February 9, 2013 Ian Greene Canadian Constitutional Law

Preliminary Assignments handed in today – Will have them graded by March 9; if sooner will send you individual comments. Please send as an unprotected Word document by . 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. Did you succeed in spreading out the readings over a month? 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: will be offered to the students who signed up; dates TBA

Civil Liberty Cases prior to Can Bill of Rts B.C.: disc leg against Orientals – 1899: JCPC stuck down law restricting employment of Orientals as ultra vires prov. Jurisdiction – 1902: JCPC upheld denial of vote to Orientals - leg sup Private suits by Blacks against pte disc: some succeeded, most didn’t because cts emphasized private right to contract Sask: disc leg ag Orientals: upheld by SCC, 1914 “Persons” case: 1930 Alberta Press Case (1938) – impugned: package of Social Credit legislation: unanimously struck down – “Duff doctrine”: because Can. const is “similar in principle” to that of U.K., courts can strike down legislation violating trad. human rights. Also, Canada is a democracy: H of C is representative. “Free public discussion … is the breath of life for parliamentary institutions”

Civ Liberty Cases prior to Can Bill of Rts (2) Treatment of Japanese Canadians during WWII: courts did not intervene “Gouzenko affair” in 1945: secret trials of 26 under War Measures Act without usual procedural protections. Led to Can Civ Liberties Association Duplessis era: SCC used division of powers to protect human rights – Saumur, 1953: SCC struck down Quebec City bylaw about littering, but aimed at Jehovah’s Witnesses – Switzman v. Elbling, 1957: SCC struck down Padlock Law because it trenched on Parl’s crim law jurisdiction

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 Roncarelli), and won. Duplessis (even though the Premier) was found by Supreme Court to have abused his power in violation of the rule of law. (Remember Dicey’s definition of rule of law & abuse of power.) Roncarelli had not violated any of the conditions of having a liquor license. The law was being applied arbitrarily. Quebec Union Nationale government then enacted legislation that meant Roncarelli would lose his liquor license again; by then he had gone bankrupt. “Quiet revolution” began in 1960 with defeat of Union Nationale. The case demonstrates how the application of the rule of law by courts can protect human rights (Dicey). It also demonstrates that enforcement of human rights through the courts is sometimes not timely.

Canadian Bill of Rights Spearheaded by PM John Diefenbaker, and enacted in 1960 S. 1: rights to life, liberty, sec of person, enjoyment of property, equality before law, freedom of religion, speech, assembly, association and press have existed and continue to exist without discrimination by reason of race, national origin, colour, religion or sex S. 2: lists traditional common law legal rights: habeas corpus, no arbitrary detention or imprisonment, no cruel or unusual punishment, no arrest without lawful reason, right to retain lawyer without delay, right not to be forced to incriminate self, innocent until proven guilty, ind and imp tribunal, reasonable bail, interpreter. Right to a fair hearing in accord with fundamental justice to determine rights and obligations. “notwithstanding clause”

Canadian Bill of Rights (2) Robertson & Rosetanni v. the Queen (1963) – impugned: fed. Lord’s Day Act – Ritchie (for majority): Freedom of religion “has existed;” therefore no violation – Fr of Rel means an absence of disabilities, but govt’s can promote religious practices – Although Act as a religious purpose, the effect is purely secular – Cartwright dissented: both purpose & effect of Act compel, under penal sanction, observance of a particular religious holy day – Courts can strike down laws under Bill of Rights; otherwise the “notwithstanding” clause would not be necessary

Canadian Bill of Rights (3) Drybones (1970) – impugned: section of Indian Act that made it an offence for an Indian to be intoxicated off a reservation. No reservations in NWT. – Drybones claimed equality before the law violated – Ritchie (for majority): Where it is “an offence…on account of race…to do something which all Canadians who are not members of that race may do…” there is a violation of equality. – Ritchie adopts Cartwright’s reasoning from Rosetanni that notwithstanding clause means Bill of Rights is more than a rule of construction. – Cartwright dissented. Said he’d changed his mind since Rosetanni. It would be dangerous for the courts to usurp legislature’s role by deciding what statutes violate Bill of Rights.

