Une constitution: pour qui? Pourquoi? - lsa.mcgill.calsa.mcgill.ca/.../658-poirier_constitutionallaw_Fall2016.docx  · Web viewRe-established a limited form of religious freedom,

PUB2 101 – Droit ConstitutionnelProf. Johanne PoirierSummary Fall 2016

Alexandra Klein

Table of ContentsUne constitution: pour qui? Pourquoi?...........................................................4

Constitution et constitutionnalisme : définitions et notions (Sept 13)......................4Wolves have a Cosntitution: Continuitues in Indigenous Self-Government – Cornell – 2015... .4La Constitution – Portelli – 2011................................................................................................5The Carcross/Tagish First Nation Constitution..........................................................................5Nacho Nyak Dun First Nation....................................................................................................6

Histoire coloniale canadienne: réception, conquête, représentation, diversité, domination, démocratie (Sept 15-20).....................................................................6

Proclamation Royale de 1762...................................................................................................8Acte de Québec, 1774...............................................................................................................8Acte Constitutionnel de 1791....................................................................................................8Acte d’Union, 1840................................................................................................................... 9Traité de Paris........................................................................................................................... 9Loi Relative à la Validité des Lois Coloniales, 1865...................................................................9Statut de Westminster, 1931....................................................................................................9

Le biculturalisme et la « dualité » au Canada (face au multiculturalisme) (Sept 20). .9Canada, Commission royale sur les peuples autochtones, Points saillants du rapport de la Commission royale sur les peuples autochtones : À l’aube d’un rapprochement – Ministre des Approvisionnements et Services Canada – 1996....................................................................10Traité no 7............................................................................................................................... 11Extinguishment of Aboriginal Title in Canada  - McNeil – 2002...............................................11The Constitution of the Iroquois Confederacy – Gerard...........................................................12R c. Sioui, [1990] 1 RCS 10.....................................................................................................12Déclaration de souveraineté d’Atikamekw Nehirowisiw..........................................................13

The Idea of the Common Law Tradition (Sept 22-27).............................................13Rapport Durham, 1839...........................................................................................................15Extraits de discours pré-confédéraux sur la fédération : MacDonald, Dorion et Cartier..........15Commission royale d'enquête sur le bilinguisme et le biculturalisme, « Conceptions divergentes du Canada » - 1967.............................................................................................15Renvoi relatif à la sécession du Québec, [1998] 2 RCS 21......................................................16Renvoi relatif à la sécession du Québec, [1998] 2 RCS 21 para 1-3, 32, 43-60, 49-82.......17Speak White – Lalonde – 1970................................................................................................17Speak What – Micone – 1985..................................................................................................17

Pouvoir constituant, sources du droit constitutionnel, réformes et amendements.............................................................................................18

Sources du droit constitutionnel et hiérarchie des normes : Textes, conventions et principes sous-jacents (Sept 27)..........................................................................18

LC 1867................................................................................................................................... 19LC 1982................................................................................................................................... 19Terms of Union Colombie-Britannique....................................................................................20Terms of Union Terre-Neuve...................................................................................................20Renvoi relatif à la rémunération des juges, [1997] 3 SCR para 82-86, 93-96, 99, 104-10920Renvoi : Droits linguistiques au Manitoba, [1985] 1 RCS 721 para 55-112........................20Renvoi : Résolution pour modifier la Constitution, [1981] 1 RCS 753.....................................21Renvoi sur l’opposition du Québec à une résolution pour modifier la Constitution, [1982] 2 RCS 793.................................................................................................................................. 22

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Amendements constitutionnels (Sept 29).............................................................22LC 1982: art. 38......................................................................................................................23LC 1982: art. 39......................................................................................................................24LC 1982: art. 40......................................................................................................................24LC 1982: art. 41......................................................................................................................24LC 1982: art. 42......................................................................................................................24LC 1982: art. 43......................................................................................................................24LC 1982: art. 44......................................................................................................................24LC 1982: art. 45......................................................................................................................25LC 1982: art. 46......................................................................................................................25LC 1982: art. 47......................................................................................................................25LC 1982: art. 48......................................................................................................................25LC 1982: art. 49......................................................................................................................25Renvoi relatif à la réforme du Sénat, [2014] 1 RSC 704 para 1-3; 13-29; 32-64; 67-84; 91; 95-98; 102-103; 106-107; 110................................................................................................25Accord de Charlottetown – 1993.............................................................................................26Accord du Lac-Meech  - 1987..................................................................................................26Modifications constitutionnelles relatives aux commissions scolaires confessionnelles.........27

Le système parlementaire : pouvoirs législatif et exécutif.............................27La séparation des pouvoirs et le système représentatif (Oct 4-6)..........................27

L’Esprit des lois – Montesquieu – Book XI, Chapter VI : Of the Constitution of England – 1748................................................................................................................................................ 29Legislative-Executive Relations – Cheibub and Limogi – 2011................................................29Renvoi relatif à The Initiative & Referendum Act, [1919] A.C. 935.........................................30

Le pouvoir exécutif (Oct 6-11-13).........................................................................30LC 1867, art. 9........................................................................................................................ 33LC 1867, art. 10......................................................................................................................33LC 1867, art. 11......................................................................................................................33LC 1867, art. 12......................................................................................................................33LC 1867, art. 13......................................................................................................................34LC 1867, art. 14......................................................................................................................34LC 1867, art. 15......................................................................................................................34LC 1867, art. 16......................................................................................................................34LC 1867, art. 58......................................................................................................................34LC 1867, art. 59......................................................................................................................34LC 1867, art. 90......................................................................................................................34Regina v. The Secretary of State for Foreign and Commonwealth Affairs [1982] 2 WLR 641. 35Motard c. Canada 2016 QCCS 588..........................................................................................35AG (Canada) v AG (Ontario) (Labour Conventions Reference), [1937] AC 326 (PC) pp. 1-2, 5-10........................................................................................................................................ 36Le pouvoir exécutif : la monarchie, le premier ministre et les ministres – Massicotte – 2010.37

La primauté du droit et les limites du pouvoir exécutif (Oct 13-18)........................37Magna Carta........................................................................................................................... 39Roncarelli v. Duplessis, [1959] SCR 121.................................................................................39Discussion sur la primauté du droit dans la Renvoi sur la sécession (para 70-78)..................39BC v. Imperial Tobacco [2005] 2 S.C.R. 473, 2005 SCC 49 para 1-14; 25 et 57-71............40

Le pouvoir législatif : le bicameralisme (Oct 18-20)...............................................41Renvoi relatif à la réforme du Sénat, [2014] 1 RSC 704 para 1-5; 13-20; 111-112.............42Entente créant le Conseil de la Fédération (Council of the Federation Founding Agreement) – 2003........................................................................................................................................ 43Federal Second Chambers Compared – Watts – 2010 – Italy..................................................43A Blueprint for a Post-Partisan Senate – Delacourt – 2016......................................................44

La souveraineté parlementaire (Oct 20-25)..........................................................45Renvoi relatif au régime d’assistance publique du Canada [1991] 2 RCS 525 p. 532-534; 546-564; 568-569................................................................................................................... 47Québec (PG) c. Canada (PG), [2015] 1 RCS 693 par 1-4; 15-26; 50-68; 115-134, 147-150; 153-156, 197-200................................................................................................................... 48

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Coughlin c. Ontario (Highway Transport Board), [1968] R.C.S. 569........................................50A.G. Nova Scotia c. A.G. Canada, [1951] R.C.S. 31, pp.33-45 (l’opinion du juge Taschereau est particulièrement claire)...........................................................................................................50Souveraineté parlementaire et armes à feux : le fédéralisme coopératif dans la ligne de mire ? – Poirier – 2015 – p 80-102 (230-252)..........................................................................51La Déclaration canadiennes des droits, S.R.C. 1970, App. III (art. 2)......................................51Charte des droits et libertés de la personne, LRQ, 2008, c C- 12 (art. 52)..............................51

Le pouvoir judiciaire et le contrôle de constitutionnalité...............................51Organisation des tribunaux et indépendance judiciaire (Oct 25)............................51

L’Organisation des tribunaux..................................................................................................52Revoir : Renvoi relatif à la rémunération des juges, [1997] 3 SCR 3 para 1-10, 82-109; 287, ainsi que dissidence de Laforest para 296-325.......................................................................53Comité consultative indépendant sur la nomination des juges de la Cour suprême du Canada................................................................................................................................................ 54

Le contrôle de la constitutionnalité : modalités et légitimité (Oct 25)....................54Loi sur la Cour suprême, L.R.C. 185, S-26, art. 53 (procédure d’avis)....................................56Canada (Procureur general) c. Downtown Eastside Sex Workers United Against Violence Society, [2012] 2 SCR 524......................................................................................................56Revoir : Renvoi relatif à la sécession du Québec, [1998] 2 RCS 217 para. 24-31...............56La limitation du pouvoir par la Constitution : le contrôle de la constitutionnalité – Chagnollaud de Sabouret – 2015.................................................................................................................57

Le fédéralisme............................................................................................57Le fédéralisme : Introduction historique et théorique (Nov 3)................................57

Revoir : Renvoi relatif à la sécession du Québec, [1998] 2 RCS 217 pp 33-48, 55-60........58La répartition des compétences : logique interne, notions générales et exemples de droit comparé (Nov 3).........................................................................................59

Art. 91-95 LC 1867.................................................................................................................. 60Le partage des compétences et les relations intergouvernementales : la situation au Canada – Poirier – 2009....................................................................................................................... 60Hodge c. La Reine, (1883-84) 9 AC 117..................................................................................60Renvoi relatif à la Loi sur l’assurance-emploi (Can.), art. 22 et 23, 2005 CSC 56 extraits sur l’interprétation « évolutive » para 1-16; 34-36; 45-50; 60-62 et 67-68.................................61

Les doctrines interprétatives de la répartition des compétences (Nov 4)...............61Renvoi sur les valeurs mobilières, [2011] 3 RCS 837  résumé and par. 1-10; 36-39; 53-62; 63-67...................................................................................................................................... 61Renvoi devant la Cour d‘appel du Québec relatif au régime coopératif en matière de valeurs mobilières (auditions 8-10 nov 2016, Montréal).....................................................................61Provinces, Lutte contre la corruption et federalism – Gaudreault-Desbiens and Leclair – 2016................................................................................................................................................ 61

Retour sur les Valeurs mobilières… (Nov 8-10).....................................................61Doctrine d’interprétation de la répartition des compétences (Nov 10)...................62

Renvoi relatif à la Loi sur les armes à feu, [2000] 1 RCS 783 résumé and par. 1-8 et 16-61................................................................................................................................................ 62Québec (Procureur général) c. Lacombe, [2010] 2 RCS 453 résumé and para 19, 31-58...63

Doctrine d’interprétation de la répartition des compétences  (Nov 15)..................63Carter c. Canada (PG), 2015 CSC 5 résumé + paras. 42-53...............................................63Québec (PG) c. Canadian Owners and Pilots Association, [2010] 2 RCS 536 résumé and para 25-61.............................................................................................................................. 63Canada (PG) c. PHS Community Services Society, [2011] 3 RCS 134 résumé and para 57-70............................................................................................................................................ 63Rogers c. Châteauguay 2016 CSC 23 résumé and para 57-72...........................................63

Doctrine d’interprétation de la répartition des compétences (Nov 17)...................63Rothmans, Benson & Hedges Inc. c. Saskatchewan [2005] 1 RCS 188 le jugement est court!...................................................................................................................................... 64

Diversité des modèles fédéraux (Nov 22) – Plenary (Poirier)..................................64

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Souveraineté parlementaire et armes à feux : le fédéralisme coopératif dans la ligne de mire – Poirier - 2015........................................................................................................................ 64Introduction (Multinational Federations) – Pinder...................................................................64Federal Principles, Federal Organization – Hueglin and Fenna – 2015....................................64

Paix, ordre et bon gouvernement (POGG) (Nov 24)...............................................64Renvoi : Loi anti-inflation, [1976] 2 RCS 373 ; p. 381 (questions du Renvoi), Partie II (pp. 391-427)........................................................................................................................................ 64R c. Crown Zellerbach Canada ltd., [1988] 1 RCS para 27-44.............................................64

RÉCAPITULATION et préparation à l’examen (Nov 29)...........................................64Les droits fondamentaux.............................................................................65La constitutionnalisation des droits autochtones..........................................65Introduction (sept 14).................................................................................65

How to read references “In the matter of:”—the Executive has asked the Court a question (either the Supreme Court or a Provincial Court

of Appeal depending on the origin) Always read the summary, even if only assigned a few paragraphs of a reference Remember, the summary isn’t written by legal professionals; NEVER cite it You will also find jurisprudence; you can find cases the Court is using, Cases the court is distinguishing itself

from, and cases for the purpose of general info Then, you’ll find the referenced legislation and referenced doctrine

Une constitution: pour qui? Pourquoi?

Constitution et constitutionnalisme   : définitions et notions (Sept 13)

For exam: allowed non-annotated constitution - can underline o Need to have bilingual copyo Peter Hogg text is only Englisho Print from the text she sent us

The Constitution Act, 1867 was called the BNAA from 1867-1982; it originates from the common law tradition For historical reasons, the constitution is more prominent in public/common law as opposed to private/civil law Droit constitutionnel vient du common law du grand britannique Droit privé vs public:

o Private law: interactions between individualso Public law: interactions between the state and individuals o CML (UK): til the beginning of 20th cent, they didn’t think there was a diff because believed

institutions/the state should be held to the same standard as peopleo CVL (Europe): clear from the start the public and private law were separate

Today, there are still distinct tribunals for public and private law, ex France: Cour Cassation – highest court of private law Conseil d’État – highest court of public law Conseil Constitutionnel (Basically, no equiv of SCC or House of Lords (UK))

Key premise of the constitution: the state must follow certain rules relating to its powero A law for everyone

Constitution: o A set of rules that structure political interactions and impose certain limits “règles de gouvernance”o Can be written or un-writteno More than just states can have a constitutiono Generally the set of rules are hierarchizedo Generally a constitution is the supreme law (the hierarchy of norms)

Canadian context4

In Quebec, civil law applies to private law (and sometimes to the State) The Act of Quebec applied common law to public law Today, there’s as much jurisprudence as codified law But, we also have a Constitution, some of which is written The power of disallowance (power of federal executive to override provincial legislative) hasn’t been used for

many years, but still exists in the constitution, bringing up issues of federalism, and checks and balances; Hogg and Brun have different perspectives

References Renvoi/re-reference: executive government can ask the SCC for guidance on a constitutional issue

o The government can win a bit of time to make adjustments, otherwise a law may be invalidatedo References aren’t binding; however, it’s unconceivable that the executive and his legislative assembly

wouldn’t respect SC references o Is there technically a ratio in a reference? Essentially, yes, so we don’t really make a distinction anymoreo (QC gov can also ask the same of its appellate courts (provinces can’t go directly to the SCC))

Wolves have a Cosntitution: Continuitues in Indigenous Self-Government – Cornell – 2015

SUMMARYConstitutionalism as an Indigenous tradition. Colonialism has disrupted and suppressed the constitutional foundations of Indigenous societies. Indigenous societies are now trying to regain self-governance by turning to their historic constitutions for guidance.

KEY POINTS Argues that most Indigenous nations by their own traditions, are constitutionalists Constitution: a set of basic principles and rules by which members of a community cooperate, make decisions,

engage with each other and the world around them, distribute and exercise authority, and set about trying to get things done

o Constitutionalism: the idea that the process of governing is itself governed by a set of known, foundational laws or rules – that government can/should be limited in its powers and that its authority depends on its observing these limitations

o No imposition on its form – an oral constitution can be as powerful as a written one The disruption or suppression of the constitutional foundations of Indigenous societies and their relationships

with the world around them has been a terrible cost of colonialism Indigenous nations are engaged in a sustained effort to regain self-governing power over their lands, communities

face organizational legacies of colonialism (ie: Western impositions of expectations, needs, convenience etc) Discontinuity between the written constitution under which they supposedly govern and the ‘real’ constitution,

unwritten but grounded in customs, norms and traditionso Driven by this, a number of nations are experimenting with alternatives to those structures, with or

without central government sanction turning to the still surviving ‘real’ constitutions, resuscitating past practices, inventing new ones, borrowing ideas from each other and adopting non-Native structures in attempts to find governing systems that can protect what they care about while allowing them to engage with the outside world

A lesson for central gov. is that many Indigenous nations have governance traditions of their own and that Western policies that simply reject all such traditions or insist on Western replacements invite rejection in turn

La Constitution – Portelli – 2011

SUMMARYConstitutions both outline the functions and powers of the state, and limit their power. Constitutions are de facto modified by judges, who interpret them. They can also be modified through informal or formal means. Modification can be as extensive as the adoption of a completely new constitution, the difference is procedural.

KEY POINTS La constitution de l’état a un double sens: elle caractérise le statut jurisdique de l’état, son organization interne, et

elle marque ses limites dans la mesure où l’état doit être soumis au droit, afin de proteger l’individu contre l’arbitraire

Les constitutions écrites, au XVIIIe siècle, remplacaient les constitutions coutumières donc la seule qui reste est celle du Royaume-Uni

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La constitution est modifiée de facto par la practique des actueirs politiques qui imprime aux textes une interpretation souvent inattendue

La revision peut aussi être le résultat d’une procedure de revision formelle – ça peut être souple (lorsqu’aucune règle n’est impose par la constitution) or rigide (lorsque la constitution prévoit des procedures de revision spécifiques)

La distinction entre adoption d’une nouvelle constitution et revision est en grande partie formelle, dans la mesure où la revision peut être totale

The Carcross/Tagish First Nation Constitution

SUMMARYThe constitution of the Carcross/Tagish First Nation.

KEY POINTS The Carcross/Tagish First Nation is mandated to protect the environment, health and wellness, education and

aboriginal rights of our citizens, to continue to preserve and protect our culture, traditions and languages, to protect and develop our natural resources and strengthen our economy and government for our future generations

Outlines citizenship and the rights citizens hold Outlines the government’s functions – governing bodies:

o Elders Council: advisoryo Assembly: main governing bodyo Council: executive brancho Justice Council: admin. of justice

Develop laws based on the custom and traditions of the Carcross/Tagish First Nation

Nacho Nyak Dun First Nation

SUMMARYThe constitution of the Nacho Nyak Dun First Nation.

KEY POINTS Nacho Nyak Dun have primary responsibility for the maintenance of their values and traditions and the well-

being of their people Governing bodies:

o Assembly: government powers and responsibilitieso Council: direction and guidance for admin and operationso Chief: political leadershipo Deputy-chief: Chief’s proxyo Elders Council: advice and assistance to ensure continuity of values/traditionso Youth Council: youth leadershipo Justice System: admin. of justice

Appeal process for all decision or actions of governing bodies Financial records of the First Nation available for review by any citizen Citizenship is within the exclusive jurisdiction of the First Nation, determined according to the constitution

Histoire coloniale canadienne: réception, conquête, représentation, diversité, domination, démocratie (Sept 15-20)

What is a constitution? 1. One framework associates constitutions with the State founding act of a state: we can’t have a state without a

constitution (even an autocratic state will have a constitution)o A manifestation of the social contract

2. That tradition of aboriginal constitutions What do we put in constitutions? (I THINK this here refers to First Nations constitutions)

o Division of territory Some Aboriginal groups mix territorial/extraterritorial provisions (ex: live off-reserve)

sometimes institutions work both on and off territory

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Who has the right to those territories individuals vs communities One of the aboriginal constitutions refers to “government,” “nation,” “clan,” “people,”

“citizens,” and “children” of the communityo Are these all the same people?

We don’t see this sense of community in the Canadian constitutiono In the Charter, some rights are reserved to all, some to citizens, and some to

categories of citizenso Divisions of government powers: who can do whato The process for creating lawso Institutions (legislative, judiciary, executive), their roles (separation of powers) and composition o Rights of specific grounds (ex: political rights and liberties of citizens)o Values, ideals, principles (often in the preamble)

More contemporary constitutions have preambles with strong political aspirationso Constitutional amendment procedures: who can do this, what is needed for it

Constitution écrite ne reflet pas nécessairement les réalités du constitutionAboriginal issues

In Kanawake, they don’t recognize Canadian rights and have their own passports (recognised in some countries); some would like the protections of the Canadian Charter, e.g. women; this needs to be clarified

The status of tripartite agreements between the federal/provincial/aboriginal governments and their status vis-à-vis the constitution is also something to be clarified

Hierarchical norms Often appears in constitutional law – Western states are very hierarchized Descending hierarchy:

o Constitutiono Laws (often legislatures will ask the executive to spell out rules to operationalize laws)o Rules (regulations/ordinances adopted by the executive a lot more rules than laws)o Administrative actso Unclear where jurisprudence/customs fit in

It’s a hierarchical structure the norm cannot conflict with a higher-level norm A hierarchical normative structure corresponds with a positivist vision of law, which provides the state with a

monopoly on rightso Often, tribunals, at their base, are looking to see if laws respect this hierarchy

Constitutional history of Canada Proclamation Royale (1763):

o Formal doc decreed by the king to give the first constitutional semblance to the colonies he’d just won in the 7 year war

o Seen as a fundamental document by Aboriginals because it protects their territory Considered as the Aboriginal Charter It’s not the source of aboriginal rights (aboriginals have rights), but for a long time in Canadian

law, we thought the source was the Crowno A non-elected legislative assembly in each colonyo Imposes English law on the colony

Acte de Québec (1774): 1. Reestablished ‘le droit de Canada’ – the traditional, civilist law of French Canada2. Re-established a limited form of religious freedom, and recognized Roman Catholicism and their to be

elected to the legislative assemblyo Re-established the rights of French Canadians in Quebec, but not on the territories of all Francophones

(Acadia wasn’t affected; common law is practiced there)o Like the Charter for Francophones

Loi Constitutionnel (1791): o Divided the colony into 2: Upper and Lower Canadao Created a bicameral system in both colonies – non-elected assemblies in each province – but one

parliamentary assemblyo No responsible government (the executive doesn’t need the confidence of the legislature)o (L’executif doit avoir la confiance de l’assemblée – gouvernement responsable in 1799(?))

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o Consensus democracy (démocratie consociative): the exercise of power is a negotiation between two groups – as a bipolar system would have been very unstable

Different than a federal democracy, as power was shared between different groups (English/French) not territorially

Both sides opposed each other; the institutions didn’t work – so developed a more functional system:

L’Acte de L’Union (1840): o In the 1830s, the Canadian population wasn’t stable; some were looking to America for a more

democratic system, others wanted to get rid of the monarchy; they wanted responsible government; the Patriotes were in Lower Canada fighting the English

o So: the Act of Union unifies the territory: single colony with two divisions: Canada East & Westo Established a bicameral government in the single colony

Canada East/Canada West; both regions had access to the same number of representatives, although Quebec had a larger population over-representation of English Canadians

This was meant to reduce the political importance of the French Catholic populationo At the beginning, abolished French; the French would assimilateo This was Lord Durham’s recommendation

Colonial Laws Validity Act (1865):o Until 1982, formally, only Westminster could amend the Canadian Constitution

However, there was a type of “auto-censor” that was such that the British never amended the constitution unless there was a request from the Canadian government to do so

The Colonial Laws Validity Act started to formulate this auto-censoro There were elected assemblies in each colony enacting laws; what were the values of those laws in

relation to the UK? This Act sought to clarify this question “An Act of Parliament or any Provision thereof shall in constructing this Act be said to extend to

any Colony when it is made applicable to such Colony by the express Words or necessary Intendment of any Act of Parliament.”

Essentially, British imperial law didn’t apply to colonies unless it was expressively said to or was necessarily intended to

The colonies were still colonies under the British crown, but British laws no longer applied as they previously did

o What is said about hierarchy? British Parliament was still superior, as Britain still had the final word But, in everyday affairs, with few exceptions, Canadian law would be applied

o “Any Colonial Law which is or shall be in any respect repugnant to the Provisions of Any Act of Parliament extending to the Colony to which such Law may relate, or repugnant to any Order or Regulation made under Authority of such Act of Parliament, or having in the Colony the Force and Effect of such Act, shall be read subject to such Act, Order, or Regulation, and shall, to the Extent of such Repugnancy, but not otherwise, be and remain absolutely void and inoperative.”

