2015-2016 Ellen ChenCONSTITUTIONAL LAWProf. Colleen Sheppard

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McGill Law /
Constitutional Law
Prof. Colleen Sheppard /
Ellen Chen
2015-2016

Table of Contents

WEEK 1 Introduction

WEEK 2A Colonial history

WEEK 2B / 3A Indigenous peoples

WEEK 3B / 4 Constitutional sources

Patriation Reference (1981) // amendment formula constitutional convention [established the test]

Reference re Secession of Quebec (1998) // Constitutional principles: federalism democracy Rule of law minority rights

WEEK 5A Rule of Law and Executive Power

Roncarelli v. Duplessis (1959) // rule of law executive power statutory interpretation

WEEK 5B Judicial Review and the court system

Reference re Supreme Court Act (2014) // SCC constitutionally entrenched statutory interpretation

WEEK 6 Judicial independence

Reference re Remuneration of Judges (1997) // Pith and substance Constitutional principle [confirmed existence]

WEEK 7A Constitutional interpretation

Binnie, “Interpreting the Constitution: The Living Tree vs. Original Meaning” (2007)

Edwards v. Canada (1930 JCPC) // Meaning of a word BNA Act living tree approach [established the approach]

WEEK 7B / 8 Federalism

Risk, “Constitutional Thought in the Late Nineteenth Century” (1991)

Risk, “Canadian Law Teachers in the 1930s” (2004)

Pigeon, “The Meaning of Provincial Autonomy” (1951)

Simeon, Criteria for Choice in Federal Systems (1983)

WEEK 9A Validity: Pith and substance

Reference re Firearms Act (2000) // Pith and substance of federal law public safety purpose

Reference re Same-Sex Marriage (2004) // Pith and substance of federal law living tree approach incidental effects

WEEK 9B Validity: Ancillary powers

General Motors v. City National Leasing (1989) // Pith and substance of federal law Ancillary powers [established the test] property & civil rights

WEEK 10A Applicability: i.e. Interjurisdictional Immunity

Quebec v. Canadian Owners and Pilots Association COPA (2010) // Pith and substance of federal & provincial law property & civil rights incidental effects federal power over aeronautics impair core of federal power [established the test] inapplicable interjurisdictional immunity paramountcy

Canada v. PHS Community Services (2011) // Pith and substance of federal law criminal law power provincial power over health facility inapplicable interjurisdictional immunity [severely restricted] paramountcy

WEEK 10B Operability: i.e. Paramountcy

Multiple Access v. McCutcheon (1982) // Pith and substance of federal & provincial law property & civil rights double aspects dual compliance [established the test] operational conflict paramountcy inoperable

Spraytech v. Hudson (2001) // Pith and substance of municipal bylaw municipal power over general welfare double aspects dual compliance operational conflict inoperable

Rothman, Benson & Hedges v. Saskatchewan (2005) // Pith and substance of federal & provincial law dual compliance impaired federal purpose paramountcy

WEEK 11A POGG Emergency Powers

Reference re Anti-Inflation Act (1976) // Pith and substance of federal law POGG emergency powers [established the test] POGG national concern

WEEK 11B POGG National Concern

R. v. Crown Zellerbach (1988) // Pith and substance of federal law POGG national concern [established the test] ancillary power incidental effects

WEEK 12A Criminal law powers

Reference re Firearms Act (2000) // Pith and substance of federal law property & civil rights incidental effects criminal law power [established the test]

Reference re Assisted Human Reproduction Act (2010)// pith and substance of federal law /Criminal law power /Ancillary powers

WEEK 12B Provincial power over morality & public safety

Nova Scotia Board of Censors v. McNeil (1978) // pith and substance of provincial law Provincial power over morality property rights criminal law matters of local nature

R. v. Banks (2007 ONCA) // Pith and substance of provincial law Criminal Law Provincial power over public safety property rights matters of local nature double aspect

WINTER TERM ------

WEEK 2A Power over economic regulation

Carnation Company v. Quebec Agricultural Marketing Board (1968) // Pith substance regulation of interprovincial trade incidental effects valid provincial scheme trade & commerce power

Central Canada Potash v. Saskatchewan (1979) // pith substance valid provincial scheme for exports property & civil rights trade & commerce power

General Motors v City National Leasing (1989) // pith substance test for trade & commerce powertrade & commerce power

WEEK 2B Co-operative federalism

Poirier, Fédéralisme coopératif

WEEK 3A/B Jurisdiction over Aboriginal peoples, Aboriginal titles

Turpel, "Home/Land"

Jordan's Principle

Elder, “Aboriginal Self-Government in Nunavut”

