Rule of Law, Separation of Powers, Judicial Independence

Constitutional Law, Fall/Winter 2010-2011, Prof Hoi Kong

Introduction

Rule of Law, Separation of Powers

The Constitution

Amending Formula

Unwritten Constitutional Principles

Reference re Secession of Quebec

Constitutionalism and the Rule of Law

Roncarelli v Duplessis

British Columbia v Imperial Tobacco Canada Ltd

British Columbia (A-G) v Christie

Reference Re Manitoba Language Rights

Separation of Powers (s 96)

Labour Relations Board of Sask. v John East Iron Works Ltd.

Reference re Residential Tenancies Act

Sobeys Stores v Yeomans and Labour Standards Tribunal (NS)

Reference re Amendments to the Residential Tenancies Act (NS)

McEvoy v A-G of New Brunswick and A-G of Canada

Reference re Young Offenders Act (PEI)

Crevier v Quebec (A-G)

Judicial Independence

Reference re Provincial Court Judges

Beauregard v Canada

Federalism

Interpreting Legislation

Characterization of Powers

Russell v The Queen

Hodge v The Queen

R v Morgentaler

Reference Re Employment Insurance Act

Scope of Powers

Citizens Insurance Company v Parsons

Conflict

General Motors of Canada v City National Leasing

AG Ontario v AG Canada (The Local Prohibition Reference)

Multiple Access Ltd v McCutcheon

Ross v Registrar of Motor Vehicles

Bank of Montreal v Hall

Rothmans, Benson & Hedges Inc v Saskatchewan

McKay v The Queen

Bell Canadav Quebec (Commission de la santé et de la sécurité du travail)

Irwin Toy v Quebec (AG)

Canadian Western Bank v The Queen in Right of Alberta

British Columbia (AG) v Lafarge Canada

Economic Regulation

Extent of Property and Civil Rights

Carnation Co v Quebec Agricultural Marketing Board

AG Manitoba v Manitoba Egg and Poultry Association (Manitoba Egg and Poultry Reference)

Re Agricultural Products Marketing Act

Natural Resources

CIGOL v Government of Saskatchewan

Central Canada Potash Co v Government of Saskatchewan

Trade and Commerce s 91(2)

Interprovincial and International Trade

The Queen v Klassen

Caloil v AG Canada

Dominion Stores v The Queen

General Regulation of Trade

Labatt Breweries of Canada v AG Canada

General Motors of Canada v City National Leasing

Kirkbi AG v Ritvik Holdings Inc

Peace, Order and Good Government

Emergency Powers

Reference Re Anti-Inflation Act

National Concern

R v Crown Zellerbach Canada

Friends of the Oldman River Socity v Canada (Minister of Transport)

Criminal Law

Reference re Validity of Section 5(A) of the Dairy Industry Act (Margarine Reference)

RJR MacDonald Inc v Canada (A-G)

R v Hydro-Québec

Reference Re Firearms Act

Provincial Power to Regulate Morality

Re Nova Scotia Board of Censors v McNeil

Westendorp v The Queen

Federalism and Race

Union Colliery Co v Bryden

Cunningham v Tomey Homma

Quong Wing v The King

Flexible Federalism

Reference Re Canada Assistance Plan (BC)

Coughlin v Ontario Highway Transport Board

Charter

Hunter v Southam

Notwithstanding Clause (s 33)

Ford v Quebec (A-G)

State Action Doctrine

Retail, Wholesale and Department Store Union v Dolphin Delivery

McKinney v University of Guelph

Godbout v Longueil (City)

Eldridge v British Columbia (A-G)

Vreind v Alberta

Hill v Church of Scientology of Toronto

Oakes Test: s 1

R v Nova Scotia Pharmaceutical Society

R v Thierens

R v Oakes

Edmonton Journal v Alberta (A-G)

Irwin Toy v Quebec (A-G)

Exercise of Administrative Discretion

Multani v Commission Scholaire Margurete Bourgeois

Freedom of Religion: s 2(a)

