Part I: Basic Concepts
1. Sources and Nature of the Constitution Hogg, chapter 1, “Sources”
Reference re Secession of Quebec, [1998] 2 S.C.R. 217 1. Sources and Nature of the Constitution
Hogg, chapter 1, “Sources” Definition
Constitutional law is the law prescribing the exercise of power by the organs of a State. It explains which organs can exercise legislative powers (make new laws), executive power (implement new laws) and judicial laws (adjudicating disputes) and what those limitations are. Concerns- Allocation of government powers (legislative, executive, judicial) among central and regional authorities is its basic concern. The protection of civil liberties is also its concern. A constitution has been described as a “mirror reflecting the national soul”.
“Constitutionalism”-
A word used to convey that idea that government is ruled by law. The word “rule of law” is used to convey the same idea. This describes a society in which government officials must act in accordance with the law. Judicial independence is needed. The rule of law applies to Parliament and Legislatures of the Province. Laws in breach of the constitution may be challenged in court.Constitutional Act 1867
In Canada there is no single constitutional document like the US. The British North American Act 1867(changed in 82’ to Constitutional Act 1867) is similar.
BNA created a new Dominion of Canada by uniting three colonies of British North America and by providing the frame work for the admission of all other British North American colonies.
The BNA act established the rules of federalism but did not break from its colonial past. Missing features of this act:
No amending clause in this act & s9 vests authority over Canada by the Queen’s representative the Governor General but the GG’s office is no where created in the Act.
No mention or system of responsible government ( the prime minster, the cabinet)
It did not write the Supreme Court into the act although s 101 gave authority to create it.
Didn’t create a bill of rights but relied on British common law. Constitutional Act 1982
3 Important repairs were made in 1982.1) They were a domestic amending formula was adopted 2) the authority over Canada of the UK Parliament was terminated & 3) the Charter of Rights was adopted.
Still very hard to comprehend
Canada Act 1982-a short statue of the UK Parliament which terminated the authority over Canada.
The Constitutional Act 1982 -does 2 things which are intended to effect some modernization and rationalization of Canada’s constitutional law. 1) the name of the BNA act is changed to the Constitutional Act 1867. 2) for the first time a defining of the phrase “Constitution of Canada’The Constitution of Canada
s52 ( 2) The Constitution of Canada includes: (note: definition of the Constitution of Canada) a) The Canada Act 1982, including this Act;b) the Acts and orders referred to in the schedule; and
c) any amendments to any Act or order referred to in paragraph (a) or (b) Definition- It includes 3 categories of instruments.
a) The Canada Act 1982 (includes the Constitution Act 1982 Schedule B)
b) the Acts- is a list of 30 Acts and orders in the schedule to the Constitutional Act 1982. (includes The Constitution Act 1867, its amendments, the orders in council and statues admitting or creating new provinces and boundaries, and the statue of Westminster.
c) comprises new amendments which may in the fute be made to any of the instruments in the first two categories.
The Charter of Rights is part of the Constitution of Canada because it is Part 1 of the CA act 1982. Health Services Bargaining (2007) where court held that that a statue was invalid as a breach of freedom of association. This makes collective agreement negotiations between a union and an employer now superior to a statue.
“Includes” in s 52(2) indicates that the word is not exhaustive. This was supported by SCC in the New Brunswick Broadcasting Co. v Nova Scotia (1993). The held the unwritten doctrine parliamentary privilege should be included in the s52(2) definition even though no mention of it. The court’s decision means the definition can be expanded. Hogg believes that it is best to leave the courts decisions to unwritten doctrines and written doctrines as exhaustive.
The new schedule omits the pre 1867 instruments which governed Ont and Qbe and The Royal Proclamation of 1763, the Quebec Act 1774, the Constitutional Act of 1791 and the Union Act of 1840.
The Entrenchment clause- 52(3)- This entrenched the Constitutions Act 1982 and makes it only amendable by the proscribed procedure. Imperial statues- Hogg 1.5“Parliamentary Privileges”
The federal Houses of Parliament and the provincial legislative assemblies posses a set of powers and privileges that are “necessary to their capacity to function as legislative bodies.”This was supported by the SCC in New Brunswick Broadcasting Co. v Nova Scotia (1993) where “strangers” were excluded from the Nova Scotia legislative assembly.
Parliamentary Privileges- regarded as a branch of the common law as it is not contained in any statute or other written instrument and it is the courts who determine its existence and extent.
2 peculiar characteristics of Parliamentary Privileges stated by the SCC in New Brunswick Broadcasting Co. v Nova Scotia (1993) 1) It is part of the Constitutions of Canada 2) the powers authorized by parliamentary privilege are not subject to the Charter Rights. Is different from royal prerogatives and other common law powers of government. No difference between in constitutional status between legislative privileged and inherit privileged-both are exempt from the Charter.
Parliamentary Privileges- also includes freedom of speech in debate, including from legal proceedings for things said in debates. It alsoincludes right of members of parliament or legislative assemblies not to testify in court proceedings while Parliament or the Legislature is in Session.
“Prerogative”
The royal prerogative consists of the powers and privileges accorded by the common law to the Crown. The prerogative is a branch of the common law, because it is the decision of the courts which have determined its existence and extent. Case of Proclamations (1611). They are powers and privileges that are unique to the Crown.Conventions
Definition- Conventions are rules of the constitution that are not enforced by the law courts. Because they are not enforced by the law courts, they are best regarded as non-legal rules, but because they regulate the working of the constitution, they are important. They prescribe the way in which legal powers shall be exercised.
A) Convention in Courts – although not enforced by courts, the existence of a convention has occasionally been recognized by the courts. ie- Liverside v Anderson [1942] conventions of responsible government which make a minster accountable to Parliament as a consideration in deciding to give a broad rather than narrow interpretation to a statue conferring power on a Minster. Patriation Reference(1981)- SCC was asked whether there was a convention requiring that the consent of the provinces be obtained before the federal government requested the United Kingdom to enact an amendment to the Consti of Canada. That would affect the provinces. The court was also asked whether there was a legal requirement for provincial consent.
B) Convention in Usage- A convention is a rule. A “usage” is not a rule, but merely a governmental practice which is ordinarily followed, although it is not required as obligatory. ie of Usage- the practice of appointing to the position of Chief Justice of Canada the person who is the senior puisne judge of the SCC at the time of the vacancy. This practice has been departed with the appointment of McLachlin in 2000. A “usage” may develop into a convention. The process of evolution from usage to convention may be called a “custom.” A convention is as unenforceable as a usage. There is a strong moral obligation to follow a convention than a usage and departure from a convention will be criticised more. Patriation Reference ( 1981)- Hogg 1.10(c) the court found the convention required a “substantial degree” of provincial consent but it was not necessary to decide exactly what the requisite degree is.
