Michael Gerstein’s Con Law Outline – 2010

Amending Formula

1. General Amending Formula – s.38-40

  • Amendment must be approved by
  • HOC
  • Senate (may be dispensed with by s. 47 –HOC resolution)
  • Legislatures
  • 2/3 = 7 &50
  • Must be absolute majority – not just members there - s.38(2)
  • Province can opt out – s.38(3)
  • Fed must provide compensation –s.40
  • Citizen’s still paying tax
  • Eg: Education and cultural matters

2. Unanimity Formula – s.41

  • HOC, Senate and all Legislatures
  • Applies to s.41 a-e
  • Amendments to amending formula
  • Note: arguments about whether Supreme Court change requires Unanimity or not?
  • Peter Hogg – no – provisions are just in Supreme Court Act, no need to pretend like they are in Constitution unless explicitly expressed
  • On other side – central public institution

3. Some, but not all, Provinces Formula – s. 43

  • Must be approved by
  • HOC
  • Senate
  • Provinces that would be affected by the amendment
  • Eg: From Hogg – language laws in Manitoba and Sask

4. Federal only – s.44

  • Initiated by parliament
  • Amendments dealing with Executive, HOC, senate
  • Subject to s. 41 and 42

5. Provinces only – s. 45

  • Amendments to provincial constitution
  • Subject to s. 41

The Secession Reference

Reference re Secession of Quebec

  • Reference Question Is…
  • All levels of government given power to ask questions to the court
  • Advisory opinion that carries huge amount of weight
  • Criticism – undermines independence of the court – Australia
  • Question asked in 1996
  • SCC Decision in 1998
  • Argument 1
  • Should not reference power
  • Supreme Court Act s. 53 – gives power
  • A - interpretation of the constitution acts
  • B - Hearing and consideration on important questions of law or face
  • Argument 2
  • The court should decline
  • Will only answer about the legality
  • Can decline if non-justifiable
  • 1 – too theoretical or speculative
  • 2 – too political in nature
  • 3 – not yet ripe for judicial consideration
  • Quebec would not participate (despite many judges being from Quebec)
  • Court appointed an amicus curiae (friend of the court)
  • Question 1 – Under the Constitution of Canada, can the National Assembly, legislature or government of Quebec effect the secession of Quebec from Canada unilaterally?
  • Do not actually answer the question, instead talk about general principles – draw an obligation – say it is binding but the court will not enforce it
  • Acknowledged it would be an amendment, but only hinted at which method
  • No right to pursue secession unilaterally without negotiation
  • But they could unconstitutionally declare secession, leading to a de facto secession
  • Reasons for Question 1 Answer:
  • Court References constitutional principles that would effect an attempt of secession
  • Unwritten principles of the constitution
  • Federalism
  • Two levels of govt – each have their own sphere
  • Sovereign in their own spheres
  • Each rely on each other
  • Accommodates cultural diversity
  • Quebec exists due to the structure of both fed and prov powers
  • Democracy
  • Quebec argues – democratic supremacy in secession of Quebec by people of Quebec should be enough
  • Court replied – succession would affect more than just Quebec
  • Must not ignore Canada – both levels depend on each other
  • Federalism and Democracy are closely tied together
  • Constitutionalism and the Rule of Law
  • Rule of law is the ultimate source of public power
  • Principles of law should have stability
  • Government should act through its own rules, not operate in capricious fashion
  • Constitutionalism emphasizes that all levels of government should operate under the Constitution
  • Rule of law governs through legal institutions – supported by organized establishments
  • Respect for minorities
  • Constitutional structure must take into account the minority opinions
  • Groups within Quebec would be affected
  • Eg: first nations were strongly opposed

Parliamentary Sovereignty

  • Dominance of Parliament within the legal system
  • Allows Parliament to do what it wants within limits of it’s authority
  • Constitution Act 1982 has made Canada more of a constitutional sovereignty
  • Parliament = those who can survive the popular vote in HOC
  • Ministers of the crown

Democratic Decision-Making as the First Principle of Contemporary Constitutionalism - Jeremy Webber

  • A constitution fashions a public voice
  • Marshalls democratic opinion
  • Determines who should speak for majority
  • Forges a pubic opinion on issues
  • Representative govt – constituents voice grievances directly to MP’s
  • Argues reasons to generally prefer democratic means to forge this voice
  • There’s good reason to allow equality
  • There’s good reason to allow participation
  • Federalism is a way of defining who speaks for the provinces

Consideration on Representative Government – John Stuart Mills – 1861

  • Participating in democracy has value
  • Freedom existing in participation
  • Today, we see freedom being insulated from government action
  • Government – way for people to obtain liberty
  • Broad participation in govt can correct injustice in social order