Canadian Bill of Rights (4) Lavell & Bedard (1974) – impugned: part of Indian Act that states that if an Indian man marries a non-Indian, he retains status and his children inherit it, but if an Indian woman marries a non-Indian, she forfeits her status, as do her children. – Ritchie for majority (5-4): equality before the law, according to Dicey, means equality in the administration of the law. – If all Indian women are treated equally, there’s no necessary discrimination. (Indian women aren’t compelled by law to marry non-Indians). Bliss (1979): – impugned: part of Un Ins Act that stipulated longer qualifying period for work absence due to pregnancy. SCC: no discrimination, as the provision applies to everyone.

Canadian Bill of Rights (5) Oil, Chem and Atomic Workers case (1963): SCC says it’s OK for BC gov’t to prohibit union political contributions if received from check-off. 1969: SCC upholds Alberta discriminatory legislation against Hutterites Dupond (1978): SCC upholds a Montreal by-law that allowed Council to ban all demonstrations for 30-day periods. – Beetz: Demonstrations are not “speech in action,” therefore no violation of freedom of speech – Beetz dismissed the Duff Doctrine – Laskin: strong dissent SCC’s record under Bill of Rights led to support for idea of a constitutional Charter of Rights

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

Leading Division of Powers decisions (2) Put a bookmark in p. 553 Russell so you can remind yourself of the content of the sections we will refer to. The Court and the Constitution: Leading Cases -Case 1, Citizens Insurance Co. v. Parsons (fed/prov powers over business, 1881) Nicole Charles -Case 2, Russell v. The Queen (fed/prov powers over alcohol, 1882) Aydeen Hossni

Case 4: Local Prohibition Case, 1896 (Melissa Miranda) Case 6: Toronto Electric Commissioners v. Snider (Jennifer Sevos)

Treaty-Making Cases (prelude to Case 9) 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. Extraterritoriality – Federal – Provincial Treaty-making powers – Head of states – Intergovernmental – Exchange of notes

Case 9 AG Canada v. AG Ontario, Labour Conventions Case (restriction of federal power over international affairs, 1937): Danielle Thiboau See Danielle’s powerpoint as a separate file

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): Marian Abs- Eskharn Case 13, Reference re Anti-Inflation Act (first case in which SCC admitted social science evidence - from economists, 1976): Ezra Isaacson

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 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.

Monahan, Chapter 10: Property & Civil Rights (92-13) within provinces During JCPC era, 92(13), not POGG, was the de facto residual clause Federal legislation directly relating to one of the enumerated heads of power in S. 91 was upheld, even if it had an incidental effect on provincial powers; other legislation was usually declared ultra vires. The enumerated heads in s. 91 were no longer examples of federal power, but nearly the whole of federal power. Even though the Chicken & Egg reference prevented provinces from using 92(13) to interfere with interprovincial marketing, an interprovincial egg marketing scheme with federal and provincial dovetailing legislation was later held to be constitutional. Earlier decisions (Carnation, 1968) supported provincial regulation of trade within provinces. In later decisions in the ‘70s, the court looked into whether provincial legislation worded to control only trade within a province might be designed to impact interprovincial or international trade; if so the provincial legislation could be struck down. In reaction to these decisions, the provinces demanded that S. 92A be added to the Constitution Act, 1867 – giving provinces more control over production and export of non-renewable natural resources. (Peter Lougheed noted this as one of his most important achievements.) Sometimes provincial laws have an incidental impact outside the province. If the pith and substance of the law is intended to have a purely provincial impact, then the SCC will uphold the law (eg. BC legislation to hold extraprovincial tobacco companies liable for health care costs in B.C. of B.C. residents made sick by tobacco ). In contrast, federal laws can have extraterritorial application if practical. It is a criminal offence to hijack a Canadian plane inside or outside of Canada, for anyone anywhere. Under Canada’s Crimes Against Humanity and War Crimes Act, anyone anywhere in the world who commits a war crime or genocide can be tried in a Canadian court – eg. Jacques Mungwarere charged in Ontario Superior Court May 2012 with genocide and crimes against humanity regarding Rwandan genocide.

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 – defined criminal law. Prohibition of margarine not a criminal law, but a valid law under Trace & Commerce) 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 (relaxed procedures); fed criminal law – prosecution by either summary conviction or indictment (full procedure; harsher sentences). Provinces build jails for offenders sentenced to less than 2 years; feds build penitentiaries for long-term prisoners.) Issue of current govt’s mandatory minimum sentences & cost. – SCC case law separating criminal law from valid provincial law is contradictory and confusing – 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” (not Ontario or Quebec) 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 (Greene – would be a disaster).

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 exemption – “telegraphs”) 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.