C) Convention in Agreement- A convention can be established by all relevant officials agreeing to adopt a certain rule of constitutional conduct, then that rule may immediately come to be regarded as obligatory and are usually written down by the officials in precise and authoritative terms. (ie-1930 when the Prime Minster of the self governing dominions of the Commonwealth agreed that the king ( or Queen) would appoint the Governor General of a dominion solely on the advice of the government of the dominion.)
D) Convention and Law –A convention could be transformed into law by being enacted as a statue. A convention would also be transformed into law if it is enforced by the courts. If a court did enforce a convention (and admittedly no court has ever done so), the convention would be transformed into a legal rule. Why do people obey them if not law? The breach of a convention would result in serious political repercussions and eventual changes in law.Conventions regulate the way in which legal powers shall be exercised and bring outdated legal powers into conformity with current notions of government. Their purpose is to “is to ensure that legal framework of the values or principles of the period” Re: Resolution to Amend the Constitution [1981] 1 SCR
E) Convention and Policy- Public School Boards Assn v Alta. [2000} & English Catholic Teachers Case v Ont [2001]- public schoolsupported argued that provincial educational statues violated a constitutional convention. Held- in both cases that no convention restricted the policy or substance of what could be enacted by the provincial Legislature in exercise in its power to make laws in relation to education. Conventions affected only the structure of government power, not the polices to which government power was addressed.
Reference re Secession of Quebec, [1998] 2 S.C.R. 217 Constitutionality of unilateral separation of QuebecHeld- Quebec cannot secedefrom Canada unilaterally; however, a clear vote to secede in a referendum should lead to negotiations between Quebec and the rest of Canada for secession.
Hogg 1.8- The SCC invoked unwritten principles of democracy, federalism, constitutionalism and the protection of minorities to hold that, if a province were to decide in a referendum that it wanted to succeed from Canada, the federal government and other provinces would come under a legal duty to enter into negotiations to accomplish the secessions. This illustrates the active and creative role that the modern Supreme Court has carved out for itself.Main Conventions
I. the governor general only acts on the advice of the Privy Council
II. this Privy Council is not the full Council described in s13 of the Constitution Act 1867 but rather a smaller subset, the Cabinet III. the cabinet chosen by the Prime Minister, and the number of ministers is up to him/her
IV. the primes minster, although no where mentioned in the Constitution Act 1867, is the head of government V. the prime minster and his/her cabinet must have the support of a majority of members in the house of commons VI. the prime minster and his/her cabinet must have seats in the House of Commons or Senate
VII. House of Commons support for Prime Minsters and cabinets is rallied by means of Political parties and
VIII. A failure to command and support of a majority of members in the House of Commons results in the government stepping down and usually the calling of a general election.
Other Conventions
I. The exercise of prerogative powers by the crown
II. The operation of Parliament and the legislatures generally, including political parties and at the national level, the relationship between the elected house of Commons and the appointed Senate
III. The operation of the federal and provincial cabinets, minsters and civil services and the relationship among them
IV. Federalism generally, aside from the formal divisions or powers, including reservation and disallowance of federal and Provincial acts and the role the federally appointed lieutenant governor in provincial matters
V. The role of judges and courts in the governmental process and the independence of judges and courts interference by the executive and legislative branches and
2. Amending Procedures
Constitution Act, 1982, Part V, ss.38-49
Hogg, chapter 4, “Amendment”, and chapter 5.7, “Secession” Reference re Secession of Quebec, [1998] 2 S.C.R. 217 Part V of the Constitution Act, 1982 Hogg 4.2(a)
Part V of the Consti Act 1982 is headed “Procedure for Amending Constitution of Canada.” It provides 5 different amending procedures.
1.
A general amending procedure (s38) for amendments not otherwise provided for(as well as for amendments listed in s42)requiring the assents of the federal Parliament and 2/3 of the provinces representing 50 per cent of the population;2.
A Unanimity procedure (s41), for five defined kinds of amendments, requiring the assents of the federal Parliament and all of the provinces,3.
A some but not all provinces procedure(s43), for amendment of provisions and only those provinces affected;4.
The federal Parliament alone (s44) has power to amend provisions relating to the federal executive and House of Parliament ;and5.
Each Provincial Legislature alone (s45) has power to amend “the constitution of the province”.Amending Procedures : Found in Pt V Const Act 1982.
s38 “General”; s41 “Unanimity”; s43: “Some but not All (provs)”; these must conform to the Charter. Also, s44 Amendments in rel to Houses of Parlt and Exec; s45 Provl Constitutional Amendments
s38 “General” aka “7/50 Rule” – requires resolutions to be passed by: Senate + HofC + 7 of the 10 Provinces which have in total at least 50% of the population.
Use for: residual, when other procedures do not apply as well as those listed in s42. NB no single prov has constitutionally entrenched veto
-39(1): must wait 1 year to proclaim (unless all have consented/dissented) (allows time to consider) -39(2): expires in 3 years if required consent not achieved
Opting out: 38(3) applies to “any amendt that derogates from the legislative powers, proprietary rights or any other rights or privileges of the legislature or government of a province”
prov can pass resolution of dissent = amendt will not take effect in that province Must be done prior to proclamation
38(4): resolution of dissent can be revoked at any time, but 46(2): resolution of assent cannot be revoked after proclamation
s40 compensates provs for opting out, for any transfer of Provl legislative powers to Fedl govt (in relation to education or cultural matters only).Regional Veto Statute: no amendt can be authorized unless it has first been considered by a majority of the provinces that includes: Ont, Que, BC, 2+ Atlantic Provs rep min 50% pop, 2+ Prairie Provs rep min 50% pop. Applies to amendments that: do not allow for opting out, and must otherwise follow the general 7/50 procedure. Does not apply to : s41(unanimity) or s43 (some but not all) amendments.
S41 “Unanimity Rule” – used for matters of national significance which should not be altered over the objection of even one province. NB s39 time limits do not apply.
S43 “Some but not all” Provision – used for language usage within a province, altering provl bopundaries. Note: protection of minorities is afforded by the fact that it also requires resolutions of the Senate and HofC (ie Fedl level approval) as well as the affected provinces Hogan v Newfdlnd (2000).
s44. The Unilateral Federal Formula and covers amendments to the “Constitution of Canada” in relation to the federal executive, or Senate and the House of Commons- provided that the amendments do not fall within the category of amendments caught by the General and Unanimity Formula.
S45 Provl Legisl Alone – laws amending constitution of prov (ie those that bear “on the operation of an organ of govt of the province” – SCC). Note does not include: Constl guarantee of language rights (per SCC in AG Quebec v Blaikie, now explicit in s45). Also: OPSEU v Ontario [1987]: Profound constitl upheaval by the introduction of political institutions foreign to and incompatible with the Canadian System.Future Amendments
French Canadian Nationalism: 1982 amendments reduced power of Que Natl Assembly, Que was only prov that did not agree with them. Meech Lake Accord 1987 – to appease Que, but fell short of ratification by 2 provs. Charlottetown Accord 1992 rejected in National Referendum. Quebec then held 2nd ref 1995. Defeated by only 49.4% – 50.6%.