Canada (House of Commons) v. Vaid

  • Idea that parliamentary autonomy to govern should be protected
  • Parliamentary privilege to protect autonomy
  • Should be protected by law for the purposes of achieving their prescribed parliamentary roles (also applies to judiciary)
  • Only applies while members are in the house
  • Dimensions of this autonomy:
  • Control over own processes
  • Discipline own members
  • Immunities with respect to what is said in the house
  • What is the scope of this privilege?
  • Not a question of if it exists
  • Not written in constitution – key unwritten principle – court will not touch
  • Test – what is required for efficiency of the house
  • Held: hiring/firing of employees working for the HOC is ultra vires to parliamentary privilege

Can Parliament Bind Itself?

Reference Re Canada Assistance Plan 1991 SCC (CAP)

  • Background
  • Canada Assistance Plan (CAP) was an Act of Parliament in which government entered into profit sharing with the provinces
  • BC agreed to pay for 50% of welfare payments
  • Program existed for 20 years
  • Mulroney amended CAP – reduced funding to wealthier provinces – BC, Alberta, Ontario
  • BC appealed
  • Question 1 – Has the government of Canada any statutory, prerogative or contractual authority to limit its obligation under the Canada Assistance Plan and its agreement to pay 50%
  • Yes
  • Used an ambulatory style of interpretation – amount was not fixed
  • As oppose to static – amount was decided when agreement made
  • Uses s.41 of Interpretation Act – every act be so construed as to reserve to Parliament the power of repealing or amending it…
  • Reflects parliamentary sovereignty
  • Question 2 – Does the original agreement give rise to a legitimate expectation that no new bill will limit the obligation without the consent of BC
  • No
  • Argument 1
  • Doctrine of legitimate expectation binds the executive not parliament
  • If the government conducts itself in a certain way, should not revert
  • Here, it’s the legislature taking action
  • Court does not meddle with the procedures of Parliament – this is a procedural question
  • Argument 2
  • Even though the executive is introducing the bill, they are doing so as a member of parliament – no other way to bring money bills in
  • Argument 3
  • Even if explicitly stated that they would not change without permission from the province, this would be ineffective because parliament cannot bind itself in form to the accent of an outside party
  • Also – executive cannot bind parliament
  • Rationale – it’s essential to allow subsequent governments to make changes that hey wish
  • Only repercussion to no upholding prior agreements is political
  • Max binding – 5 years (maximum duration of a parliament)
  • Manner and form requirements
  • Executive can bind future parliaments with “manner and form” requirements
  • Restrained not in substance, but in procedure which must be followed to enact future legislation
  • If wish to bind procedurally – must explicitly say so
  • In CAP – no the case
  • Court says this is “more substantial”
  • In past – things like Bill of Rights and R. v. Mercure have “constitutional nature”
  • No here

Canadian Bill of Rights S.C. 1960 c44

  • Ordinary statute of parliament
  • Declares a series of rights
  • S. 2 – Can be used to strike down future legislation
  • Only do so by procedural requirement (manner and form requirement)
  • Can expressly declare that new legislation will operate “notwithstanding” the Canadian Bill of Rights
  • This saves the bill from going too far
  • Does not restrain in substance
  • Only manner and form
  • Serves to be a warning to the public when a piece of legislation should receive extra attention

R. v. Mercure 1988 SCC

  • Wants to plea to speeding ticket in French
  • Bilingualism was not constitutionally entrenched in Sask (like Mantioba)
  • NW Territories Act
  • Parliament had intended to put French necessity manner and form requirement
  • For law to be valid, but be in both languages
  • Sask govt argued that this requirement had lapsed because they discontinued using it
  • Court says no – must expressly repel such a requirement
  • This is an acquired right now – court will not repel
  • Must follow procedure
  • Principles of stability, transparency, democratic principles, etc
  • Accordingly, Sask repelled the provision in
  • both English and French
  • Retroactive application was allowed

Abdication/Delegation

Re: The Initiative and Referendum Act (1919)

  • After WWI – Manitoba – use referendum as a means of enacting legislation
  • Some might view as more democratic
  • Case highlighted the coordination between fed and province
  • Province
  • Question: Is this a valid was to adopt legislation
  • Answer: No. Invalid.
  • S.92 – cannot create a new and endow a new legislative power not created by the act to which it owes it’s own existence
  • Analysis
  • 1 – this is a bypass of LGG – cannot do this according to constitution
  • Powerless, but integral part of the system
  • Could imagine the act still working
  • 2 – Cannot go so far that it essentially delegates its authorityto an equal power body – can delegate authority, but not too far
  • Against Argument – keep power in elites - people could make laws directly. Judicial conservatism
  • For Arguments – If happened, popularist vote could do anything eg: set up dictatorship
  • This would upkeep Parliamentary sovereignty
  • Cannot set up an institution that would be equal in power – could lose control
  • Executive normally controls regulation process
  • Would lose control

