October 29, 2011 Ian Greene Canadian Constitutional Law

Preliminary Assignments handed in – Will have them graded by November 19; if sooner will send you individual comments. Presentations today – In order of presentations on sign-up sheet. After each presentation we’ll have a class discussion and I’ll also raise points I think are important. Questions from last week’s class? – We went over some of the powerpoint slides quickly. Is there anything you are unclear about from any of the slides?

Judicial Decisions on the Division of Powers (mostly S. 91 vs S. 92) Patrick Monahan, Constitutional Law, Chapter 7: Sutha Balasingham The Court and the Constitution: Leading Cases -Case 1, Citizens Insurance Co. v. Parsons (fed/prov powers over business, 1881) Valentyna Kupchak -Case 2, Russell v. The Queen (fed/prov powers over alcohol, 1882) Bobin Mathew

Judicial Decisions on the Division of Powers (2) Case 4, AG of Ontario v. AG Canada (Local Prohibition case (fed/prov powers over alcohol revised, 1896) Beatrice Mloka Case 6, Toronto Electric Commissioners v. Snider (extreme restriction of federal powers: epidemic of drunkenness, and war, might allow federal intervention in provincial affairs! 1925) Marcia Harvey Case 9, AG Canada v. AG Ontario, Labour Conventions Case (restriction of federal power over international affairs,1937) Tina Motavelli

Chicken & Egg Reference (Ian Greene) In 1970, Que gov’t authorized Que egg marketing agency to restrict import of eggs from out of province Ont and Man were suppliers of eggs to Que Que supplied chickens to other provinces; they restricted Quebec chickens Man passed egg marketing legis identical to Quebec’s and referred it to Mn CAp Man legis. struck down; appealed to SCC (What if leg upheld?) – 9 judges on panel: (all agreed ultra vires) – Martland: Pith and substance: interprovincial T&C.

Chicken & Egg (2) Laskin’s first major decision. – Annoyed that case is fabricated. Why? – Obiter since Parsons led to attenuation of literal interp of T&C. – Prov. Marketing legislation OK if producers in other provinces treated the same a local producers – Purpose of this legislation: to control the import of eggs. Therefore it is ultra vires; trenches in fed control over interprovincial T&C Scholarly analysis both of case law and realities of trade in eggs & other goods Not necessary to invoke s. 121

Case 13, Reference re Anti-Inflation Act, 1976 Shamsuddin Ahmed first case in which SCC admitted social science evidence from economists See Mr. Ahmed’s presentation as a separate posting

Suggested Readings Monahan, Constitutional Law, Chapter 8: Neil Shinkfield Monahan, Constitutional Law, Chapter 9: Samantha Joseph Monahan, Constitutional Law, Chapter 10: Ruby Jassal

Monahan, Constitutional Law, Ch 11: Criminal Law (Ian Greene) In contrast to U.S., criminal law is a federal power in Canada (91-27); in U.S. – state law. But in Canada, provinces control enforcement (most police & prosecutions) Case law: a criminal law prohibits with a penalty, and is for a “criminal … public purpose” including “peace, order, security, health, morality.” (margarine ref, 1949) 1993: Tobacco Products Control Act within federal criminal power 1997: Can Environmental Protection act valid criminal law 2000: Federal Firearms Act valid criminal law 1980: Federal regulation of “light beer” not valid criminal law

Monahan, Constitutional Law, Ch 11: Criminal Law (Ian Greene) – slide 2 Provincial power to enact penal laws – S. 92(15) gives provinces the power to impost “punishment by fine, penalty or imprisonment” for enforcing provincial laws. “Quasi-criminal” legislation. (Provincial laws – imprisonment up to 2 years; federal criminal law – up to life. Prov laws – prosecuted by way of summary conviction; fed criminal law – prosecution by either summary conviction or indictment. Provinces build jails for offenders sentenced to less than 2 years; feds build penitentiaries.) – SCC case law separating criminal law from valid provincial law is contradictory and confusion – eg cases about criminal law and municipal bylaws regulating strip joints. – Police functions under the criminal code are provincial jurisdiction under 92(14). RCMP has the power to enforce federal laws other than the criminal law. Eight provinces “rent” the RCMP from the federal gov’t for provincial police services; the RCMP in these provinces is under the control of the provincial Attorney General. But investigation of complaints is a federal responsibility for the RCMP. – SCC has held that the federal government can prosecute drug cases; thus, a confusing array of federal prosecutors, at first appointed for patronage reasons. Monahan claims that the federal government could extend the role of federal prosecutors into criminal cases.

Monahan, Constitutional Law, Ch 12: The Constitution and Transportation: Ian Greene Feds: interprovincial & international transportaion; beacons, buoys, lighthouses, navigation & shipping, ferries outside one province; Sable Island. Criminal power affects motor vehicles, ships and aircraft. Provinces: transportation within the province 92(10): Local works & undertakings provincial EXCEPT for those in (a) and (b), & (c) those declared by the Parliament to be for the general advantage of Canada (“declaratory power” used ~ 500 times up to 25 years ago [grain elevators, nuclear plants]). 1989: SCC ruled that local and provincial telephone companies fall under federal authority. The internet is subject to both federal regulations (92-10 exeption) and provincial regulation (92 -13). POGG: most litigation relates to air travel & related matters Navigation & Shipping (91-10): broad source of power interpreted expansively by courts. (eg. new Canadian boating license) Provinces began to license motor vehicle drivers; feds had no interest. JCPC declared that those who cross provincial borders require a federal license. The feds then delegated to the provincial licensing boards the power to grant interprovincial licenses! That’s why our licenses state Ontario and Canada.

Aboriginal Issues and Federalism Monahan, Constitutional Law, Part Five, : Amina Asalu

The Rule of Law as Protector of Human Rights Roncarelli v. Duplessis (1959), 16 DLR (2d) 689 (SCC): Yana Olshtynskaya