WEEK 4A Quebec and Asymmetrical Federalism

Pelletier, “Asymmetrical Federalism

WEEK 4B Pre-Charter era

Switzman v. Elbling (1957) // communist propaganda // freedom of speech valid restriction

Canada v. Lavell (1974) // narrow use of Bill of Rights

WEEK 5A/B Intro to Charter 1982 Basic framework

Petter, Immaculate Deception

Vriend v. Alberta (1998) // fired gay employee // read new right into Charter valid judicial power under Charter

Hunter v. Southam (1984) // Edmonton Journal seizure // purposive liberal approachguardian of constitution statutory interpretation violate unreasonable search

R v. Big M Drug Mart (1985) // Lord’s Day Act //contextual approachviolate freedom of religion

Edmonton Journal v. Alberta (1989) // contextual approachviolate freedom of speech s1 reasonable limit

WEEK 6A Charter: restricted application to government actions

RWDSU v. Dolphin Delivery (1986) // applicability of Charterapply to court orders apply to private common law litigation freedom of expression

Eldridge v. British Columbia (1997) // applicability of Charterapply to actions of gov’t delegate apply to private entities acting for gov’t

Canada (Justice) v. Khadr (2008) // apply to international participation

WEEK 6B Charter: Reasonable limits on Charter rights

R. v. Oakes (1986) // xx xx

Dagenais v. Canadian Broadcasting Corp (1994) // xx xx

Irwin Toy v. Quebec (1989) // violate s.7 life liberty security

WEEK 7A/B Charter: Freedom of Religion

Syndicat Northcrest v. Amselem (2004) // xx xx

Multani v. Commission scolaire Marguerite-Bourgeoys (2006) // xx xx

Alberta v. Hutterian Brethren of Wilson Colony (2009) // xx xx

WEEK 8A/B Charter: Freedom of Expression

Irwin Toy v. Quebec (1989) (see week 5B) // xx xx

R. v. Keegstra (1990) // xx xx

R. v. Butler (1992) // xx xx

Little Sisters Book and Art Emporium v. Canada (2000) // xx xx

WEEK 9A Feminist Constitutionalism

Baines, Feminist Constitutionalism

Sheppard, “Feminist Pragmatism in the Work of Justice Bertha Wilson”

Irving, “Drafting, Design and Gender,”

Meier, Étudier les systèmes fédéraux

WEEK 9B/10A/B Charter: Life, liberty, security

R. v. Morgentaler (1988) // xx xx

Canada v. PHS Community Services (2011) // xx xx

Canada v. Bedford (2013) // xx xx

Canada v. Downtown Eastside Sex Workers (2012) // xx xx

Carter v. Canada (2015) // xx xx

WEEK 11A/B/12A Charter: Equality rights

Andrews v. Law Society of British Columbia (1989) // xx xx

Law v. Canada (1999) // xx xx

R. v. Kapp (2008) // xx xx

Withler v. Canada (2011) // xx xx

Corbiere v. Canada (1999) // xx xx

WEEK 12B Charter: Language rights

Mahe v. Alberta (1990) // xx xx

Arsenault-Cameron v. Prince Edward Island (2000) // xx xx

Association des parents de l’école Rose des vents v. British Columbia (2015) // xx xx

WEEK 13A Charter: Remedies

Doucet-Boudreau v. Nova Scotia (2003) // xx xx

 Schachter v. Canada (1992) // xx xx

WEEK 13B/14A Aboriginal Issues s.35 & s.35(1): Rights, Status, Duty to consult, Titles

R. v. Sparrow (1990) // Test for Aboriginal RightsExisting rights xx

R. v. Van der Peet (1996) // Aboriginal Rights xx xx

R. v. Gladstone (1996) // Aboriginal Rights xx xx

R. v. Powley (2003) // Test for Metis legal statusxx xx

Haida Nation v. British Columbia (2004) // Duty to consult Honor of the Crown xx

Tsilhqot’in Nation v. British Columbia (2014) (see week 2A) // Aboriginal Title xx xx Establishing Aboriginal Title

WEEK 13B Amendments & conclusions

Reference re Senate Reform (2014) // xx xx

APPENDIX 1: Division of powers problems in a nutshell

APPENDIX 2: General exam tips

WEEK 1Introduction

-Constitution is about relations between the government, communities and individuals

-Fundamentally supreme over all other law

WEEK 2A Colonial history

-internal vs. external legal historiography

  • internal is legal documents
  • external is larger social context

-unstated starting points of constitution

  • repudiated “doctrine of discovery” claim of “terra nullius”
  • Doctrine of conquest
  • Doctrine of cession, ceding sovereignty
  • Doctrine of reception of law, laws brought along with settlers