Reference Re: Regulations in Relation to Chemicals (1943)

  • WWII, Parliament delegated huge amount of power to the executive
  • Pretty much adopt any legislation they wanted by Executive Act, by way of order in council
  • Even could amend legislation adopted by parliament
  • Question: Was this an abdication of power?
  • NO - the power was delegated to the executive, but parliament still controls the War Measures Act, so it can revoke the powers and change executive orders in council
  • This retention of authority may distinguish from Initiative and Referendum Act
  • OK to delegate authority to a subordinate body
  • Equal – stepping over the line
  • BUT – Executive did not have proper authority to delegate as much power to the Controller of Chemicals
  • Struck down part of what Controller did
  • Executive Authority
  • Crown Prerogative
  • Executive still hold some inherent powers
  • Eg: internal relations – declare war, enter into treaties
  • Privileges and Immunities
  • Immunity from application of statues – unless clearly expressed
  • Immunity from suits – eg: Calder case – had to get permission – now abolished
  • Crown privilege – internal documents of cabinet can not be disclosed during proceedings

The Case of Proclamations (1610)

  • The king hath no prerogative but that which the law of the land allows him

Considerations on Representative Government – John Stuart Mills

  • Ultimate controlling power is through electing people
  • Legislature as a means for airing arguments
  • Political morality – executive subject to everything parliament does
  • Constitutional conventions not enforced by courts – done through the political process
  • Executive must still get approval of legislature to pass laws

Executive Authority

Roncarelli v. Duplessis 1959 SCC

  • Duplessis = both Premier and AG of province
  • Roncarelli = owned restaurant – been providing bail for members of Jehovah’s Witness
  • Duplessis revoked R’s liquor license (told would never get one again)
  • D ran strictly conservative govt associated with Catholic faith
  • R cannot sue liquor commission without permission from AG
  • 1st problem – D sued without permission
  • Court answer – this is in relation to a decision outside the scope of power given by statute. This is a personal act. Can sue him.
  • 2nd problem – no authority in this court to review this decision – all that has happened is that the liquor board has exercised their authority
  • Court – actions were “turning power to unintended ends”
  • Significant for human rights and constitutional reasons
  • Held: for Roncarelli, D was violating Civil Code
  • Court looked at statute – liquor commission
  • Cannot cancel with absolute authority
  • Public duty to exercise authority in “good faith” – rule of law issue
  • Public officials cannot act beyond their duties
  • Executive must remain in statutory constraints
  • Executive is under parliamentary control, delegation, framed by legislation
  • Government power does need to be restricted

The Judiciary

The Judiciary in the Constitution CA 1867

Creation

  • s. 92 (14) – Province jurisdiction over the creation and maintenance at both civil and criminal
  • s. 101 – Fed have jurisdiction to create a general court of appeal, courts for better admin of the law

Appointment

  • s. 96 – fed appointment
  • s. 97/98 – selected from bar in the province it is situated
  • s 92(14) – provinces choose their judges

Procedure

  • 92(14) – Provinces over civil
  • 92(15) – Provinces over non-crim penal matters
  • 91(27) – Fed over crim
  • 101 – fed over all federally constituted courts

Tenure

  • s.99, 101, 92(14), 11(d) of the charter

Salary

  • s.99, 101, 92(14), 11(d) of the charter
  • 11(d) – the be presumed innocent until proven guilty according to the law in a fair and public hearing by an independent and impartial tribunal

Four types of Courts:

  • 92(14) - Prov established and appointed
  • Includes inferior courts – traffic courts, small claims, provincial admin tribunals
  • 96 & 92(14)– Prov established, fed appointed
  • Courts of general jurisdiction – Superior Courts
  • Eg: BC Supreme Court and BC Court of Appeal
  • S. 101 – Fed established and appointed
  • For federal laws
  • S. 101 – Fed established and appointed
  • Supreme Court – Special role as superintendent of all courts – ultimate authority

Superior/Supreme/Court of Queens Bench – Provincially established under 92(14) but federally appointed

  • Tribunals – fall under s.92(14) or s.101
  • S.101 eg: Tax Court

The Case of Prohibitions (1607)

  • Judges are delegates of the King
  • BUT the law is founded upon learned reason
  • King has not studied the law and he is under the law

The Act of Settlement (1701)

