are to be given a progressive interpretation so that they are continuously adapted to new conditions and new ideas The Constitution differs from an ordinary statute in that it cannot easily be amended when it becomes out of date, so that its adaptation to changing conditions must fall to a large extent upon the courts.

ANCILLARY DOCTRINE

P&S Doctrine enables a law that is classified in relation to a matter within the competence of the enacting body tohave incidental or ancillary effects on matters outside the competence of the enacting body. That is, when it is not the dominant characteristic.

The Ancillary Doctrine applies when the particular provision, in isolation, appears to be outside its jurisdiction (fails general P&S test). Here, you must look at how well it fits with the larger scheme. If the larger scheme is valid, then the provision may be valid if necessarily incidental to the larger scheme.

Necessity Test [GM Motors]:

What is the infringement of the impugned provision, and to what extent?
Determine whether the Act is valid. (P&S)
If Act is valid, then is the provision sufficiently integrated?

Incidental effects are permissible [GM Motors, Canadian Western Bank]
If the infringement level is high, we’ll need to see strict necessity; if infringement level is low, functional necessity is enough [GM Motors]
Remedial provisions are deemed less serious [GM Mortors]

General Motors of Canada v. City National Leasing (1989) SCC

GM argued that anti-competive behavior prohibited in the Federal Combines Investigation Act was ultra vires, as it creates a civil action
It encroaches on s.92(13) which is a provincial head of power
The court must measure the degree of encroachment of a legislative scheme on the othergovernment’s sphere of power, and then the court must determine how necessary theimpugned provision is to the otherwise valid legislative scheme
For minor encroachments, the functional necessity is appropriate
For major encroachments, a stricter test (the truly necessary or essential) is appropriate
It is a remedial provision, helps support substantive parts of the act
It has a limited scope of action, carefully limited by the provisions of the Act
There is precedence for sustaining federally created civil actions
So, a strict test is not appropriate, we only need functional necessity
Court found that it was functionally necessary and that the provision was valid

Lacombe

Acknowledges criticism of GM approach – uncertainties regarding the “fit” test

DOUBLE ASPECT DOCTRINE

Recognizes that there are a large amount of laws that overlap, despite the fact that s.91 and s. 92 are supposed to be exclusive
The double aspect doctrine is applicable when the contrast between the relative importanceof the two features is not so sharp. [Multiple Access]
It is an example of judicial restraint
If legislation at both levels is valid and is of equal importance, then the court may find them both applicable. [Multiple Access]
Overlap is permissible so long as there is no conflict. [Multiple Access]
If there is no conflict then the effects are cumulative and the laws can coexist
If there is conflict, we would go to the Paramountcy Doctrine

Double Aspect Test: [Multiple Access]

Determine validity of each legislation w/o heed to the other.
If both valid, compare importance.
If equal strength, and no conflict, then Double Aspect Doctrine applies.

Multiple Access Ltd. v. McCutcheon (1982) SCC

Looked at the matter of the legislation, first in isolation and then in context of the act and found a reasonable home for both provisions within their jurisdiction, and of roughly equal importance
Insider trading has a double aspect:
Provincial Aspect – securities law s. 91(13)
Federal Aspect – federal company law (POGG)
SCC upheld a provision of federal corporation law granting a civil remedy for insider trading, on the basis that the provision had a ‘rational, functional connection’ with company law
Ontario Act prohibited insider trading in security regulation, Canada Corporation Act had an insider trading provision that was applicable to companies incorporated under the federal law
Security regulation is conducted by each province, no comprehensive security regulation by the country
Multiple Access was federally incorporated so the federal law applied, but the headquarters were in Toronto, so the Ontario law also applied
Held that both the federal and provincial law applied
Some provinces didn’t have security statutes, so Canada needed to regulate it for thatreason

INTERJURISDICTIONAL IMMUNITY

In every case that the provincial law was heldinapplicable there was a law of general application that was indisputably valid in most of its application.The theory behind the results is that each head of federal power not only grants power to the federalParliament, but being exclusive, denies power to the provincial legislature. It does not apply to all heads of power, only those where a core can be defined. Therefore, it tends to be about specific powers rather than general ones.