R v Big M Drug Mart

Edwards Books and Art Ltd v The Queen

Syndicat Northcrest v Amselem

Congrégation des témoins de Jéhovah de St-Jérôme-Lafontaine v Lafontaine

Alberta v Hutterian Bretheren of Wilson County

Trinity Western University v BC College of Teachers

Zylberberg v Sudbury Board of Education

Chamberlain v Surrey School District No 36

Bruker v Markovitz

s 93

Adler v Ontario

Freedom of Expression: s 2(b)

R v Keegstra

Retail, Wholesale and Department Store Union v Dolphin Delivery

Irwin Toy v Quebec (AG)

Hate Speech

R v Keegstra

Sexually Explicit Materials

R v Butler

Little Sisters Book and Art Emporium v Canada (Minister of Justice)

R v Labaye

Political Speech

Harper v Canada (AG)

State Support for Expression  TEST FOR POSITIVE OBLIGATION

Haig v Canada

Native Women’s Association of Canada v Canada

Baier v Alberta

Access to Public Property

Montreal (City) v 2951-1366 Quebec Inc

Equality: s 15

Andrews v Law Society of British Columbia

1995 Equality Trilogy

Law v Canada

R v Kapp

Differential Treatment

Eldridge v British Columbia

Auton v British Columbia

Enumerated & Analogous Grounds

Corbière v Canada

Comparator Group

Hodge v Canada

Auton v British Columbia

Granovsky v Canada

Disadvantage/Discrimination

M v H

Gosselin v Quebec

Canadian Foundation for Children, Youth & the Law v Canada

R v Kapp

Life, Liberty and Security of the Person: s 7

BC Motor Vehicle Reference

R v Morgentaler

Rodriguez v British Columbia

Gosselin v Quebec

Chaoulli v Quebec

Decisional Autonomy

B(R) v Children’s Aid Society of Metro Toronto

Language Rights

Quebec v Blaikie (No 1)

Societé des Acadiens v Association of Parents for Fairness in Education

Mahe v Alberta

Ford v Quebec

Remedies

Schachter v Canada

Vreind v Alberta

M v H

Canada v Hislop

Little Sisters Book and Art Emporium v Canada

Doucet-Boudreau v Nova Scotia

Standing

Introduction

Monahan, Canadian Constitution (WebCT)

Constitution defines the framework of state interaction with citizens, and between various State institutions
Constitution Act 1982 includes amending formulae and Charter
“Body of rules aboue law making”
Unwritten principles can be used to full in the gaps in the entrenched or written constitution
Federalism
Restricts jurisdictions of each level of government
Requires independent judiciary to police distribution of power
Not too restrictive, since the other level of government can enact a similar statute to any that is ultra vires
Democracy
Responsible government
Executive is subject to the control of the legislature
Constitutionalism and the Rule of Law
Protection of Minorities

Rule of Law, Separation of Powers

The Constitution

Amending Formula

British North America Act 1867 contained no amending formula (Westminster made only amendments)
Statute of Westminster 1931 gives Dominion Parliament power to repeal or amend Imperial statutes applying to Canada, excluding BNA Act
Westminster generally followed wishes of Dominion Parliament in amending BNA Act
Provincial consultation?
Westminster did not seek it
Patriation Reference 1981 said provincial consultation was a convention, but not enforceable
Constitution Act 1982
s 38 – General amending formula
(1) Parliament and seven of the provinces containing two thirds of the population
(3) Opt-out – Provincial legislatures can opt-out of amendments
s 39 – Time limit: amendment process must take at least one year (39(1)), no more than three years (39(2)).
s 40 – Compensation for provinces to whom transfers of education or cultural powers to Parliament do not apply
s 42 – subjects of this formula
s 41 – unanimity required (Parliament + all provinces)
Changes in the office of Queen, Governor General, Lieutenant Governor
Minimum of MPs per province
Use of French and English
Composition of Supreme Court
Amendments to s 41
s 43 – Bilateral formula (subjects relating to particular provinces’ relations with Parliament)
Applies to minority religious education (per s 93)
ss 44-5 – Federal and provincial unilateral procedure (for constitutional matters relating only to themselves)