Western Regionalism: Bulk of Canada’s pop is in Que + On. So Fedl policies favour manuf industry and consumers of central Can. West relies on prod of wood, oil, gas, metals. Response: 1. to increase Provl govt power which the West can more easily control and decr Fedl power (per 1982 amendments), and 2. Make central institutions more responsive to regional concerns.
Aboriginbal Peoples Demands: entrenchment of traditional rights. S35: guarantees existing aboriginal and treaty rights. S37 commits to further discussions. They also seek: entrenchment of explicit right t self govt, and to participate in constl amendmt process where aboriginal rights may be affected.(Charlottetown Accord would have done so but was defeated).
Entrenchment of Charter Rights: note override provision was inserted to obtain agreement. Note also Quebec never agreed with the Charter yet still legally binding on the province.
Division of Powers: Reducing Fedl and incr Provl power easiest way to address French Candian and Western Canadian grievances. 1982 amendmts incr provl power over natural resources. On the other hand: Enlargement of certain Fedl powers may facilitate effective nationaleconomic policies, Fedl power is lacking or only avail in emergencies with respect to: foreign ownership, securities regulation, wage and price controls. Another issue is extent to which Provs differ in size and wealth. Changes in division of powers very diffic to achieve.
Central Institutions: “Intrastate Federalism” = constl change though better representation so Fedl power can be increased. “InterstateFederalism”= decentralisation of powers. Suggestion: have triple E Senate (ie equal no. of reps from each prov). Within SCC would require Provl role in appointing judges.
Criticism of amending procedures: Problematic to retain agreement throughout 1 yr ratification period. Proposals lapse in3 year period, or are defeated by changes in govt during that time – too long. Agreement bw Ministers turns into bargaining rather than rue assessment on merits of proposal..
Secession: It has not been stated by the judiciary or by statute but no provision in the Const allows for secession –unilateral secession not possible. Re Secession of Quebec [1998]: Court asked whether Quebec could secede unilaterally. Secession cannot be undertaken in defiance of terms of the Constitution. So secession would require const’l amendmt in accordance with its procedures (but did not specify which one would apply). Note SCC also stated: a clear majority on a clear question of law put to referendum in Quebec, would confer legitimacy on demands for secession and give rise to an obligation on all parties to Confederation to negotiate the required constitl changes. SCC also pointed out that the political ramifications for failure to negotiate in good faith would include the defaulting govt’s legitimacy in the eyes of the international community would be undermined. ... Principle of Effectiveness: If seceding govt achieved effective control of a territory and recognition by international commty the secession although unconstitutional would have to be recognized eventually as a reality by Canada’s own Constl Law.Which amending procedure would apply to secession? Unclear. But not: 43, 44, o 45.
Perhaps 38: covers those amendments not covered by the other procedures. Or 41: most onerous.
3. Federalism and Judicial Review Constitution Act, 1867, ss.91-95 Constitution Act, 1982, s.52 Hogg, chapter 5, “Federalism” Distribution of Government Powers Federalism- Hogg 5.1
Canada is a federal state. ( US and Australia as well)
Unitary vs. Federal state- In a federal governmental power is distributed between a central power (or national or federal authority) and several regional (Provincial or state) authorities so that every individual in the state is subject to the laws of two authorities-central and regional. A unitary state government power is vested in one national authority. There are municipal and or local governments with law making over their territories. These powers given to municipal governments are granted by a national authority and can be taken away, altered or controlled at any time by the national legislature. (Montreal-to Quebec).
Powers tend to shift back and forth over time from national power to regional powers. metaphor often described as “higher level” of power ( federal) with “coordinate” level of power. Does not mean they are legally subordinate. Whether a state is still truly “federal” depends on whether there is still “an area of guaranteed autonomy for each unit of the system”
Federal Principle defined- KC Where defined it as “the method of dividing powers so that the general and regional governments are each, within a sphere co-ordinate and independent” This has been criticized . Other writers define it emphasizing “interdependence”
Differences between Unitary-federal- between and government practices between federal states(like Canada) and “unitary” states ( UK, New Zealand) Distinctive issues concerning the distribution of power, the distribution of executive power and the administration of justice that have to be resolved in federal states but non-existent in the unitary state. Canada is often described as a “confederation” and the process of union which culminated in 1867 is often described as “confederation”
Technically it means that it means that the government is the delegate of the states or provinces; its powers are delegated to it by the states or provinces, who retain the right to resume to the delegated powers if they wish.
Legislative Union
the closest possible union is a “legislative union.”- in which united states or provinces form a new unitary state which incorporates the former units and subjects them to the authority of a single central legislature.Special Status
special status is the term which has been applied to proposals for constitutional change under which one province ( most likely Quebec) would possess larger powers than the other provinces.
Quebec has opted out of some national shared cost programs but these arrangements do not give them any special constitutional powers. In 1995 House of Commons- passes a resolution declaring that the house recognize Quebec as a “distinct society” and would be guided “by
this reality.” Dominion and Provinces
need to be able to describe three things in a federal state
1. the regional authorities ( this is rarely a problem-regions are known as provinces)
2. the central authorities (It’s difficult to find a description for the central authority-the use of the word Dominion has issues and the use of the word Canada causes ambiguities.
3. the nation as a whole Regions
The term “region” has no precise meaning. Reasons for Federalism
the genesis of the federal system in Canada was political compromise between proponents of unity and proponents of diversity. advantages of efficiency and accountability in dividing powers of government for countries with large land mass.
provinces or states are more homogeneous then the nation as a whole will sometime adopt policies that are too innovative or radical to be accepted . This way new legislative programs can be tested. If the program does not work, then the whole nation as a whole has not been harmed. another advantage of federalism is that is that the system operates to preclude an excessive concentration of power and thus as a check against tyranny.
Federalism in Canada
a) The Terms of the Constitution - Indications that the framers planned a strong central government. The Act gives the provinces only enumerated powers to make laws giving the residue of power to the federal Parliament.
Federal Differences US and Australia
the provinces were actually made subordinate to the centre, in violation to the principle that a federal state regions should be coordinate with the center.
1) s90 allows the federal government to disallow provincial statues.
2) by s58 the federal government was given the power to appoint the Lt Governor of each province
3) by s96 the federal government was given the power to appoint judges of the superior, district and county courts of each province. 4) by s93 the federal government was given the power to determine appeals from provincial decisions affecting minority educational rights and was able to enforce a decision on appeal with remedial laws.
5) by s91(29) and 92(10)(c) the federal parliament was given the power unilaterally to bring local works within exclusive federal legislative jurisdiction simply by declaring them to be “for the general advantage of Canada”
Judicial interpretation of the distribution of powers
two figures dominated the course of decisions in Canadian constitutional cases Lord Watson 1880-1899 and Lord Haldane 1911-1928. They both believed strongly in provincial rights and established precedents that elevate the provinces to coordinate status with the
Dominion.
they gave a narrow interpretation to the principle federal powers ( the residual power and the trade and commerce power and wide interpretation to the provincial powers
Federal-provincial financial arrangements
since the second world war there has been a substantial shift in power back to the provinces
the present federal provincial financial arrangements give the Canadian provinces more financial autonomy than enjoyed in the US or Australia.