This was a form of constitutional order; if local laws weren’t consistent with British law, they would be inoperable maintains GB’s supremacy

Traité de Paris 1763

The Treaty of Paris ended the Seven Years’ War between France, Britain and Spain. It marked the end of that phase of European conflict in North America, and created the basis for the modern country of Canada (The Canadian Encyclopedia)

By the terms of the treaty, Britain obtained the French possessions of Ile Royale (Cape Breton Island), Canada (Quebec), and the Great Lakes Basin and the east bank of the Mississippi River. Britain received Florida from Spain (The Canadian Encyclopedia)

Proclamation Royale de 1763

The Royal Proclamation of 1763 was issued by King George III to establish a basis of government administration in the North American territories formally ceded by France to Britain in the Treaty of Paris, 1763, following the Seven Years War (The Canadian Encyclopedia)

It established the constitutional framework for the negotiation of treaties with the Aboriginal inhabitants of large

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sections of Canada. As such, it has been labelled an "Indian Magna Carta" or an "Indian Bill of Rights." (The Canadian Enclyclopedia)

o Designates the territory reserved for Aboriginals and strictly forbids expansion of the territories past where their boundaries lie

Acte de Québec, 1774

The Act enlarged the boundaries of Quebec include Labrador, Ile d'Anticosti and Iles de la Madeleine on the east, and the Aboriginal territory south of the Great Lakes between the Mississippi and Ohio rivers on the west (The Canadian Encyclopedia)

Religious freedom was guaranteed for the colony's Roman Catholic majority, and a simplified Test Oath, which omitted references to religion, enabled them to enter public office conscientiously (The Canadian Encyclopedia)

Some felt it was an attempt to rectify some of the problems created by Royal Proclamation of 1763, which dramatically reduced the size of New France, by creating an untouchable Aboriginal territory out of the vast western interior and promising an elected assembly. Others saw it rather as an attempt to demonstrate greater fairness toward the colony's French Catholics, perhaps with the aim of ensuring their loyalty in the event of troubles with the American colonies (The Canadian Encyclopedia)

For their part, American settlers were enraged when Québec acquired the Aboriginal territory, which they considered to be theirs by right; they regarded the Quebec Act as one of the "Intolerable Acts" which contributed to the outbreak of the American Revolution (The Canadian Encyclopedia)

Acte Constitutionnel de 1791

The Constitutional Act of 1791 was an Act of the British Parliament creating Upper Canada and Lower Canada. Although it was a first step towards Canadian Confederation, its rigid colonial structures also set the stage for rebellion in the two Canadas (The Canadian Encyclopedia)

It enshrined constitutional changes that were part of the reorganization of British North America that took place under the pressure of thousands of Loyalists seeking refuge after the American Revolution (The Canadian Encyclopedia)

Moreover, as women were not specifically excluded by the Act, this enabled women of property to vote in Lower Canada (The Canadian Encyclopedia)

Acte d’Union, 1840

It united the colonies of Upper Canada and Lower Canada under one government, creating the Province of Canada (The Canadian Encyclopedia)

The unification of Upper and Lower Canada was a recommendation of the 1839 Durham Report, after an imperial mission to investigate rebellions in both colonies in 1837. Lord Durham proposed a united province to develop a common commercial system. A combined Canada would also have an overall English-speaking majority, to control the divisive forces Durham saw in French Lower Canada, making it safe to grant the responsible government he also advocated. Britain agreed to union, though not to responsible government (The Canadian Encyclopedia)

The Act's main provisions were the establishment of a single parliament with equal representation from each constituent section – now called Canada East and Canada West; consolidation of debt; a permanent Civil List (The Canadian Encyclopedia)

Loi Relative à la Validité des Lois Coloniales, 1865

Aka Colonial Laws Validity Act, 1865 Act passed by the British parliament in 1865 to remove doubts as to the validity of colonial laws. It laid down that

a colonial law cannot be repugnant to the laws of England, and defined the meaning of "repugnancy." (Marianopolis)

Statut de Westminster, 1931

British law clarifying the powers of Canada's Parliament and those of the other Commonwealth Dominions. It granted these former colonies full legal freedom except in those areas where they chose to remain subordinate to

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Britain (The Canadian Encyclopedia) Yet some limits remained. After consultation between Canada's federal and provincial governments, the repeal,

amendment or alteration of the British North America Acts, 1867–1930 — Canada's Constitution — was specifically excepted from the terms of the statute. The amendment of the Constitution remained exclusively the preserve of the British Parliament until passage of the Constitution Act, 1982 (The Canadian Encyclopedia)

Premières Nations   : Histoire Coloniale et Négociation de Traités (Sept 20) Legal positivism

Legal positivism could refer to many things Often, we compare legal positivism (laws created by humans) to natural law (fundamental laws not created by

humans, but inherent) In this course, legal positivism is conceived as it was by Kelsen (1934), an Austrian constitutionalist

o Law as a system of autonomous, closed, hierarchical norms/rules Norms in conflict with superior norms would be nullified

o The judicial system is “closed” in the sense that it’s separated from other normative systems (e.g. morality)

This isn’t to say that these other normative systems, such as morality, play a part; morality certainly plays a part in the Canadian constitution, but it doesn’t serve to guide it

Note: law isn’t moral (ex: Nazi law was very well formed in structure but certainly wasn’t moral) Legal positivism helps us answer questions such as where do unwritten constitutional principles stand in relation

to the written constitution?o This is very pertinent regarding aboriginal law

Treaty no. 7 (1877) “Les tribus des Indiens Pieds-Noirs, Gens du Sang, Piégânes, Sarcis, Stony et tous les Indiens habitant le district

ci-après décrit et défini, par le présent cèdent, abandonnent, remettent et rendent au gouvernement de la Puissance du Canada pour Sa Majesté la Reine et ses successeurs à toujours, tous droits, titres et privilèges quelconques, qu’ils peuvent avoir aux terres comprises dans les limites suivantes savoir”

Terra nullius: implied empty territory Paradox here: Aboriginals didn’t see themselves as owning the law but as the stewards for future generations

land didn’t and couldn’t belong to anyoneo Europeans clearly didn’t give a shit

Took land that Aboriginals had no right to give They fundamentally could not understand the concept of selling the land

o Treaties framed in Western legal traditions: this profound misunderstanding has marked the understanding we have of treaties today

Treaties There are historical and modern treaties

o 18th cent – 1923: historical treaties Between this period, the French, British, and Canadians negotiated treaties with different

aboriginal groups Aboriginals were signing treaties in a completely different juridical environment, a

Western environment; this isn’t to say they didn’t understand what they were signing, but the context was completely different

o The Canadians gained territorial exploitation as a result of these treatieso 1923-1975: no treaties signed o 1975 – present: modern treaties

The context of how these treaties are signed needs to be reconstructed (ex: see the R. c. Sioui excerpt) From the perspective of authorities, these treaties may have seemed completely equitable, and may have not There’s also the question of whether or not the document in question is a treaty (see the R. c. Sioui excerpt) It’s uncertain how free the aboriginals were to negotiate

o There were previously treaties between aboriginal groups regarding, for example, sharing resources and collective security

o The numbered treaties were a different story They were written in English (and a particular type of English), the judicial system was

confusing, the juridical status of treaties was confusing, etc10

Canada, Commission royale sur les peuples autochtones, Points saillants du rapport de la Commission royale sur les peuples autochtones : À l’aube d’un rapprochement – Ministre des Approvisionnements et Services Canada – 1996

SUMMARYIt is imperative that Canada work out fair and lasting terms of coexistence with Aboriginal people. This will have as underlying principles: recognition, respect, sharing, and responsibility. Recognition of Aboriginal nationhood is an imperative first step in restructuring the relationship.

KEY POINTS What are the foundations of a fair and honourable relationship between the Aboriginal and non-Aboriginal people

of Canada? Key is to reverse the assumptions of assimilation that still shape and constrain Aboriginal life chances Canada

must understand that Aboriginal people are nations (ie: political and cultural groups with values and lifeways distinct from other Canadians)

Original treaties with Aboriginals were agreements to share the land, but this has been replaced by policies that remove them from their homelands, suppress their nations and cultures and stifle their identity, leading to poorer life outcomes for Aboriginal people

o Number of settlers grew in 1800s and fur trade died so no longer needed Aboriginal labor and military allies, needed land

In polls, Canadians have said they want to see justice done for Aboriginal people but they haven’t known how – this report outlines a powerful set of interlinked ideas for moving forward

4 principles as the basis for a renewed relationship:o Recognition: that Aboriginals are the original inhabitants and have distinctive rights/responsibilities and

that non-Aboriginals are also of this land nowo Respect: create climate of positive mutual regardo Sharing: giving and receiving of benefits in fair measureo Responsibility: be accountable for the promises parties have made, for behaving honourably

To restore the essence of the early relationship between Aboriginal and setter societies, the elements of partnership must be recreated in modern form and the starting point is recognition of Aboriginal nationhood

o Poses no threat to Canada or its political and territorial integrity – Aboriginal nations have generally sought coexistence, cooperation and harmony in their relations with other peoples, and seek now only their rightful place as partners in the Canadian Federation

Hold that Aboriginal governments are one of 3 orders of government in Canada: federal, provincial/territorial, and Aboriginal are autonomous within their own spheres of jurisdiction, thus sharing the sovereignty of Canada as a whole

Self-governance is a right they never surrendered and that they want to exercise once more Suggest a new Royal Proclamation that would contain elements reaffirming Canada’s respect for Aboriginal

people, acknowledgement of past harms and affirmation of their rights to fashion their own lives and control their own governments and lands

Traité no 7

Treaty in 1877 between the Queen and the Blackfeet and other Indian Tribes Giving them their land, approx. 35,000 square miles Outlines that they will be paid a certain amount every year and given a certain amount of land per family and that

the Queen will pay for things like ammunition and the salaries of teachers and provide cattle to the families

Extinguishment of Aboriginal Title in Canada  - McNeil – 2002

SUMMARYIt is imperative that Canada work out fair and lasting terms of coexistence with Aboriginal people. This will have as underlying principles: recognition, respect, sharing, and responsibility. Recognition of Aboriginal nationhood is an imperative first step in restructuring the relationship.

KEY POINTS In Delgamuukw v. British Columbia, the SCC affirmed that Aboriginal title is a proprietary interest in land that

includes resources regardless of whether the Aboriginal title holders used those resources traditionally Since the enactment of s.35(1) of the Constitution Act, 1982, which recognized and affirmed Aboriginal and

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treaty rights, Aboriginal title has been constitutionally protectedo Means it can be infringed only by or pursuant to constitutionally valid legislation that meets the

justification test that was laid down in R. v. Sparrow Although Canadian law allows for the surrender of Aboriginal title to the Crown, this doesn’t mean that it’s

surrenderable under Aboriginal law – Aboriginal peoples generally didn’t have a concept of land ownership that would have included authority to transfer absolute title to the Crown as they received their land from the Creator

As the Aboriginal parties to the treaties would presumably have acted in accordance with their own laws, they cannot have intended to surrender their entire interest to the Crown if that would have violated these laws – Aboriginal understandings of the treaties therefore need to be assessed in light of relevant Aboriginal laws

Constitutional law prevents the executive branch from extinguishing property rights without clear statutory authority SCC held in Delgamuukw that Aboriginal title is a proprietary interest in land so even before receiving constitutional recognition in 1982, it should have enjoyed the same common law protection as other property rights

o BUT some judges have interpreted Aboriginal title as having arisen from the Royal Proclamation of 1763 and take this to mean that Aboriginal title is subject to the goodwill of the crown and so is extinguishable by the executive without legislative authorization SCC decided against this

The authority to extinguish Aboriginal title was taken away with s.35(1) of the Constitution Act, 1982 so one would have thought that the effect would have been to make post-1982 extinguishment of Aboriginal title dependent upon the consent of the Aboriginal title holders, which might only be given if their Aboriginal law permitted a complete surrender of title

o Not entirely the case: ON Court of Appeal’s decision in Chippewas of Sarnia: the court held that present day judicial discretion can be exercised in appropriate circumstances to deny a remedy to Aboriginal title holders whose lands were wrongfully taken in the past in the interest of innocent parties occupying it now sends bad message to Aboriginals that they can’t rely on the legal system

The Constitution of the Iroquois Confederacy – Gerard

SUMMARYThe constitution of the Iroquois Confederacy.

KEY POINTS The Iroquois had a considerable influence on the drafting of the American constitution, and they owe them a large

debt The Constitution of the Five Nations, or The Iroquois Book of the Great Law has many close parallels to the

executive, legislative, and judiciary branches of government as originally described in the US Constitution The constitution is over 500 years old Sections: rights, duties and qualifications of Lords; election of Pine Tree Chiefs; names, duties and rights of war

chiefs; clans and consanguinity; official symbolism; laws of adoption; laws of emigration; rights of foreign nations; rights and powers of war; treason or secession of a Nation; rights of the people of the Five Nations; religious ceremonies protected; the installation song; funeral addresses;

R c. Sioui, [1990] 1 RCS 10

FACTS 4 Huron band members on the Lorette Indian Reserve were convicted for cutting down trees, camping and

making fires in Jacques Cartier park Alleged they were practicing ancestral customs and religious rites subject to a treaty between the Hurons and

British, signed by Gen. Murray, which brings s. 88 of the Indian Act into play and exempts them from compliance with the regulations

Appealed to Court of Appeal, which acquitted themISSUES

Does the 1760 document constitute a treaty? YES If so, is it still in force? YES If so, does it make ss. 9 and 37 of the Jacques Cartier regulations unenforceable? YES

HOLDING Yes. Appeal dismissed, respondents acquitted.

REASONING NOTE: when analyzing treaties, they should be liberally construed and uncertainties resolved in favor of Indians

The document IS a treaty12

The continuous exercise of a past right up to the present timeo To extinguish the treaty, Hurons must consent, and none of the legislation or acts since passed

extinguished ito Non-use of a treaty over a long time doesn’t extinguish it

The reasons why the Crown entered into the undertaking o Intended it to be a mutually binding obligation

The situation that prevailed when the document was signedo Question of Gen. Murray’s authority to sign a treaty BUT Hurons believed he could

The evidence of the relations of respect and esteem which existed during the negotiations The subsequent conduct of the parties

Does it make ss. 9 and 37 unenforceable? Respondents must show the treaty guaranteed their right to carry on their customs and rites in the territory of the

park since there’s a territorial aspect to the treaty No mention is made in the treaty itself of the territory over which these rights may be exercised

o The park was part of the territory used by Hurons in 1760, so covered in the treaty o As long as it isn’t incompatible with its occupancy by the Crown (ie: being a park) it’s not

RATIO Treaties must be interpreted liberally and in favour of Aboriginals. The context of the time they were signed is

integral to understanding their scope and application.

Déclaration de souveraineté d’Atikamekw Nehirowisiw

SUMMARYDeclaration of sovereignty of the Atikamekw Nehirowisiw.

KEY POINTS Atikamekw Nehirowisiw sommes une Nation à part entier en vertu d’Atikamekw Tiperitamowin, la gouvernance

atikamekw. Ils maintenons leurs souverainete sur Nitaskinan, territoire ancestral L’application de leur souveraineté se traduit par leur occupation de Nitaskinan, la pratique de leurs activités

traditionalles et l’établissement de relations avec les autres Nations tel que véhiculé pas leurs traditions orales et par les Wampums

Le consentement d’Atikamekw Nehirowisiw est une exigence pour tous développements, usages et exploitations de ressources situées dans Kitaskinan

Ils assert qu’ils ne sont pas Canadiens, ni Québécois, mais Atikamekw Nehirowisiw

Le biculturalisme et la «   dualité   » au Canada (face au multiculturalisme) (Sept 22-27)

1982: Aboriginal treaties were constitutionally protexted – couldn’t extinguish threaties made before 1982 Not all territories were covered by treaties; McGill is on unceded territory This raises complex constitutional questions, which we can’t answer right now There’s international law on the interpretation of treaties Imagine there’s a 100-year-old treaty that we deem null; what do we do?

o The status of these treaties becomes very uncertain Essentially, McNeil shows that the Ontario Court of Appeals tried to come up with a creative way to deal with

treaties involving ceded territory (problems like building cities where Europeans didn’t have authority)o The State is involved in compensation – treaty remains valid but no way to give back the land

The point is: old treaties can cause contemporary problems Before 1982, it was difficult to nullify treaties; Parliament could do it, but it was difficult

o Aboriginals found themselves in a state where only those in Ottawa could have a say in their affairso Treaties were below the law, now are above the law

(In Canada, if there’s a contradiction between domestic and international law, tribunals will do as much as possible to interpret it in a conciliatory way; but ultimately, international law is not above domestic law)

Open question: What type of reconciliation should be dominant? Should we be more creative? Is current reconciliation with aboriginals “the flavour of the day”?

Oka Crisis (1990) A developer wanted to build a golf course on ancestral burial grounds in Oka In Kanawakhe, they blocked the Mercier bridge in solidarity

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o This was an issue, as a lot of people relied on the Mercier (to get in and out of Mtlo Lots of conflict people threw rocks at Mohawk cars, army got involved

This crisis tells us a lot about constitutional issues Juridical questions

o If part of the bridge was in Mohawk territory, it was for usage; the territory didn’t “belong” to them, it was still the territory of the Crown, so could the Mohawks just block it?

o We see legal pluralism in Mohawk territory, i.e. several different legal orders/systems that exist on the same territory

In Kanawakhe, not only is it in Quebec, it’s a federal reserve, on unceded territory There’s a Band Council recognized by the Canadian government There are also longhouses, which function in a much more traditional way and consider

themselves outside of Canadian jurisdictiono For the past 20 years, the SQ hasn’t gone onto aboriginal land without their permission

Land on the reserves doesn’t actually belong to the Indigenous nations, it’s crown land that’s been given to them to use

R. v. Sioui There was a 1760 agreement during the Conquest, signed by Murray Iroquois were given a right of safe passage and the right to practice certain activities on territory near Quebec

City where there’s a national park Does Gen. Murray, who signed the treaty, have the authorization to actually sign a treaty since the English had

been defeated and so were they really in power or noto Because even though England had been defeated in Europe, it would take weeks for that decision to reach

North America This case shows the importance of history, as used by tribunals to try and reconstruct what happened Ultimately, the Court says even if Murray didn’t have authority to sign treaties, in the circumstances, it was

completely reasonable for aboriginals to believe that he did have authority; Iroquois had previously entered into treaties with Britain

In McNeil and this case, there’s a question of authority to enter into/nullify treaties The court decided differently in both cases, but the point is that aboriginals should not be negatively affected There used to be treaties between aboriginal nations, and slowly, there was more subordination of aboriginal

nations by the provincial/federal governments, and between aboriginals and the provincial/federal governments Constitutional identity

Bilingualism/Biculturalism/Multilingualism/Multiculturalism/Pluri-culturalism – what is Canada? Tranquil Revolution (1963) in QC

o A rapid passage to modernity; Quebec was freeing itself from the Catholic Church, and creating social institutions

o Politically, a nationalist movement was forming (not all nationalists were “indépendistses”)o Decolonization was also occurring elsewhere in the worldo In Canada, this is posing a problem

A multicultural image of Canada is formingo Two founding peoples (this poses an issue for Aboriginals)

Francophones weren’t unanimous in their vision; there was the idea of a nation of Canadiens français (e.g. French Canadian literature turned into Quebec literature)

Quebec was looking more and more like a nation-state This was being noticed outside of Quebec

We also see a sense of economic inferiority forming among French Canadians compared to English Canadians

There’s also a “Canadian national identity” forming; some say it’s plural, some say it’s noto There could be nations within the Canadian nation; the terms “binational,” “multinational,” and

“plurinational” weren’t fully formed There’s a federalism that protects provincial sovereignty, but there’s also a unitary federalism uniting a people (We see contradictory theories about why we are a federal state) There’s tension between Quebec nationalism and French Canadians outside of Quebec

o We see the emergence of complex identities: French Canadian, French Ontarian, French Ontarian and French Canadian, etc

Geography is a very important factor in national identity

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o Quebec used its borders to become a sort of nation within a nation, and distance itself from the French Canadian minority outside of Quebec

o The French Canadian population was decreasing, and at some point some decided it would be better to be a majority than a minority (a nation in a nation)

NOTE: In Canadian law, a reference question is a submission by the federal or a provincial government to the courts asking for an advisory opinion on a major constitutional issue

An important question to ask is on the conception of Canada, its constitution, and its people; do the constitutional texts we’ve been looking at articulate a particular vision?

Confederation Cartier talks about culture, nation, race Different peoples have formed a nation confederation was a way to create a political nation, while preserving

the autonomy those groups who constitute the union Historically, we largely thought of two founding peoples: the French and English Protection of religion and language rights were important The provincial governments would have certain powers that could be used to protect minorities

o This is uniquely the case in Quebec Protection of minorities is an important constitutional principle; Quebec had certain tools to protect its minority,

such as powers, institutions, and funding The other provinces did not have the same institutions that Quebec did The constitutional arrangement was negotiated so that two peoples could live together simultaneously But, there was tension because certain institutions were limited to Quebec

o French Canadians outside QC didn’t have these resources and protections There was a transition from DUALITY between two founding peoples towards the conception of being a

MINORITY fighting for protectiono This wasn’t just a question of demography, but a question of conceptiono In Quebec, the minority became a demographic majority

Rapport Durham, 1839

Main recommendations (following rebellions in Upper and Lower Canada) incl.: Unite Upper and Lower Canada

o Extinguish the division between French and English and create an English majority Assimilation of French Canadians

o Undermine respect for linguistic and cultural diversityo A legislative union of the Canadas would make them the minority

Increased power to the Legislative Assembly, and an executive drawn from the majority party of the assemblyo Enhance and accountable democracy through responsible gov.

Extraits de discours pré-confédéraux sur la fédération : MacDonald, Dorion et Cartier

John A. Macdonald Against the idea of a legislative union because it would be impractical: French Canadians would be against it as

they would be in the minority, have to speak English, and have a different religion sees Confederation as a compromise

Antoine-Aimé Dorion MP, Lower Canada, opposed Confederation until 1867 –

George-Étienne Cartier Attorney General of Canada, idea of unity of races is a utopia, not a reality, supported Confederation

Commission royale d'enquête sur le bilinguisme et le biculturalisme, « Conceptions divergentes du Canada » - 1967

The commission was a response to the growing unrest among French Canadians in Québec, who called for the protection of their language and culture, and opportunities to participate fully in political and economic decision making (The Canadian Encyclopedia)

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The commission's findings led to changes in French education across the country, and the creation of the federal department of multiculturalism and the Official Languages Act (The Canadian Encyclopedia)

The commission was charged with three main areas of inquiry: the extent of bilingualism in the federal government, the role of public and private organizations in promoting better cultural relations, and the opportunities for Canadians to become bilingual in English and French (The Canadian Encyclopedia)

For many Québécois, the RCBB was a move to obscure the political issues. For many anglophones, especially in Western Canada, it was an attempt to force the French language on an unwilling population (The Canadian Encyclopedia)

Revealed that francophones were not well represented in the economy or in the decision-making ranks of government, that educational opportunities for francophone minorities outside Quebec were not equal with those provided for the anglophone minority within Québec, and that French-speaking Canadians could neither find employment nor be served adequately in their language in federal government agencies (The Canadian Encyclopedia)

Educational authorities in all nine anglophone provinces reformed regulations concerning French minority education, and moved to improve the teaching of French as a second language with financial assistance from the federal government (The Canadian Encyclopedia)

Institutional bilingualism at the federal level became a fact with the passing of the Official Languages Act (1969) and with the appointment of aCommissioner of Official Languages (The Canadian Encyclopedia)

(The Canadian Encyclopedia)

Renvoi relatif à la sécession du Québec, [1998] 2 RCS 21

FACTS Case came before the court through a special process known as the Reference Procedure (after the narrow failure

of the Referendum in 1995)o Asks the court to give advice on important legal matters

ISSUESPursuant to s. 53 of the Supreme Court Act (which created the supreme court),

Under the Constitution of Canada, can the National Assembly, legislature or government of QC effect the secession of QC from Canada unilaterally? NO

Does intl. law give the National Assembly, legislature or government of QC the right to effect the secession of QC from Canada unilaterally? In this regard, is there a right to self-determination under international law that would give the National Assembly, legislature or government of Quebec the right to effect the secession of Quebec from Canada unilaterally?” NO

In the event of a conflict between domestic and international law on the right of the National Assembly, legislature, or government of Quebec to effect the secession of Quebec from Canada unilaterally, which would take precedence in Canada?” DECLINED

HOLDING S. 53 of the Supreme Court Act is constitutional and the Court should answer the reference questions.

REASONING Constitution is made up of written and unwritten rules necessary to look at the underlying principles, incl.

federalism, democracy, constitutionalism, rule of law, respect for minorities Federalism: recognizes the diversity of the component parts of Confederation and the autonomy of provincial

governments to develop their societies within their respective spheres of jurisdiction Democracy: more than simple majority rule, must consider it in the context of other principles

o A democratic vote to secede would have no legal effect on its own – could not push aside the principles of federalism and the rule of law, the rights of individuals and minorities, or the operation of democracy in the other provinces or in CA as a whole

A democratic decision in QC for secession would put interdependent relationships with other provinces at risk must respect the will of all provinces within the Federal state

o BUT the provinces would have no basis to deny the right of the QC gov. to secede as long as QC respected their rights would need to open negotiations to define the terms in which QC would secede

(Because QC was one of the founding members of CA: there was no Terms of Union for QC and also federalism essentially exists because of QC to protect its identity)

Rule of law and constitutionalism: o Expectation that government will exercise power in accordance with law and not in an arbitrary mannero Allows for actions of government to be struck down by courts if found to be unconstitutionalo The argument that the constitution may be legitimately circumvented by resort to a majority vote in a

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province-wide referendum is not persuasive Representatives of QC at Confederation bound QC to the constitution – defines how the will of

the majority must be expressed with respect to other provinces, individual rights, minority rights Protection of minorities: influences the operation and interpretation of the constitution – represents an important

factor in QC (Aboriginals, English speakers, etc) Question 2: re intl. law

o Argued on the basis of a right to self-determination that belongs to all ‘peoples’ – unclear if QC is a ‘people’ but don’t need to address that because:

o BUT it only arises where: ‘A people’ is governed as part of a colonial empire ‘A people’ is subject to alien subjugation, domination or exploitation ‘A people’ is denied any meaningful exercise of its rights to self-determination within the state

of which it forms a part QC doesn’t meet these requirements

RATIO Constitutional amendment needs accord of many different levels of gov. in order to assure that minorities are

heard. Allowing Quebec to secede with a majority vote in one Prov alone would be unconstitutional, but a “clear expression by the people of Quebec of their will to secede from Canada would impose a reciprocal obligation on all parties to Confederation to negotiate...changes to respond to that desire.”.