Unwritten Constitutional Principles

Court finds 4 primary unwritten principles in the Constitution (Secession Reference)
Constitutionalism and the Rule of Law
Federalism
Democracy
Protection of Minorities

Reference re Secession of Quebec

[1998] 2 SCR 217, 161 DLR (4th) 385 CB 11
Question

Can Quebec’s legislature unilaterally separate under the laws of Canada?
Can Quebec’s legislature unilaterally separate under international law?
In the case of a conflict, which takes precedence?

Reasons

Secession would unilaterally alter the bargain made at Confederation, so there is a duty to negotiate
Duty drawn from unwritten constitutional principles
Federalism
Democracy
Constitutionalism and the Rule of Law
Protection of Minorities
The Court cannot provide a definitive formula for dealing with a yes vote because many of the issues are beyond its institutional competence to work out some matters (ex. debt, boundaries)

Holding
No to first two question, unnecessary to answer third. All parties have a duty to negotiate.

Constitutionalism and the Rule of Law

Constitutionalism “requires all government action comply with the Constitution” (Secession Reference)
Safeguards fundamental human rights and individual freedoms
Ensures minorities can maintain and promote their identities
Allocates power among different levels of government (one majority isn’t more important than the others)
Foundation of all lawful government power
Rule of Law (Secession Reference, CB 22-3)
“Law issupreme over the acts of both government and private persons … one law for all”
Must maintain an order of positive laws (Manitoba Language Rights Reference)
“Relationship between the state and the individual must be regulated by law” (Roncarelli)
Also contained in the Rule of Law (Fuller) – generality of laws; requirement of promulgation (laws must be publicized); prospective application of legislation (cannot be retroactive); intelligibility; avoidance of contradiction; constraints of possibility; relative stability through time; interpretive congruence
Court will not overrule the legislature based on the rule of law (Imperial Tobacco, Christie)
“Protection from legislation that some might view as unjust or unfair properly lies not in the amorphous underlying principles of our Constitution, but in its text and the ballot box” (Imperial Tobacco)
Rule of Law cannot overrule legislation based on its content
(Referring to three implications of Rule of Law from Secession Reference): “The first principle requires that legislation be applied to all those, including government officials, to whom it, by its terms, applies. The second principle means that legislation must exist. And the third principle, which overlaps somewhat with the first and second, requires that state officials’ actions be legally founded” (Imperial Tobacco, CB 33)
Will overrule the executive based on the rule of law (Roncarelli)
Exercise of executive discretion limited by law
Institutional limits on courts’ use of rule of law (Christie)
Stability – shouldn’t introduce new unwritten constitutional principles lightly to maintain stability of interpretation
Institutional competence (Secession Reference)
Potential adverse consequences (ex in Christie)
Respect for separation of powers

Roncarelli v Duplessis

[1959] SCR 121, 16 DLR (2d) 689  CB 677
Facts

Roncarelli owned a restaurant and helped bail Jehovah’s Witnesses out of jail
Duplessis personally ordered his liquor license be revoked – the Act creating the Commission gives the Commissioner “discretion” in giving or revoking licenses, and requires revoking any license held by a bad citizen
Roncarelli could not sue the Liquor Commissioner so he sued Duplessis personally

Reasons

“no such thing as absolute and untrammelled ‘discretion’” and that “discretion necessarily implies good faith in discharging public duty”
Discretion must be exercised within the bounds of the act – reasons for cancelling a permit should only be those “as are incompatible with the purposes envisaged by the statute”
Roncarelli was exercising an “unchallengeable right totally irrelevant to the sale of liquor” by bailing people out of jail
It was a “gross abuse of legal power”

Holding
In favour of the appellant (Roncarelli). Agencies can only exercise discretion within thereasonable bounds of the statutes that create them. Discretion requires good faith.