Disallowance
this power has not been exercised since 1943 Appointment of Lt Governors
federal power to appoint a Lt Govnor is another breach of the federal principle. regularly exercised by federal government
once appoint made then the Lt Govnor is in no sense the agent of the federal government. he/she is obliged by conventions of responsible government to act
The Lt governor does have power under s90 –to withhold the royal assent from a bill enacted by the provincial legislative assembly Appointment of Judges Hogg 5.3(g)
s96 of the Constitution Act 1867- gives the federal power to appoint the judges of the higher provincial courts is exercised by federal cabinets whenever a superior, district or county court judgeship has to be filled.Educational Appeals
s93 of the Constitution Act 1867- gives the federal power to enact remedial laws to correct provincial incursions on minority educational rights.
It has never been exercised and the practice has become obsolete. Declaratory Power
s92(10)(c) Parliament’s power to bring local work within federal jurisdiction by declaring it to be “for the general advantage of Canada” used for railways and sparingly in recent years. Was going to be amended in Charlottetown Accord but since it was defeated it remains unilateral power. Supremacy of the Constitution Hogg 5.4
s52(1) Constitution Act 1982 expressly affirms the supremacy over all other laws of the Constitution of Canada. The Constitution must be “supreme” or binding on and unalterable by, each of the central and regional authorities. If either could change it unilaterally, the supreme authority would lie with in the authority having the power to change the constitution. entrenched- means that the constitution can be amended but it requires a more difficult process
Role of the Courts Hogg 5.5 Development of Judicial Review
The constitution of Canada does not expressly provide the machinery for settling disputes about the distribution of legislative power and there is controversy as to what the framers intended.
s52(1) is the current basis of judicial review in Canada. Limitations of Judicial Review Canada, where legislative powers are distributed between a central legislative power and regional legislative bodies- First function of JR is to enforce the disruption of powers rules (the rules of federalism)
The courts often have to determine whether a particular statue comes within the powers the powers conferred by the constitution on the legislative body enacted the statue- if the statue is judicially determined to be outside the powers conferred upon an enacting body, then the statue is ultra vires and invalid.
Second function-of judicial review is to enforce the Charter restrictions and the other non federal restrictions. Courts have to decide if a statue violates a constitutional prohibition- ie by justifiably abridging freedom of expression-if it does, then it is ultra vires.
Policy making- judges not suited for this, their mandate is to make decisions differs from that of other public officials in that judges are not accountable to any electorate or to any government for their decisions. judges have no power to initiate inquires or research, no staff of investigative researchers and no power to enact a law in substitution for one declared invalid.
often judges may have to make decisions which depend on “a judgement or intuition more subtle than any article major premise. JR permits or requires non elected judges to make a decision of great political significance.
Alternatives to Judicial Review Hogg 5.5(c)
proposals to make tribunals of lawyers and non lawyers so that different interests could be represented
another proposal is to divide the SCC into specialized divisions-a common law division, a civil law division, and a constitutionally law division-each division designed to ensure maximum expertise.
there is much to be said in favour of the present system of judicial review by a court of general appellant jurisdiction no reason why in principle why a federal government should not give a power of succession to its provinces.
The Succession Reference 1998 was a reference by the federal government to the Supreme Court of Canada, in which the Court was asked whether Quebec could secede unilaterally from Canada.
3 Questions put to the Court:
1) What was the position of the under the Consti. of Canada to which the court replied that unilateral secession was not permitted? 2) What was the position under international law, to which the court gave the same answer?
3) Asked-what was the position if the Constitution of Canada and international law were in conflict-they did not have an answer?
court coined the term “effectivity”- when a defacto succession takes place without the required agreement or the required amendment. Such a succession would be unconstitutional. In this case, the constitutional law of Canada would eventually have to recognize this reality. Clarity Act ( created after Succession Reference) Hogg 5.7(a)– so that the political actors, not the courts to determine whether a referendum had created a clear majority on a clear question.
s1 Clarity Act –if a province proposes a referendum on succession , the HoC is to consider the question and determine whether the question is “clear”. Whether clear depends on , HOC depends on “the question would result in a clear result in clear expression of the will of the population of a province on whether the province should cease to be part of Canada and become an independent state. Act states question is unclear if “mere focus to negotiate” or envisages economic /political arrangement with Canada that obscures a direct expression of the will of the population of that province...
s 2 – if question is clear, the Hof C has to determine if the majority is “clear”. The act does not define “clear”.
s3 – the CA recognizes that under the Constitution of Canada, there is no right to unilateral succession, and an amendment would be needed to succeeds from Canada.Succession Act and Clarity act – make it clear that a Constitutional amendment is needed for a succession of a province and set useful rules for consulting Quebec and for the initiation of negotiations leading to the required constitutional amendment However, - they acknowledge that Canada is divisible, and a clearly expressed will to succeed would have to be respected by the rest of the country.
Amendment procedures- not clear which of the five amendment procedures would be the best type. A province cannot rely on s45 amendment procedure. A succession amendment could not be by the federal government alone under s44 or by the “some-but-not all provinces’ of s43. succession amending procedure- Question is could it be done under the general amending procedures of s38 (7-50 formula) or whether it can be done by the unanimity procedure of s41. unilateral succession would be illegal and could be considered a revolution. Questions of legitimacy would arise and questions of continuation or existence of a legal system would apply to.
Co-operative federalism- the essence of this is its a network of relationships between the executives of the central and regional governments. Demands of interdependence of governmental policies, equalization of regional disparities and constitutional adaptation produce co-operative federalism
Eliza’s- The powers of the Provl Legislatures are not granted by Parlt and cannot be taken, altered, or controlled by Parlt.
Provs not legally subordinate to Fedl Govt but if conflict bw Fedl law and Provl law, Fedl Law prevails. With the growth of Central Power the question whether a state is truly still “federal” depends upon: whether there is still “an area of guaranteed autonomy for each unit of the system”.
The “Federal Principle”: Dividing powers so that the general and regional govts are each within a sphere coordinate and independent.
Senate: equally drawn from regions: Quebec, Ontario, Western Provinces, Maritimes 24 Senators each Newfld 6 Senators Yukon,NW Territories, Nunavut 1 Senator each
SCC : also by region – 3 of the 9 judges from Quebec, 3 from Ontario, 2 from the four Western provs and 1 from the four Atlantic provs
Regional Veto statue- incorporates regions into the 7-50 formula ( ordinary statue not a constitutional amendment). It prevents an minister of the crown introducing any resolution authorizing An Amendments in the the house of commons without prior consent of the legislatures of: a) Ontario b) Qube c) BC d) 2 or more of the Atlantic provinces( min 50% of the population) e) two or more of the parie provinces with(min 50% of the population)
Hogg- the regional veto statue gives indirect vetos to the four most populous provinces to BC, ONT, QUE and BC and this compromises the equality of the provinces envisioned in the 7-50 formula.
