COMPARATIVE CONSTITUTIONAL LAW Class 7 September

WRAP UP: We Compared Canada and US Separation of Powers (Canada: fusion of executive and legislative branches, convention of responsible government) Separation of Powers (Canada: judicial independence in s. 99 of Constitution Act 1867 and s. 11(d) of Constitution Act 1982, unwritten guarantees of judicial independence leading to implied requirement of judicial salary commissions) Separation of Powers (Canada: advisory opinions)

WRAP UP: CANADIAN FEDERALISM Relationship between Canadian federal government and the provinces. Two lists of enumerated powers in s. 91 and s. 92 of Constitution Act As the Canadian constitution was interpreted by the Privy Council (the “wicked stepfathers of confederation”), provincial powers were interpreted very broadly

OVERLAPPING POWERS Do the federal and provincial powers overlap?

OVERLAPPING POWERS Do the federal and provincial powers overlap? E.g. 92(13) provincial power over property and civil rights in the province; 91(2) federal power to regulate trade and commerce; 91(19) interest, 91(21) bankruptcy/insolvency How did Privy Council generally deal with overlap in its case law?

BROAD INTERPRETATION OF PROVINCIAL POWERS Especially s. 92(13): In each Province the Legislature may exclusively make Laws in relation to Matters coming within the Classes of Subjects next hereinafter enumerated; that is to say,... property and civil rights in the province.

DETERMINING WHICH LIST OF POWERS APPLIES TO A PARTICULAR LAW Pith and substance of the law Laws with a double aspect

PARAMOUNTCY OF FEDERAL LAW If there is conflicting federal and state law, federal law prevails. Compare to Article VI

PEACE, ORDER AND GOOD GOVERNMENT Paix, ordre, et bon gouvernement Preamble to Section 91: It shall be lawful for the Queen, by and with the Advice and Consent of the Senate and House of Commons, to make Laws for the Peace, Order, and good Government of Canada, in relation to all Matters not coming within the Classes of Subjects by this Act assigned exclusively to the Legislatures of the Provinces Was this interpreted broadly by the Privy Council? Like the N & P Clause in Art. I § 8?

PEACE, ORDER AND GOOD GOVERNMENT Was section 91 this interpreted broadly by the Privy Council? In general, no Gap-filling (but only over incorporation of companies with non-provincial objects that did not fall w/in s. 92(11) Emergencies PROBLEMATIC LANGUAGE AND STRUCTURE IN sections 91 and 92 Hogg suggests the language is the result of conflicting goals.

Section 132 Constitution Act 1867 The Parliament and Government of Canada shall have all Powers necessary or proper for performing the Obligations of Canada or of any Province thereof, as Part of the British Empire, towards Foreign Countries, arising under Treaties between the Empire and such Foreign Countries.

Labour Conventions [1937] AC 326 (PC) Lord Atkin: while the ship of state now sails on larger ventures and into foreign waters she still retains the watertight compartments which are an essential part of her original structure Effect of this case? (still good law)

F.R. Scott’s critique So long as Canada clung to Empire treaties and no doctrine of ‘watertight compartments’ existed; once she became a nation in her own right, impotence descended.

EMERGENCY FEDERAL POWERS Did the Privy Council take the view that the POGG power of the federal government was broader power during emergencies? What about the Canadian Supreme Court?

National Concern Another branch of POGG recognized by Supreme Court of Canada after For a matter to qualify as a matter of national concern,... It must have a singleness, distinctiveness and indivisibility that clearly distinguishes it from matters of provincial concern and a scale of impact on provincial jurisdiction that is reconciliable with the fundamental distribution of legislative power under the Constitution. EXAMPLES?

Problems of Interpretation Structural: location of Residuary Clause (preamble to s. 91, s. 92(16) Interpretation of Two Lists Interpretation of Charter of Rights (rights are vague, override clause of s. 33, limitations clause of s. 1, state action in s. 32, aboriginal rights in s. 35)

Limitations Clause 1. The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.

Override Clause 33. (1) Parliament or the legislature of a province may expressly declare in an Act of Parliament or of the legislature, as the case may be, that the Act or a provision thereof shall operate notwithstanding a provision included in section 2 or section 7 to 15 of this Charter. (2) An Act or a provision of an Act in respect of which a declaration made under this section is in effect shall have such operation as it would have but for the provision of this Charter referred to in the declaration. (3) A declaration made under subsection (1) shall cease to have effect five years after it comes into force or on such earlier date as may be specified in the declaration. (4) Parliament or the legislature of a province may re-enact a declaration made under subsection (1). (5) Subsection (3) applies in respect of re-enactment made under subsection (4).

State Action 32. (1) This Charter applies (a) to the Parliament and government of Canada in respect of all matters within the authority of Parliament including all matters relating to the Yukon Territory and Northwest Territories; and (b) to the legislatures and governments of each province in respect of all matters within the authority of the legislature of each province. (2) Notwithstanding subsection (1), section 15 shall not have effect until three years after this section comes into force.

Remedies/Enforcement of Charter Rights – Too Much Judicial Activism? 24. (1) Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances. (2) Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute.

Aboriginal Rights 35. (1) The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed. (2) In this Act, "aboriginal peoples of Canada" includes the Indian, Inuit, and Metis peoples of Canada. (3) For greater certainty, in subsection (1) "treaty rights" includes rights that now exist by way of land claims agreements or may be so acquired. (4) Notwithstanding any other provision of this Act, the aboriginal and treaty rights referred to in subsection (1) are guaranteed equally to male and female persons.(17)17