Renvoi relatif à la sécession du Québec, [1998] 2 RCS 21 para 1-3, 32, 43-60, 49-82

Cannot answer the secession question without looking at the underlying principlesQuestions:

1. Under the Constitution of Canada, can the National Assembly, legislature or government of QC effect the secession of QC from Canada unilaterally? NO

2. Does intl. law give the National Assembly, legislature or government of QC the right to effect the secession of QC from Canada unilaterally? In this regard, is there a right there a right to self-determination under international law that would give the National Assembly, legislature or government of Quebec the right to effect the secession of Quebec from Canada unilaterally?” NO

3. In the event of a conflict between domestic and international law on the right of the National Assembly, legislature, or government of Quebec to effect the secession of Quebec from Canada unilaterally, which would take precedence in Canada?” DECLINED

4 fundamental and organizing principles of the constitution (work in symbiosis, equally important) The constitution includes written and unwritten rules as well as the global system of rules and principles

governing the exercise of constitutional authority1. Federalism:

a. Recognizes the diversity of the component parts of Confederation and the autonomy of provincial governments to develop their societies within their respective spheres of jurisdiction

b. Facilitates the collective goals by cultural and linguistic minorities which form the maj. within a province2. Democracy:

a. More than simple majority rule, must consider it in the context of other principles (ex: federalism – diff majorities in diff provinces working to diff goals, but functioning together nationally as well)

b. Functioning democracy requires a continuous process of discussion c. A democratic decision in QC for secession would put interdependent relationships with other provinces at

risk must respect the will of all provinces within the Federal stated. BUT the provinces would have no basis to deny the right of the QC gov. to secede as long as QC

respected their rights would need to open negotiations3. Constitutionalism and the rule or law:

a. Expectation that government will exercise power in accordance with law and not in an arbitrary mannerb. Allows for actions of government to be struck down by courts if found to be unconstitutionalc. The argument that the constitution may be legitimately circumvented by resort to a majority vote in a

province-wide referendum is not persuasivei. Representatives of QC at Confederation bound QC to the constitution – defines how the will of

the majority must be expressed with respect to other provinces, individual rights, minority rights4. Respect for minorities

a. Influences the operation and interpretation of the constitution – represents an important factor in QC (Aboriginals, English speakers, etc)

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The evolution of our constitutional arrangements has been char. by adherence to the rule of law, respect for democratic institutions, the accommodation of minorities, insistence that governments adhere to constitutional conduct and a desire for continuity and stability

Observance of and respect for these principles is essential for the ongoing process of constitutional dev. and evolution of our constitution

Speak White – Lalonde – 1970

Poem against the dominant English language in Quebec at the time, and the racial/linguistic discrimination The poem speaks to the assimilation of French Canadians by the British and has separatist undertones Cites the Durham Report “Speak white” refers to the language of colonizers (e.g. “speak white so I can understand you”) There was incredible tension in Quebec (Crise d’Octobre in 1970)

Speak What – Micone – 1985

Response to Speak White calling for a more inclusive Quebec society and suggesting that immigrants have replaced French Canadians as the new exploited class

Written on behalf of Quebec’s minority communities (communautés culturels) Bill 101 was recently imposed At the end of the poem, there’s the same sentence as “Speak White”—“you’re not alone” We may be in two places at once, as those who were once oppressed become more powerful

Pouvoir constituant, sources du droit constitutionnel, réformes et amendements

Sources du droit constitutionnel   et hiérarchie des normes   : Textes, conventions et principes sous-jacents (Sept 27)

Formal constitution: written Material constitution: “written+” There are codified elements of the constitution; our first instinct when interpreting the constitution is to read the

text of the constitution There are essentially two constitutional texts: 1867 and 1982 Article 52 of the Constitution Act, 1982 says that “The Constitution of Canada is the supreme law of Canada,”

and that it includes:o Canada Act 1982o Various Acts and orders

Some of these were British, which became constitutionalized through this provisiono Amendments to these

Of note: the French translation of Constitution Act, 1867 is NOT an official French translation; there was never one done

BC Terms of Union Canada (ON, QC, NB, NS) would assume the debts of BC, construct a railway, pay the various workers Art. 10: the BNAA, 1867 will apply in BC, except for certain exceptions

o Important, find similar articles in many acts Art. 13: Dominion of Canada shall deal with the Indians and their territory

Canada’s Constitution We’ve seen territorial division, a delegation of powers, protection of rights, an amendment formula, the

supremacy of the Constitution, conventions, custom, principles, jurisprudence (i.e. common law) 1867 : contains the institutions and the divisions of powers provincial/federal

o Some laws included : linguistic, some religious minorities laws 1982 : Charter of rights, amendment procedure, affirmation de la supremacy of the cosntitution

o Art. 35 : Aboriginal treaty rights Quasi-constitutional : law doesnt have the same protection as a constitutional law

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When there’s a conflict between a Canadian law, and a quasi-constitutional law, the quasi-constitutional law will take precedent

Order of importance: o Constitution + loi 52 o Quasi-constitutional o Lawso Regulations

Regulation: within executive and admin powers – tells you how to implement a law – what does it mean for day-to-day people to understand how to comply with a law – the steps to implement a law

Laws: within legislative power Unlike in a unitary state, there are several hierarchical pyramids, but they all reach the same summit, which is the

Constitution A provincial law needs to be conform with provincial laws, but NOT with federal laws Provincial laws aren’t subordinate to the federal government, they’re subordinate to the CANADIAN

CONSTITUTIONo This is NOT the same thing! There’s no subordination between federal and provincial law in this

sense, there’s not a colonial relationship between the provinces and Ottawa There are technically powers to disallowance and reservation (désaveu et réserve), but these

are no longer in use, and wouldn’t be politically acceptable Canada’s Constitution is supreme law, above the Constitution Canada is a federation, consisting of a federal and provincial government The Constitution is above all of that; both the federal and provincial governments are subject to the Constitution Provinces can’t, unilaterally, amend the Canadian constitution, though they can amend their own constitutions;

there are no more bicameral chambers in provinces, for example When we look at the validity of a law, whether it’s federal or provincial, we see if it’s in conformity with the

Canadian constitution, not the federal government How does a law become quasi-constitutional? With time or because of its importance

o Ex: la Charte Québécoise If there’s a conflict between Quebec law and the Charte Québécoise, the Charte laws will prevail

o Ex: Official Languages Act has become so important it’s almost quasi-constitutionalo Ex: Supreme Court of Canada Act – has become quasi-constitutional – so basically to amend it

(specifically and only, to change the composition of the judges), you need to follow constitutional amendment procedure (need unanimity)

The unwritten constitution Their place in the hierarchy is difficult to ascertain; it’s very important to properly define these Custom: confounds Poirier Principles: conventions are practices, whereas principles are ideas

o Sous-jacent (underlying)o Fundamentalo Structuralo Constitutional

Constitutional conventions: o (In a constitutional sense, it means something diff than in contracts, intl law, etc – be aware that concepts

mean diff things in diff contexts)o In our course, constitutional conventions are unwritten practices, e.g. that the GG gives his assent to all

laws passed by the HoC; responsible government; FPTPo Is the status of constitutional conventions one of law? There are questions of:

Precedence/practice? Obligation? Purpose (raison d’être) Ex: we’ve always done this, we feel like we have to do this, and there’s a reason why we do this

o When asking if constitutional conventions are equal to law, we’re really asking if they’re justiciable or actionable

o If there’s a norm that’s against a constitutional convention, what are the consequences? The Court can’t invalidate a norm due to a constitutional convention, but they can highlight the

fact that a constitutional convention exists, and that the government is violating it This declaration has about the same value as a Renvoi (reference question)

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While, theoretically, the government can still move forward with the norm in question, politically, this would be impossible

QC Quebec wasn’t given a veto right for the constitution The Constitution Act, 1982 was passed without Quebec’s consent Still, despite opposition in Quebec, Quebec is absolutely, in legal terms, subject to the Constitution Act, 1982

Principles vs conventions Underlying principles help shape the constitution, conventions are unwritten practices Four important constitutional principles in the Reference Related to the Secession of Quebec were federalism,

democracy, constitutionalism and the rule of law, and respect for minority rights Principles help with constitutional interpretation Constitutionalism and the rule of law (primauté du droit) binds the executive In our hierarchy, where do we put principles? They’re almost at the level of the constitution, but there’s still

debate about theseo They’re both high, at the level of the constitution, and low, below legislation

Can we invalidate a law based on a constitutional principle? At present, principles feed interpretation, but they’re not above the law Obviously there are some limits, e.g. AB/SK don’t have to pass laws in French to respect minority rights

LC 1867

LC 1982

Terms of Union Colombie-Britannique

The colony’s legislature debated Confederation in the spring of 1870 – deciding, despite opposition, to seek entry into Canada without responsible government (The Canadian Encyclopedia)

Federal leaders insisted on BC having responsible government if it became a province — but they agreed to provide pensions for unelected local officials who would lose their positions in the process [once] BC became a Canadian province with a fully elected, rather than a partially appointed, legislature (The Canadian Encyclopedia)

Canada also agreed to take on BC’s debt, build a rail link to the Pacific coast, and give BC the right to send three senators and six members of Parliament to Ottawa (The Canadian Encyclopedia)

The terms were passed by both the BC assembly and the federal Parliament in 1871, and the colony joined Canada as the country's sixth province in July 1871 (The Canadian Encyclopedia)

Art 10: provisions of BNA will apply to BC in the same way as they apply to the other provinces of the Dominion Art 13: “charge of Indians”

Terms of Union Terre-Neuve

In 1946, an elected National Convention was created to examine the colony's political future. For two years, a vigorous debate ensued over whether to continue with the Commission Government join Canada or seek a return to responsible government [pre-1934] as an independent dominion (The Canadian Encyclopedia)

Canada was eager to bring Newfoundland into Confederation, partly out of fears that the United States, with a large military presence there, would one day take possession of the territory (The Canadian Encyclopedia)

Newfoundland entitled to send 6 senators and 7 members of the House of Commons to Ottawa Canada assumed most of Newfoundland’s debt and allowed it to keep its surplus

Renvoi relatif à la rémunération des juges, [1997] 3 SCR para 82-86, 93-96, 99, 104-109

Issue: can governments reduce judge’s salaries?Financial security: the unwritten basis of judicial independence:

Judicial independence is at root an unwritten constitutional principle, the specific provisions of the Constitution merely elaborate that principle and don’t provide an exhaustive and definitive code for its protection

o Depoliticization of the judiciary from the executive and the legislative branches The existence of many of the unwritten rules of the Constitution can be explained by reference to the preamble of

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the Constitution Act, 1867o Has no enacting force (ie: isn’t a source of positive law)o But it does have important legal effects o By its reference to a constitution similar in principle to that of the UK, it points to the nature of the legal

order that envelops and sustains Canadian societyo The preamble identifies the organizing principles of the Constitution Act, 1867 and invites the courts to

turn those principles into the premises of a constitutional argument that culminates in the filling of gaps in the express terms of the constitutional text

In Beauregard, the Court held that the preamble, esp. its reference to the UK, was textual recognition of the principle of judicial independence

In this case, the parties and interveners ground their arguments in s. 11(d) of the Charter, a provision which protects the independence of provincial court judges only when those courts exercise jurisdiction in relation to offences

Renvoi : Droits linguistiques au Manitoba, [1985] 1 RCS 721 para 55-112

FACTS Manitoba was constitutionally required to enact all statutes in French and English but had not been doing so for

over 100 yearsISSUES

Having not complied with the constitution, are 125 years of Manitoba statutes now invalid?HOLDING

Laws not in both languages were of no force and effect but were deemed temporarily valid to avoid a legal vacuum and to ensure continuity of the rule of law.

REASONING Court decided that based on the 1867 constitution and the Manitoba Act 1870 that laws must be in French and

English and all those in only 1 lang are invalid BUT gave them a year to translate Delayed declaration of invalidity to avoid making all laws in existence invalid

Difficulty with invalidation would be that all laws since 1890 would be of no force So essentially all institutions of the province would be acting with no legal authority Declaring all laws invalid would undermine the rule of law, which is a fundamental principle of our constitution The rule of law requires maintenance of an actual order of positive laws which preserve and embody the more

general principle of normative order Court had to recognize the unconstitutionality of Manitoba’s unilingual laws and the legislature’s duty to comply

with the rule of law (“supreme law” of Canada) A declaration that the laws of Manitoba are invalid would deprive the province of its legal order The constitutional guarantee of the rule of law wouldn’t allow for the chaos that would ensue were they invalid

RATIO The doctrine of state necessity illustrates that temporary effect can be given to invalid laws where it is necessary

to preserve the rule of law

Renvoi : Résolution pour modifier la Constitution, [1981] 1 RCS 753

FACTS Gov. wished to make a request to UK parliament to amend the BNA Act, adding a domestic amendment formula

(allowing Canada to modify the constitution itself) and entrenching the Charter of Rights and Freedoms 8 provinces opposed the plan. ON and NB approved

ISSUES Is there a conventional requirement for provincial agreement in amendments of the constitution of Canada that

affect federal-provincial relationships? YESHOLDING

Yes.REASONING

There’s a general constitutional principle laid out in the White Paper that the “Canadian Parliament will not request an amendment directly affecting federal-provincial relationships without prior consultation and agreement with the provinces”

This statement protects the federal char. of the constitution21

DISSENT Cannot agree that by not observing a convention is unconstitutional, or that is it a constitutional requirement to

observe it. The degree of provincial participation in constitutional amendments has always been controversial, so it cannot be that they must be in agreement. There is no convention – only in four cases have all the provinces agreed and Parliament often creates amendments in the face of provincial opposition; therefore, no convention has emerged

RATIO Constitutional conventions cannot “crystallize” into law, despite longstanding usage Amendments to the Constitution require a substantial degree of provincial consent to make them constitutional

COMMENTS (CANADIAN ENCYCLOPEDIA) In 1982, Canada "patriated" its Constitution, transferring the country's highest law, the British North America Act,

from the authority of the British Parliament — a connection from the colonial past — to Canada's federal and provincial legislatures. The Constitution was also updated with a new amending formula and a Charter of Rights – changes that occurred after a fierce, 18-month political and legal struggle that dominated headlines and the agendas of every government in the country

At this point it was debatable precisely how much provincial support Trudeau needed to patriate and amend the Constitution — which sets out the powers of both the federal and provincial governments and the make-up of the federation. Legally, in 1980, any change required the approval of the British Parliament. By political custom and convention, however, the more provincial governments that supported the federal patriation process, the better

Trudeau announced, not unexpectedly, that Ottawa would make a unilateral request to the British Parliament The dissidents, dubbed the Gang of Eight (8 dissident provinces – all cept ON and NB), mounted court challenges

against the resolution in provincial courts of appeal in Manitoba, Québec and Newfoundland On 28 September 1981, the Supreme Court brought down its judgement; it found that Ottawa was legally allowed

to make this request of the British Parliament but that the resolution offended the constitutional "conventions" developed in Canada over the years, referring to practices that were important but not legally enforceable

The majority of the Court found that the resolution could be adopted by the federal Houses and the British Parliament without provincial consent

However, the court also ruled that whenever amendments were proposed that would reduce provincial powers, the presentation of a joint resolution by Ottawa without a "consensus" of the provinces would be a breach of constitutional convention. Although such practice was a matter of convention rather than law, the court argued that such conventions are of great significance

Renvoi sur l’opposition du Québec à une résolution pour modifier la Constitution, [1982] 2 RCS 793

Quebec Veto Reference Supreme Court of Canada opinion on whether there is a constitutional convention giving the province

of Quebec a veto over Amendments to the Constitution of Canada (Wikipedia) The issue arose during patriation debates, after the Supreme Court ruled in the Patriation Reference that there is a

constitutional convention requiring "a substantial degree of provincial consent" for amendments to the Constitution of Canada (Wikipedia)

Government of Quebec ordered that a reference be taken in the Quebec Court of Appeal, asking whether the consent of the Province of Quebec is required, by constitutional convention, for constitutional amendments affecting the legislative competence of the Quebec legislature, or the status or role of Quebec's government or legislature (Wikipedia)

Quebec Court of Appeal answered in the negative (Wikipedia) By that time, the Canada Act 1982 had already been passed by the UK Parliament, though not proclaimed in force On April 13, 1982, the Attorney General of Quebec appealed to the Supreme Court of Canada, but on April 17,

1982, the Canada Act 1982 was proclaimed in force by the Queen (Wikipedia) June 1982 the Supreme Court heard the appeal. On December 6, 1982, the Supreme Court rendered judgement,

upholding the opinion of the Quebec Court of Appeal that Quebec did not have a veto by constitutional convention (Wikipedia)

People wanted to feel like a part of the constitutional processQC hadn’t consented to the patriation “bring it home to Canada” of the constitution of 1982 and never politically recognized the current constitutionFact that QC wasn’t ok with the patriation is why we had the accords of Lake Meech and Charlottetown

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Amendements constitutionnels (Sept 29)

Constitutional principles play an important role in interpreting constitutional texts But, can judges invalidate a law on the basis of an unwritten, normative principle? Where are constitutional principles in our legal hierarchy? If constitutional principles have the same value as written elements in the constitution, we can use them to

invalidate a law; but, it’s very unclear if this is the case—in fact, it seems quite clear that this isn’t the caseo The Court never uses constitutional principles to invalidate laws; rather, they’re used for the purposes of

interpretation and clarification Now, imagine there are several, written constitutional elements, which, together, illustrate a constitutional

principle (e.g.) federalism, the independence of the judiciaryo In this case, can the Court use this “found” principle to invalidate a law?o Cf. Renvoi relatif à la remuneration des juges

The question was the extent to which provincial governments and legislatures can reduce the salaries of provincial court judges

In this reference, the Court assured its independence by reference to the unwritten constitutional principle of the independence of the judiciary

But, it didn’t invalidate any laws; this was only a reference So, ultimately, these constitutional principles are powerful analytical tools In the Renvoi relatif à la sécession du Québec

o Quebec’s Attorney General didn’t represent its interest; it was represented by an amicus curiae In Canada, what the US means by “amicus curiae” we call “intervener”

Associations or groups that have a particular expertise that get permission/authorization from the court to intervene to give an opinion, often take a side

Government always have the right to be there – ie: the governments of all provinces when there is a constitutional question

o Ex: even in a case involving Newfoundland, all provinces need to be informed, and can intervene

In Canada, amicus curiae are lawyers mandated by the court to bring information to it Quebec refused to represent itself; besides worrying it would lose, this was a question of

legitimacy and sovereignty Self-determination was a political question, which Quebec felt wasn’t up to the courts

o So, the Court named expert lawyers to defend Quebec’s position as if Quebec lawyers had been there

These lawyers mandated international lawyers to explain what self-determination was, and to explain that Quebec had a right to self-determination

o The Court identified four constitutional principles, which it said need to be understood together in a symbiotic relationship

In the Renvoi relatif à la réforme du Sénat, there was also an amicus curiae, including Daniel Jutras, former Dean of McGill Law

o It’s confusing why the Court needed an amicus curiae in this instance, howeverConstitutional amendments

Articles 38-49 of the Constitution Act, 1867 (should be able to synthesize these – what’s important and what’s the rule)

The context of the Renvoi relatif à la réforme du Sénat was the federal government’s desire to reform the Senate o The Senate is problematic; Senators are unelected, have life tenure (until 75), and are appointed by the

GG under the PM’s recommendation—this is a constitutional convention (if the GG appointed their spouse, the Court would say you’re violating a constitutional convention, but couldn’t do anything)

Already, we see tension with the constitutional principle of democracy, because Senators are appointed

o Senate has veto power on essentially everything, so this is a problem democraticallyo A federal law can’t be adopted without the Senate’s approval; a constitutional amendment can be if the

Senate doesn’t respond to the House within 180 dayso In most federal systems, there are two chambers, and usually each entity has equal representation in the

Senate (e.g. in the US)

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Senate is the second chamber – the « sober second thought » to laws passed by the House of Commons

In Canada, we have a bunch of Senators from Ontario, from Quebec, and the rest of the country; there’s, in theory, an equilibrium between the different regions of Canada

o There’s frustration surrounding the usefulness of the Senate and its undemocratic nature Senate reformed should have happened prior to 1982, when all that was needed was the support of a

“substantial” portion of provinces; today, that means 7 provinces representing 50% of the population 7/50 rule: some aspects of law can be changed with 2/3 of the provinces consent as long as those provinces

contain 50% of the population compromise – to protect provinces with smaller popso s. 38 constitution

Unanimity requirement for amendment s 41 S 45: objection to 41 – provinces can exclusively make laws re the individual provinces – provinces can have

their own constitutionTerritories

Though they essentially have the same powers as the provinces, they don’t have the same protection of the provinces; they were created by federal power, and Ottawa can do what it wants with them

BUT, to transform a territory into a province (and also to join a territory to a province), there would be consequences for the other provinces

o This would affect their representation, funding, and the amendment formula would need to changeo The written rule in this case is very clear, though politically it would be difficult for

So, the territories essentially have no say

http://www.pco-bcp.gc.ca/aia/index.asp?lang=eng&page=canada&doc=modif-eng.htm

LC 1982: art. 38

(1) An amendment to the Constitution of Canada may be made by proclamation issued by the Governor General under the Great Seal of Canada where so authorized by

a) resolutions of the Senate and House of Commons; andb) resolutions of the legislative assemblies of at least two-thirds of the provinces that have, in the aggregate,

according to the then latest general census, at least fifty per cent of the population of all the provinces.

(2) An amendment made under subsection (1) that derogates from the legislative powers, the proprietary rights or any other rights or privileges of the legislature or government of a province shall require a resolution supported by a majority of the members of each of the Senate, the House of Commons and the legislative assemblies required under subsection (1).

(3) An amendment referred to in subsection (2) shall not have effect in a province the legislative assembly of which has expressed its dissent thereto by resolution supported by a majority of its members prior to the issue of the proclamation to which the amendment relates unless that legislative assembly, subsequently, by resolution supported by a majority of its members, revokes its dissent and authorizes the amendment.

(4) A resolution of dissent made for the purposes of subsection (3) may be revoked at any time before or after the issue of the proclamation to which it relates.

LC 1982: art. 39

(1) A proclamation shall not be issued under subsection 38(1) before the expiration of one year from the adoption of the resolution initiating the amendment procedure thereunder, unless the legislative assembly of each province has previously adopted a resolution of assent or dissent.

(2) A proclamation shall not be issued under subsection 38(1) after the expiration of three years from the adoption of the resolution initiating the amendment procedure thereunder.

LC 1982: art. 40

Where an amendment is made under subsection 38(1) that transfers provincial legislative powers relating to education or other cultural matters from provincial legislatures to Parliament, Canada shall provide reasonable compensation to any

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province to which the amendment does not apply.

LC 1982: art. 41

An amendment to the Constitution of Canada in relation to the following matters may be made by proclamation issued by the Governor General under the Great Seal of Canada only where authorized by resolutions of the Senate and House of Commons and of the legislative assembly of each province:

a) the office of the Queen, the Governor General and the Lieutenant Governor of a province;b) the right of a province to a number of members in the House of Commons not less than the number of Senators

by which the province is entitled to be represented at the time this Part comes into force;c) subject to section 43, the use of the English or the French language;d) the composition of the Supreme Court of Canada; ande) an amendment to this Part.

LC 1982: art. 42

(1) An amendment to the Constitution of Canada in relation to the following matters may be made only in accordance with subsection 38(1):

a) the principle of proportionate representation of the provinces in the House of Commons prescribed by the Constitution of Canada;

b) the powers of the Senate and the method of selecting Senators;c) the number of members by which a province is entitled to be represented in the Senate and the residence

qualifications of Senators;d) subject to paragraph 41(d), the Supreme Court of Canada;e) the extension of existing provinces into the territories; andf) notwithstanding any other law or practice, the establishment of new provinces.

(2) Subsections 38(2) to (4) do not apply in respect of amendments in relation to matters referred to in subsection (1).

LC 1982: art. 43

An amendment to the Constitution of Canada in relation to any provision that applies to one or more, but not all, provinces, including

a) any alteration to boundaries between provinces, andb) any amendment to any provision that relates to the use of the English or the French language within a province,

may be made by proclamation issued by the Governor General under the Great Seal of Canada only where so authorized by resolutions of the Senate and House of Commons and of the legislative assembly of each province to which the amendment applies.

LC 1982: art. 44

Subject to sections 41 and 42, Parliament may exclusively make laws amending the Constitution of Canada in relation to the executive government of Canada or the Senate and House of Commons.

LC 1982: art. 45

Subject to section 41, the legislature of each province may exclusively make laws amending the constitution of the province.

LC 1982: art. 46

(1) The procedures for amendment under sections 38, 41, 42 and 43 may be initiated either by the Senate or the House of Commons or by the legislative assembly of a province.

(2) A resolution of assent made for the purposes of this Part may be revoked at any time before the issue of a proclamation authorized by it.

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LC 1982: art. 47

(1) An amendment to the Constitution of Canada made by proclamation under section 38, 41, 42 or 43 may be made without a resolution of the Senate authorizing the issue of the proclamation if, within one hundred and eighty days after the adoption by the House of Commons of a resolution authorizing its issue, the Senate has not adopted such a resolution and if, at any time after the expiration of that period, the House of Commons again adopts the resolution.

(2) Any period when Parliament is prorogued or dissolved shall not be counted in computing the one hundred and eighty day period referred to in subsection (1).

LC 1982: art. 48

The Queen’s Privy Council for Canada shall advise the Governor General to issue a proclamation under this Part forthwith on the adoption of the resolutions required for an amendment made by proclamation under this Part.

LC 1982: art. 49

A constitutional conference composed of the Prime Minister of Canada and the first ministers of the provinces shall be convened by the Prime Minister of Canada within fifteen years after this Part comes into force to review the provisions of this Part.

Renvoi relatif à la réforme du Sénat, [2014] 1 RSC 704 para 1-3; 13-29; 32-64; 67-84; 91; 95-98; 102-103; 106-107; 110

FACTS The issue of abolishing the Senate was in the spotlight because of the 2013 expenses scandal Fed gov. argued that s. 44 of the constitution allows it to make changes

ISSUES1. Can parliament unilaterally implement a framework for consultative elections for appointments to the Senate?

NO2. Can Parliament unilaterally set fixed terms for Senators? NO3. Can Parliament unilaterally remove from the Constitution Act, 1867 the requirement that Senators must own land

worth $4000 in the province for which they are appointed and have a net worth of at least $4000? NO4. What degree of provincial consent is required to abolish the Senate? UNANIMOUS CONSENT

HOLDING No. No. No. Unanimous consent.