Subsidiarity- a principle of social organizing where decision affecting individuals should as far as possible be made by the level of government made closest to them.
Hogg- a primary goal of confederation was to preserve considerable autonomy for the four original provinces. As a result , BNA Act 1867 gave provincial legislatures authority over property, common civil rights, common courts, police, municipal bodies, hospitals and education = subsidiarity principle
Another goal of confederation was to provide collective benefits of economic union and greater financial strength and increase defence. As a reset the BNA act 1867 gave federal Parliament authority over customs and excise, interprovincial and international trade and commerce, banking and currency, all forms of taxation and national defence. All consistent with subsidarity principle.
(Not consistent with subsidarity principle)- authority over criminal law, penitentiaries, marriage and divorce Laws that impact people the most directly are mostly provincial.Part II: Distribution of Powers 4. Principles of Interpretation
Hogg, chapter 15, “Judicial Review on Federal Grounds”
Priority Federal vs Charter- Question has no practical significance.
s52 Consti Act 1982-any law contrary to provision of the “Constitution of Canada” is “of no force effect”
Both federal distribution of powers and the Charter are part of the “Constitution of Canada” Hogg believes that logically- federal parliament/provincial legislatures are logically prior to the Charter. When reviewing the validity of a law –ask:
1. Whether the law is within the law making power of the enacting body? 2. secondly, is whether the law is consistent with the Charter of rights?
Hogg -2 arguments why federal/provincial laws are prior to Charter:
1.
Comparing federal/provincial laws with the Charter is supported by s. 32(1) Charter where it uses the phrase “ in respect of all matters within the authority of”.2.
s33- another argument in favour of logical priority of federalism issues over Charter issues is the presences of s33 override. This enables the parliament or a Legislature to over ride most of the provisions in the of Charter by including in a statue a declaration that the statue is to operate notwithstanding the relevant provisions of the Charter. This makes the statue valid despite Charter rights. This applies to both federal and provincial legislatures.Procedure for JR- procedural and evidentray rules are the same for federal grounds and Charter grounds Reasons for JR- s91 and s92 of the Consti Act 1867
s91- lists kinds of laws that are competent to the federal Parliament s92- lists out laws that are competent to provincial Legislatures.
Both sections use terminology giving legislative authority in relation to “matters” coming with ‘classes of subjects”.
Two steps involved in the process of JR1.
First step is to identify the matter (pith and substance or “characterization”) of the challenged law; (Charter- one identifies the “purpose” and “effect” of an impugned statue infringes charter right.) 2. second step is to assign the matter to one of the “classes of subjects”.a) matter- identify the most important characteristic of the challenged law. Courts tend to use concepts that will assist in determining to which head of power the “matter” should be allocated. ie banking federal class-s91(15)
The difficulty is when statues have more than one feature which comes with in provincial head of power with a federal one. What is the more dominant feature of the law?-the dominant feature is the “pith and substance”.
s91& 92 use the phrase “in relation to” so in Bank of Toronto v Lambe (1887)- it was “in relation to “taxation (pith and substance) and merely “affected banking.” The pith and substance doctrine enables one level of government to enact laws with substantial impact on matters outside its jurisdiction.
Singling out- Alberta Tax Reference is read as prohibiting the provincial legislatures from “singling out” banks or other federal undertakings for special treatment. There are cases where provincial laws have been upheld even though the laws singled out a person or class of persons within federal jurisdiction. Normally , if provincial law of general application which is in relation to a provincial matter may validly affect federal matters. Exception- if the effect of the provincial law would impair the status or essential powers of a federally-incorporated company, or affect a vital part of the federally regulated enterprise, then the provincial law-although valid in the generality of its applications, will not apply to the federally-incorporated company or federally regulated enterprise.
Double aspect- Although, it may seem inconsistent with the stipulation in ss91 ss92 that each list of classes of subjects assigned “exclusively”- Hodge v The Queen (1883) held” subjects which in one aspect and for one purpose fall within s92 may in another aspect fall within ss91.”This is known as the double aspect doctrine. It acknowledges that some laws have both a federal/provincial “matter”. Can also have double aspect from the same list.-normally irrelevant. Laws prescribing rules of conduct on the roads have a ‘double aspect” and therefore competent to both Parliament and a Legislature.
Purpose- In R v Big M Drug Mart ( 1985)- The Court acknowledged that if the purpose of the statue had not been religious” but rather the secular goal of enforcing a uniform day of rest from labour” then the Act would have fallen under provincial rather than federal competence. What is the purpose of a statue? A statue ca have a purpose in its function and sometimes a preamble. This is sometimes referred loosely as “intention”. There may be a “mischief which the statute purposes to correct. The legislative history is helpful. Reports of royal commissions, law reform commissions, government policy papers and parliamentary debates are admissible.
Effect- a court will always consider the effect of the statute when determining the “pith and substance” The court will look at how the law changes the rights and liabilities of those who are affected. Alberta Tax Reference Lord Maugham- the court must take into account any public general knowledge of which the Court would take judicial notice, and may in proper case require to be informed evidence as to what the effect of the legislation will be”. Saumur v Quebec ( 1953)- the judges were influenced by the actual use of the by law. They regarded the facts as to the actual use of the by-law as relevant and admissible on the question of classification.
efficacy- reviewing judges may pass judgment on the likely efficiency of the statue but leave the wisdom or policy with legislation . Re Firearms Act [2000]- Parliament is the judge of whether a measure is likely to achieve its intended purpose; efficaciousness is not relevant to the Court’s division of powers analysis.
colourability- the colourability doctrine is invoked when a statue bears the formal trappings of a matter within a jurisdiction but in reality is addressed to a matter outside jurisdiction. Alberta Bank Taxation Reference- although ostensibly designed as a taxation measure, was in reality directed at banking. Re Upper Churchill Water Rights.- The statue made no mention of the power contract or any right outside Newfoundland and thus was “cloaked in the proper constitutional form.” The statue was nevertheless held to be invalid as a colorable attempt to interfere with the power contract. Colourability cases there is a very fine line between adjudication on policy and adjudication on validity. The colourability doctrine applies the maxim that a legislative body cannot do indirectly what it cannot do directly.
criteria of choice- The choice between competing characteristics of the statue, in order to identify the most important one as matter may be nothing less than a choice between validity or invalidity. The hardest cases the choice is not compelled by either nature of the statue or the prior judicial decisions. The choice is inevitably one of policy. The choice must be guided by a concept of federalism. Ask is this the kind of law that should be made by a province or federal government? Simeon- suggests the 3 values of community, efficiency and democracy as criteria that are helpful on appraisal of the allocation of power in a federal system. Room to argue the weight to each one of the values. Where the case is not clear, a choice supporting the legislation is preferred.
presumption of constitutionality- The presumption of constitutionality carries 3 legal consequences.1.
in choosing between competing, plausible characterization of a law, the court should normally choose between competing, plausible characterization of a law Re Firearms Act[2000]2.
where the validity of a law requires a finding of fact ( finding of emergency) the finding of fact need not be proved strictly by the government. It is enough that there be a “rational basis” for the finding.3.
where a law is open to both narrow and wide interpretation and under the wide interpretation the law’s application would extend beyond powers of the enacting legislative body, the court should read down the law so as to confine it those applications that are within the power of the enacting legislative body.These 3 functions have the effect of reducing interference by unelected judges with the affairs of elected legislative. Only “reading down” with exist in Charter cases.