IF the provincial law would affect the basic, minimum, unassailable core of the federal subject, thenthe interjurisdictional immunity doctrine stipulated that the provincial law must be restrained in itsapplication (read down) to exclude the federal subject. If, on the other hand, the provincial law did notaffect the core of the federal subject, then the PS doctrine stipulated that the provincial law validlyapplied to the federal subject.

Test for IJI:

Is there precedence for applying the IJI Doctrine to the head of power in issue? If not, what is the nature of the head of power that parties wish to immunize? [Canadian Western Bank]

Federal entities: interprovincial and international transportation services, though subject to provincial rules of the road/transportation safety rules; management of federal communication undertakings, and ensuring they fulfill their mandates; maritime matters; Aboriginal peoples;
Does it enter into working conditions, labour relations, management, operation? [Canadian Western Bank]

If yes, then does the Provincial law entrench on the core of the federal power? [COPA][Canadian Western Bank][Bell #2]

Does the provincial law impair the essential core of federal power/an essential part of the federal entity? [Canadian Western Bank]
“basic, minimum and unassailable” elements or “vital” parts [Bell #2] of a federal institution
Is it specific or general? Can you define a core? [PHS]

Is the entrenchment sufficiently serious? [COPA][Canadian Western Bank]

If yes, then provincial law is inapplicable to the federal entity.
It must be serious, meaning it must have adverse consequences [Canadian Western Bank]
Impairment implies that the “core” competence is placed in jeopardy [COPA]

Bell #1 [1966]

Held that Bell (a federally regulated undertaking) was immune from a provincial minimumwage law of the lesser ground that such a law “affects a vital part of the management andoperation of the undertakings”
The provincial law was read down
This was the case even though there was no federal legislation on the matter at the time

The new ‘vital part’ test carved out a much broader field of immunity from provincial lawthan the old sterilization test, because the vital part test precluded the application of provincial laws that could not possibly paralyze or even impair the operation of the federally-regulated undertaking
The decision meant that workers in federal industries were not protected by minimum wagelaws

Bell #2 [1988]

SCC reaffirmed its commitment to the vital part test in Bell Canada #1
Issue: whether provincial occupational health and safety laws could apply to undertakingsengaged in interprovincial transportation and communication
The provincial legislation was found, so we are looking at whether it is applicable or not
SCC held that the provincial law was constitutionally incapable of applying to the federalundertaking, and had to be read down so that it did not apply to the federal undertaking
Acknowledged that the law requiring the reassignment of a small number of workers (likethe previous minimum wage issue) could not paralyze or impair the operation of the federalundertaking, but that it is sufficient that the provincial statute which purports to apply to thefederal undertaking affects a vital or essential part of the undertaking, without necessarilygoing as far as impairing or paralyzing it
Rejected the view that there could be concurrent provincial jurisdiction over a vital part ofthe federal undertaking
In principle, a basic, minimum, and unassailable content had to be assigned to each head of federal legislative power, and since federal legislative power is exclusive, provincial laws could not affect that unassailable core
Rival systems of regulation would be a source of uncertainty and endless disputes

Canadian Western Bank v. Alberta (2007)

Issue: whether Alberta’s Insurance Act could constitutionally apply to the banks
The Act required a deposit-taking institution (included federally-regulated banks, andprovincially regulated trust companies/credit unions) to obtain a license from theprovince and comply with provincial consumer-protection laws in order to promoteinsurance to customers

The federal Bank Act had been amended in 1991 to grant the banks the power to promote totheir customers and this enhanced the security of thebank’s portfolio loans
They argued that the lending of money and the taking of security by banks were vital functions of banking,and the banks argued that that the close relationship of creditors’ insurance to thosefunctions made the promotion of insurance by banks a vital part of banking as well
Court held that the vital part of an undertaking should be limited to functions that were essential or indispensable or necessary to the federal character of the undertaking; and that the promotion of insurance by banks was too far removed from the core of banking to qualify as a vital part of the banking undertaking
Therefore Alberta Insurance Act could validly apply to the banks when they promotedinsurance
If the core competence or vital part would merely be affected (without any adverseconsequence) by a provincial law, no immunity applied
It no longer mattered whether the effect of a provincial law on the core or vital part wasdirect or indirect- in the absence of impairment, IJI does not apply
Impairment: adverse consequence that placed the core or vital part in jeopardy, althoughwithout necessarily sterilizing or paralyzing it

Criticisms of Over Reliance on IJI