REASONING History of the senate

o Intended to provide sober second thought to the House of Commons o Represented various groups that were underrepresented in the HoC (ethnic, gender, religious, linguistic,

Aboriginal)o Criticized for not providing sober second thought and being just as partisan as HoCo Calls for reform, but it’s remained essentially unchanged since its creation

Question 1 (Senatorial Tenure): Imposing fixed terms for senators would provide a weaker security of tenure and offer a lesser degree of protection from consequences of freely speaking one’s mind. This would change the fundamental nature/role of the Senate and so engages the interests of the provinces.

Questions 2 and 3 (Consultative Elections): Consultative elections would fundamentally change the architecture of the Constitution and would be inconsistent with the Senate’s role as a “complementary legislative chamber of sober second thought.” This would be subject to the general amending procedure, without the provincial right to ‘opt out’. The Senate must be independent from the same electoral process as the House of Commons so it can complement the lower house.

Question 4: (Property Qualifications): Forcing Senators to have a personal net worth of $4000 can be done under the unilateral federal amending procedure because it only updates the constitutional framework relating to the Senate without affecting the fundamental nature and role of the institution. (except in Quebec)

Questions 5 and 6 (Abolition of the Senate): Abolishing the Senate would fundamentally alter Part V and remove the bicameral (two-house) system of government that shapes the Constitution Act, 1867. Amending Part V requires the unanimous consent of Parliament and the provinces (s. 41)

RATIO

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A ‘quick fix’ to Senate reform does not exist Changes to the Senate require carefully considered constitutional amendments that require the 7/50 amendment

rule and abolishing it requires unanimityCOMMENTS (WIKIPEDIA)

Regarding the constitutional validity of proposals to change the Senate, such as term limits, consultative elections, and abolishment.

The court decided that term limits and consultative elections could not be done by the Federal Government alone through Parliament, but also required the consent of seven provinces representing more than 50% of the population, in accordance with the lower of two thresholds for the constitutional amending formula.

The court also ruled that Senate abolishment would require the higher threshold for amendment: Parliamentary approval plus consent of all ten provinces.

Accord du Lac-Meech – 1987

In 1987 the Progressive Conservative government of Prime Minister Brian Mulroney attempted to win Québec's consent to the revised Canadian Constitution — following the Québec government's rejection of it in 1981

The result was the Meech Lake Accord, an agreement between the federal and provincial governments to amend the Constitution by strengthening provincial powers and declaring Québec a "distinct society

The separatist Québec government had refused, in 1981, to accept the new Constitution patriated from Britain by the federal Liberal regime of Prime Minister Pierre Trudeau. That decision effectively estranged the province from the Canadian "constitutional family." 

Québec was as legally bound as any province by the provisions of the Constitution Act of 1982. The Québec proposals would have amended this Act. As a result they took on great significance.

The Québec proposals could be divided into two parts. The first dealt with the distinctiveness of Québec in the Canadian federation, the second with a potpourri of other matters. These tended to enhance the role of the provinces in their relationship with the federal government

The Accord slightly changed the existing method for amending the Constitution Opinion polls showed the Accord to be popular with a majority of Canadians after it was unveiled in 1987. There

was relief in the country that Québec would soon be brought back, politically, into the constitutional fold, and hope that this might soften separatist attitudes in that province towards the rest of Canada.

Then critics emerged to savage the agreement — especially, they argued, the way it would weaken federal power Many in English Canada also grew uncomfortable with the "distinct society" clause, arguing this would give

Québec special status in Confederation, rather than make it one of 10 equal provinces Meanwhile, there were fears that if the Accord didn't become law there would be a backlash in Québec, where the

deal remained popular, leading to serious national unity problems To become law the Accord had to be ratified within three years by Parliament and the legislatures of all 10

provinces in accordance with s41 of the Constitution Act of 1982 Despite the agreement of all premiers to ratify it, on the final ratification date the Accord unravelled because one

member of the Manitoba legislature, Elijah Harper, withheld his consent and ultimately the Accord did not come to a vote in that province

Led to the creation of the Bloc Québecois, a group dedicated to pursuing Québec's interests in the House of Commons but a bunch of angry QC politicians

5 things QC wanted Société distincte Droit de veto pour le Qc Limites ingérences fédérales en compétences provinciales Accroissement pouvoirs Qc immigration 3 juges de la CSC du Québec

Accord-writer people agreed to this: QC known as disctinct society All constitutional amendments take unanimity of provinces More power to provinces re immigration Compensation financial in the case that a province retreats from federal program

Mulroney negotiated with the premiers of the provinces but he needed the legislatures signaturesIn the etime that took, there was a change in gov, and MA and NF didn’t sign it

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Accord de Charlottetown – 1992 (Canadian Encyclopedia)

The Charlottetown Accord of 1992 was a failed, joint attempt by the government of Prime Minister Brian Mulroney and all 10 provincial premiers to amend the Canadian Constitution, specifically to obtain Quebec's consent to the Constitution Act of 1982

Following the failure of the Meech Lake Accord in 1990, Mulroney's Conservative government tried a second time to solve the political dilemma created in 1982 when Canada patriated and amended its Constitution without the consent of the government of Quebec

Negotiations between federal, provincial and territorial govs. and Aboriginals resulted in the so-called Charlottetown Accord, unveiled in Charlottetown, Prince Edward Island, on 28 August, 1992

The Accord dealt with a number of constitutional issues, incl. giving more power to provinces The Accord addressed the issue of Aboriginal self-government but provided for a waiting period of three years

before the concept would be recognized in law. It also dealt with Aboriginal representation in Parliament. The Accord also contained the so-called "Canada Clause" which set out the values that define the nature of the

Canadian character. One of those values was the recognition that Québec is a distinct society within Canada Changes were proposed for the SCC, the Senate, the House of Commons The Accord had the formal support of the federal government and all 10 provincial governments, meaning it

could have been legally instituted as a constitutional amendment. However, the Mulroney government — still smarting from criticism that the previous Meech Lake Accord had been put together in the political backrooms, without public scrutiny — chose to submit the Charlottetown Accord to a national referendum.

Nationally, 54.3 per cent of the votes cast opposed the Charlottetown Accord After the failure of the Meech Lake process, Canadians again could not reach a national consensus on

constitutional reform As of 2014, there have been no further official efforts at constitutional change in Canada

Main questions of the thing: Sharing of power – esp abolish fed’ veto power on provincial laws Federal and provincial spending Governmental autonomy of Aboriginals and Parliamentary representation Distinct society of QC

Failed the referendum

Modifications constitutionnelles relatives aux commissions scolaires confessionnelles

Education-related amendments

Constitutional Amendment: Newfoundland Act, 1997 NL legislature shall have exclusive authority to make laws in relation to education, with exceptions Ie: they can make a secular school system

Constitutional Amendment, QC, 1997 93(A) Paragraphs (1) to (4) of s. 93 do not apply to QC – of the Constitution Act, 1867 Lets QC school boards to be structured by lang boundaries rather than religious ones

Le système parlementaire   : pouvoirs législatif et exécutif

La séparation des pouvoirs et le système représentatif (Oct 4-6)

Quebec history for dummies could be a good resource Method: beginning was to introduce big themes of the class: what’s the constitution, who are the important

figures – historic, ignoredo Won’t be testing us on the specifics of the historic texts, but rather for the major themes in themo Look at the syllabus and re-check what was important in the readings, why we read them, what was

important Constitutional changes

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There is a difference between modifications to a Constitution, adopting a new Constitution, and a revolution Modifications/a new Constitution MAY be different, or, may in essence, be the same

o I.e. it’s possible to adopt a new constitution that is, in essence, like the old one In Canada, legislators do not need to take into consideration a referendum; in some countries, referenda are a lot

more frequent but the result will have a great influence In Canada, to modify the Constitution, you need the approval of 7 provinces representing over 50% of the

Canadian population—BUT, this isn’t the whole story (e.g. political considerations) There is a spectrum ranging from unilateral change (e.g. by a Parliament) to unanimous change

o The 7/50 rule is in between In Canada, in theory, every rule in the constitution can be amended; this isn’t the case in every constitution Parliament can sometimes act unilaterally with constitutional repercussions

o Bicameralism in provinces was unilaterally abolished by Canada’s Parliamento The $4,000 property requirement for Senators is still in the Constitution, but Parliament can get rid of this

Lake Meech Accordo Reconciliation between Quebec and Canada was very importanto The premiers sat down together and were in agreement; but, in the 3-year interim prescribed by the

Accord, political changes were such that the Accord wasn’t adopted Before 1982: Canada had to ask Westminster to amend its Constitution

o Conventionally, Westminster always needed the consent of the provinces Until 1980, Quebec thought it had a constitutional veto, but the Court said it didn’t; however, substantial consent

of the provinces was still needed After 1982: Canada no longer needed to ask Westminster

Separation of powers (Montesquieu) Montesquieu wasn’t a revolutionary; he advocated for moderation

o Remember, Montesquieu is writing prior to the French Revolution Liberty requires that the power of the judiciary be separate from the powers of the legislature and executive;

there should be a separation of powers The members of the legislature shouldn’t be members of the executive; at the same time, they shouldn’t be

members of the judiciary In the US presidential system, there is a much clearer divide between the legislature and the executive; this is

not the case in parliamentary systems In Canada, both the legislators and the executives are part of the legislature (although there can be exceptions)

o Because prime minister is an MP as well Another passage to think about: the judge as the “bouche de la loi”; judges as just voicing the will of the

legislature Passage 1

o This passage is a bit paradoxical, because the respective roles of the legislature and the judiciary are not the same in the common law system as in the idealized world of Montesquieu (in a common law system, what judges say is the law becomes the law)

o Otherwise, the passage is quite clear Passage 2

o As much as Montesquieu wants to protect liberty, he also wants to protect his own noble interest—nobles should be judged by nobles

o Do we have the right to a distinct judicial system that understands us, e.g. aboriginal justice systems?Reference re the initiative and referendum act

Courts are only bound by the ratio, i.e. the fundamental legal rule The orbiter isn’t fundamental, and doesn’t need to be relied upon by other courts

o This orbiter has become very important in constitutional law, including in the case of securitieso (Dissents are also orbiter)o (Essentially, later judges determine what’s ratio and what’s orbiter.)

Normally in our system, the executive of the government presents a law to Parliament There’s a first reading, and a first vote; then, there’s a second reading, then a debate, then a committee works on

it; then, there’s a third reading and a vote; the Senate must approve the law, and then the Governor General or Lieutenant Governor must give ascension (depending on whether or not this is happening federally or provincially)

A private member can also present a law, but generally it’s the executive of the government There was a law project (projet de loi) in Manitoba, which inspired off other laws around the world

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But, we must look to the Canadian constitution and British constitutional principles The law would have given the provincial legislature the power to repeal (not invalidate) laws without the

Lieutenant Governor, who would have otherwise been responsible for giving his ascension This went to Westminster (House of Lords); normally it would come first from a Court, but anyways,

Westminster heard it They feared direct democracy The Lieutenant Government has about the same rights as the Governor General, but the power of

disallowance is only federal (it’s the Governor General who holds this right) In England, there were judges within the House of Lords (the Law Lords) The UK recently create a Supreme Court, and took out judges within the HoL, though it still contains a judicial

body for the purposes of some countries Even if the judicial/legislative branches are intertwined in the HoL, there’s this sense of separation and self-

censure, according to popular conventionso E.g. Britain wasn’t legislating for Canada even before the Statute of Westminster (1931)

Exercises1) Pour célébrer les 150 ans de la Confédération, et honorer les peuples autochtones sur son territoire, la Colombie-Britannique souhaite abolir la fonction du lieutenant-gouverneur. Les fonctions de celui-ci seraient dorénavant confiées au Grand Chef des peuples autochtones de la Côte Ouest.

La province vous demande si elle peut procéder en vertu de l’article 45 de la LC 1982

Art. 45 says the legislature of each province may exclusively make laws amending the constitution of the province, subject to section 41.

o Section 41 says an amendment regarding the office of the Lieutenant Government of a province requires unanimous consent

So: the province can’t do this

2) Il y a un large consensus au sein des provinces canadiennes pour que la compétence relative aux valeurs mobilières soit exercée par Ottawa. Ceci nécessiterait une modification constitutionnelle : l’ajout de l’article 91 (2 B) à la LC 1867.

Le Québec s’y objecte et vous consulte pour savoir s’il jouit d’un droit de véto en la matière.

The provincial veto would apply in a situation of unanimity But, the constitutional amendment in question wouldn’t fall anywhere under 41 (unanimity wouldn’t be required) So, strictly speaking, no, QC doesn’t have a veto; we must look back to article 38 Under article 38, sections 2 and 3, QC could vote in such a way so that the legislation in question doesn’t apply in

QCo QC can object – art. 91(2b) would say that Ottawa exercises this right except for QC – not a veto, didn’t

block the process, but made it so it doesn’t apply to QC

L’Esprit des lois – Montesquieu – Book XI, Chapter VI : Of the Constitution of England – 1748

3 powers in gov.: legislative, executive, judiciary There can only be liberty when the powers are separate – otherwise there will be apprehension that some will get

too much power and enact and execute tyrannical laws and people will be exposed to arbitrary control

Legislative-Executive Relations – Cheibub and Limogi – 2011

Legislative-executive relations: refers to the institutions that govern and the processes that char. the interactions between them, entails consideration of:

o The legal provisions that regulate the formation of gov.o The rules for electing the legislative assemblyo The way the formation of each of these branches affects the performance of the otherso The rules for producing legislationo The behavior of the actors that make up the executive and legislative

Contrast between a ‘traditional’ and a ‘recent’ set of works that, despite their heterogeneity, have in common a

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conception of the way the executive and legislative interact in a democratic system Tradition works: adopt a perspective of conflict between the 2 powers, deriving from the emphasis they give to

the way govs. and legislatures are formed, and from a narrow view of politicians’ motivations being purely office-oriented

Recent works: expand their purview to include the legislative process per se – ie: the moment of proposing and supporting policies, they also adopt a broader view of politicians’ motivations, who in addition to office, also care about policies and must compete for votes

Consequence of this shift in perspective is a blurring of the dist. between presidential and parliamentary forms of gov. though they’re clearly not identical

o Once we accept that politicians across systems have similar motivations, and that legislative institutions aren’t dependent on the form of gov., it’s possible to see that the democratic process of passing laws, which necessarily involves both the executive and legislature, is in fact quite similar across diff. types of political systems

Renvoi relatif à The Initiative & Referendum Act, [1919] A.C. 935

ISSUES Is the Initiative and Referendum Act valid legislation for an enacting province? NO

HOLDING No. Appeal dismissed

REASONING Determine the char. of the legislation proposed

o Seeks to provide that laws for the province may be made and repealed by the direct vote of the electors, instead of only by the legislative assembly whose members they elect

o The electorate may submit a proposed law to the Legislative Assembly which is submitted by the Lieutenant-Governor (LG) in Council to a vote. Provision is made to obtain the opinion of the Attorney-General (also if necessary the Court) as to whether the law is intra vires – if not, it cannot be submitted

o If passed by a majority of electors, the Act is subject to the same powers of veto and disallowance as outlined in the BNA Act.

o Also, 5%+ of the electorate can petition for the repeal of an Act. If the vote is passed by a majority of voters, the law is deemed repealed thirty days after.

S.92(1) of the BNA Act provided that provinces may make laws related to “the amendment from time to time, notwithstanding anything in this Act, of the Constitution of the Provinces, excepting as regards the office of the Lieutenant-Governor”

o It is natural to have this exclusion, as the Lieutenant-Governor is the representative of the Crown, part of the very Legislative Assembly. 

o The proposed legislation would alter the position of the Lieutenant-Governor in manner that is ultra vires the provinces:

o It was argued by the provinces that s.7 of the proposed legislation would preserve the disallowance and veto powers of the LG but this is not the case as the only powers preserved are those which relate to Acts as distinguished from Bills. The powers of veto and disallowance referred to are those of the Governor General under s.90 of the Constitution Act and not those of the LG. 

o The process for repealing a piece of legislation passed by direct vote completely excludes the LG from the process. 

The Lords raise another side issue: S.92 of the BNA Act entrusts legislative power in a province to its legislature. While the legislature can delegate power to subordinate bodies, it does not follow that it can create a new legislative power not in the BNA Act as in the proposed legislation.

Le pouvoir exécutif (Oct 6-11-13)

Constitutional monarchyo A regime where the Head of State is issue of a hereditary monarchyo But, where their powers are limited by the constitutiono Canada’s monarchy is colonial heritage

The King/Queen of Canada is the King/Queen of the UKo The Crown is divisible, but always the same person (e.g. Queen vs. Queen of Canada)

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o Preamble of the Constitution Act, 1867: a federal union under the crown of the UK, with a constitution sharing the same principles as that of the UK

o Art. 9 of the Constitution Act, 1867: the executive is still in the Queen A plural or virtual monarchy?

o British Empire: one Crown with Governors in the colonieso Independence of the colonies: some keep the Queen as the formal Head of State, with a Governor

Generalo So, we have the Queen as Head of Canada (the same physical person, but a separate crown (for each

colony: NZ, Australia, UK etc)o But, in the federal system, each province also has a “mini monarchical system,” with the Lieutenant

Governor (not the Queen) as the formal head of the executive, and a legislative actor) Cf. Reference re The Initiative and Referendum Act

Statute of Westminstero British law doesn’t apply in Canadao Note art. 4: the laws adopted by the British Parliament are no longer part of Canada’s law unless Canada

asked for them to be part of their law Since 1982, Canada can no longer ask the UK to apply its laws, even if it consents—we have our

own Constitutiono However, the preamble of the Statute of Westminster is important, and is part of the Canadian

constitution But, regarding laws regarding the laws of royal succession and royal titles, the dominion

governments need to assent to these laws as the British Parliament would Since 1982, everything that affects royal succession/royal titles is Canadian law, and

would require a constitutional amendment (Ottawa couldn’t do it unilaterally)Motard c Canada

Two lawyers challenged Ottawa’s new royal succession rules Reasoning is important, as it provides legitimacy to the development of (common) law by judges Many sources are cited; some are part of formal Canadian law (e.g. documents annexed in the Constitution) The Act of Settlement is a British law that deals with royal succession; is it part of the Constitution?

o Until this case, some people thought it was part of the Constitution, and that the modification of that law would thus require a constitutional amendment

o Court said no In virtue of art. 9 and the preamble of the Constitution, we know that the Queen is the Queen of Canada The Act of Settlement establishes who can reign The UK wanted to change some of the criteria to open up succession to first-born women (even with a younger

brother), and open up succession to Protestants married to Catholics The question is: does this directly apply to Canada?

o If so, the question in this case was should Canada, through the procedure of constitutional amendment, follow the modification of UK law?

Dealing with the monarchy, this would require unanimity o Then, if Canada could modify royal succession laws, and there was no unanimity there would be a

rupture in symmetry with the British monarchy When we legislate to crystallize the meaning of a convention, the source (the convention) will become law IF the law was part of the Constitution, the UK wouldn’t be able to change the law in a way that it would apply to

Canada, because, since 1931, Canada is a sovereign state, and British law can only apply to it if it asks (but since 1982, Canada can’t even ask the UK to legislate for it)

o To modify it in Canada, the Constitution would have to be modified, and unanimity would be required But, Canada wanted to have the same succession laws as the UK

So, the Court said that the law itself – the Act of Settlement – is not part of the Constitution, but its principle is part of the Constitution

o Principle: our Queen is the Queen of the UK, but the person who could be that crown is determined by the UK, and we have a norm that we’re going to follow that

Doesn’t matter what specific human is the actual Queen/King The issue at hand isn’t the role of the crown in Canada, which can be changed by amending Canada’s

constitution; the issue is the person of the CrownConstitutional conventions

There’s a constitutional convention that the PM and GG can dissolve Parliament

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But, there’s a law that says there should be elections every 4 yearso This affects the prerogative of the GG

If we really wanted to fix elections every 4 years, we’d have to amend the Constitution, so there would be no more conflict between the law and constitutional convention

o This is why the PM could call an election in spite of this law A law, until it is deemed invalid, is valid The PM can derogate the law Laws are subordinate to the Constitution; this is clear But, it gets more complicated when conventions come into play

Massicotte This is an important text—read it; don’t worry about the historical details, focus on the conventions Conseil privé (Privy Council)

o In Canada: the council that informs the GG (art. 11 of the Constitution) In Ottawa, Cabinet is a committee of the Privy Council

The real executive power is within the Cabinet, but other people are in the PC, like former ministers, judges, other people honoured

So, in our Constitution, we don’t talk about the PM or Cabinet, we talk about the Privy Council The Privy Council Office (PCO) advises the PC

o In the UK: JCPC (Judicial Committee of the Privy Council) (a committee of the House of Lords)

This was like the Supreme Court being in the heart of the Senate—this is VERY weird, i.e. the highest court was a committee of the highest chamber of the legislature… In terms of separation of powers, obviously there was a problem here

Usually this is just referred to as the PC, but there’s another PC in the UK The Queen’s Counsel

In our system, the Executive needs the support of the House of Commons In many systems, there is a vote of confidence, but in Canada, we presume that the government, chosen by the

GG from the party with the most seats, has the confidence of the HoC Sometimes the PM will ask for a vote of confidence (this is usually a bluff to reinforce their political position),

but it’s the PM that does this, not the House or Cabinet The HoC can take away its confidence from the PC; a vote of non-confidence (non-confience, méfience, défience

—it’s all the same thing in Canada)o In this case, the PM can do 3 things;

Resign, and allow the Opposition to form a government (through the GG’s intervention) Dissolve Parliament and cause elections Do nothing; this seems anti-democratic, but it could happen

In Canada, it’s not even always clear whether or not a vote of non-confidence is happening The vote on the throne speech and budget are conventionally votes of confidence One key word is prerogative prerogative of PM to dissolve government

o In the context of Massicotte’s article, this just means power (e.g. the prerogative of the GG) But, in constitutional law, there’s something called royal prerogative, which in British law is theoretically subject

to no restriction (this is NOT our focus at this time)The Queen v. The Secretary of State for Foreign and Commonwealth Affairs

Read and reread any of Lord Denning’s opinions; his historical overview is very important This text deals with aboriginal treaty rights The British government signed treaties with aboriginals before Canada’s independence The Royal Proclamation expressed almost an equal-to-equal vision between aboriginals and the government

there wasn’t a rhetoric of dominance (this is a very important agreement for aboriginals) After independence, during Western expansion, all of a sudden, Canada had power (the Crown was divided),

and Canada sent the RCMP to deal with aboriginals, something they had never consented to After independence, the UK ceded all of its responsibility over aboriginals to the Government of Canada

AG (Canada) v AG (Ontario) (Labour Conventions Reference) The power to conclude treaties is the federal executive’s, no matter what the subject matter is (although if the

issue’s provincial it can’t be legislated by the federal legislature) The ratification of treaties is also an act of the federal executive’s, which engages Canada with international

law huge power BUT: domestically (not in terms of international law), the Executive can’t transform Canadian law; the

legislature needs to do this33

o So, the executive doesn’t have power over the “mise-en-oeuvre” of the treatyo In fact, this may need to pass through the provincial legislatures if this is an issue that is under the

jurisdiction of provincial powers So, generally, we don’t conclude treaties if we don’t think they’ll be supported by the legislature/provincial

legislatureso Because as soon as a treaty’s ratified, CA is bound to international law o So if provincial legislatures don’t ratify a treaty, Canada will be in violation of its international law

obligations, but domestically the provinces won’t be at fault This is much different than in the US, where treaties affect everyone, though you’d need to know how Congress

feels since Congress ratifies treaties In virtue of this decision, which is still jurisprudence, if provinces don’t ratify an international treaty, judicially,

there’s not much we can doThe Queen v. The Secretary of State for Foreign and Commonwealth Affairs

Lord Denning claims that the crown can be divided; this has been clear since the Statute of Westminster (In time, the provinces gained almost as much power as the federal government) Why did the Aboriginal groups come before the UK instead of a Canadian court?

o This was logical, as their treaties were concluded with the British government, so they wanted to go before a British tribunal, hoping there would be a declaration from a British judge that would say to the British government, you’re responsible

A Canadian court can’t tell the UK they’re responsible But: at the end of Lord Denning’s opinion on p. 919, after explaining what’s in the new constitution of Canada,

he says there’s no reason the Aboriginals should fear Canada, but that if ever needed, they may be able to help them; he says that no parliament should hinder Aboriginal rights

o If Lord Denning didn’t think the court had jurisdiction, he would have answered that in a simple line or two, instead of a long opinion

(“Jurisdiction” in French refers to the jurisdiction of the Court, not the “compétences” of other bodies) May doesn’t think the court has any jurisdiction to deal with the – in fact, that it would be contrary to the comity

existing between independent nations if they were to do so The Appellate Committee of the Privy Council says they didn’t want to hear the case – not for technical

reasons (this would have been a slap in the face to all the Aboriginals who came to London), but they didn’t want the Aboriginals to think they didn’t have jurisdiction (that would be too technical)

o They didn’t want to hear the case because they were in agreement with the Court of Appeals (Lord Denning)

Aboriginal treaties in Canada In Canada, the federal executive can negotiate and conclude treaties, no matter what the subject is (whether it

falls under s. 91 (federal) or s. 92 (provincial)) Enforcing a treaty is the responsibility of the legislature(s) (depending on what the subject is)

o For a s. 91 subject, it’s the federal legislatureo For a s. 92 subject, it’s the provincial legislatures

Of note: this issue regarding enforcement isn’t written anywhere no one anticipated this problem because before 1982 it was UK who signed international treaties on CA’s behalf

LC 1867, art. 9

The Executive Government and Authority of and over Canada is hereby declared to continue and be vested in the Queen.

LC 1867, art. 10

The Provisions of this Act referring to the Governor General extend and apply to the Governor General for the Time being of Canada, or other the Chief Executive Officer or Administrator for the Time being carrying on the Government of Canada on behalf and in the Name of the Queen, by whatever Title he is designated.