Severance- no matter how complex law is, it is usually one legislative plan. The leading feature of that plan or scheme will be the pith and substance. It is possible that only part of the statue is invalid and the balance of it would be valid if it stood alone. Rule- severance is inappropriate when the remaining good part “ is so inextricably bound up with the part declared invalid that what remains cannot independently survive.”A-G Alta v A-G Can [1947]
presumption against severance. Charter- severance is more common in Charter cases. The same test is applied but it is unlikely that the entire statue is struck down on Charter rights. Only one case where entire statue was struck down- R v Big M Drug Mart (1985)
Reading Down- this doctrine when possible a statue is interpreted as being within the power of the enacting legislative body. This means that general language of the statue which is literally extending beyond provincial or legislative power will be construed more narrowly so as to keep it within the permissible scope of power.
Interjurisdictional Immunity- This does not have a precise meaning.
A law that purports to apply to a matter outside the jurisdiction of the enacting legislative body may be attacked in 3 ways 1. the validity of the law or
2. the applicability of the law 3. the operability of the law.
First, it could be argued that the law is invalid because the “pith and substance” comes with a class of subjects that is outside the jurisdiction of the enacting body. Alberta Bank taxation Reference (1938)
Second, way of attacking is to acknowledge that the law is valid in most of its applications but argue that the law should be interpreted so as not to apply to the matter that is outside the jurisdiction of the enacting body. If this argument succeeds, the law is not held to be invalid, but simply inapplicable to extra-jurisdictional matter. –The technique is “reading down” the law.
Third, way of attacking a law that applies outside the matter outside the jurisdiction of the enacting body is to argue that the law is inoperative through the doctrine of paramountcy. The doctrine states that where their is inconsistency between federal and provincial laws the federal law should prevail. Paramountncy render provincial law inoperative to the extent of the inconsistency.
Under the second argument (above)–
b)Federally-incorporated companies- a valid provincial law may not impair the status or essential powers of a federally incorporated company.
John Deere Plow Co v Wharton [1915]
(c)-Federally regulated undertakings-undertakings engaged in interprovincial or international transportation or communication , which come under federal jurisdiction under the exception to s92(10) are immune from otherwise valid provincial laws which would have “sterilizing” the undertakings
(d)-other federal matters- the doctrine of interjurisdictional immunity also applies outside to fields of transportation and communication.
(e)- rationale of interjurisidictional immunity- the pith and substance doctrine , which allows a provincial law to “affect” a federal matter is applied more often the interjurisidcitional immunity. Provincial laws may validly extend to federal subjects unless laws “bear upon the those subjects in what makes them specifically of federal jurisdiction.” The rule which emerged is- Ordon Estate v Grail [1998] if the provincial law would affect the “basic, minimum and unassailable “ core of the federal subject, then the interjurisdictional immunity doctrine stipulated that the provincial law must be restricted in the applications (read down) to exclude the federal subject. Canadian Western Bank v. Alberta, [2007] 2 S.C.R. 3 If, the provincial law did not affect the core of the federal subject, the pith and substance doctrine stipulated that the provincial law validity applied to the federal subject.
(f) provincial entities- there is no case applying the doctrine of interjurisdictional immunity to federal laws to protect provincially incorporated companies or provincially regulated undertakings. The doctrine should be reciportacted but the weight of the authority seems to be given to a federal head of power.
Second Step- Interpretation of the Constitution
(A)- relevance- once the pith and substance ( matter) of the challenged law has been identified the second stage of the judicial review is to assign it to one of the “classes of head”.
(B)- exclusiveness- each class of subjects are listened in ss91 and ss92 of the Constitution Act 1867. double aspect - Papp v Papp -the pith and substance doctrine occasionally has the same effect.
(C)- ancillary doctrine- The Constitution of Canada does not include an ancillary doctrine (like the US or Australia) in the enumerated heads of power of either Federal Parliament or provincial Legislatures. No such power is needed in Canada. The pith and substance doctrine enables a law that is classified as “in relation to”. The “rational connection test” allows each enumerated head of power to embrace laws that have some impact on matters entrusted to the other level of government and it provides a flexible standard which gives the enacting body considerable leeway to choose the legislative techniques it deems appropriate which was applied in R v Zelensky
( 1978) & Multiple Acces. The impugned provision be “essential’ to the legislative scheme is stricter then the rational connection test found in
Pappv Papp.
Dickson CJ “as serious of the encroachment on provincial powers varies, so does the test required to ensure that an appropriate constitutional balance maintained.”(d)-Concurrency- 3 provisions that confer concernent powers. First s92A(2) –confers on the provincial Legislatures the power to make laws in relation to the export of natural resources. and s92A(3)- is explicit the power to make laws in relation to the export of natural resources, trade and commerce power. Secondly, s94A confers on the federal Parliament the power to make laws in relation to old age pensions and supplementary benefits and the sections acknowledges the existence on concurrent provincial power . Thirdly, s95- confers power on both the federal Parliament and the provincial legislatures concurrent powers over agriculture and immigration. Two doctrines allows substantial area of concerency in Canada. The double aspect doctrine and the second judge made doctrine that leads to concerency is the “pith and substance” doctrine.
(e)- exhaustiveness- the distribution of power between the federal Parliament and the provincial Legislature is exhaustive. exceptions to this doctrine- the framers knew created s92(16)- is generally all matters of a merely local or private nature of the province. The opening words of s91 give the federal Parliament the residuary power to “make laws for the peace, order and good government of Canada...” Any matter which does not come within any of the specific classes of subjects will be provincial if it is merely local or private (s92(16) and will be federal if it has a national dimension (s91, opening words)
(f)- progressive interpretation- this doctrine is one of the means by which the Constitution Act 1867 has been able to adapt to the changes in Canadian society. It stipulates that the language used to describe the classes of subjects is not frozen in time in 1867 so Undertakings connecting the provinces could be telephone service.
Some critics argue against it (orignalism) stating that the courts are forever bound by the “original understanding” This was seen in Same Sex Marriage reference (2004). The SCC emphasized the “living tree” quality of the Constitution. A good example can be seen in Re Employment Insurance Act [2005]- where the evolution of role of women in the labour market and the role of fathers in child care was highlighted. The constitutional language must be “placed in the proper linguistic, philosophical and historical context of the provision.”