British Columbia v Imperial Tobacco Canada Ltd

[2005] 2 SCR 473, 2005 SCC 49, 257 DLR (4th) 193  CB 31
Facts

Health Care Recovery Act allows Province to sue tobacco manufacturers to sue for health care costs associated with smoking
Includes different evidentiary and procedural rules, etc, aimed at the government
Imperial challenged on the grounds it was federal jurisdiction, and that the it contravened judicial independence and the rule of law
Court of Appeal says it is Provincial jurisdiction – falls under “Property and Civil Rights”

Reasons (Major J)

There is no fundamental alteration or interference with the court’s ability to act independently – the court can still render decisions “based solely on the requirement of law and justice”
Acknowledging Imperial’s conception of the constitution would undermine legitimacy of judicial review of legislation for constitutionality
Court does not have the competence or legitimacy to intervene

Holding
Act is intra vires. Rule of Law will not be used to overrule the legislature in this case.

British Columbia (A-G) v Christie

[2007] 1 SCR 873, 2007 SCC 21, 280 DLR (4th) 528 CB 36
Facts

BC imposes 7% tax on legal services to fund legal aid
Lawyer claims it restricts access to justice

Reasons

General access to legal advice is not a right recognized under the ‘rule of law’
Logical result of positing this right would be massive public legal aid mandated by the constitution.
Rule of law is only as described in Manitoba Language Rights

Holding
Law is intra vires. Rule of law will not be used to overrule the legislature.

Reference Re Manitoba Language Rights

[1995] 1 SCR 721
Question

Do the Constitution Act 1867 and the Manitoba Act 1870 require all the laws in Manitoba to be written in French as well as English?

Holding
Yes. All laws not in both languages have no force and effect.
Reasons

Nearly all Manitoba’s laws are only written in English, and those are invalid
The declaration of invalidity will be delayed until the laws can be translated
The rule of law requires a body of positive laws, so an immediate declaration of invalidity would violate the rule of law.

Ratio
Rule of law requires a body of positive laws. The Court cannot allow its decisions to violate the rule of law.

Separation of Powers (s 96)

Appellate Courts

Parliament can establish a “General Court of Appeal” (SCC) and any other tribunals for administering federal laws (Constitution Act 1867, at s 101)
Supreme Court, Provincial Courts of Appeal, Federal Court
JCPC was court of final instance until 1949
No inherent jurisdiction, only that defined by statute

Superior Courts (s 96 Courts)

Courts of inherent jurisdiction (Sobeys)
Judges appointed by the Governor General (s 96)
Judges hold office only “during good behaviour” and can be removed by the Governor General; must retire at 75 (s 95(1)(2))
Salaries paid by Parliament (s 100)

Provincial Courts/Administrative Tribunals

Jurisdiction defined by statute
Cannot impinge on powers assigned to s 96 courts
Cannot broadly assume powers exercised by s 96 courts (McEvoy)
Residential TenanciesTest to determine validity of jurisdiction for inferior courts/administrative tribunals (Re Residential Tenancies Act)

Does the power conform to a power exercised by a s 96Court in 1867
Search is for “broad conformity” to a jurisdiction exercised in a majority of the original four provinces. In case of a tie, refer to the UK in 1867 (Sobeys)
Is it a novel jurisdiction, a “new defining social purpose”? (quote from Lamer CJC’s concurrence inRe Residential Tenancies (NS)).
Labour relations board (John East Iron; Sobeys)
Youth courts (Re Young Offenders Act)
Tenant-landlord relations (Lamer CJC’s concurrence inRe Residential Tenancies (NS)).
Tribunal’s powers intra vires if the power was co-exercised by s 96 courts and inferior courts in 1867 (Re Residential Tenancies (NS)).
If yes, is it a judicial power
Subject matter, not apparatus (Re Residential Tenancies Act)
Private dispute between parties
Applies recognized body of rules
Manner consistent with fairness and impartiality
If yes, does the institutional context make the judicial power secondary to other public policy objectives (i.e. has the institutional setting transformed the power into a non-s 96 power)
Judicial function must be ancillary to the overall scheme (John East Iron)
Judicial function must be “necessarily incidental aspect of the broader social policy goal” (Sobeys)
Only invalid when the primary purpose is the judicial function (Re Residential Tenancies Act)