LC 1867, art. 11

There shall be a Council to aid and advise in the Government of Canada, to be styled the Queen’s Privy Council for Canada; and the Persons who are to be Members of that Council shall be from Time to Time chosen and summoned by the Governor General and sworn in as Privy Councillors, and Members thereof may be from Time to Time removed by

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the Governor General.

LC 1867, art. 12

All Powers, Authorities, and Functions which under any Act of the Parliament of Great Britain, or of the Parliament of the United Kingdom of Great Britain and Ireland, or of the Legislature of Upper Canada, Lower Canada, Canada, Nova Scotia, or New Brunswick, are at the Union vested in or exerciseable by the respective Governors or Lieutenant Governors of those Provinces, with the Advice, or with the Advice and Consent, of the respective Executive Councils thereof, or in conjunction with those Councils, or with any Number of Members thereof, or by those Governors or Lieutenant Governors individually, shall, as far as the same continue in existence and capable of being exercised after the Union in relation to the Government of Canada, be vested in and exerciseable by the Governor General, with the Advice or with the Advice and Consent of or in conjunction with the Queen’s Privy Council for Canada, or any Members thereof, or by the Governor General individually, as the Case requires, subject nevertheless (except with respect to such as exist under Acts of the Parliament of Great Britain or of the Parliament of the United Kingdom of Great Britain and Ireland) to be abolished or altered by the Parliament of Canada.

LC 1867, art. 13

The Provisions of this Act referring to the Governor General in Council shall be construed as referring to the Governor General acting by and with the Advice of the Queen’s Privy Council for Canada.

LC 1867, art. 14

It shall be lawful for the Queen, if Her Majesty thinks fit, to authorize the Governor General from Time to Time to appoint any Person or any Persons jointly or severally to be his Deputy or Deputies within any Part or Parts of Canada, and in that Capacity to exercise during the Pleasure of the Governor General such of the Powers, Authorities, and Functions of the Governor General as the Governor General deems it necessary or expedient to assign to him or them, subject to any Limitations or Directions expressed or given by the Queen; but the Appointment of such a Deputy or Deputies shall not affect the Exercise by the Governor General himself of any Power, Authority, or Function.

LC 1867, art. 15

The Command-in-Chief of the Land and Naval Militia, and of all Naval and Military Forces, of and in Canada, is hereby declared to continue and be vested in the Queen.

LC 1867, art. 16

Until the Queen otherwise directs, the Seat of Government of Canada shall be Ottawa.

LC 1867, art. 58

Il y aura, pour chaque province, un officier appelé lieutenant-gouverneur, lequel sera nommé par le gouverneur-général en conseil par instrument sous le grand sceau du Canada.

LC 1867, art. 59

Le lieutenant-gouverneur restera en charge durant le bon plaisir du gouverneur-général; mais tout lieutenant-gouverneur nommé après le commencement de la première session du parlement du Canada, ne pourra être révoqué dans le cours des cinq ans qui suivront sa nomination, à moins qu’il n’y ait cause; et cette cause devra lui être communiquée par écrit dans le cours d’un mois après qu’aura été rendu l’ordre décrétant sa révocation, et l’être aussi par message au Sénat et à la Chambre des Communes dans le cours d’une semaine après cette révocation si le parlement est alors en session, sinon, dans le délai d’une semaine après le commencement de la session suivante du parlement.

LC 1867, art. 90

Les dispositions suivantes de la présente loi, concernant le parlement du Canada, savoir : — les dispositions relatives aux

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bills d’appropriation et d’impôts, à la recommandation de votes de deniers, à la sanction des bills, au désaveu des lois, et à la signification du bon plaisir quant aux bills réservés, — s’étendront et s’appliqueront aux législatures des différentes provinces, tout comme si elles étaient ici décrétées et rendues expressément applicables aux provinces respectives et à leurs législatures, en substituant toutefois le lieutenant-gouverneur de la province au gouverneur-général, le gouverneur-général à la Reine et au secrétaire d’État, un an à deux ans, et la province au Canada.

Regina v. The Secretary of State for Foreign and Commonwealth Affairs [1982] 2 WLR 641READ DENNING (PP 909-919) AND PP 936-938

1763: Crown by Royal Proclamation declared lands reserved for Indians’ use to be held under the Crown’s sovereignty for the use of the Indians

The BNA Act 1867 gave the Canadian Dominion Parliament the sole right to legislate for Indians and the lands reserved to them

After 1867, many treaties were made recognizing Indians’ rights of enjoyment of the land reserved to them under the dominion of the Crown

Treaties were recognized by the BNA Act 1930 and s. 7(1) of the Statute of Westminster 1931 saved the Acts of 1867 and 1930 from the effects of that statute

1981: a provincial Canadian Indian association applied for judicial review seeking a declaration that treaty obligations were still owed by the Queen in right of her gov. in the UK

HOLDING Dismissed the application

REASONING That although that parliament had the power to repeal or amend the BNA Acts 1867 to 1930, the obligations of

the Crown to the Indians of Canada were those of the Crown in right of Canada and not of the Crown in right of the UK

Any liability of the Crown to Indians wasn’t a liability “in respect of Her Majesty’s Gov. in the UK” within s. 40(2)(B) of the Crown Proceedings Act 1947

Accordingly, the applicants’ claims were a matter for the Canadian courts and those of the UK

Crown is no longer separate and indivisible and is represented as separate crowns in each of its self-governed dominions so the UK doesn’t have power to control in each of the the territories

Motard c. Canada 2016 QCCS 588

Quebec Superior Court upheld the Succession to the Throne Act, 2013, an Act of the federal Parliament that gave Canada’s assent to an Act before the Parliament of the United Kingdom that changed the rules of succession for the British monarchy such that the system of male preference primogeniture under which a younger son could displace an elder daughter in the line of succession was to be ended and also such that the rule that rendered anyone who married a Catholic became ineligible to succeed to the Crown was similarly removed (ConstitutionalCanadian)

Justice Claude Bouchard examined the question as to whether the amendments to the royal succession, and Canada’s assent to them, were changes to Canada’s constitution and, if so, whether Part V of the Constitution Act, 1982 was therefore engaged (ConstitutionalCanadian)

Justice Bouchard concluded that Canada is a constitutional monarchy in which the constitutional principle of symmetry is such that the King or Queen of Canada is the King or Queen of the United Kingdom (ConstitutionalCanadian)

He determined that this principle was not modified by the Statute of Westminster, 1931 but rather that that statute simply created a constitutional convention pursuant to which the Parliament of the United Kingdom still retained the power to modify the rules of succession but would exercise those powers after seeking the assent of the other member countries of the Commonwealth (including Canada) (ConstitutionalCanadian)

He held that the rules of succession themselves are not part of the Constitution of Canada and therefore not subject to the Part V procedures of the Constitution Act, 1982 (ConstitutionalCanadian)

He ruled that the change in the rules of succession in the United Kingdom did not constitute a change to the “office of the Queen” which would require a formal constitutional amendment under Part V (ConstitutionalCanadian)

COMMENTS Until then thought the Act of Settlement formed part of the constitution and that modification would constitute a

constitutional amendment court said no

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Act of Settlement gave UK right to rule UK wanted to change it so women could be queen even if she had a younger brother and so heirs could marry a Catholic and still be Queen or King

Question of if this applies directly to Canada Wanted to show it wasn’t the case since constitutional amendments require unanimity Had there been a provision in the constitution tat was clear this would have been easier Westminster statute in its preamble talks of assentiment convention: it’s a règle juridique but the breaking of

it doesn’t incur des consequences juridiqueso So if no assentiment there would be a breaking of convention but not of lawo If it were to become “written” it wouldn’t change its status because its written in the preamble

If the law was part of the constitution of Canada (Act of Settlement) can the UK parliament change it as it applies to Canada? NO

o No because we’re a sovereign country from 1867o And can no longer ask UK to legitimize our laws as of 1982

If London changed it IF it were part of the constitution, it wouldn’t affect Canada BUT we’d want to change it to match UK Court said the Act of Settlement wasn’t a part of the constitution BUT the principle in it was part of the

constitution We have a principle in our constitution that says we will follow what UK says re WHO can be the monarch What’s in our constitution is that the monarch of the UK is our monarch, now who specifically (ie: what human)

it can be

AG (Canada) v AG (Ontario) (Labour Conventions Reference), [1937] AC 326 (PC) pp. 1-2, 5-10

FACTS In 1935, Canada ratified three conventions prepared by the International Labour Organization. Parliament passed

three laws implementing the details of the international treaty to give domestic effect to its principles:o The Rest in Industrial Undertakings Acto The Minimum Wages Acto The Limitation of Hours of Work Act

The provinces, led by ON, challenged the new legislation, claiming it was invalid and unconstitutional (ultra vires) because the power to legislate in these areas belonged to the provinces under the Constitution Act 1867 (BNA Act)

The Supreme Court was split on this issue. The province appealed to the British Privy CouncilISSUES

Was the legislation passed by parliament, in compliance with its international obligations beyond the authority outlined in Canada's constitution?

HOLDING The legislation was beyond the scope and authority of the federal parliament

REASONING It is a well-established fact that making a "treaty" is an "executive act", within the authority of the federal

government and Prime Minister. Implementation of any treaty that requires a change or the passing of new laws will always require a legislative component to give effect to these new obligations of the treaty.

In Canada however, the constitution distributes legislative authority between the federal government and the provinces as outlined in the Constitutions Act 1867. The constitution does not have or grant the federal government special authority to pass "treaty legislation" in areas that is not under its control

If treaty obligations signed by the federal government fall under provincial jurisdiction, it cannot force the provinces to change laws to comply with its treaty obligations

Judiciary established that the central authority could conclude treaties in Canada's name but that such treaties would not modify internal law (The Canadian Encyclopedia) 

If a treaty does require a change in internal law, this must be accomplished through the enactment of a statute (The Canadian Encyclopedia)

The implementation of a treaty must respect the distribution of legislative powers as defined by the Constitution. Parliament implements treaties relating to federal matters; if a treaty relates to provincial matters, the provincial legislatures are responsible for implementing legislation (The Canadian Encyclopedia)

COMMENTS In Canada, the power to conclude international treaties rests with the federal executive huge power

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Parliament can’t ignore the results of international treaties once its ratified – then Canada is bound to international law

Strong hierarchy between the executive and legislature But in internal law, the executive can’t change anything, it needs the assemblé legislative BUT for the international treaties, the federal executive can sign treaties regardless of the domain

o So provincial powers it can sign international treaties ono Discrepancy because the federal legislature can’t even do this – legislate on provincial matterso But then it’s the provinces that would have to put the laws in placeo So in reality, need to get provincial approval before signing because if they signed international treaty

and the provinces didn’t comply, Canada would be in breach of international treaty

Le pouvoir exécutif : la monarchie, le premier ministre et les ministres – Massicotte – 2010

The Canadian executive est une réalité changeante Affirmation of Canadian sovereignty and the progression of democratic ideas weakened the Crown’s powers to

the point that they’re essentially ignorable FINISH READING THE CONCLUSION

Judicial Committee of Privy Council (JCPC): judges who, until the supreme court of the UK was established, was the highest court

o A committee of the 2nd chamber, it undermined the division of powers between the legislature and judiciary

Until 1949, that was the case in Canada – highest court was of appeal, then sent to Westminster court The Cabinet is a sub-group of the Privy Council, has the real executive power Bureau de Conseil Privé: the secretary who deals with the cabinet and some stuff with the privy council

Scope of the powers of the PM – 1) can decide his ministerial team and 2) can fix gov action on international and national plan 3) choose when to call an election

Crown and how that goes against democracy and how power of Crown is not strong Responsibility of Cabinet toward the gov 5 principles of responsibility of cabinet toward gov to know

o Cabinet is only representative of the MPs, not the senatorso

La primauté du droit et les limites du pouvoir exécutif (Oct 13-18)

Roncarelli v. Duplessis Duplessis was a very charismatic QC leader, with ties to the Church At the time, the Catholic Church had a lot of influence on social affairs in the province “Canadien français” was practically a synonym of Catholic Protecting Protestant/Catholic schools in Quebec/Ontario meant protecting the linguistic minority Duplessis was scared of change and communists; he also saw negative socialist currents in the Catholic Church There was a law allowing lessors to revoke their tenants rights if they were associated with communism There was a question of whether this was a private law or a criminal law; if it was a criminal law, Duplessis

couldn’t legislate it The argument was that the law wasn’t invalid because it violated a fundamental right of association, but that it

was a criminal law and the provincial governments can’t legislate criminal matters Roncarelli was pretty wealthy, and paid the fines of those accused of distributing communist materials; Duplessis

and the Church didn’t like him (Catholics saw Jehovah’s Witnesses in very bad light = communist) He had a permit to sell alcohol Duplessis ordered the revocation of his alcohol permit The provinces had a certain discretionary power, but Roncarelli argued this wasn’t absolute

o You can’t act if you don’t have the power to act; at its base, this is what the rule of law means; the provincial government had to show where it had such a power

The law must be known and clear Laws must be public and written

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(But, there are contexts, e.g. immigration, when, for reasons of public security, administrators don’t always reveal the rules/information they’re following to make decisions)

Though Roncarelli seems like an old case, its principles still apply today regarding the rule of law

Ultra vires The rule of law is the basic protection of individuals against arbitrary power exercised from the monarchy, etc. Ultra vires: if you don’t have the power to enact a certain law, that law is ultra vires

o Today, we usually stay “invalid”BC v. Imperial Tobacco

Tobacco companies have been before tribunals for decades to try and fight advertising regulations, sometimes with success, but not always

There are issues surrounding, inter alia, freedom of expression There are two main problems with the law, according to the tobacco companies

o (1) The law is retroactive The law needs to be known, clear, public, and relatively accessible

Retroactive laws contravene the rule of lawo Note: interesting since in CML, on one hand judges create retroactive laws

(think: Donoghue v Stevenson no tort law prior) The Court says that in this case, the advantages are greater than the disadvantages

The Rule of Law (Continued) The rule of law is not absolute

o CML, to an extent, does create law retroactively (e.g. finding what’s reasonable or not), and that’s where the judge has discretion

Judges need to exercise their power in a convincing, reasonable way so they are not absolute and arbitrary in their power

If we claim a law is unconstitutional, there are two optionso The law may really go against the Constitution (written text), not related to amorphous principles

The principles are important for interpretation, but they don’t have the normative force of the written text of the Constitution

3 principles of the rule of law Rule of law provides that the law is supreme over the acts of both government and private persons Rule of law requires the creation and maintenance of an actual order of laws which preserves and embodies the

more general principle of normative order Rule of law requires that the exercise of all public power must find its ultimate source in a legal rule (ie:

relationship between the state and individual be regulated by law)The rule of law (continued)

What is the difference between the rule of law and constitutionalism? The rule of law is more general, and constitutionalism is found within the rule of law The rule of law – we are ruled by positive laws adopted according to the rules of our judicial system Until 1982, we rarely talked about constitutionalism The rule of law largely finds its application in the control of executive acts

In Imperial Tobacco at para 60, the Court says the rule of law is a nice principle, but doesn’t have any normative force to invalidate laws (tribunals will lose legitimacy if they invalidate laws based on the “rule of law” – they need to really justify their decisions)

o Acts of government that limit the rule of law are more often than not executive actso At a certain point, the rule of law contradicts parliamentary supremacy

The rule of law, while not being used by the Court to invalidate laws, will be used to control acts of the legislature and executive

Judicial Review (Contrôle judiciarie) Control by the judge of administrative or executive action (In the US, what we’d call “judicial review” is “un contrôle de constitutionnalité”)

Retroactive Laws This is discussed in para 71 of Imperial Tobacco How does the Court justify this? The Court says, in CML, all laws are retrospective in a certain way, as they are

determined by the Court

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This isn’t always the case; the judge often just has to apply written law to a particular case; but, in implying certain norms, they have the role of a legislature

The Court is relying on the past, but the Court is sometimes a lot more audacious and creative

A law can be retroactive, but there are conditions:o (1) Substantive: The retroactive application of the law has to be more advantageous than

disadvantageous (this is the job of the legislature) It’s not for the Court to determine this

o (2) Form: the legislature has to expressly say the law is going to be retroactive This would allow the legislature to debate whether or not the law should apply retroactively,

through committees and after three meetings Note: It’s not for the Court to determine whether this is right or wrong

o (3) The Court will allow laws to apply retroactively, but this is not the case with regards to criminal law Tribunals often say they don’t want to do something because it’s too political, and at other times do something

that, by all accounts, seems political

Magna Carta

Originally issued by King John of England (r.1199-1216) as a practical solution to the political crisis he faced in 1215, Magna Carta established for the first time the principle that everybody, including the king, was subject to the law

Magna Carta remains a cornerstone of the British constitution There were a number of fundamental values that both challenged the autocracy of the king and proved highly

adaptable in future centuries Three clauses of 63 of the 1225 Magna Carta (vastly modified, and issued by Henry III) remain on the statute

book today. Although most of the clauses of Magna Carta have now been repealed, the many divergent uses that have been made of it since the Middle Ages have shaped its meaning in the modern era, and it has become a potent, international rallying cry against the arbitrary use of power.

One of them gave all free men the right to justice and a fair trial – its intrinsic adaptability has allowed succeeding generations to reinterpret it for their own purposes

Magna Carta is sometimes regarded as the foundation of democracy in England although in reality most of its terms applied only to a small proportion of the pop. In 1215

Roncarelli v. Duplessis, [1959] SCR 121

FACTS R. (himself a Jehovah’s Witness) bailed out many JWs who had been detained for illegally distributing pamphlets D., Premier and AG of Qc., ordered R.’s liquor license revoked (so his restaurant could no longer provide bail

money) The Liquor Commissioner revoked the license on behalf of D By statute, the Commissioner could cancel permits at his discretion

ISSUES Was the Commission entitled to use its discretion to revoke the license? NO Was it within D.’s rights to intervene? NO

HOLDING No.

REASONING License was revoked as a means of halting R.’s activities, i.e. posting bail.

o No legislative Act can be taken to contemplate an unlimited arbitrary power exercisable for any purpose

Discretion necessarily implies good faith in discharging public duty Discretion must be exercised consistent with the purpose of the statute

o Here obvious that the goal was to punish R. for exercising an unchallengeable right totally irrelevant to the sale of liquor

Beyond the scope of the discretion conferred by the Act D.’s act through the instrumentality of the Commission brought about a breach of an implied public statutory

duty toward the appellanto Gross abuse of legal power

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D. intruded on the functions of the statutory body, and his fault engages his liability If this were allowed, would disintegrate the principles of rule of law

RATIO Public officials must act in accordance with the law and have a statutory duty to act in good faith

Discussion sur la primauté du droit dans la Renvoi sur la sécession (para 70-78)

Rule of law is a fundamental postulate of our constitutional structure Conveys a sense of orderliness, of subjection to known legal rules and of executive accountability to legal

authority It vouchsafes to the citizens/residents of the country a stable, predictable and ordered society in which to conduct

their affairs Provides a shield for individuals from arbitrary state action

3 principles of the rule of law Rule of law provides that the law is supreme over the acts of both government and private persons Rule of law requires the creation and maintenance of an actual order of laws which preserves and embodies the

more general principle of normative order Rule of law requires that the exercise of all public power must find its ultimate source in a legal rule

Constitutionalism principle: The Constitution is the supreme law of Canada, and any law that is inconsistent with the provisions of the

Constitution is, to the extent of the inconsistency, of no force or effect Requires that all government action comply with the Constitution VS the rule of law which requires that all

government action comply with the law, including the Constitution 3 reasons why a constitution is entrenched beyond the reach of simple majority rule

A constitution may provide an added safeguard for fundamental human rights and individuals freedoms which may otherwise be susceptible to gov. interference

A constitution may seek to ensure that vulnerable minority groups are endowed with the institutions and rights necessary to maintain and promote their identities against the assimilative pressure of the majority

A constitution may provide for a division of political power that allocates it amongst diff. levels of gov.Our system is not one of simple majority rule – it’s more complex – rules that define the majority which must be consulted in order to alter the fundamental balances of political power, ind. rights, and minority rights By requiring broad support in the form of an ‘enhanced majority’ to achieve constitutional change, the Constitution ensures that minority interests must be addressed before proposed changes which would affect them may be enacted Constitutionalism and the rule of law are NOT incompatible with democracy

BC v. Imperial Tobacco [2005] 2 S.C.R. 473, 2005 SCC 49 para 1-14; 25 et 57-71

FACTS The Tobacco Damages and Health Care Costs Recovery Act authorizes an action by the government of BC

against a manufacturer of tobacco products for the recovery of health care expenditures incurred by the government in treating individuals exposed to those products

o Liability rests on those individuals being exposed to tobacco because of the manufacturer’s breach of a duty owed to persons in BC (a tort) and on the BC gov. having incurred health care expenditures in treating disease in those individuals caused by such exposure

o The cause of action can be pursued on an aggregate basis: ie in respect of a pop. of persons for whom the gov. has made or can reasonably be expected to make expenditures

o Gov. enjoys a reverse burden of proof in respect of certain elements of an aggregate claim – falls on the defendant manufacturer to show that its breach of duty didn’t give rise to exposure or that exposure didn’t give rise to disease – it’s a balance of probabilities

Appeals question the constitutional validity of the Act on the basis that it violates:o Territorial limits on provincial legislative jurisdictiono The principle of the rule of law

ISSUES Is the Act ultra vires the provincial legislature by reason of extra-territoriality? Is the Act constitutionally invalid, in whole or in part, as being inconsistent with judicial independence? Is the Act constitutionally invalid, in whole or in part, as offending the rule of law?

HOLDING Appeals should be dismissed. The act is constitutionally valid

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REASONINGRule of law

Based on the 3 principles of the rule of law, it’s hard to see how the rule of law could be used as a basis for invalidating legislation like the Act based on its content because none of the principles speak directly to the terms of legislation

Often it’s judicial and executive branches that are constrained by the rule of law Legislative actions are constrained too but only in the sense that they must comply with legislated requirements as

to form and manner (ie: the procedures by which legislation is to be enacted, amended, repealed) Debate re the question of additional principles which then might mandate the invalidation of legislation based on

its contento Advocates tend to read into the principle of the rule of law anything which supports their particular

view of what the law should beo Appellants’ conceptions of the rule of law seem to support the above thesis, they claim it should:

Be prospective Be general in char. Not confer special privileges on the gov. except where necessary for effective governance Ensure a fair civil trial Argue the Act breaches each of these requirements, rendering it invalid

o None of these requirements enjoy constitutional protection and acknowledging them would undermine the legitimacy of judicial review of legislation for constitutionality because:

Many of the proposed requirements are simply broader versions of the rights in the Charter and would thereby render the written rules redundant

The arguments overlook the fact that several constitutional principles other than the rule of law that have been recognized by the court strongly favour upholding the validity of legislation that conforms to the express terms of the Constitution – ie: it fails to recognize that in a constitutional democracy, protection from legislation that some may view as unjust lies in its text and the ballot box, not the underlying principles of our Constitution

Rule of law isn’t an invitation to trivialize or supplant the Constitution’s written terms Also not a tool by which to avoid legislative initiatives of which one is not in favour Prospectivity in the law:

o No requirement, except for crim law, of legislative prospectivity embodied in the rule of law or in any provision of our Constitution

o Exists despite the fact that retrospective and retroactive legislation can overturn settled expectations and is sometimes perceived as unjust

Le pouvoir législatif   : le bicameralisme (Oct 18-20)

Bicameralism: In 2015 election, the NDP was proposing abolishing the Senate Most federal states have bicameral legislative chambers, and some non-federation states do too Raison d’être:

o Legislative review o Representation of regional interests

Advantages:a. Represent the interests of the federated entitiesb. Check and balance against the tyranny of the executive

i. The context of this is that the executive/Crown can pass tyrannical lawsii. In this sense, it contributes to the separation of powers (cf. Montesquieu)

c. Chamber of sober second thought i. Check the first legislature and popular democracy

ii. This may be a disadvantage depending on who we askiii. The Senate has resources to get experts to review legislation

d. Representation of minorities/regionsi. The representation of minorities is discussed in the Reference re Senate Reform; although the

Senate’s been used to reward loyal supporters, the Senate’s also been used to represent certain groups that would never be able to gain representation in the HoC

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ii. This is also the case for certain Quebec Senators, who wouldn’t have been able to gain representation through the HoC

e. A possible advantage according to Watts: more political representation for citizens Disadvantages:

a. Could become an echo chamber i. This could be the place when the Senate becomes too partisan, which is especially the case

when the executive (e.g. PM in Canada) chooses Senatorsb. Veto can be used to block the first chamber and the passing of lawsMalaysia: 40% electorial federal and

60% nommé par le federal (experts, minorities, etc) In Canada, for the most part, both chambers have the same power Disadvantage: unfair representation

Legislatures have the privilege to control their own affairs, a privilege that even tribunals can’t control Deputies enjoy these privileges as well as certain protections, such as freedom of expression When deputies commit criminal acts, the question becomes difficult

o A priori, they shouldn’t criminal immunity (though the executive is even more protected)

Exercises1. Why do the quasi-majority of federal states have a second chamber?

Overall, Watts argues this is for equal representation2. How are federal entities in federal states represented in second chambers?

In Canada, the federal entities are represented by region:o (1) Ontario, (2) Quebec, (3) Maritimes, (4) Western Provinces, with seats allotted to NL and the

territories In other federal systems, there are questions of:

o Equal or unequal representation?o Are minorities represented?o Are territories represented?

Ex: Malaysia: 40% equal representation, the rest is appointed by the federal) Ex: Belgium (½ French, ½ Flemish) Ex: US (Equal representation) Ex: Germany (it’s as if premiers sat in the second chamber, a bit like the Conseil de la fédération, but as if it had a

legislative role4. Le Conseil de la federation est-il un substitute ou un complement efficace au Sénat ?

Created in 2003 in a context of tension with Ottawa A council of the premiers of the provinces/territories Organizes “horizontal” meetings without the PM Provinces wanted to be heard on certain issues, and wanted to be in a better position to confront Ottawa One of the Senate’s roles is to be a chamber of “sober second thought,” but it’s also designed to defend the

interest of certain federated entitites 5. Quel serait le modèle optimal, selon-vous pour que le Sénat canadien remplisse ses fonctions ?