(g) unwritten principles- democracy, constitutionalism, the rule of law, the independence of the judiciary, the protection of civil liberties and federalism, are some of the principles. There are a number of cases where the SCC has found an unwritten principle in the Constitution. that is enforceable in precisely the same way as if it were an express term. Manitoba Language Reference (1985)- rule of law Re Remuneration of Judges ( 1997)-judicial independence Succession Reference ( 1998)-democracy, federalism, constitutionalism, and the protection of minorities.
Canadian Western Bank v. Alberta, [2007] 2 S.C.R. 3 Hogg
15.5(a)- This case is an example of laws which have been upheld despite their incidental impact on matters outside the enacting body’s jurisdiction. A provincial law in relation to insurance and banking.
15.8(c)- A majority of the court confirmed that it had indeed changed its mind about the test for interjurisdictional immunity. Binnie and LeBel JJ who wrote the majority opinion, announced that the court was completing the “ the reassessment begun in Irwin Toy
15.8(e)-5. Paramountcy
Hogg, chapter 16, “Paramountcy”
Rothmans, Benson & Hedges Inc. v. Saskatchewan, [2005] 1 S.C.R. 188 Hogg 16.2 Definition of Inconsistency
When are two laws deemed to be inconsistent? Wide definition- is the course of judicial activism in favour of central power. Narrow definition is the course of judicial restraint. Canadian courts have followed the course of restraint.
16.3 Express Contradiction
a) impossibility of dual compliance (express contradiction)- only clear case of inconsistency occurs when one law expressly contradicts the other. Laws that which directly regulate conduct, an express contradiction occurs when it is impossible for a person to obey both laws or “compliance
with one law means breach of another”.- Smith v Queen (1960)
BC v Lafarge Canada (2007)- where agency wanted to work on a port in Vancouver. Needed consent from federal government and provincial government. Held- until the city refuses permit, dual compliance is not ‘impossible here’.
b) frustration of federal purpose-Canadian courts also accept a second case of inconsistency where a provincial law would frustrate a federal law. Where it is possible to comply with both laws but following the provincial law would frustrate the federal one, this is also a case of inconsistency.
Law Society of BC v Mangat (2001)- federal immigration act provided that a party could be represented by a non-lawyer in front of refugee board. The BC legal Profession Act stated that non lawyers were prohibited from practicing law(and appearing before federal tribunals/boards) Compliance with “the federal law would go to contrary to Parliaments purpose to in enacting the federal laws)-they wanted to establish and informal, accessible, and speedy process.
16.4 Negative implication- a) covering the field-
1. Where the federal Parliament has enacted a particular topic, does this preclude a province from enacting a different law on the same topic?
2.
Where the provincial law does not contradict the federal law but adds to it or supplements it, it is the provincial rendered in operative bythe federal law?
SCC does not infer an inconsistency between federal and provincial laws based on an imputation that federal law “covers the field’ or carries a negative implication forbidding supplementary law in the same field. Rio Hotel v NB (1987)
The court will infer an inconsistency where it concludes that a federal law has a purpose that would be frustrated by a provincial law. b) express extension (clauses) of paramountcy –An express covering the field clause would be effective according to Hogg. Example- s88 of the federal Indian Act provides that provincial laws are inapplicable to Indians “to the extent that such laws make a provision for any matter for which provision is made by or under this Act”
16.5 Overlap and duplication
Arguments against duplication of federal and provincial laws can have little weight once overlapping is admitted.
a) Multiple access v McCutcheon (1982)- This case is considered an unequivocal ruling that duplication is not a test of paratmouncy, although two cases to the contrary.
b) Double Criminal Liability- The existence of overlapping/duplicative penal provisions raise the possibility that person may be liable to conviction under both federal law and provincial law for the same conduct.
c) Double Civil liability – double civil liability is also a possibility under overlapping or duplicative federal and provincial laws. The Privy Council has upheld double income taxation saying that federal and provincial taxes “may co-exist and be enforced without cashing”
The SCC has held that no court would award damages to a plaintiff who had already been fully compensated. Short answer is that only express contradiction suffices to invoke paramountcy doctrine.
US and Australia will apply the “covering the field test” . Canadian courts have rejected this test
Rothmans, Benson & Hedges Inc. v. Saskatchewan, [2005] 1 S.C.R. 188
Hogg
16.3(b)- Federal Tobacco Act prohibited the promotion of tobacco products, except as authorization elsewhere in the Act . The act went on to say that “a person may display at retail, a tobacco product” The Saskatchewan Tobacco Control Act banned the display of tobacco products in any premise in which persons under the age of 18 years of age were permitted. Court held: the retailer could comply with both laws , either by refusing to admit persons under the age of 18 or by not displaying the tobacco products . Any federal frustration- Courts said no- because the general purpose of the Tobacco Act (address health problems) and the specific purpose of the permission to display “remained fulfilled”.
Effect of inconsistency- if a federal law is inconsistent with a provincial law the doctrine of federal paratmouncy stipulates that the province law must yield to the federal law.
The most accurate way of describing the effect on the provincial law is to say that it is rendered inoperative to the extent of the inconsistency.
Its misleading to describe the effect of a paramountcy doctrine as rendering a provincial law “inapplicable”-the description is not literally wrong-but it invites confusion with the doctrine of interjurisdictional immunity. This is the limitation on the power of the provincial legislatures to enact laws that extend into core areas of exclusive federal jurisdiction
6. Property and Civil Rights Constitution Act, 1867, s.92(13)
Hogg, chapter 21, “Property and Civil Rights”
s92(13)- confers power on the Provincial Legislature to make laws in regards to “property and civil rights in the province”
Constitutional Act 1867- made changes to definition of property and civil rights. Federal Heads of power in s91 that would otherwise come under within property and civil rights. trade and comm. (s91(2)), banking (s91(15), bills of exchange and promissory notes (91(18), interest s91(19), bankruptcy and insolvency s91(21), patents and invention and discovery (s91(22), copyrights s91(23) and marriage and divorce s91(28) The POGG power in s91 can also deal with matters of property and civil rights
Civil Rights- in s92(13) is used in an older stricter sense. It does not include fundamental civil liberties of belief and expression. My provinces laws impinge on those liberties, but a law whose pitch and substance is the restraint of belief or expression does not come within property and civil rights in the province.
Local and Private matters- the provincial “residuary power” in s92(16) over “all matters of a merely local or private nature in the province” is unimportant because the wide scope “property and civil rights in the province” has left little in residue in local or private matters.
s92(16)- Is a possible alternative to a92(13) rather than an independent source of power. Jurisdiction over highway traffic is provincial but SCC has not confirmed itself to a head of power: suggestions s92(16) or s91(13)
Insurance
Reasons for regulation- insurance is not mentioned in the Constitution but attracted regulation. Governments sought to protect the insured from confusing terms and conditions of insurance policies by requiring inclusion of certain conditions in every policy.
