February 11, 2012 Ian Greene Canadian Constitutional Law

Preliminary Assignments handed in today – Will have them graded by March 24; 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 month’s class? – We went over some of the powerpoint slides quickly. Is there anything you are unclear about from any of the slides? – French for Public Administration:

Chapter 7 Constitutional Law Patrick J. Monahan THE COURTS AND CANADIAN FEDERALISM: FROM WATERTIGHT COMPARTMENTS TO SHARED RESPONSIBILITY (Corey Davidson)

The main point T he division of powers between the federal government and the provinces established in The Constitution Act, 1867 have not stood the test of time. S.91 and S.92 were created during an era of limited government and inter-jurisdictional involvement. Governments soon were called upon to act in new areas including economic regulation and social policy (the birth of the welfare state during the 1930s) The Canadian Courts have played a major role in the evolution of Canadian Federalism (Sir John A. Macdonald got it wrong!)

COMMENTARY The flaws of the JCPC “Watertight Compartments” view Vague language: – Peace, Order and Good Government – National Emergency The Pith and Substance Doctrine and the Aspect Doctrine Rowell-Sirois Commission Fiscal Federal / Provincial / Municipal realities

Questions 1. Is there sufficient merit to develop a new Federal- Provincial collaborative framework? 2. Given fiscal realities, is it feasible for Canadian orders of government to maintain their present level of involvement in our daily lives?

Leading Division of Powers decisions (2) The Court and the Constitution: Leading Cases -Case 1, Citizens Insurance Co. v. Parsons (fed/prov powers over business, 1881) Pooja Sihra -Case 2, Russell v. The Queen (fed/prov powers over alcohol, 1882) Ling Hu

Case 4: Local Prohibition Case, 1896 (Ian Greene) Impugned: Ont’s Local Prohibition Act (1890) – Townships, towns, villages (& cities) – Appeal from SCC reference re validity of Ont Local Proh. Act Lord Watson Feds ( under POGG) can trench on s.92 only if incidental to a legitimate fed purpose; otherwise, all of s.92 would fall under s. 91. – s.94 issue (power to unify common law in anglophone provs): meaningless if POGG interpreted broadly. Ontario argued that legis. falls under 92(8): (municipalities). Watson: not a convincing argument Pith & substance: vice of intemperance at local level 92(16): (local) yes. 92(13): no; the law prohibits rather than regulates if conflict: fed. law is paramount conflict of laws: no conflict if strictest obeyed “aspect” (or double aspect) doctrine: a legislative subject- matter can fall under s. 91 for one purpose, and s. 92 for another. National dimension or national concern doctrine of POGG hinted at: a subject matter can become a matter of national concern and then feds can regulate under POGG.

Case 6 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) Anna Yusa

Treaty-Making Cases (prelude to Case 9): Ian Greene Treaty-signing power, and treaty- implementation power, are two different powers. The feds had them both until 1926, under S. 132 of the BNA Act. In 1926, Canada became equal to Great Britain in handling foreign affairs (Balfour Declaration, later confirmed by Statute of Westminster, 1931), and so S. 132 became obsolete. Aeronautics Case (1932) Canada was implementing a British Empire Treaty, but federal gov't has the power to implement a treaty on aeronautics under several heads of S. 91, such as defence, post office. Radio Case (1932) Section 132 is now obsolete. Therefore, the treaty-making and treaty- implementation powers are new, and fall under POGG.

Case 9, AG Canada v. AG Ontario, Labour Conventions Case (restriction of federal power over international affairs,1937) Ian Greene – Lord Atkin - wrote decision – Distinguished Aeronautics and Radio cases. He said that the Radio case decided that power to regulate radio transmissions is new, and therefore falls under POGG. (Is that what you think was decided?) The treaty-signing power falls to the feds under POGG, but the treaty- implementation power depends on the subject-matter of the treaty. Matters that fall under S. 92 can only be implemented by the provinces. Extraterritoriality – Federal – Provincial Treaty-making powers – Head of states – Intergovernmental – Exchange of notes

Cases 12 & 13 Case 12, AG Manitoba v. Manitoba Egg & Poultry Assoc (Chicken & Egg Reference; battle over whether feds or provinces control marketing boards, 1971): Dave Moffat Case 13, Reference re Anti-Inflation Act (first case in which SCC admitted social science evidence - from economists, 1976): Junior Higgins