All in all, the Senate and the Chamber have the same powers in the legislative process An important question surrounds minority representation (e.g. linguistic, cultural, regional, in terms of

aboriginals, etc.) What about youth representation? In Prof. Poirier’s view, we’re not going to see radical Senate changes; what we will likely see are reforms with

regards to the nomination of Senators, which is a good thing; this doesn’t mean there won’t be more substantial Senate reforms in the future

Renvoi relatif à la réforme du Sénat, [2014] 1 RSC 704 para 1-5; 13-20; 111-112

From its inception, people have called for Senate reform and even its abolition The Government of Canada now asks this Court, under s. 53 of the Supreme Court Act, R.S.C. 1985, c. S-26, to

answer essentially four questions:1. Can Parliament unilaterally implement a framework for consultative elections for appointments to the

Senate? NO 2. Can Parliament unilaterally set fixed terms for Senators? NO3. Can Parliament unilaterally remove from the Constitution Act, 1867 the requirement that Senators must own

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land worth $4,000 in the province for which they are appointed and have a net worth of at least $4,000? NO4. What degree of provincial consent is required to abolish the Senate? UNANIMOUS

We conclude that Parliament cannot unilaterally achieve most of the proposed changes to the Senate, which require the consent of at least seven provinces representing, in the aggregate, at least half of the population of all the provinces (ss. 28 an 42(1)(b), Constitution Act, 1982)

We further conclude that abolition of the Senate requires the consent of all of the provinces (s. 41(e) Constitution Act, 1982) as it would fundamentally change Canada’s constitutional structure, incl. its procedures for amending the Constitution which can only be done with unanimous federal-provincial consensus

The Senate Framers of the Constitution Act, 1867 wanted to adapt the British gov. to Canada to preserve the structure of a

lower legislative chamber composed of elected officials and an upper chamber of elites appointed by the head of state

Senate: upper legislative chamber, sober second thought on the legislation adopted by the House of Commons Each region was provided equal representation in the Senate irrespective of population – to ensure voices were

heard even as they became minorities within the overall pop. of Canada Over time, the Senate also came to represent various groups that were under-represented in the House of

Commons. It served as a forum for ethnic, gender, religious, linguistic, and Aboriginal groups that did not always have a meaningful opportunity to present their views through the popular democratic process

Criticism: o Some thought it failed to provide the sober second thought and reflected the same partisan spirit as the

House of Commonso Others thought it failed to provide meaningful rep. of the interests of the provinces as intended

Proposals for reform centered on 3 aspects in the years following patriation:o Modifying the distribution of seats in the Senate o Circumscribing the powers of the Senateo Changing the way in which Senators are selected for appointment

In 1978, the federal government tabled a bill to comprehensively reform the Senate by readjusting the distribution of seats between the regions

o The bill was not adopted and, in 1980, this Court concluded that Parliament did not have the power under the Constitution as it then stood to unilaterally modify the fundamental features of the Senate or to abolish it

Despite criticism and failed attempts at reform, the Senate has remained largely unchanged

Entente créant le Conseil de la Fédération (Council of the Federation Founding Agreement) – 2003

Premiers agreed to create a Council of the Federation (meeting of the Premiers), as part of their plan to play a leadership role in revitalizing the Canadian federation and building a more constructive and cooperative federal system

Under the Constitution, Canada's two orders of government are of equal status, neither subordinate to the other, sovereign within their own areas of jurisdiction and accordingly, they should have adequate resources to meet their responsibilities

Federalism is based on shared principles including respect for the constitution and the division of powers, while being aware that Quebec has not agreed to the Constitution Act, 1982, and accepting that there are differences among the provinces and territories and that governments may have different policy priorities and preferences

It is important to participate in the evolution of the federation and to demonstrate their commitment to leadership through institutional innovation

The Council of the Federation will be an enduring and evolving institution that will be flexible, efficient and able to anticipate and act quickly to make Canada work better for Canadians

Objective:o Strengthening interprovincial-territorial cooperationo Exercising leadership on national issues of importance to provinces and territories and in improving

federal-provincial-territorial relation

Showing how we do regional rep in CA and how the premiers work

Federal Second Chambers Compared – Watts – 2010 – Italy

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Broad outline of the main comparative features of second chambers elsewhere in a wide range of federations to context for the subsequent discussion of possible arrangements for the representation of regional and local governments or interests in the Italian Parliament

Brief consideration of the relation of bicameralism to federalismo Most federations have adopted bicameral federal legislatures

Led to notion that this is a defining char. of a federation – incorrect: non-federations can have bicameral legislatures and federations can have non-bicameral legislatures

But most do find it important for ensuring the entrenched rep. of the regional components in policy-making within the institutions of “shared rule” that are an essential element for the effective operation of a federation

Comparative outline of the methods of appointment, composition, powers and roles of federal second legislative chambers in a variety of federations

o Selection of members of federal second chambers: 5 methods: Direct election form citizens of the constituent units Indirectly elected by the state legislatures Members are delegates of their Land cabinets (ex officio instructed delegates of the constituent

governments) (Germany) All senators are appointed by the prime minister and hold office until retirement (Canada) Mixed membership

o Regional Representation in Composition of federal second chambers Often assumed that equality of state representation in the federal second chamber is the norm in

federations not really the case most of the timeo Powers of Second Chambers Relative to the First Chambers

Where there is a separation of powers between the executive and the legislature normally the two federal legislative houses have had equal powers

Where there are parliamentary executives, the house that controls the executive inevitably has more power

o Relative Roles of Federal Second Chambers The role of most of the federal second chambers in the federations reviewed in this study has

been primarily legislative: i.e., reviewing federal legislation with a view to bringing to bear upon it regional and minority interests and concerns, but has usually also extended to conducting enquiries

How are we to account for this enormous variety among federal second legislative chambers? One factor has been the different circumstances at the time each federation was created

It should also be noted that the operation of federal second chambers has frequently proved significantly different from the expectations of the founders, often due to the operation of political parties. This has often led to subsequent pressures for reform of federal second chambers and of their role

Impact of political parties on the operation of federal second chamberso An important factor affecting the operation of any federal second chamber is the character and role of the

political partieso There are two aspects of political parties that may particularly affect the operation of a federation:

The organizational relationship between the party organizations at the federal level in the and provincial or state party organizations

The impact of party discipline upon the representation of regional interests within the federal legislative chambers

o In the parliamentary federations, the pressures for effective party discipline within each government, in order to sustain the executive in office within each government, have tended to separate federal and state or provincial branches of parties into more autonomous layers of party organization

o Nevertheless, the existence of federal second chambers in federations has generally induced political parties to take greater account of regional interests than might otherwise have been the case

Whether federal second chambers constrain or enhance democratic processeso Critics of federalism have noted that bicameral federal legislatures are weighted to favor the smaller

constituent units, thus for them violating a cardinal principle of democracy based on one person one voteo But the variation in the relative powers of federal second chambers affects their ability to act as ‘veto

players,’ and hence the degree to which they are in fact ‘demos-constraining’o Discussing the degree to which federal second chambers and therefore federations are ‘demos-

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constraining’ or ‘demos-enhancing’ from a purely majoritarian definition of democracy is in my view misleading

o Democracy more broadly understood as liberal democracy, may actually be expanded by federalismo Multiple levels of government in fact maximize the opportunity for citizens’ preferences to be achieved,

establish alternative arenas for citizen participation, and provide for governments that are smaller and closer to the people

o By emphasizing the value of checks and balances and dispersing authority to limit the potential tyranny of the majority, federal second chambers contribute to the protection of individuals and minorities against abuses

A Blueprint for a Post-Partisan Senate – Delacourt – 2016

The new, more independent Senate of Justin Trudeau’s plan will quickly become a “failed experiment” without a radical, immediate overhaul of the rules for the Red Chamber

Warn that Trudeau’s Senate reform project is only part of the way to mission-accomplished right now, and that it can’t succeed unless the rules are totally rewritten to make an independent Senate a workable institution.

Proposals:o A reorganization of senators away from political parties and into regional caucuseso A complete makeover of question period in the Senateo For cases of conflict or a standoff with the House of Commons, they’d like to revive the tradition of

“conferences” between the two chambers of Parliamento They also argue it’s time to drop the requirement for senators to be over 30 years of age or own $4,000

worth of property in the region they represent

La souveraineté parlementaire (Oct 20-25)

It’s helpful to create timelines in this course, as well as in difficult cases (e.g. Caron v. Alberta)To determine a ratio, combine the main facts with the main legal rulesStipulate refers to announcing a clause in a contract; the Court doesn’t stipulate

The Court holds, etc.Judges don’t argue, lawyers argueThe Court may reject an argument, but it will invalidate a law

In the UK, it’s a unitary gov so it can make or unmake any lawsIn CA, collectively, the fed and prov govs can make or unmake any laws – how they choose to do this falls under the topic of federalismHOGG: AG On v AG CA: whatever belongs to self-government in CA belongs either to the dominion or to the provinces, within the limits of the BNA Act

The provinces and federal government share the same parliamentary sovereignty in their respective circles There is a long tradition of parliamentary supremacy, involving constraining the power of the king The people, through their legislatures, have the final word

o In principle, this really means the legislatures, because they don’t even have to respect the results of a referendum

In principle, parliaments can adopt whatever law, and revoke whatever law limited by the constitution In Canada, there are limits to this

o (1) federalism—the federal/provincial governments need to act in their respective sphereso (2) fundamental rights—notably since the adoption of the Charter – can’t pass laws that contravene it

Constitutionalism limits parliamentary sovereignty, as the constitution is above Parliament Substance and procedure (manner and form)

o When a procedural law becomes so hard to modify that it becomes “encadrée” it becomes a law of substance

o For procedural laws, must respect ancient procedure to arrive at new procedure Parliament can delegate its executive and admin powers but not its legislative power

o Legislative assemblies can’t delegate to other legislative assemblies substance questions But it can delegate to the executive or another gov body (with exceptions) (???)

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o Oblique delegation: for purely admin questions, can delegate ‘diagonally’ assembly to executive o Legislation by reference: adopt laws of another order and all its future amendments

Can provincial legislatures decide whether or not their legislatures are bilingual? That depends; this needs to be explicitly set out in the Constitution

o QC, MB, NB have a constitutional obligation to adopt laws in French and EnglishBritish origin of Parliamentary sovereignty

17th century: British Parliament is seen as the superior branch of government; the most legitimate in all cases (start of democracy)

Orthodox and maximialist rule:o “Parliament can do and undo any law it wishes”

This is NOT the case in Canada: there are limitso The Constitutiono The Crown is separate; each government enjoys full sovereignty in its area of competence

Limits of Parliamentary sovereignty in the UK Laws of the EU (European rule of law; the UK’s been a part of the EU for awhile)

o But, it’s still a British law that recognizes the rule of law Human Rights Act (courts can say laws are in violation of the European Convention of Human Rights, but they

can’t invalidate a law based on that)o Again, British law recognizes this, and a law can be repealedo It would up to the legislature to decide whether or not to conform with the ECHR

Devolution to Wales, Northern Island, and Scotland (similar conventions to the Statute of Westminster)o In theory, judicially speaking, British Parliament could eliminate Scottish Parliament, although this

would be politically impossible Diffs in practice and theory

The Source of Parliamentary Sovereignty in Canada: a Fundamental Principle? Unwritten? Preamble of the Constitution Act, 1867 constitution similar to that of the UK But, not explicitly mentioned in the Renvoi sur la Sécession; can it be integrated into

o Rule of law (Warren Newman?)o Democracy? (this seems clearer to Prof. Poirier)o This reference identifies 4 principles, but they’re not exhaustive; others could exist

Or simply, is it another unwritten principle?o It’s not absolute; like all unwritten principles, it must be interpreted in light of others

All principles are equal, but some are more equal than others, such as parliamentary sovereignty Partially ‘codified’ principle by the legislature

o Loi sur l’interprétation. L. R. C. (1985), ch. I-21Three Rules

Rule 1o A parliament cannot bind for the future (or bind a subsequent Parliament) regarding substantial matterso [See slide.]

Rule 2o A Parliament can delegate executive/administrative powers, but can’t delegate its legislative powero Nova Scotia (AG) v. Canada (AG), [1951] RCS 31, pp. 33-45s

NS wanted to transfer its competence in employment matters to the federal government The court said NO: this would be a constitutional modification without proper regard for the

amendment procedures BUT: is this an issue regarding a legislative assembly, or legislative power?

The delegation of legislative power isn’t really forbidden; we do this sometimes It’s less clear if we can delegate a legislative power to another legislative branch of

another government; we’ll come back to thiso In sum:

(1) A delegation from one assembly to another = NO (2) A delegation from one assembly to the executive organ in its jurisdiction = OVERALL OK,

with some limits (as long as the powers in question are executive/administrative) (3) A delegation from one assembly to another level of government’s executive organ = OK (in

theory) (e.g. Coughlin)o Renvoi relatif à The Initiative & Referendom Act [1919] A. C. 935 (P.C.)o Coughlin c. Ontario (Highway Transport Board) [1968] R. C. S. 569 (administrative delegation is OK)

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Intra-provincial transport is regulated by provincial law, but inter-provincial transport is regulated by federal law

The federal government adopted a law so that a provincial organ could do the administrative work at the start (this would be in each province)

The federal government adopted legislation by reference The federal government adopted, word for word, the provincial law

o The thing is, provincial law isn’t static; how could the federal government accept, in advance, all the future provincial laws? This would be to abdicate its power

This was found to be unconstitutionalo In Nova Scotia, we said a legislative assembly couldn’t delegate its legislative power to another

legislative assembly; would about another organ?o We’re still asking if the ratio of Nova Scotia has to do with a limited or restrictive delegation of power o The 10 provinces have the competence to have their own police; only QC and ON have done this; all the

other provinces use the RCMP In the other provinces, by contract, the provinces hire the RCMP

o It’s not clear what happens when we transfer something that is practically legislative to the executive or an executive order; is that not essentially abdicating power?

Rule 3o Parliament can bind (se lier) regarding matters of procedure (“manner and form”)o Think of Mercure (which we know indirectly from Caron v. Alberta)

SK just stopped legislating in French; the Court considered that the obligation of legislating in both languages in this case wasn’t a constitutional obligation; this was simply considered as a manner of procedure

Retroactively, all laws passed in English only were validatedo This line between what is substantive and what is procedural is often nebulouso Say something could only be abolished by referendum; we could abolish the referendum itself – it’s a

matter of procedureo But, if the procedural issues became so dense, it could become an issue of substance

Limit of Substance or Procedure? Imagine the last article of a law, which says it could only be repealed b the unanimity of the National Assembly Is this a substantive or procedural limit to parliamentary sovereignty? If a procedural law is so deep as to bind future governments, this could become substantive

Canadian Bill of Rights, Art. 2 “Every law of Canada shall, unless it is expressly declared by an Act of the Parliament of Canada that it shall

operate notwithstanding the Canadian Bill of Rights, be so construed and applied as not to abrogate, abridge or infringe or to authorize the abrogation, abridgment or infringement of any of the rights or freedoms herein recognized and declared, and in particular, no law of Canada shall be construed or applied so as to…”

o Canada can operate notwithstanding the Canadian Bill of Rights, it just needs to expressly provide for this; this is a question of form

Again, though, the limits of what is procedural are unclear “Autrement dit: un parlement peut tout faire… mais il y a des limites!!”

Renvoi relatif au régime d’assistance publique du Canada Can the government of Canada unilaterally change terms of the Canada Assistance Plan There was an agreement that the federal government would finance 50% of the provincial governments’

expenses; but, some provincial governments had higher expenses, so the federal government wanted to unilaterally amend this

o The Court says: if there isn’t a contravention of competencies or a violation of a fundamental right, this doesn’t limited parliamentary sovereignty, and the government could do this

o The Court may say, the limit is so substantive that we can’t consider it procedural anymore Two limits:

o Sharing of competencieso Rights and freedoms

Federal and provincial legislative powers share the same level of parliamentary sovereigntyQuébec (PG) c. Canada (PG) (Firearm Registry)

This is a responsibility under criminal law, but this could also be seen as a provincial responsibility, like cars

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The liberal government wanted to create a registry; QC wanted this too; 6 provinces joined the federal government to create the registry

Part of Harper’s policy program was getting rid of this, likely due to ideological reasons It was unilaterally abolished, and decided that the information in there had to be destroyed QC says: OK, you, federal Parliament, did this, and you have sovereignty in criminal law to abolish this registry,

but you should give us, QC, the information you have so we can create our own registry; we don’t want to lose all this data

The Court says: no, this doesn’t fly, federal Parliament has the right to destroy this info in accordance with its parliamentary sovereignty

o This is why we can call parliamentary sovereignty an “uber principle” Canada would have been a “good neighbor” by doing this; it wouldn’t have cost the federal government anything,

but they refused

Recall: Parliament can’t bind on substance; that’s unconstitutionalo E.g. if Parliament said Parliament will never again legislate on a firearm registry, that law would be on

the books, but the law wouldn’t be constitutional as it’s substantive It’s likely that Parliament also couldn’t say something like “we won’t pass a law for 5 years”; but, there’s a grey

area if there’s an amendment clause saying “this can’t be amended until after the next general election according to fixed date”

Renvoi relatif au régime d’assistance publique du Canada [1991] 2 RCS 525 p. 532-534; 546-564; 568-569

Under the Canada Assistance Plan the Parliament of Canada was contributing 50 per cent of the costs for social assistance and welfare in the province of British Columbia. In 1991, the federal government put a cap of 5 per cent on the growth of the payments. The province protested and attempted to challenge the change in court. The federal government argued that the issue was purely political and could not be considered by the Court.The Court held that the issue was justiciable as there was a legal component to it. On the facts the Court found that the federal policy was constitutionally valid. The Court held that the power to enact, repeal, or amend Acts is well within the Parliamentary sphere.The Court also looked at the Interpretation Act which explicitly states these powers. Ultimately, the Court relied on the Interpretation Act in its decision, although it stated that the Parliament would not have been precluded from exercising its powers in the absence thereof.

FACTS Canada Assistance Plan (CAP), federal statute, authorized gov. to enter into agreements with provinces for

sharing costs of provincial social assistance and welfare programs dollar for dollar without a cap Had promised not to change anything without consulting the provinces first Canada decided to cap their contributions to the 3 wealthiest provinces (ON BC AB) by passing legislation – Bill

C-69 (CAP doesn’t mention the authority of Parliament to amend it) AB and BC bringing a reference to see if Canada unilaterally making this decision without consultation is

contrary to administrative lawISSUES

Has the fed gov any statutory, prerogative or contractual authority to limit its obligation under CAP and its agreement with BC? YES

Do the terms of the agreement, the subsequent conduct of the fed gov pursuant to the agreement and the provisions of CAP give rise to a legit expectation that the fed gov would introduce no bill into Parliament to limit its obligation under the agreement or CAP without BC’s consent? NO

HOLDING Yes. No. Appeal allowed

REASONING Question 1: has the fed gov any statutory, prerogative or contractual authority to limit its obligation?

o S. 54 of the Constitution Act, 1867, a money bill can only be introduced on the initiative of the gov This includes the amendments to the money bill in s. 5 of CAP Doesn’t make sense that the fed gov would restrict Parliament’s ability to legislate amendments

in the future and that it would intend to restrict its sovereign legislative power in s. 9(2) of CAP Question 2: did the fed gov act illegally in not getting BC’s consent per the legal doctrine of legitimate

expectations?o The doctrine’s applicability to the process involved in the enactment of a money bill

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o Doctrine of legitimate expectations doesn’t create substantive rights – to veto proposed fed legislationo Doesn’t apply to the legislative process – would place a fetter on the Parliament’s sovereignty

RATIOPublic officials must act in accordance with the law and have a statutory duty to act in good faith

Issues Whether and in what circumstances a court should answer questions referred to it that have a political connotation The interpretation and binding effect of federal-provincial agreements Whether the doctrine of legitimate expectations applies to prevent the Cabinet from introducing a money bill

Québec (PG) c. Canada (PG), [2015] 1 RCS 693 par 1-4; 15-26; 50-68; 115-134, 147-150; 153-156, 197-200

Canadian constitutional law case concerning the federal government's ability to destroy information related to the Canadian long-gun registry pursuant to the federal criminal law power

FACTS Firearms Act enacted by Parliament in 1995, required long gun owners to register their guns

o SCC found it was intra vires the fed crim law power 2012, Parliament repealed the requirement through the Ending the Long-gun Registry Act (ELRA) and sought to

delete the info in its registry QC wanted to create and maintain its own registry so asked fed gov for the info, fed gov declined QC argued s. 29 of the ELRA (provision disbanding the long gun registry) was ultra vires the fed gov Trial judge: found s. 29 unconstitutional – violated principle of cooperative federalism since QC had helped

collect and analyze the data Appeal: allowed, ruled since fed gov had the power to create the registry, they could also dismantle it

ISSUES Does the principle of cooperative federalism prevent Parliament from legislating to dispose of the data? NO Does QC have the right to obtain the data? NO Is s. 29 of the ELRA ultra vires Parliament’s criminal law power?

HOLDING No. No. Appeal dismissed

REASONING Cooperative federalism doesn’t prevent Parliament from exercising legislative authority that it otherwise has

o If it could, it might work against parliamentary sovereignty and complicate situations where one level of gov’s policy choices affect the other’s

QC didn’t establish a legal basis for its claim to the data because:o The principle of cooperative federalism doesn’t limit the scope of legislative powers assigned by the

Constitutiono QC’s alleged right arises from its expectation of having continuing access to the data regardless of

changes to fed legislation QC’s reliance on the existence of the data cannot limit Parliament’s capacity to destroy a

registry, which flows exclusively from its crim law head of powero Even if data in the registry was the result of a cooperative effort, QC’s effort was statutorily limited to

the licensing data held in Chief Firearms Officer’s licensing registry, not registration data S. 29 is not ultra vires the fed gov’s crim law power

o The fact that it might hinder QC’s efforts to create its own registry was insufficient to make out colourable legislation

o They clarified the pith and substance analysis by specifying that a legislative provision repealing a criminal offence would fall within the scope of the criminal law power, even though it is not strictly a law applying a prohibition and penalty for a public purpose

o The provision itself fell within fed crim law power because the power to repeal a criminal law provision must logically be wide enough to give Parliament jurisdiction to destroy the data collected for the purpose of a criminal law provision

Dissent High degree of provincial involvement – there was a partnership consistent with cooperative federalism Purpose of s. 29 was to prevent the provinces from accessing the data – pith and substance relates to provinces’

power over property and civil rights

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Ancillary powers doctrine: seriousness analyzed on the basis of factual and legal context of the caseo Substantial encroachment on provincial jurisdictiono Not ancillary to the ELRA: not integral to its enactment: destruction of data not necessary for the

abolition of the requirement to register long guns But QC hasn’t established a legal basis for its claim to the data so QC’s request for a compulsory transfer of data

fails – governments must agree to transfer conditionsRATIO

Provinces don’t have the right to information that the federal government wishes to destroy in the carrying out of Acts that fall under its legislative authority

Cooperative federalism doesn’t prevent Parliament from exercising legislative authority that it otherwise has (ie: cooperative federalism cannot stop Parliament where it has Parliamentary sovereignty)

COMMENTSWhen the constitutionality of a statutory provision is challenged on the basis of the division of powers, courts turn to the pith and substance doctrineTo apply this doctrine, they must review the extent to which the impugned provision intrudes on the powers of the other level of government. Where, because of its pith and substance, a provision found in an otherwise valid statute encroaches on the jurisdiction of the other level of government, it must be determined whether the encroachment is ancillaryThe degree of integration of a provision that is needed for an encroachment to be considered ancillary varies with the seriousness, or extent, of the encroachment. If the encroachment of the impugned provision on the jurisdiction of the other level of government is merely marginal or limited, a functional relationship between the provision and the statutory scheme may suffice. If, on the other hand, the provision is highly intrusive vis-à-vis the powers of the other level of government, a stricter test of necessity will apply

Coughlin c. Ontario (Highway Transport Board), [1968] R.C.S. 569

FACTS C was issued a licence permitting the inter-provincial transport of goods in ON under the Motor Vehicle

Transport Act (MVTA) Fed gov delegated power to provinces to regulate interprovincial trucking (fed matter under s. 92) through MVTA C applied for order prohibiting HTB from proceeding to hold a hearing to review the terms of the

certificate/licence on the grounds that HTB was without jurisdiction because the MVTA (which conferred HTB its jurisdiction) was ultra vires

o Argued s. 3 constituted an unlawful delegation by Parliament to the provincial legislatures of the power to legislate in relation to the subject matter of inter-provincial motor vehicle carriage (which is wholly within Parliament’s jurisdiction)

Judge dismissed application, as did Court of Appeal, C appealedISSUES

Is s. 3 of the MVTA, which gives provinces the power to regulate interprovincial trucking, ultra vires? NOHOLDING

No, it’s intra vires. Appeal dismissedREASONING

No delegation of law-making power, but rather the adoption by Parliament, in the exercise of its exclusive power, of the legislation of another body as it may from time to time exist

HTB derives no power from the legislature of ON to regulate or deal with the inter-provincial carriage of goods Its powers in that regard are conferred upon it by Parliament which can terminate at any time

Dissent Unconstitutional delegation from the fed to provincial authority of subject matter reserved to Parliament alone

under the BNA Act MVTA sought to relinquish all control of itRATIO

Parliament is entitled to confer to provincial gov the power to regulate a matter within exclusive federal jurisdiction

A.G. Nova Scotia c. A.G. Canada, [1951] R.C.S. 31, pp.33-45 (l’opinion du juge Taschereau est particulièrement claire)

FACTS Reference as to the constitutional validity of Bill No. 136 of the adjourned meeting of the 2nd Session of the 43rd

General Assembly of the Legislature of Nova Scotia, entitled "An Act Respecting the Delegation of Jurisdiction 51

from the Parliament of Canada to the Legislature of Nova Scotia and Vice VersaISSUES

Can the provincial gov delegate powers to fed gov and vice versa? NOHOLDING

The contemplated legislation of the Legislature of the Province of Nova Scotia, Bill No. 136 entitled "An Act Respecting the Delegation of Jurisdiction from the Parliament of Canada to the Legislature of Nova Scotia and vice versa" if enacted, would not be constitutionally valid since it contemplated delegation by Parliament of powers, exclusively vested in it by s. 91 of the British North America Act, to the Legislature of Nova Scotia; and delegation by that Legislature of powers, exclusively vested in Provincial Legislatures under s. 92 of the Act, to Parliament.