-Royal Proclamation 1763

  • Suppression of civil law and Catholicism
  • Imposition of British laws
  • Recognized aboriginal rights

-Quebec Act 1774

  • British colonial statute, restored civil law and freedom of religion

-Constitution act 1791

  • Divided upper and lower Canada
  • Division allows for diversity of law

-Durham report 1839

  • Called for assimilation of the French population
  • Two nations warring, response to 1830s rebellions

-Union Act 1840

  • Reunited upper and lower Canada with English as official language
  • Later recognized bilingualism in 1848

WEEK 2B / 3A Indigenous peoples

-treaties meant to reconcile sovereignties, represented by wampum belts for aboriginals

-TRC residential schools

  • Shift from nation to nation approach to policy of dominance and assimilation
  • Domination through legislation
  • Problems of integration later in life
  • Indian Act 1920 required aboriginal children to attend residential schools

WEEK 3B / 4 Constitutional sources

-Constitution Act 1982

  • S.52 supremacy clause, constitution is the supreme law, basis for all ultra vires invalidations
  • Established by the British statue Canada Act 1982, last statute from the UK, set up domestic amendment formula
  • Canada Act S.2 repatriation clause, no Act of UK shall from now on have force of law in Canada
  • Canadian Constitution is entrenched by a UK statute

-Constitution Act 1867, formerly BNA Act

-Before 1800s, colonies were governed by colonial acts and imperial statutes

-Other federal statutes

  • Citizenship Act, SCC Act, Elections Canada Act, legislation related to governing
  • In most case do not need to go through constitutional formula to amen

-Treaties: have influence, technically not constitution

-Constitutional conventions

  • Not enforceable legally

Patriation Reference (1981) // amendment formulaconstitutional convention [established the test]

[Martland]

  • But many Canadians would perhaps be surprised to learn that important parts of the constitution of Canada, with which they are the most familiar because they are directly involved when they exercise their right to vote at federal and provincial elections, are nowhere to be found in the law of the constitution.
  • The main purpose of constitutional conventions is to ensure that the legal framework of the constitution will be operated in accordance with the prevailing constitutional values or principles of the period.
  • The conventional rules of the constitution present one striking peculiarity. In contradistinction to the laws of the constitution, they are not enforced by the courts.
  • The requirements for establishing a convention bear some resemblance with those which apply to customary law. Precedents and usage are necessary but do not suffice. They must be normative. We adopt the following passage of Sir W. Ivor Jennings, The Law and the Constitution (5th ed., 1959), at p. 136:
  • The requirements for establishing a convention bear some resemblance with those which apply to customary law. Precedents and usage are necessary but do not suffice. They must be normative…We have to ask ourselves three questions: first, what are the precedents; secondly, did the actors in the precedents believe that they were bound by a rule; and thirdly, is there a reason for the rule?
  • We have reached the conclusion that the agreement of the provinces of Canada, no views being expressed as to its quantification, is constitutionally required

-exercises on Ottawa Montfort Hospital and Mack v. Canada

Reference re Secession of Quebec(1998) // Constitutional principles:federalismdemocracyRule of lawminority rights

[The Court]