Monahan Chapter 8 -Branches of POGG: Emergency: Developed by Viscount Haldane on JCPC; Haldane claimed it was the only interpretation of POGG; later overruled by JCPC. In Anti-inflation, the court expanded on the emergency doctrine – included “crisis.” The federal Emergencies Act would be valid federal legislation under the emergency branch. A true emergency gives the federal government the right to trench on provincial jurisdiction for a temporary period – until the emergency is over. Residual power: weakened in late 1800s and early 1900s by JCPC because of its expansive interpretation of 92(13). However, the provinces are limited to controlling matters “within the province,” so matters falling outside of provincial boundaries are likely to fall under the residual power (eg. Canadian land or water that is not within a province), like the continental shelf, the federal Official Languages Act. The residual branch is very narrow.

Monahan Chapter 9: Trade and Commerce (91-2) Parsons created 2 categories of T&C & interpreted them narrowly. Since 1949 SCC has begun to expand these categories. International and Interprovincial T&C – Feds can regulate any matter that is clearly international or interprovincial, but cannot interfere with local trade and provincial regulations over local business. Feds can establish a standard for “Canada Fancy No. 1 apples” and “light beer, if sold interprovincially or internationally, but the legislation does not apply to products manufactured and sold within one province. – JCPC almost never let fed regulations incidentally affect local production & sale. However, in 1993 federal legislation creating safety standards for vehicles sold interprovincially, and which applied optionally to vehicles sold within a province, could validly enforce federal regulations even for vehicles sold provincially if the vendor opted in to the scheme. General Trade and Commerce: After Parsons, little valid use of power until 1980s (1937: feds allowed to approve trade marks). Then SCC approved federal use of General T&C power if the legislation truly regulated trade in general, and the regulatory scheme was effective and comprehensive.

Trade treaties & Economic Union Thanks to Labour Conventions decision, feds cannot enforce international treaties that fall within provincial jurisdiction. However, international trade agreements are concerned with tariffs (fed power) & international trade, so if carefully crafted (eg FTA & NAFTA) are valid. Economic union: 2 cases in 1990s concluded that mutual recognition of court judgments across Canada “is inherent in a federation.” S. 121 states that all goods shall be “admitted free” between provinces. Courts now seem disposed to strike down provincial laws that prevent economic integration, and to support federal legislation that prohibits such barriers.

Suggested Readings (cont’d) Monahan, Constitutional Law, Chapter 10: Melody Ng Monahan, Constitutional Law, Chapter 11: Judy D’Souza

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 (Ian Greene) Monahan, Constitutional Law, Part Five, – Royal Proclamation of 1763: aboriginal lands recognized and lands for settlers would need to be purchased by British government. (One of the grievances of the 13 colonies that rebelled a few years later) – Treaties were signed with some native bands. However, the treaties were often treated by courts as “international law,” not recognized by courts unless enacted into domestic (federal or provincial) law. Thus, many treaty rights were abrogated or ignored. – 1973 in Calder case: SCC for the first time recognized some aboriginal rights at least to the use of traditional lands where treaties had not been signed. – Marshall case (1999): SCC accepted evidence of the aboriginal understanding of a treaty, rather than relying simply on the official British/Canadian interpretation. – 91(24): federal jurisdiction over “Indians, and lands reserved for the Indians.” – Provincial legislation applies on Indian reserves unless federal legislation supersedes it. This includes health, education, and social welfare legislation, unless there is a federal substitute.

Roncarelli v. Duplessis, 1959 (Ian Greene) Roncarelli posted bail for Jehovah’s Witnesses charged with distributing literature without a permit (which they would never get). Roncarelli owned a restaurant in Montreal. Premier Duplessis cancelled his restaurant liquor license, realizing that any restaurant in Montreal without a liquor license would go bankrupt. Roncarelli sued Duplessis for violation of rule of law (Frank Scott represented Ron.), and won. Duplessis (even though the Premier) was found by Supreme Court to have abused his power in violation of the rule of law. Roncarelli had not violated any of the conditions of having a liquor license. The law was being applied arbitrarily. Quebec government then enacted legislation that meant Roncarelli would lose his liquor license again; by then he had gone bankrupt. The case demonstrates how the application of the rule of law by courts can protect human rights. It also demonstrates that enforcement of human rights through the courts is sometimes not timely.