REASONING The Parliament of Canada and each Provincial Legislature is a sovereign body within its sphere, possessed of

exclusive jurisdiction to legislate with regard to the subject matters assigned to it under s. 91 or s. 92, as the case may be. Neither is capable therefore of delegating to the other the powers with which it has been vested nor of receiving from the other the powers with which the other has been vested (ie: legislative powers)

RATIO

Souveraineté parlementaire et armes à feux : le fédéralisme coopératif dans la ligne de mire ? – Poirier – 2015 – p 80-102 (230-252)

NOTES ARE NOT VERY GOOD/COMPLETE Il s’agit d’examiner dans quelle mesure les tribunaux peuvent – ou doivent – intervenir au nom de celui-ci non

pas lorsque les gouvernements s’entendent, mais justement lorsqu’ils ne s’entendent pas (ou plus), et ce, en dehors des litiges relatifs à la répartition formelle des compétences

Le fédéralisme coopératif peut-il conduire à la reconnaissance d’obligations juridiques de « conduite coopérative » dans le chef des partenaires de la fédération?

La souveraineté parlementaire: un principe constitutionnel sous-jacent (unwritten)? YES Pour certains auteurs, la souveraineté parlementaire représente l’un des éléments fondateurs de l’état de droit On pourrait également soutenir qu’elle constitue un principe sousjacent au principe démocratique Dans un régime parlementaire représentatif, la souveraineté parlementaire vise à donner – sauf exceptions

constitutionnalisées – le dernier mot au peuple, par l’entremise de ses représentants démocratiquement élusLa souveraineté parlementaire et la defense du fédéra: lisme dualiste

Renvoi sur le Régime d’assistance publiqueo Pour le juge Sopinka, la souveraineté parlementaire n’est limitée que par les contraintes de la répartition

formelle de compétences et des droits fondamentauxLa souveraineté parlementaire à la lumière du fédéralisme cooperative

Comme nous le verrons dans la quatrième partie de ce texte, l’évolution de la jurisprudence depuis 1991 invitait, nous semble-t-il, à une relecture du Renvoi sur le RAP, du moins en ce qui a trait à la prépondérance qu’il accorde à la souveraineté parlementaire par rapport à un principe du fédéralisme plutôt frêle. En effet, le regain accordé au principe du fédéralisme dans le Renvoi sur la Sécession appelait à reconsidérer l’équilibre entre ces principes

GAVE UP HALFWAY THROUGH

La Déclaration canadiennes des droits, S.R.C. 1970, App. III (art. 2)

Charte des droits et libertés de la personne, LRQ, 2008, c C- 12 (art. 52)

No provision of any Act, even subsequent to the Charter, may derogate from sections 1 to 38, except so far as provided by those sections, unless such Act expressly states that it applies despite the Charter.

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Le pouvoir judiciaire et le contrôle de constitutionnalité

Organisation des tribunaux et indépendance judiciaire (Oct 25)

Art. 96 of the Constitution Act, 1867 provides that the GG will nominate judges for:o Provincial superior Courts, provincial appeal courts, and Supreme Court

The provincial courts are considered inferior; the judges are named by the provinces

The Supreme Court of Canada has even more power than the USSC (in the US, sometimes the Circuit Courts are the highest court); the SCC is the final arbiter for all courts

In the Reference re Provincial Court Judges, the salaries of provincial court judges were discussedo The provincial legislatures finance the level of the provincial courtso Provincial judges said it was arbitrary to just reduce their salary

(1) The main argument was if there’s no financial security, judges basically could be bought

To complicate things, section 11d of the Charter speaks of the independence of the judiciary: “to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal”

o But where does this apply? In criminal law, which is dealt with by all courts The majority in the above reference extended this

In the UK, there is independence of the judiciary

In the CDN context, judges are named and financed by the executive; BUT, once they’re sitting as judges, they are independent from the executive branch

(2) There is also an argument of administrative independence (3) And there’s the argument of impartiality

o The judge needs to take into account all the proof from both sideso They also need to give the appearance of being impartial for the system to function

Named by fed

Named by fed

Named by fed

Named by prov

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L’Organisation des tribunaux

The federal and provincial and territorial governments are all responsible for the judicial system in Canada Only the federal government can appoint and pay judges of the superior, or upper-level, courts in the provinces Parliament can also establish a general court of appeal and other courts (SCC, Fed Court, Fed Court of Appeal,

Tax Court) Parliament also has exclusive authority over the procedure in courts that try criminal cases The provinces administer justice in their jurisdictions incl organizing and maintaining civil and criminal courts

What do fed courts do? SCC: CA’s final court of appeal, 9 judges representing 4 major regions of CA, 3 from QC to represent CVL

o Functions: Hears appeals from decisions of appeal courts in all provinces and territories and fed court of

appeal Decides important questions about the constitution and controversial/complicated areas of private

and public law, also references from the gov Federal court: IP, maritime law, fed-provincial disputes, civil cases re terrorism Tax court: appeals from tax assessments Fed court of appeal: reviews decisions from fed court and tax court

Provincial and territorial courts 3 levels per province:

o Provincial and territorial (lower courts): try mostly crim offences, money, family, can also have specialized

o Superior courts: highest level of courts in provinces or territory: most serious crim and civil cases Two levels: trial and appeal

o Appeal courts

Revoir : Renvoi relatif à la rémunération des juges, [1997] 3 SCR 3 para 1-10, 82-109; 287, ainsi que dissidence de Laforest para 296-325

FACTS PEI enacted the Public Sector Pay Reduction Act and reduced the salaries of Provincial Court judges as part of its

budget deficit reduction plan Many accuseds challenged it, arguing that as a result of the salary reductions, the court had lost its status as an

independent and impartial tribunal under s. 11(d) of the Charter 3 core chars of judicial independence (protected by s. 11(d) of the Charter):

o Security of tenureo Financial securityo Administrative independence

Appeal division of the SCC found that the legislature has the power to reduce their salary and that the judges were still independent

Similar things happening in Alberta and Manitoba

ISSUES Whether and how the guarantee of judicial independence in s. 11(d) of the Canadian Charter of Rights and

Freedoms restricts the manner by and the extent to which provincial governments and legislatures can reduce the salaries of provincial court judges

HOLDING Appeals from the reference re remuneration of judges of the provincial court of PEI and the reference re

independence and impartiality of judges of the provincial court of PEI allowed in partREASONING

Ss. 96-100 of the Constitution Act, 1867, and s. 11(d) of the Charter are not an exhaustive and definitive written code for the protection of judicial independence

Preambles can be used to identify the purpose of a statute and as an aid to construing ambiguous statutory lang o Also recognizes and affirms the basic principles which are the very source of the substantive provisions

in the Constitution Act, 1867 Problems with seeing it as written based on the written provisions only:

o The range of courts whose independence is protected by the written provisions contains large gaps: only

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protect the independence of judges of the superior, district and county courts and unevenly at that Judicial independence is an unwritten norm, recognized and affirmed by the preamble to the Constitution Act,

1867 which identifies the organizing principles of the constitution and invites the courts to turn those principles into the premises of a constitutional argument that culminates in the filling of gaps in the express terms of the constitutional text

o Reference to “a constitution similar in principle to that of the UK” indicates the legal and institutional structure of constitutional democracy in CA should be similar to that of the UK

Doctrine of paramountcy: ex where SCC has inferred a basic rule of CA constitutional law despite the silence of the constitutional text Asserts that where both Parliament and provincial legislatures have enacted legislation which comes into conflict, federal law prevails

Governments are free to reduce, increase, freeze salaries of provincial court judges Provinces are under a constitutional obligation to establish bodies which are independent, effective and objective

who, prior to changes in judicial remuneration, will review the proposed change. Any changes without this recourse are unconstitutional

Recommendations are non-binding but the executive or legislature who departs from them must justify why according to a standard of simple rationality

Judiciary cannot engage in negotiations over remuneration with the executive or legislatureDissent

Disagrees with the majority’s conclusion that s. 11(d) prohibits salary discussions between govs and judges and forbids govs from changing judges’ salaries without first having recourse to ‘judicial compensation committees’ and that re the protection of provincially appointed judges afforded by virtue of the preamble to the Constitution Act, 1867

S. 11(d) is to protect the judged, not judges it doesn’t grant judges a level of independence to which they feel they’re entitled but rather it guarantees only the degree of independence necessary to ensure that tribunals exercising crim jurisdictions act and are perceived to act impartially

RATIO It’s possible to explain the existence of many unwritten rules of the constitution by reference to the preamble of

the Constitution Act, 1867 (although it is not a source of positive law) Provincial government can modify the remuneration to judges prior recourse by an independent and objective

commission is sought

Comité consultative indépendant sur la nomination des juges de la Cour suprême du Canada 

The Independent Advisory Board for SCC Judicial Appointments: independent, non-partisanMandate: to provide non-binding, merit-based recommendations to the PM on SCC appointments

Le contrôle de la constitutionnalité   : modalités et légitimité (Oct 25)

Recall: there are written rules in the Constitution, but they’re not explicit See, for example, para 96-99 on the appointment/selection of judges, Constitution Act, 1867 We also understand that “fundamental justice” incorporates independence of the judiciary The normative force the Court accords to the principle of judicial independence is striking; the Court has

authorized provinces to create commissions for the naming of judges, for example Does the fact that the PM names Supreme Court judges pose a problem for judicial independence?

o (1) In terms of separation of powers, there is some disarray This could bring about an appearance of partiality and politicization

o (2) This may be an affront to democracy, if we think about the role citizens should play in selecting a judge (though reverse arguments can be made)

o (3) There’s also an issue of federalism in terms of how effectively these justices will represent the provinces, and the fact that the PM can name certain provincial judges

Remember: justices sometimes surprise us; they don’t always judge in the way we expect them to The nomination of a judge can have an enormous social impact (e.g. replacing Scalia in the States)

Nomination of Judges Are there constitutional principles that could affect the nomination of judges? No. The written Constitution deals with this directly

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We may disagree, but unwritten constitutional principles DO NOT override clear written principles There’s no one part of the Constitution that’s superior to another

Models of Constitutional Control (Chagnollaud de Sabouret) On end of the spectrum, there is no control

o Ex: in the UK, after the Human Rights Act, tribunals can say there’s a violation of fundamental rights, but it’s up to the government to act (the court won’t automatically invalidate a law)

It’s up the people to decide on the validity of that law, through Parliament Ex: In Switzerland, the court can invalidate cantonal (provincial) laws, but not federal laws

o But, there’s also a strong practice of direct democracy in Switzerland—the people are the final arbiters of constitutionality, and all laws can be contested

Law may be discussed in referendum Control of constitutionality is something we often do, but it’s not something that’s universally accepted Two major models

o (1) American (n.b. the Canadian model is close, but not identical) (1) Common law

In Canada, this is diffused, as any tribunal can deal with a constitutional question (2) In Canada, we have renvois (references)

This is NOT POSSIBLE in the USA (3) Concrete control (in general)

Besides references, when there’s a constitutional question, it’s on concrete factso The court of first instance deals with the facts; the Appeals Court usually takes

the facts for granted, and deals with the questions of law (4) A posteriori control (with regards to concrete control), i.e. after the fact (e.g. after a statute

has occurred) Except references are generally a priori, before the facts occurred

o (2) European (1) Specialized jurisdictions depending on the case (unlike in Canada, where tribunals can deal

with any issue) This both makes things more complex while at the same time ensuring specialization

(2) In Europe, a question préjudicielle (preliminary ruling) occurs when dealing with a constitutional question; they send to a higher, specialized court for clarification, and then it comes back.

(3) Abstract control Sometimes decisions are made by memos, resembling references But, often the questions are concrete legal questions

(4) Both a posteriori and a priori, depending (5) “Saisine” (who could bring up a question)?

So, in some ways, the line between concrete/abstract control is blurred, as both contain concrete/abstract elementsDifference between References and Preliminary Rulings

In Canada, the government asks for a reference, but in Europe, judges will ask the ECJ for a preliminary rulingSaisine

“Saisine” (who could bring up a question)? In private law, you need to be a party and have a direct interest In public law, It’s more complicated

o You may have a direct, private interest If someone is accused of a crime (a criminal law issue, which falls under public law), they can

unquestionably raise a constitutional defenceo Alternatively, you may have a public issue

Downtown Eastside The principle of legality – a synonym of rule of law (Principe de légalité = principe du primauté de droit) No one wanted to bring this up, which is why an intervener stepped forward Can a group with the prostitutes’ interests in mind bring forth a case on their behalf? In terms of accessibility to justice, it could take years to bring something to the court If we don’t allow groups like this to bring questions to the court, they won’t be asked at all

o (1) Is it an important/justiciable question? Is the “threshold” of that question too high?

o (2) Is there a direct link between people bringing up the question and the issue?56

o (3) Is the best way to ask the Court this question? Gradually, the Court’s admitted to interpreting this in a very soft way Now, the criterion is more is this a reasonable way to answer the question

Federalism Why is Canada a federal state, and what kind of federal state is it?

o We will discuss this next lecture

Loi sur la Cour suprême, L.R.C. 185, S-26, art. 53 (procédure d’avis)

References by Governor in Council1. The Governor in Council may refer to the Court for hearing and consideration important questions of law or fact

concerning(a) the interpretation of the Constitution Acts;(b) the constitutionality or interpretation of any federal or provincial legislation;(c) the appellate jurisdiction respecting educational matters, by the Constitution Act, 1867, or by any other

Act or law vested in the Governor in Council; or(d) the powers of the Parliament of Canada, or of the legislatures of the provinces, or of the respective

governments thereof, whether or not the particular power in question has been or is proposed to be exercised.

2. The Governor in Council may refer to the Court for hearing and consideration important questions of law or fact concerning any matter, whether or not in the opinion of the Court ejusdem generis with the enumerations contained in subsection (1), with reference to which the Governor in Council sees fit to submit any such question

Canada (Procureur general) c. Downtown Eastside Sex Workers United Against Violence Society, [2012] 2 SCR 524

FACTS DESW works to improve conditions for female sex workers in the DE of Van Launched a Charter challenge to the prostitution provisions of the Crim Code

ISSUES Can DESW bring an action of public law (ie: should they be granted public interest standing)? YES

HOLDING Yes. Appeal should be dismissed

REASONING In determining whether to grant standing in a public law case, must consider 3 factors:

1. Whether the case raises a serious justiciable issue2. Whether the party bringing the case has a real stake in the proceedings or is engaged with the issues it

raises3. Whether the proposed suit is a reasonable & effective means to bring the case to court

Whether it’s an economical use of judicial resources, whether the issues are presented in a context suitable for judicial determination in an adversarial setting and whether permitting the proposed action to go forward will serve the purpose of upholding the principle of legality

Party seeking public interest standing must persuade the court that these facts favor granting standing All other relevant considerations being equal, a party with standing as of right will generally be preferred Flexible, discretionary approach to be used when assessing the effect of these considerations on the ultimate

decision to grant or not standing Here, all 3 factors favor granting public interest standing

RATIO 3 factors must be assessed when granting public interest standing: whether 1) the case raises a serious justiciable

issue; 2) the party has a real stake in the proceedings or is engaged with the issues; and 3) the proposed suit is a reasonable and effective way to bring it to court

Revoir : Renvoi relatif à la sécession du Québec, [1998] 2 RCS 217 para. 24-31

Justiciability Must ask if the questions posed to courts are justiciable (ie: if the question is addressed by the law) – 3 arguments

raised in this regard:1. The questions are not justiciable because they’re too ‘theoretical’ or speculative2. The questions are not justiciable because they’re political in nature

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3. The questions are not yet ripe for judicial consideration can ask these in a reference References are fundamentally different than regular litigation: asking hypothetical questions

o So can ask questions that might otherwise not be ‘ripe’ for decisiono Can’t ask inappropriate-to-answer questions – must consider whether the question is appropriately

addressed by a court of law Circumstances where the court may decline to answer a reference question on the basis of non-justiciability:

o If doing so would take the court beyond its own assessment of its proper role in the constitutional framework

o If the court couldn’t give an answer that lies within its area of expertise: the interpretation of law

La limitation du pouvoir par la Constitution : le contrôle de la constitutionnalité – Chagnollaud de Sabouret – 2015

Non-judiciary control of constitutionality: exercised by the people 1) en vertu de son droit a la resistance a l’oppression or 2) par un organe politique

o Does not work Judiciary control of constitutionality of laws:

DIDN’T READ

Le fédéralisme

Le fédéralisme   : Introduction historique et théorique (Nov 3-4)

What is federalism? Federalism is a political theory to bring together joint-rule + self-rule

o “The advocacy of multi-tiered government combining elements of self-rule and shared-rule” It comes in a wide array of models Generally, the term refers to a structural principle for systems of government, but it can be used in other contexts

as well Differences in characterisation, depending on discipline and legal/political culture When we talk about the principles of federalism, we’re referring to the equilibrium between the provinces and

the federal government Federalism is a political idea, and a federation is the idea of federalism transformed into institutions

Advantages of a Federal System vs. Unitary Regime (This is just contextual information, that we won’t be evaluated on) Federalism provinces a 2nd form of separation of powers (vertical instead of just horizontal) to limit the risks

of tyranny and the concentration of power The power of the government is divided between the federal and state levels There are advantages and disadvantages of federalism

o In Canada, federalism was a necessity; QC wouldn’t have joined otherwiseo There’s also an advantage for the Francophones of QCo Minimal advantage for aboriginals

For citizens, it’s true that it’s complicated, but there are some advantages Federalism incorporates a notion of subsidiarity

o In theory, decisions are made as close to the people as possibleo Subsidiarity flows in two ways

(1) Closest to the citizens (2) ALSO allows for common norms, in that the superior order makes the decisions

This is now how subsidiarity works in the EUo Members still have control of whether or not to respect the centre; the centre has to reason with the

members to say why their norm should be adopted In Canada, for a long time, whether or not a subject should be closer to the citizen under one government or

another (s. 91 or 92) didn’t matter—there was a conception of subsidiarity, in that private matters were under the province’s jurisdiction, and matters of national important were dealt with by the federal government

In 1867, there was an understanding that major economic subjects would be dealt with by the federal government (banks, etc.); trade and commerce would be interpreted broadly

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Criminal law should be the same everywhere So, there was a type of logic of subsidiarity when “signing the contract” (BNAA) So: subsidiarity is (1) a certain principle; (2) as defined at the time; (3) is it a principle of interpretation? We’ll

discuss this Until around 2001, this wasn’t brought up; for one reason or another, something fell under either the province or

federal government It’s not clear if the Court is going to say one subject is better suited for one government or another; it’s

happened, but this isn’t clear

1. Why is Canada a federal state?2. What type of federal system is Canada?

Why Is Canada a Federal State? Canada is a federation The UK is a unitary system Historically, why did we want to create a federal union?

o Autonomy + participation, concerted action, conjoined actiono Essentially, self-rule + joint-rule

The first act of the BNAA was an act of secession; we ceded the Province of Canada, and then brought together QC, ON, NB, and NS

Why did the provinces want autonomy?o Maintain their values; values of ON and NS aren’t necessarily the sameo Geography – impossible to have centralized power on such a large territoryo Cultural reasons—to protect the unique culture of each provinceo So, federation assured autonomy for the provinces

NB, NS, and PEI were small colonies, a long way from London, with a good measure of autonomy. Why would they want federation? Naturally, they were scared of assimilation from ON and QC, so for them as well; autonomy was important

Why unite?o Economy – for example, a question of economies of scale

There was an idea of redistribution, e.g. absorption of debtso Defense against the Americans – the civil war had just ended, and the War of 1812 was a recent memory

But, the idea of federalism evolved; at the Conference of Quebec, initially there was a question of improving relations with the Crown – eventually there was a projet de loi (bill), an imperial act, the BNAA

There were definitely loyalists wishing to retain a connection to London Western expansion was itself a colonial project; there was this idea that Canada could retain its ties to London,

while at the same time being a colonizer Federalism was a pretty new idea; the norm in the Western world was centralized regimes For QC, federalism was a make it or break it issue – Canada was to be a federal state, or it wouldn’t be part of

Canada

“Confederation” Confederation is full of paradoxes – Canada was a federal state, with some centralized elements One answer is that we simply call this confederation – this didn’t mean Canada was a confederation, it was just

the process of federation But, another answer is that there are legal distinctions between a confederation and a federation—Canada is not a

confederation In a confederation, sovereignty belongs to the constituent entities, which choose to have in common some

resources (e.g. commerce and defence) and powers, but don’t abandon their sovereigntyo It looks more like an international organization

Joint rule is a lot weaker In a confederate system, the conjoined organization, i.e. the “confederation” as such, doesn’t have any direct

connection with citizens When the confederation applies laws, it applies to those entities that constitute the confederation, but not to

citizens – it’s up to those constituent elements to apply the law to the citizenso Essentially, this means every element of the confederation has a veto

Confederations need money, and if the confederated states don’t give the confederation money, it won’t do well

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After independence in the US, the US experimented with a confederation, and that went horribly; eventually it became a federation

The EU started as a body that was more along the lines of a confederation, but it’s moving in a federal direction – it contains both confederal dimensions and federal dimensions, within which joint rule is very strong

In the Canadian constitution, there are some unitary elementso Macdonald wanted a very centralized union; Cartier wanted a decentralized union; so, the constitution

was compromiseo Those powers considered the most important were federal powers

At the beginning, it seemed that the federal government was a lot more powerful The federal government also had the power of disallowance (désaveu), for example, but this fell

out of practice by the 1950s Many BC bills were disallowed due to their discriminatory nature, but there are also

many examples of it not using this power Overall, the power on paper looks pretty centralized – this is important to note, because there’s a difference

between theory and practice Relatively quickly, the court interpreted the BNAA as a way to consolidate and protect provincial powers There was a vision of shared sovereignty, which went against the text itself in some ways

o In its sphere of power, each constituent element has the same power – there’s no hierarchy, despite the power of disallowance, etc.

