Constitutional Law in 60 Minutes

Foundations (1) Constitution is the supreme law of Canada. Any law that conflicts with it is of “no force and effect.” Presumption of Constitutionality.

Foundations (2) Constitution comprised of written and unwritten elements. Unwritten elements include: Federalism Democracy Rule of Law Protection of Minorities

Foundations (3) Rule of Law consists of three principles (B.C. v. Imperial Tobacco: The law is supreme over officials of the government, as well as private individuals (no arbitrary exercise of power); Requires the creation and maintenance of an actual order of positive laws that preserves and embodies the more general principle of normative order Relationship between the state and the individual must be regulated by law

Foundations (4) Living Tree Doctrine (Edwards): The constitution, despite the fact that it cannot be easily amended, is not intended to be a static document. The constitution, with its broad language, is intended to grow and evolve over time. Section 24 of the BNA governed the eligibility of women to serve in the Senate. Only “persons” (i.e. men) were permitted to serve.

Foundations (5) Constitutional Remedies: Nullification: Strike down statute Temporary validity: Strike down but temp. suspend declaration of invalidity Severance: Only strike down part of statute Reading down: Interpret so consistent Constitutional exemption Reading in: Add words to make statute consistent

Threshold Issues (1) “Preliminary litigation” (e.g. occurs before substantive litigation). Essentially discretionary. Examples: Standing Mootness Political Questions Justiciability Leave to Appeal

Threshold Issues (2) Standing (who can bring a case before the court). Two types of standing: Public interest standing Private standing (directly affected) Corporations have standing to challenge Constitution.

Threshold Issues (3) Public Interest standing (Borowski): 1. Serious issue raised as to the invalidity of legislation? 2. Does the plaintiff have a genuine interest in its validity? 3. Another reasonable and effective way to bring the issue forward? No public interest standing when on a BOP it can be shown measure will be subject to attack by a private litigant.

Threshold Issues (4) Mootness: discretion to not hear a case if the facts underlying the dispute have disappeared, or if there is no real factual situation or factual litigants 2 step test (Borowski): 1. Determine whether the requisite, tangible and concrete dispute has disappeared rendering the issues academic. 2. Determine if discretion is appropriate.

Threshold Issues (5) Mootness/Discretion considerations: Whether case will proceed in a proper adversarial context; Strength of the case; A legal issue of general public importance, particularly if it is otherwise evasive of appellate review; A systemic issue related to the administration of justice; Limited resources; Traditional role of court.

Threshold Issues (6) Justiciability: Permits a court to decline to hear a case if there is no real issue of law meritorious or deserving of judicial consideration. This allows the court to decline to hear political questions (although there is a political questions doctrine in the US, there is not in Canada).

Threshold Issues (7) Leave to Appeal Appeals are purely statutory Some are by right, and some are by discretion SCC can grant an appeal if the appeal raises an important issue of law or a matter of public importance (national importance or concern)

Interpretation (1) Pith and Substance (1 st ALWAYS) Consider “dominant characteristics” Contextual interpretation: Preamble Language and organization of act Legislative debates Historical, social or political background Expert evidence Consider Colourability Purpose v. Effect

Interpretation (2) Section 91 (federal) Section 92 (provincial) Ultra vires: outside power Intra vires: within power Double Aspect: Can an issue fall legitimately into 2+ heads of power? P&S of power being exercised must be within a government’s power. Multiplicity of aspects must be real.

Interpretation (3) Necessarily Incidental: As long as the intrusions are secondary and cannot be said to reflect the purpose of the impugned law, then the law may be valid. The secondary effects must merely ensure the achievement of the primary aim. Small intrusions need only be functionally connected; large intrusions must be crucial.

Interpretation (4) N.I. Test (City National Leasing): 1. Does impugned provision intrude on provincial powers, and if so to what extent. If not, provision valid unless the statute itself is invalid. 2. Establish whether the statute (or a severable part of it) is valid. 3. Is impugned provision sufficiently integrated with and vital to the scheme. Consider seriousness of the encroachment

Interpretation (5) Paramountcy (Multiple Access): Test 1. A federal law and a provincial law 2. Both regulate the same activity 3. Both are valid 4. Both apply 5. Incompatible.

Interpretation (6) Paramountcy (Multiple Access): Federal law renders provincial law inoperative, but not invalid, to the extent of the inconsistency. Impossibility of dual compliance is the narrowest definition of conflict. Order of enactment is irrelevant.