Judicial review
Inferior courts/administrative tribunals are subject to review by s 96 courts
Privative clauses in the legislation that establishes them can insulate their decisions from judicial review
Desirable because tribunals possess specialized knowledge that courts might not; might use alternative dispute-resolution mechanisms; more streamlined and efficient dispute-resolution mechanism (not bound by rules of civil procedure)
Area of jurisdiction must be subject to review by s 96 courts (Crevier)

Labour Relations Board of Sask. v John East Iron Works Ltd.

[1949] AC 134, [1948] 4 DLR 673 (PC) Cb 511
Issue
Did the Labour Relations Board exercise a judicial power; was it that of a s 96 court?
Reasons

The Board was “a new conception of industrial relations” that did not exist 1867.
Jurisdiction was not necessarily the same as a s 96 court in 1867

Holding
Board is intra vires. Novel jurisdiction from that envisaged for s 96 Courts at Confederation.

Reference re Residential Tenancies Act

[1981] 1 SCR 714, 123 DLR (3d) 554 CB 513
Facts
Ontario Residential Tenancies Act, 1979 creates a Commission to resolve disputes between landlords and tenants, with power to evict, and require specific performance
Issue
Does it contravene s 96
Reasons
Creates a 3 part test to determine if the Commission contravenes s 96

Does the power conform to a power exercised by a s 96Court in 1867
If yes, is it a judicial power
If yes, does the institutional context make the judicial power secondary to other public policy objectives (i.e. has the institutional setting transformed the power into a non-s 96 power)

Holding
The Commission fails at the third step; the impugned provisions are ultra vires

Sobeys Stores v Yeomans and Labour Standards Tribunal (NS)

[1989] 1 SCR 238, 57 DLR (4th) 1 CB 516
Facts
Tribunal orders Sobeys to rehire Yeomans after firing him. Tribunal adjudicates disputes between employers and employees, and can order specific performance. Also exists to inform about standards, etc.
Reasons (Wilson J)
Court applies the Residential Tenancies Test

The search is for “broad conformity” of jurisdiction with s 96 Courts at Confederation. The jurisdiction is that in a majority of the original four provinces. In case of tie, refer to the UK 1867.
Yes, the Tribunal does
It does perform a judicial function.
The judicial function is a “necessarily incidental aspect of the broader social policy goal of providing minimum standards of protection for non-unionized employees.”

Holding
Tribunal does not contravene s 96. The standard for step 1 is that of a majority of the 4 provinces at Confederation. Passes step 3 if the judicial function is incidental to the broader policy objective.

Reference re Amendments to the Residential Tenancies Act (NS)

[1996] 1 SCR 186, 131 DLR (4th) 609  CB 521
Facts
NS establishes a Board to adjudicate disputes between landlords and tenants, with right to appeal to a s 96 Court (similar to previous Residential Tenancies)
Reasons (McLachlin J)
Applies the Residential Tenancies Test

No – Board does not exercise powers that were exclusive to s 96 Courts at Confederation (inferior courts also exercised powers over landlord-tenant disputes)

Lamer CJC in concurrence said the conception of landlord-tenant relations found in the Board was a novel jurisdiction.

Holding
Board does not violate s 96. If impugned powers were exercised by inferior as well as s 96 courts at Confederation, no contravention of s 96.