Provincial Power-19th century both level of governments started to regulated insurance. a provincial statue is what brought the firstcase to court. Citizens Insurance Co v Parsons ( 1881) –the Privy Council helped an Ontario statue requiring certain conditions be included into every policy of fire insurance entered in ONT. They held regulation of the terms of contracts came under property and civil rights in the province s91(13) and did not come within trade and commerce s91(2). several attempts by the federal government to regain jurisdiction had failed.
Federal Power – continues to regulate a substantial part of the insurance industry under statues covering British and foreign companies, federally-incorporated companies and on a voluntary basis, provincially-incorporated companies. There has no constitutional attack since 1942. The federal statues that include preambles indicating the powers trade and commerce and aliens and insolvency are relied upon. All the litigation between 1916-1942- the federal power over “insolvency” (s91(21) was never considered as a possible jurisdiction .Business in General
Regulation of business was ordinarily a matter within property and civil rights of the province. There are exceptions. Some industries fall with federal jurisdiction because they are enumerated in s91 navigation and shipping 91(10), banking 91(15), or because they are expected from 92(10) interprovincial or international and communications undertakings. Some industries also fall under the POGG power ie taxation91(3) the criminal laws91(27) The double aspect doctrine also ensures substantial areas of concurrency even where federal power exists.Profession and trades-
Krieger v Law Society of Alberta (2002)- regulation of professions, rules of conduct entry, fall within the province. Labour Relations
(a) Provincial powers- the regulation of labour relations over most of the economy is within provincial competence under property and civil rights in the province. Unemployment Insurance Reference 1937
(b)- Federal – there is still a substantial federal presence in this field. Its jurisdiction over labour relations will extend outside the federal sectors of the economy in times of national emergency. Something like high unemployment, poor growth.
Marketing
Reasons for regulation- it is in the interests of both producers and consumers. Producers want to combine for bargaining power, uniform standards of quality enforced by grading, inspection, and labelling. They sometime sought pooling of proceeds and equalization on returns s so they were not affected by short term rises and falls in the markets.
The interests of the consumers –prices, uniforms standards of quality, enforced inspection and labelling, deceptive marketing practices.
Federal Power- federal regulation in grain and oil has been upheld. It is because these god traveled from province to province or export could be regulated.
Provincial Power-contracts of sale and purchase are prima facie matters within “property and civil rights “(s92(13) No doubt that under s92(13) the provinces have the power to regulate interprovincial trade (not interprovincial trade.) s50 added a new s92A enlarging provincial powers over natural resources. “these apply to non-renewable natural resources and forestry resources.” –it has no application to eggs or other agriculture products. s92A(2)- may also be relevant to production controls in marketing plans.Securities Regulation 21.10
Provincial power- this a matter within the property and civil rights of the province. (there are exceptions federally-incorporated company can be regulated by both provincial and federal.)The question is in each case, whether a the degree of provincial control amounts to a denial of an essential attribute of corporate status.
Federal Power- regulation of securities by federally-incorporated companies and authorizes some degree of regulation of trading those securities. Criminal law can punish deceptive practices. The federal power would not a regulatory regime in licensing of brokers and discretionary powers in administrative agencies.Property
General-the creation of property rights, their transfer, and their general characteristics are within property and civil rights in this province. The law of real and personal y property-landlord –tenant, trusts, wills, succession on intestacy, conveyancing and land use planning are provincial power.
Criminal law can have affect and make it federal jurisdiction. Prohibiting the use of a house to “propagate communism or bolshevism”
Foreign ownership- Morgan v AG PEI- a province can control ownership of land. A statue in PEI stated that no person who is not aresident of the province” could acquire holding of real property of more than a specified size except with the permission of provincial cabinet. If it was aliens instead of non-residents it may have been federal jurisdiction because naturalization and aliens s91(25). Morgan suggests that even if aliens, provincial jurisdiction is ok. Federal Parliament has also asserted jurisdiction over foreign ownership of property in Investment Canada Act which provides screening measures of “non Canadians” and take over bids.
Heritage property- Kitkatla v BC (2002)- protection of heritage or cultural property was within provincial jurisdiction under property and civil rights in the province (s92(13) In this case they wanted to cut down trees. Debt adjustment
Law of contract is mainly within provincial power under property and civil rights in the province. Federal Parliament has ‘ interest’ s91(19) and “bankruptcy and insolvency” s91(21) withdrawing these subjects from provincial power.
Consumer protection-
Irwin Toy v Que [1989]-Much consumer protection law is open to the province under the power over property and civil rights in the province. 92(13) Federal law could just as accurately be described in relation to consumer protection. The term “consumer protection” is too vague to fall under one matter.Extraterritorial competence- s92(13)- confers power over property and civil rights in the province. The words “in the province” make it clear that there is a territorial limitation on the power .
Citizens' Insurance Co. v. Parsons, (1881) 7 A.C. 96 (P.C.) Chatterjee v. Ontario (Attorney General), 2009 SCC 19
7. Trade and Commerce
Constitution Act, 1867, s.91(2), s.92(13), S.92A Hogg, chapter 20, “Trade and Commerce”
General Motors of Canada Ltd. v. City National Leasing, [1989] 1 S.C.R.641
s91(2) Federal Power over trade over regulation of trade and Commerce
s92(13) “Provincial power over “property and civil rights in the province”
the interpretive problem for Canada lay in accommodation of the federal power over the regulation of trade and commerce s91(2) with the provincial power over “property and civil rights in the province”s92(13
despite board language in this clause, it has turned out to be much more limited power then its American cousin due to judicial interpretation. the courts by process of mutual modification have narrowed the two classes of subjects so as to eliminate the overlapping and make each power exclusive.
Parsons Case- it has been accepted that intra-provincial trade and commerce is a matter within provincial power, under “property and civil rights in the province”(s92(13)
Federal trade and commerce power is confined to 1) interprovincial trade or international trade and 2) commerce and “general” commerce in 91(2)Hogg 20.2(b) Interprovincial Provincial or International Trade and Commerce
There is a strong argument that whenever a market for a product is national (or international) in size as opposed to local, there is a strong argument that effective regulation of the market can only be national says Hogg see Caloil v AG Can (1971) Canadian decisions have not gone that far yet like the US.
Cases supporting Hoggs Statement :
egg market in Re Agricultural Products Marketing Act (1978)- federal marketing was upheld.
chicken market in Federation des producteurs v Pelleand (2005) the court upheld a federally imposed quota on each of the provinces without the regard for the destination of the product.Struck Down:
Hogg disagrees with this decision in Dominion Stores v The Queen (1979) which struck down the Canada Agricultural Products Standards Act.Labatt Breweries v AG Can(1979)- another case where the federal trade and commerce power was rejected as a support for federal legislation. General Trade and Commerce