  • Judges should serve on “good behavior” rather than “at the pleasure of the crown”
  • This is now seen in s. 99 and s. 100
  • Establishes further independence of judiciary

Protection of s.96 Courts

  • Court wants to distinguish between a provincial tribunal and a s.96 court
  • Develops a three part test
  • Not about independence of the court, but recognizing when something is a court, and when it is an administrative tribunal
  • Administrative tribunals may have experts from the area making important decisions that appear judicial
  • When will these people have too much authority and be making decision that are too much like the function of a s.96 court
  • This is a functional test
  • Issue – these courts are suppose to have federally appointed judges

Reference Re Residential Tenancies Act (1981) SCC

  • Questions:
  • 1) Is it within the provincial authority to empower Residential Tenancy Commission to make an order evicting a tenant by way of the Residential Tenancies Act.
  • 2) Is it within provincial authority to empower the Commission to make orders requiring landlords and tenants to comply with obligations imposed under the Act?
  • Need to determine if tribunal is acting as a s.96 court – that’s a no no
  • Used the 3 step test
  • 1. Historical test – does the jurisdictional power broadly conform to the power given to s.96 courts at the time of confederation?
  • If no- test is over.
  • 2. Is the tribunal exercising a “judicial function”
  • Judicial – dispute between private parties, through an application of recognized rules consistent with fairness and impartiality.
  • Might look judicial in procedure, but not really be judicial
  • Might be dealing with issues among a whole bunch of individuals – not private parties.
  • Might be dealing with policy consideration – going beyond private dispute realm, becomes political, economic matter.
  • 3. Contextual consideration – is the judicial power part of a broader function that is not judicial
  • Judicial function cannot be sole or central function of tribunal
  • Ok if just part of a broader mandate – merely subsidiary or ancillary to general administrative functions.
  • Are they trying to achieve a broader policy goal?
  • Eg: Tomko – ok to order cease and desist order as part of a broader legislative scheme.
  • Also note: some s.96 powers are so inherent to superior court that you cannot remove them
  • Held: Residential Tenancy Commission is charged with impugned powers to enforce contractual rights and interpret contracts – too much like a s.96 court – invalid.

Nova Scotia (A.G.) v. Sobey’s Stores Ltd (1989) SCC

  • Facts – Direct of labour standards reinstated a dismissed employee.
  • Three step test
  • 1 – Historical test – Look to 4 original provinces – ON, QB, NS, NB – if tie look to UK
  • If power always existed with inferior courts – OK
  • If solely belonged in superior court - fail
  • Here – SCC – should be a functional test – need to adopt powers of superior courts narrowly
  • Here – this is a historical s.96 function
  • 2- Making a judicial like decision
  • 3 – Power to reinstate employees is a necessarily incidental function to a broader social policy goal of providing minimum standards of protection to non-union workers.

Classic Problems

  • Issuing injunctions or special remedies – superior court function
  • Power of review that superior courts have over other tribunals
  • Establishing new tribunals
  • Some function that were shared but so inherent to superior courts that you can(**not) remove them

McEvoy v. A.G. and A.G. Can [1983] SCC

  • NB tried to set up unified crim court to deal with both summary and indictable offense
  • Indictable offense – obviously s.96 power
  • Invalid whether jurisdiction was exclusive or concurrent
  • “Parliament can no more give away federal constitutional power, that a province can usurp them”
  • Federal courts must be federally appointed

Reference Re Provincial Judges (1997) SCC

  • Question – whether s.11(d) of charter guarantees judicial independence?
  • Lamar (maj)
  • Uses the preamble – foundation for an implied guarantee
  • “With a constitution similar to that of the United Kingdom”
  • Implied principles in constitution
  • Full faith and audit – respect for judgment in other jurisdictions
  • Fed paramouncy
  • Rule of Law
  • Parliamentary Privilege
  • Implied bill of rights – implied guarantee of freedom of expression even prior to the adoption of the charter but hesitant in judgments
  • Looks at broader objective
  • Believes protection should be extended to all courts
  • Held: PEI and Alberta salary reductions programs infringed on s.11(d)
  • But, there are certain circumstances that prov can reduce salary
  • Need to ask court first :D
  • LaForest (dis)
  • Also believes judicial independence is important
  • But must look for protection in Charter
  • Not PREAMBLE
  • Elevates vague open language above text
  • UK is not even like Canada
  • They have no written constitution
  • Their courts have no power to hold an act of parliament invalid or unconstitutional
  • Only superior courts were given this protection
  • Judicial independence power derived from s. 96-100 and s.11(d)
  • Using normal means of Charter interpretation
  • BUT what is a court? Where to stop?
  • Clearly protection when related to crim matters

Division of Powers