  • the Constitution of Canada includes the global system of rules and principles which govern the exercise of constitutional authority in the whole and in every part of the Canadian state.
  • In order to endure over time, a constitution must contain a comprehensive set of rules and principles which are capable of providing an exhaustive legal framework for our system of government. Such principles and rules emerge from an understanding of the constitutional text itself, the historical context, and previous judicial interpretations of constitutional meaning. In our view, there are four fundamental and organizing principles of the Constitution which are relevant to addressing the question before us (although this enumeration is by no means exhaustive): federalism; democracy; constitutionalism and the rule of law; and respect for minorities.
  • Federalism was a legal response to the underlying political and cultural realities that existed at Confederation and continue to exist today. At Confederation, political leaders told their respective communities that the Canadian union would be able to reconcile diversity with unity. It is pertinent, in the context of the present Reference, to mention the words of George-Étienne Cartier: … In our own Federation we [will] have Catholic and Protestant, English, French, Irish and Scotch, and each by his efforts and his success [will] increase the prosperity and glory of the new Confederacy. . . . [W]e [are] of different races, not for the purpose of warring against each other, but in order to compete and emulate for the general welfare.
  • The federal-provincial division of powers was a legal recognition of the diversity that existed among the initial members of Confederation, and manifested a concern to accommodate that diversity within a single nation by granting significant powers to provincial governments.
  • 51 Although these underlying principles are not explicitly made part of the Constitution by any written provision, other than in some respects by the oblique reference in the preamble to the Constitution Act, 1867, it would be impossible to conceive of our constitutional structure without them. The principles dictate major elements of the architecture of the Constitution itself and are as such its lifeblood.
  • 54 Underlying constitutional principles may in certain circumstances give rise to substantive legal obligations, have "full legal force"… The principles are not merely descriptive, but are also invested with a powerful normative force, and are binding upon both courts and governments.
  • on paper, the federal government retained sweeping powers which threatened to undermine the autonomy of the provinces. Here again, however, a review of the written provisions of the Constitution does not provide the entire picture. Our political and constitutional practice has adhered to an underlying principle of federalism, and has interpreted the written provisions of the Constitution in this light.
  • 61 Democracyis a fundamental value in our constitutional law and political culture. While it has both an institutional and an individual aspect, the democratic principle was also argued before us in the sense of the supremacy of the sovereign will of a people, in this case potentially to be expressed by Quebecers in support of unilateral secession.
  • The relationship between democracy and federalism means, for example, that in Canada there may be different and equally legitimate majorities in different provinces and territories and at the federal level.
  • At its most basic level, the rule of law vouchsafes to the citizens and residents of the country a stable, predictable and ordered society in which to conduct their affairs. It provides a shield for individuals from arbitrary state action.
  • this Court outlined the elements of the rule of law. We emphasized, first, that the rule of law provides that the law is supreme over the acts of both government and private persons. There is, in short, one law for all. Second, we explained, at p. 749, that "the rule of law requires the creation and maintenance of an actual order of positive laws which preserves and embodies the more general principle of normative order"… A third aspect of the rule of law is, that "the exercise of all public power must find its ultimate source in a legal rule".
  • Although Canada's record of upholding the rights of minorities is not a spotless one, that goal is one towards which Canadians have been striving since Confederation, and the process has not been without successes.
  • framers of the Constitution Act, 1982 included in s. 35 explicit protection for existing aboriginal and treaty rights, and in s. 25 , a non-derogation clause in favour of the rights of aboriginal peoples.

WEEK 5A Rule of Law and Executive Power

-Quebec Chart of Rights

  • Quasi-constitutional in Quebec
  • Canadian Charter gave new life to using the Quebec Charter
  • More right-conscious, Quebec Charter works especially well in Quebec

-Magna Carta

  • First instance of royal power constrained by rule of law
  • Established that everybody, including the kind, was subject to law
  • Named habeus corpus, trial by jury, no arbitrary exercise of power

-Constitution Act 1867

  • S.9 ceremonial role of the Queen
  • S.10 governor general carries out government in name of the Queen
  • NB. The crown means all government actors representing the Queen including the GG, PM, cabinet, all government branches, police, army
  • S.11-12 Privy Council, now effectively the cabinet
  • NB. Canada doesn’t have the separation of executive and legislative powers
  • Executive powers come from
  • S.10 carrying on government
  • S.15 commander in chief
  • S.96 appointment of judges
  • Royal prerogatives mean inherent powers of the monarchs, limited by legislation

-Canada has constitutional supremacy, kind of parliamentary supremacy

-Rule of law is now a constitutional principle, a case raising this becomes constitutional issue

-Member of the executive branch have a duty to enforce laws

  • Educate the public, promote co-operative federalism

Roncarelli v. Duplessis(1959) // rule of law executive powerstatutory interpretation

[Rand]

  • It is a matter of vital importance that a public administration that can refuse to allow a person to enter or continue a calling which, in the absence of regulation, would be free and legitimate, should be conducted with complete impartiality and integrity; and that the grounds for refusing or cancelling a permit should unquestionably be such and such only as are incompatible with the purposes envisaged by the statute
  • In public regulation of this sort there is no such thing as absolute and untrammelled "discretion", that is that action can be taken on any ground or for any reason that can be suggested to the mind of the administrator; no legislative Act can, without express language, be taken to contemplate an unlimited arbitrary power exercisable for any purpose, however capricious or irrelevant, regardless of the nature or purpose of the statute.
  • The act of the respondent through the instrumentality of the Commission brought about a breach of an implied public statutory duty toward the appellant; it was a gross abuse of legal power expressly intended to punish him for an act wholly irrelevant to the statute, a punishment which inflicted on him, as it was intended to do, the destruction of his economic life as a restaurant keeper within the province.
  • …public officers acting beyond their duty, would signalize the beginning of disintegration of the rule of law as a fundamental postulate of our constitutional structure.

[Abbott]