Interpretation (7) Interjurisdictional Immunity (CWB): Creates areas of exclusive jurisdiction. If a law violates this doctrine, the entire law is invalid with respect to the other government’s sphere. Law may still apply within enacting government’s sphere.

Interpretation (8) 3 ways in which a law may be attacked as being ultra vires: Validity (Pith & Substance) Operability (Paramountcy) Applicability (Interjurisdictional Immunity)

Delegation (1) Types of delegation: Inter-delegation Legislative Inter-delegation Administrative Inter-delegation Referential Legislation Conditional Legislation

Delegation (2) Legislative Inter-delegation: Unconstitutional (NS Delegation) Involves “sharing” between Parliament and legislatures Administrative Inter-delegation Constitutional (PEI Potato) Involves delegation from one legislative body, through its executive branch, to an administrative body established by another level of government.

Delegation (3) Incorporation by Reference: Involves adopting the laws or rules of another jurisdiction. Parliament retains the power to terminate the powers of the provincial boards at any time May not extend the powers of the enacting government.

Delegation (4) Conditional Legislation: Conditional administrative inter- delegation Ex. a law passed by Parliament that will only come into force upon the proclamation of a province’s Lt. Gov. Conditional legislative inter-delegation Ex. a law passed by Parliament that will only come into force upon the existence of a provincial law.

Trade & Comm. (1) Two branches (91(2)): Interprovincial and export trade. General T&C affecting the Dominion. 92(13) acts as a restraint. Federal government not allowed to regulate within a province. Federal government cannot regulate a specific trade, but can regulate business as a part of a national regulatory scheme.

Trade & Comm. (2) First branch (Interprov./Internat.): Federal government does not have power to legislate locally simply because the product will eventually cross a border (Eastern Terminal). Look to nature of activity. Province cannot attempt to regulate extraprovincial trade. Cannot fix export prices (Canadian Industrial Gas & Oil)

Trade & Comm. (3) Second branch (General Trade): 5 Factors (City National Leasing): Must be part of a general regulatory scheme Must be monitored by a regulatory agency Must be concerned with trade as a whole, as opposed to a particular industry Must be of a nature that provinces would be constitutionally incapable of enacting Scheme would fail if one or more provinces were not included

National Marks (1) A kind of property interest (usually section 92), but Feds have jurisdiction Patents and copyrights clearly federal Trademarks, including unregistered trademarks, are federal (part of General Trade)

Marketing Bds. (1) Provinces regulate intra-provincial trade; Feds regulate extra-provincial trade Marketing boards rely on administrative inter-delegation to succeed

POGG (1) Preamble of Section 91 Doctrines that test the scope of POGG: National Concern Emergency Power Residuary Power Gap Theory

POGG (2) National Concern (C. Zellerbach): Cannot intrude on S. 92 powers. Need not be of a temporary nature. New matters which did not exist at the time of Confederation, which are clearly not a matter of a merely local or private nature, or Provincial matters that have grown to become issues of national concern.

POGG (3) National Concern (C. Zellerbach): Questions to ask: Does the legislation go beyond local or provincial concerns of interest? Concern of the Dominion as a whole? Single, distinct and indivisible? Can provinces deal with the problem on their own? Provincial inability test Desirability of uniformity across the country?

POGG (4) Emergency (Anti-Inflation): Can intrude on S. 92 powers in emergency situations. Must be of a temporary nature. A state of emergency can be declared at the government’s choosing. The court will generally only intervene if there is clear evidence saying there is no emergency.

POGG (5) Emergency (Anti-Inflation): 4 questions to ask: 1. Does the form of the act either support or contradict the contention that this is emergency legislation? 2. Look to the preamble. What are the goals of the legislation? 3. Look to external evidence. Is there a rational basis for identifying the act as a crisis measure? 4. Parliament trying to fortify other areas of federal responsibility (i.e. monetary policy)?

Heads of Power (1) Provincial: 92(10): Local works and undertakings 92(13): Property and Civil Rights 92(15): Imposition of penalties 92(16): Local or private matters

Heads of Power (2) Federal: POGG Interprovincial works and undertakings (e.g. railways, highways, etc.) 91(2): Trade and Commerce 91(15): Banking 91(27): Criminal Law