McEvoy v A-G of New Brunswick and A-G of Canada

[1983] 1 SCR 704, 148 DLR (3d) 25 CB 527
Facts

Parliament and New Brunswick want to create a unified court for all criminal matters in NB, that would combine Superior Courts with provincial courts
Gives judges appointed by the Lt-Gov-in-Council exclusive jurisdiction to try all indictable offences

Reasons

Fails all three parts of the Residential Tenancies Test
Would completely obliterate s 96 Courts, and these cannot have less importance in criminal than in civil law

Holding
The power to merge the courts is ultra vires; the courts contravene s 96.

Reference re Young Offenders Act (PEI)

[1991] 1 S.C.R. 252
Facts
PEI established a unified court for dealing with young offenders
Reasons
Novel jurisdiction – the rehabilitative aspect and the conceptualization of youth courts is so different from criminal justice in 1867 that it is a novel jurisdiction.
Holding
Act does not violate s 96 because of part 1 of the Residential Tenancies test. Novel jurisdiction.

Crevier v Quebec (A-G)

[1981] 2 SCR 220, 127 DLR (3d) 1 CB 536
Facts
The privative clause for the Professions Tribunal precludes judicial review of its area of jurisdiction
Holding
Administrative tribunals’area of jurisdiction cannot be insulated from s 96 Court review by a privative clause.

Judicial Independence

Judicial independence an unwritten principle (Re Provincial Court Judges)
Founded in the reference in the preamble of the Constitution Act 1867,
Act states Canada “will have a constitution similar in principle to that of the United Kingdom”
Refers to the Act of Settlement 1701 stating judges serve in good behaviour
Judiciary must be separated from the executive and legislature because it decides the bounds of their authority and how they relate to one another
Applies to all judges, including inferior court judges (Re Provincial Court Judges)
Three components to judicial independence (Re Provincial Court Judges)
Financial security (remuneration is subject to Parliament’s control, but there are limits)
Cannot be a colourable purpose (Beauregard)
SCC suggests impartial commissions to decide judges salaries, and Parliament can only deviate with a good reason (Re Provincial Court Judges)
Net salary cannot decrease (questionable doctrine)(Re Provincial Court Judges; Beauregard)
Cannot be discrimination among judges in pay changes (that would constitute discrimination vis-à-vis other citizens, which is contrary the Charter)(Beauregard)
Parliament has control over pensions as well as salary per s 100 (Beauregard)
Security of tenure (subject to “good behaviour” per s 95)
Institutional independence (courts administer themselves, set their own schedules, etc)

Reference re Provincial Court Judges

[1997] 3 SCR 3, 150 DLR (4th) 577  CB 538
Facts

PEI, AB, MB impose salary reductions on provincial court judges as part of a public service pay cut
Cases invoked s 11(d) of the Charter (right to fair trial by an independent and impartial tribunal)

Holding
Salary cuts are ultra vires.
Reasons

Notwithstanding s 11(d) of the Charter or s 100 of the CA 1867, “judicial independence is at root an unwritten principle” founded in the preamble to the Constitution Act 1867 referring to the Act of Settlement 1701
Judicial independence extends to all courts, provincial courts like s 96 courts.
Executive should turn to an impartial commission to decide judges’ salaries, and can only differ from its recommendations with good reason.
Three determining factors for judicial independence
Financial security
Security of tenure
Institutional independence (can set their own schedules, decide what cases to hear, etc)

Ratio
Provincial court judges are protected by judicial independence like s 96 judges.

Beauregard v Canada

[1986] 2 SCR 56, 30 DLR (4th) 481
Facts
Parliament wanted new judges’ pensions to be based on contributions. This was part of a package that included overall pay increases.
Holding
The contribution-based pensions were intra vires.
Reasons (Dickson CJC)

The rest of the package showed there was no improper motive. Parliament could not change remuneration if there was a hint of “improper or colourable purpose”
The net salary did not decrease.
There was no discrimination vis-à-vis other citizens, or among judges
s 100 also gives Parliament control over pensions

Holding
Changes in judges’ remuneration cannot have an “improper or colourable purpose.”