Aren’t really any confederations left in the world (United Arab Emirates claims to be but isn’t really)o But have federations with confederate features

What Type of Federal System Is Canada? (1) An important qualification: the federal system is Canada is relatively egalitarian as opposed to hierarchical (2) It’s also multinational

o This is NOT to say that each province is a nationo But, it’s pretty clear that Quebecers form their own nation, and there’s very little opposition to thiso We also look at the First Nations people as comprising a nation

(3) It’s territorialo The units that make up the federation are territorial units

Some territorial units aren’t equal with others (ex: the territories), but all in all, they’re equalo Minority groups are NOT actors in the Canadian federation, UNLESS they’re the majority on a certain

territory French Canadians, dispersed throughout Canada, may make up a nation, but they are not a

political actor as such But, Quebec is a political actor, the majority of which is French Canadians

Likewise, aboriginals in Canada are also holders of rights and have certain constitutional powers, but the only real aboriginal political actor is Nunavut, because the majority of citizens of Nunavut are aboriginal

We redrew the borders of the NWT to give the Aboriginals their own territory So, we’re not in a “personal” federalism (un fédéralisme “personnel”) that would give certain minority groups

direct power as political actors

Revoir : Renvoi relatif à la sécession du Québec, [1998] 2 RCS 217 pp 33-48, 55-60

Historical context: the significance of confederation Confederation: an initiative of elected representatives of the people then living in the colonies scattered across

part of what’s now CA Charlottetown accord (1864): to determine a plan for federal union – feat. a bicameral central legislature (lower

house = based on population / upper house: based on regional equality) Follow up QC Conference (1864) to resolve details – incl. guarantees to protect French Canadian Legislative Assembly approved the QC Conference in 1865 with majority from East and West CA Act received royal assent and then was proclaimed on July 1, 1867 = Dominion of Canada Early attempt to secede from NS but were denied by the Colonial Office in 1868 – interdependence of provinces

too important: char. by vast obligations, political and commercial Federalism was a legal response to the underlying political and cultural realities that existed at Confederation and

still today

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o Fed-provincial division of powers was a legal recognition of the diversity that existed among the initial members of Confederation and to allay concern by giving provinces power

o The political mechanism by which diversity could be reconciled with unity Despite its federal structure, CA was to have “a Constitution similar in principle to that of the UK” The 1982 amendments didn’t alter the basic division of powers in ss. 91 and 92 of the Constitution Act, 1867

ie: the primary textual expression of the principle of federalism Federalism

Some argue that CA is only partially federal because on paper the fed gov retained sweeping powers which threatened to undermine the autonomy of the provinces

o BUT must interpret the Constitution through a federal lens underlying principle Up to the courts to control the limits of the respective sovereignties: provincial and fed Principle of federalism facilitates the pursuit of collective goals by cultural and linguistic minorities which form

the majority within a particular province

La répartition des compétences   : logique interne, notions générales et exemples de droit comparé (Nov 3)

Hodge v. The Queen Essentially, there are two issues: one of delegation, and one of the division of powers There was a precedent – Russell, which dealt with prohibition Prohibition was a federal law that allowed municipalities to decide whether or not prohibition should be applied

o So, there was this federal law placing conditions on the sale of alcohol, and a provincial law doing the same thing, pretty much

Russell was decided on peace, order, and good government (POGG) Today, it would have been decided on criminal law The federal government has power over commerce

o But, unlike in the US, this clause has been interpreted in a very restrictive way, especially with regards to what falls under local jurisdiction

Ex: as discussed in the Reference re Employment Insurance Act, insurance is a provincial matter (an analogy was made to the UK, where Scotland managed its own insurance)

So, in Hodge, we interpret the commerce clause in a very limited wayo If we interpreted it in an expansive way, we could have said alcohol was a federal issue, but the Court

doesn’t do that There’s another important aspect of this decision

o “Their Lordships do not think it necessary in the present case to lay down any general rule or rules for the construction of the BNAA.” (p. 7)

This would be case-by-case; obvious common law An aspect of this ratio is STILL APPLIED TODAY: see 10

o “subjects which in one aspect and for one purpose fall within s. 92 may in another aspect and for another purpose fall within s. 91”

This is the theory of dual aspects and still applies today! It’s the role of judges to decide which aspect the subject falls under

Since the 1950s, and especially in the last decade, this has been increasingly questioned This doesn’t mean that the division of powers isn’t important; but, it means that tribunals will adopt different

rules about thiso In 1867, there weren’t planes, there weren’t social insurance programs, etc.o So, tribunals need to interpret the Constitution of the 19th century, and they will do this in different ways

Sometimes, they’ll do this according to their orientation (e.g. centralist or decentralist) Today, with certain exceptions, tribunals are using the same doctrines as before, but are interpreting them in such

a way to favour joint sharing of powerso Sometimes, they say one subject falls under one area or another, but the divisions between powers are

becoming blurred If we had to rewrite the division of powers today, it would likely be longer and contain more exceptions

Employment Insurance Act

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There has been an evolutionary interpretation of this area; legislative authority is under Parliament, but there has been some movement in this area

Art. 91-95 LC 1867

Le partage des compétences et les relations intergouvernementales : la situation au Canada – Poirier – 2009

Self-rule and joint-rule are the essence of federalism Cet principe souleve des questions de repartition des pouvoirs – decalage entre la reponse de jure et la reponse de

facto Division of powers is laid out in art. 91-95 of the Constitution Act, 1867

o It’s necessarily incomplete as the writers 150 years ago weren’t able to anticipate new tech and other developments

o Fed powers = art. 91/ provincial powers = art. 92 Ambiguity re ‘pouvoirs residuaires’ fed legislates matters of ‘peace order and good government’ but provinces

legislate local and private matters (with a broad interpretation) Concurrent powers: both orders can legislate, but there’s a ‘preponderance’ in favor of an order of gov in cases of

conflict Shared powers: no ‘preponderance’ in favor of a particular order, rather courts must “retrace les frontieres” to

solve conflicts The majority of competencies in the Constitution can in reality be qualified as ‘shared’ Au Canada, la repartition des competences est pratiquement impossible a modifier par voie Constitutionel. Nous

sommes clairement dans l’ere du ‘federalisme cooperatif’ où les chevauchements et les articulations pragmatiques sont de rigueur “the result is neither clear nor coherent, but it is workable”

DIDN’T READ PAST PAGE 113

Hodge c. La Reine, (1883-84) 9 AC 117

FACTS Hodge owns a tavern There’s a provincial law prohibiting the sale of alcohol from Saturday-Monday There was a billiards table, but you couldn’t play billiards unless you had alcohol, so essentially on the weekend,

you couldn’t play billiards (There were municipal commissions that gave out alcohol permits) Hodge let people play billiards, and was charged Not paying the fine, he could go to prison, and be required to do forced labour He argued that the provincial law was unconstitutional It was ultra vires (invalid)

ISSUES Is the alcohol resolution of the License Commissioners illegal and unauthorized? Did the License commissioners have authority to pass the resolution or impose a fine? Is the Liquor License Act, under which the rule falls, beyond the authority of the ON Legislature?

HOLDING Is constitutional

REASONING H argued that the ON Legislative Assembly didn’t have the authority to delegate their power so the Liquor

License Act was ultra vires Precedent in Russel v The Queen: is not an authority in support of H’s contention and the judges don’t intend to

vary or depart from the reasons expressed for their judgment in that case o Parliament is dealing with a situation relating to public order and safety, which falls under Parliament’s

purview Decided the law was constitutional. Examined the ‘pith and substance’ of the law Here, the powers intended to be conferred by the Act are to make regulations of a merely local char. for the good

government of taverns ie: are to preserve the peace order and good government in the municipality Also created the doctrine of dual aspect: “subjects which in one aspect and for one purpose fall within s. 92 may

in another aspect and for another purpose fall within s. 91” when a law fits into both competencies, it can still 62

remain validRATIO

This case forms the base of Constitutional interpretation today

Renvoi relatif à la Loi sur l’assurance-emploi (Can.), art. 22 et 23, 2005 CSC 56 extraits sur l’interprétation « évolutive » para 1-16; 34-36; 45-50; 60-62 et 67-68

FACTS Ss. 22 and 23 of the Employment Insurance Act allow a woman who isn’t working because she’s pregnant and a

person who isn’t working because they’re taking care of a newborn or adopted child to receive employment insurance benefits

Court of Appeal decided they were unconstitutional because the matters to which they apply are under provincial jurisdiction

ISSUES Does Parliament have the constitutional authority to grant maternity benefits and parental benefits to individuals

who take time off work to give birth to or care for a child? (ie: are ss. 22 and 23 of the Employment Insurance Act constitutionally valid)? YES

HOLDING Appeal allowed. They are constitutional.

REASONING Principles of interpretation

o Rare that all the subjects dealt with in a statute fall entirely under a single head of powero Court has developed an analytical framework to guide it in its decision making

First, seek to determine the pith and substance (ie: dominant char) of the statute Second, identify the head of power to which that char is most closely related

o Double aspect doctrine (Hodge): the power of one level of gov to legislate in relation to one aspect of a matter takes nothing away from the power of the other level to control another aspect within its own jurisdiction

IF a statute intrudes into a field of jurisdiction that doesn’t belong to the authority that enacted it, the court must determine whether it is nonetheless valid because it’s part of a valid legislative scheme and is sufficiently integrated into that scheme

o Use a progressive interpretation BUT can’t be used to justify Parliament in encroaching on a field of provincial jurisdiction

Pith and substance of the EIA provisions: 2 tests to determine it: purpose (identified from context or set out explicitly) and effect (

o Based on the context, language and effects, it’s clear that the benefits are to replace the employment income of insured women whose earnings are interrupted when they’re pregnant

The primary effect is to replace employment income The secondary effect is to help women prepare for childbirth and care for their newborns but

NOT its pith and substance Identify the head of power: interpret it progressively and generously

o Parliament’s jurisdiction over unemployment insurance Specific power has been detached from a more general provincial power (property and civil rights) can’t be

evaluated in relation to the gen. power because any evolution would then be regarded as an encroachment must consider the essential elements of the power and ascertain whether the impugned measure is consistent with the natural evolution of that power here, the pith and substance is consistent with the essence of the fed jurisdiction over unemployment insurance

Parliament could legislate in relation to unemployment insurance per s. 91(2A) of the Constitution Act, 1867 – and it doesn’t trench on the provincial jurisdiction over property and civil rights

RATIO Must consider first the pith and substance (ie: the dominant char.) of the statutes and then identify the head of

power to which that char. belongs in interpreting which jurisdiction has the authority to legislate when dealing with potentially ultra vires statutes in an otherwise valid law

Les doctrines interprétatives de la répartition des compétences (Nov 4)

VALIDITÉ : la doctrine du caractère véritable, double aspect et la doctrine des pouvoirs accessoires

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Compétences matérielles : règlementation du commerce (91(2)) vs. propriété et droits civils (92(13)) Introduction au Renvoi sur les valeurs mobilières

Elements of the Division of Powers (1) There are concurrent lists (current powers)

o In principle, both governments are judicially competent over these areas; there is real competenceo Concurrence is what’s in the middle of exclusively federal and provincial powers (a concurrence DE

JURE) (think of a Venn diagram)o SEE: ss. 94(a) and 95

What if there’s a conflict? Generally, the federal government comes out ahead, but not always In s. 94, if there’s a conflict, the federal government In s. 94(a), if there’s a conflict, the province wins

(2) Shared powers, as opposed to being de jure, are DE FACTO, and refers more to the facts in the ground (think of a Venn diagram)

o So, when it comes to exclusive powers, these may be shared on the ground (de facto) Another way of thinking about this is talking about the double aspect

A subject can be dealt with under two different perspectiveso On the one hand, a federal perspectiveo On the other hand, a provincial perspective

In this case, the two laws could be valid Essentially, the test of the validity/operability/applicability of a law, which falls under these double aspects,

will ultimately depend on its purpose and effects The term “exclusive” is a juridical term, which remains in the Constitution, and demonstrates the original

thinking in the Constitution, but this understanding has evolvedo HOWEVER, this doesn’t mean the governments can do whatever they want

Surprisingly, the theory of double aspect came early in Hodge v. The Queen; it wasn’t elaborated upon enormously at the beginning, but since the 1950s, it’s become the norm

Even securities, which in principle come from the province’s exclusive jurisdiction, since 2011, the Court’s said some aspects could be regulated by the federal government since there are certain national risks

SO:1. Concurrent powers de jure2. Shared powers de facto

o Double aspect may apply (separate perspectives)o There are exclusive powers in the Constitution, but the double aspect theory allows us to talk about

shared powers, which arise out of the facts on the ground (de facto)

Residual Powers We could have said, if something isn’t accounted for, it would fall under the federal government In the vast majority of federal systems, we only have one list, not two lists – residual powers not falling under the

list belong to one or the other governments (either the centre’s powers are restrained, like in the US, or the states’ powers are restrained, like in Germany)

But, in Canada, we did both! Because we wanted it to be really clear; it’s a relatively long list The consequence of this is that there’s a residual power for the federal government in s. 91, BUT, before this

happens, there’s an indication to the Courts to look first to the provinces before assigning more power to the federal government

So, when something’s not accounted for, we need to ask: is this more local or private? If yes, it should be under the province’s jurisdiction. If not, it should be under federal jurisdiction

But, remember: some powers are very precise

Three Specific Powers of Interest These three federal powers are the most significant in helping us determine whether or not a residual power falls

under the federal government or province These three subjects can have a very large interpretation, which can serve to justify a federal law1. POGG: Peace, Order, and Good Government

a. In the first 50 years, POGG was used more2. 91(2): Trade and Commerce

a. We’ve started interpreting this more restrictively3. Criminal Law

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a. Increasingly, more and more federal powers are justified under criminal lawb. Droit substantiel criminel : if it’s in the Crim Code, it’s federal and criminal

i. But Crim Code doesnt incl all substantial Criminal laws – others are fed competencies per 91(27)1. Less clear when it’s not in the code

a. Ex : Food and Drugs (are criteria – not all food)b. Ex : Part of the environmental law c. Ex : Tobacco

There are also two “uber” provincial powers that could cover a loto 92(13): property and civil rightso 92(16): local or private nature

Because of the age of our Constitution and its originally broad interpretation, some things considered “private” today (such as health care) are considered public elsewhere (e.g. USA)

Police are provincial – all provinces have the constitutional right to their own police but 8/10 give it back to fed Ex: We thought unemployment insurance was simple, but when the federal government wanted to expand it to

deal with parental leave, this was a private issue, and thus unemployment insurance became more complicatedo Regarding this, for Prof. Poirier, this is DE FACTO, thus a shared power

SO:- In the list, there are very specific elements – go there first- Afterwards, thinking about the three “uber” powers listed above

o (1) POGG, (2) 91(2), (3) Criminal law – which today is the most important “uber” power- You could also think about the two “uber” provincial powers 92(13) and 92(16)

A hypothesis by Prof. Poirier: sometimes judges want to come to a certain conclusion

Renvoi sur les valeurs mobilières, [2011] 3 RCS 837  résumé and par. 1-10; 36-39; 53-62; 63-67

FACTS Proposed Securities Act is a comprehensive foray by Parliament into the realm of securities regulation If validly adopted it will create a single scheme governing the trade of securities throughout CA subject to the

oversight of a single national securities regulator Fed gov and AG of ON argue the act is a proper exercise of Parliament’s power to regulate trade and commerce

(s. 91(2) of the Constitution Act, 1867)o Argue securities market has evolved from a provincial matter to a national matter affecting the country as

a whole so Parliament should have power over it AG of QC, AB and others argue that securities regulation falls within province’s power to regulate property and

civil rights (s. 92(13) of the Constitution Act, 1867)o Argued that it mirrored existing provincial regulations by pursuing the same objectives via the same

meansISSUES

Does the proposed Securities Act fall within the legislative authority of Parliament? NOHOLDING

No. The proposed Act doesn’t fall within the general trade and commerce powerREASONING

Federalism principle: o Judiciary tasked with controlling the limits of the respective sovereignties – guided by foundational

constitutional principles o Recognition that some matters might have both fed and provincial aspects and overlap (Hodge) o SCC moved toward a more flexible view of federalism – accommodating overlapping jurisdictions and

encouraging intergovernmental cooperation o But still the constitutional boundaries that underlie the division of powers must be respected

Pith and substance: used to determine the constitutional validity of legislation from a division of powers perspective: look at purpose and effects of the law as a first step in determining whether it falls within a particular head of power

Double aspect doctrine: allows for concurrent application of both fed and provincial legislation but doesn’t create concurrent jurisdiction over a matter

o Both govern from their own perspectives and pursue objectives that in pith and substance fall in their respective jurisdictions

justified en vertu du droit criminal

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Pith and substance in this case: Act is chiefly directed at protecting investors and ensuring the fairness of capital markets through day-to-day regulation long considered local concerns = provincial

o Doesn’t address a matter of true national importance and scope Its effects would be to duplicate and displace the existing provincial and territorial securities regimes Accepting CA’s interpretation of the general trade and commerce power would disrupt the balance between fed

and provincial powers o Parliament can’t regulate the whole of the securities system simply because aspects of it have a national

dimension Must exercise their respective powers over securities through cooperative federalism

RATIO If a proposed Parliamentary law doesn’t address a matter of genuine national importance and in effect would

duplicate and displace existing provincial powers, it is ultra vires

Renvoi devant la Cour d‘appel du Québec relatif au régime coopératif en matière de valeurs mobilières (auditions 8-10 nov 2016, Montréal)

Mémoire de la PG Québec, par. 1-7; 36-65

Mémoire de la PG Canada, para 54-66; 111-119 et 156-174. (caractère véritable, classification et double aspect)

Mémoire du PG de la C-B., pp. 13-20 et 39-43 (mais c’est en anglais…. Certains d’entre vous voudront peut-être lire celui-ci en premier ! Mais attention, il ne traite PAS de la question de la répartition des compétences)

DIDN’T READ ANY OF THESE – MORE FOR WHEN WE WENT TO COURT THAN ANYTHING FOR CLASS

Provinces, Lutte contre la corruption et federalism – Gaudreault-Desbiens and Leclair – 2016

Notions préliminaires relatives à la qualification des textes législatifs et constitutionnels en matière de partage des compétences

Pour attaquer la validité d’une loi on peut s’en server des armes d’exclusivité: l’applicabilité (où une loi ‘entrave’ la compétence fed sans la paralyser) ou l’inopérabilité (où une loi fed valide entre en conflit avec une loi provincial valide, la loi fed gagne)

Pour déterminer la validité d’une loi, on caractérise une loi (matière = pith and substance) où on analyse l’objectif de la loi, son caractère véritable (voir renvoi relative à la loi sure les armes à feu, para 16). Après, on catégorise à partir du texte constitutionnel. Ces étapes sont, en pratique, entremêlées

La CSC a maintes fois reconnu que la portée d’une compétence pouvait varier au fil du temps Une lois provinciale valide peut avoir une application limitée si elle porte atteinte à une matière qui fait partie du

‘contenu minimum élémentaire et irréductible’ d’une compétence exclusive fédérale. La CSC a restreint la portée de cette doctrine aux situations où la loi provinciale non seulement ‘touche’ le contenu minimum élémentaire et irréductible, mais l’entrave (les ‘conséquences fâcheuses’ est la différence entre les deux)

Une loi provinciale qui porte atteinte à une matière que fait partie du ‘contenu minimum élémentaire et irréductible’ d’une compétence exclusive fédérale pourrait être invalidée si le gov fed n’a pas légiféré sur cette même question, même si la loi provinciale est sage et idoine (suitable)

L’inopérabilité entre en scène où une loi fédérale et une loi provinciale, tous les deux valides, entrent en conflit. On choisit la loi fed, jusqu’au point où il y a un conflit (si la loi fed est abrogée, la loi provinciale redevient valide) inopérabilité prépondérance

La CSC a réduit l’applicabilité de ces doctrines à cause de leur effet centralisateur on veut ‘concilier la diversité légitime des expérimentations régionales avec le besoin d’unité nationale’

JOHN’s NOTES – DIDN’T READ

Retour sur les Valeurs mobilières… (Nov 8-10)

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Securities If asked if federal/provincial, what’s your first reflex? Look at the list

o This won’t answer all questions, but it’s a good starting point But, even when it’s in the list, it’s not always clear

o Ex: think about marriage – it’s a private matter, but it’s more complicated; solmeniziation of marriage is provincial, but in terms of recognition of marriage, that’s federal; divorce, on the other hand, is federal

Securities aren’t in the list, so we need to ask: who’s competent? (1) What we need to determine first is the “pith and substance”—the purpose and effects of the law in question

(characterization)o This is complicated; it requires textual analysis and contextual analysis

(2) Once the bill’s “pith and substance” is determined, we need to figure out its classification So, you first need to figure out what the problem is, and then try to fit it in your list Even these two simple steps are complicated, because society is complicated Valeur mobilière = securities

o This seems to fall under private law, between buyer and seller; it’s done by contract, so this is provincial

o Its characterization may be simple, but its classification may get complicated as securities get more complicated

Each province has laws that structure securities There has been a harmonization of certain inter-provincial laws to avoid companies needing to abide by all sorts

of different laws in different jurisdictions There’s not harmonization with the federal government, however Bay Street wants everything to be regulated federally; they’d likely be regulated based on Ontario’s rules

o A constitutional amendment would be needed (probably 7/50); this wouldn’t happen, so instead, there’s a very complex cooperative mechanism

If we transfer it federally by constitutional amendment its permanent and lose complete control in the provinces – if we do it in a harmonized way with the provinces and laterally delegate to fed, theoretically that delegation to fed could be revoked provinces hate to give power to fed

o So afraid now to amend the constitution that we look for any work-around – administrative, legislative, whatever

From QC’s perspective, where’s the problem? From QC’s perspective, the system of inter-provincial cooperation works fine

The province wants to interpret “systemic risk” very narrowly, and the federal government wants to interpret it very broadly

Doctrine d’interprétation de la répartition des compétences (Nov 10)

VALIDITÉ : la doctrine du caractère véritable, double aspect et la doctrine des pouvoirs accessoires Compétences matérielles : droit criminel vs. propriété et droits civils ; Aéronautique

Every time there’s a federalism issue:o Try to understand the doctrines of interpretation of the division of powers

Characterization Classification

Provinces can choose to participate in a reference decision if they’d like The executive always asks for there to be a reference

o The Court doesn’t have to answer, but it rarely exercises its discretion A provincial Court of Appeals can decide a question on federal law; it can even make a decision about another

province’s law, though this is rareo Also, provinces can’t go to the Supreme Court right away – they have to go through the Court of Appeals

first In the securities case, there are two issues:

o (1) the federal law for the stability of capital marketso (2) cooperative regime (the BC memo doesn’t speak to this)

There’s no question that QC could ask the court about issue (1), but it’s less clear if they can ask the Court about issue (2), because they’re not part of the cooperative regime

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The Cooperative Regime 6/13 provinces/territories are part of it Generally, provinces are all on equal footing BUT in the cooperative regime, provinces aren’t on equal footing

– some have more power than others It starts with a protocol, which is basically an agreement that the parties sign to organize their participation Each will have exclusive powers over one area of securities We’re not in de jure territory (of concurrent powers), we’re in de facto territory There’s the federal law, and “one” uniform provincial law for the issue

o What we call the “uniform provincial law” are several identical lawso The federal law asks the provincial parliaments to pass the same law

The protocol and the two laws (federal+uniform provincial) creates the ARMC The ARMC has a Board of Directors and a Council of Ministers

o These contains federal and provincial members We haven’t passed the law yet, so there isn’t a ARMC yet This was an effort to win some time – it forces the courts to ask if they could decide on an issue without seeing all

the details So, the federal+provincial governments both hand their power to the Board of Directors, which contains

members from both governmentso This would allow some provinces to make laws for others

There’s an argument that, when the ARMC is legislating in terms of federal law, this would apply to all provinces, including Quebec – the big markets (ex: ON, BC) would have a right of review on the federal law

o Even in provincial matters, the Federal Minister would always be present, and have a right to vote There may not be a constitutional issue here, but there is a constitutional issue where some of the big markets

would have a veto – ex: to amend it In terms of manner and form, the provinces, in accepting to be part of this regime, they say they won’t modify

their law without the consent of the Council of Ministerso Is this a substantial or procedural limit? If the procedural limit is so intense that you can no longer

legislate, it becomes substantial If it were a mere procedural limit, that would be OK (1) Say the province isn’t happy, it could just leave – the protocol allows this

o BUT : at a certain point, the ability to exit is completely illusionary, in terms of how much it’s actually required to turn over to the federal government and other provincial governments – it would have to start from ground 0

o Plus, the other provinces would negotiate something so that pretty much all the other provinces are binding

In Nova Scotia (AG) v. Canada (AG), this was too much In Australia, the Constitution allows provinces to transfer powers to the commonwealth In Canada, it’s unauthorized (except for s. 94) (2) See Registre d’Assurance Publique (1991) You could legislate on anything unless it violates fundamental rights, or the division of powers So, it could still legislate on securities, even if it’s part of the regime Practically, this right would never be exercised, but hypothetically, it could This is exactly what happened with the firearms registry

o The federal government created the registry in a cooperative mannero When it decided to get rid of the registry, it did that in a unilateral manner

The Court reaffirmed what it said in RAP (1991) If you’re legislating and you aren’t in violation of fundamental rights or the division of

powers, it’s constitutionally admissible – it may not be politically admissible, but you could do it

Validity of the Federal Law QC is saying: we don’t need federal securities regulation

o Not only are we doing this very well ourselveso We’re doing this very well amongst ourselves

But, in 2011, the SCC in their Reference re Securities Act said the Court could help them; what’s QC supposed to do in this situation? It’s unclear

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The federal government argues that they should have exclusive power over securities due to systemic risks, but “systemic risks” aren’t found anywhere in the Constitution

So, this brings us back to our process for analyzing the validity of a lawo (1) Characterization (caractère veritable) PITH and SUBSTANCE

We’re going to look at the law in question What does this law do? What’s its objective/purpose? What are its effects? Purpose: look at intrinsic and extrinsic evidence

Intrinsic: what’s written in the law? E.g. preamble, structure, terms Extrinsic: what can we take out of the law? E.g. Hansard, expert reports, context, etc.

Effects: considering how the law will operate and how it will affect Canadian (Reference re Firearms)

o (2) Classification/Qualification/Head of Power/Chef de competence Once we characterize the subject matter, we try to classify it Here, we look at the Constitution What does the power attach itself to? Where in s. 91? S. 92? We’re not so much interested in the federal or provincial nature insomuch as we want to see what

happens One of the reasons we protect provincial power to make laws regarding property and civil rights (e.g. contract) is

because it protects their autonomy The Court has rejected an evolutionary argument regarding provincial/federal powers; the Constitutional

divisions still stand, BUT the federal government’s interpretation isn’t super rigid Problem: regulating capital markets and systemic risks

o We want a solid economy, economic stability in Canada – but, we’re looking at one specific sector Solution: how can we do this?

o The federal government thinks provincial laws should be in line with federal oneso Does this solution attach itself to ss. 91 or 92?

“Systemic risk” does NOT automatically mean federal powers, so the Court needs to be clearer about what it means when the federal government can help manage this

The federal government’s trade and commerce power isn’t something too strictly interpreted GM Motors is referenced to discuss this (s. 91(2)) There are three criteria:

o (3) The federal law can’t legislate on a subject that is too particular (e.g. the sale of computers)o (4) Factual/constitutional provincial capacity

Can the provinces, acting by themselves, regulate the problem? Factually? Constitutionally?

o (5) What is the impact of omission to legislate in a certain province? If a certain province doesn’t legislate and this gravely affects one or all the other provinces, this

may be enough ground for the federal government to legislate So, when it comes to determining the validity of a federal law:

o (1) Characterization (pith and substance?)o (2) Classification (s. 91 or s. 92?)o (3) Particularity (too particular?)o (4) Provincial Capacity (factual/constitutional, i.e. can provinces legislate this by themselves?)o (5) Omission (what would the impact of a province not adopting the federal law be?)

The last three are particularly important criteria when reviewing the federal power to regulate trade and commerce (s. 91(2))

Renvoi relatif à la Loi sur les armes à feu, [2000] 1 RCS 783 résumé and par. 1-8 et 16-61

FACTS 1995: Parliament amended the Crim Code by enacting the Firearms Act which required all firearms holders to

obtain licenses and register their ordinary firearms AB challenges the constitutionality Court of Appeal found it constitutional

ISSUES Does Parliament have the constitutional authority to enact the requirement for licenses and registration?

HOLDING

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Appeal dismissed. The impugned provisions are constitutionalREASONING

Pith and substance (caractère veritable): enhancing public safety by controlling access to firearmso Purpose is to deter the misuse of firearms, control those given access to guns, and control specific types

of weapons aimed at a number of ‘mischiefs’ (illegal gun trade, link with violent crime, etc)o Changes introduced represent a limited expansion of the pre-existing gun control legislationo Effects suggest its essence is the promotion of public safety through the reduction of the misuse of

firearms Classification: does Parliament have jurisdiction to enact the law? ie: is it fed under criminal law or peace,

order and good gov OR is it provincial under property and civil rights?o It meets all 3 criteria required for a criminal law:

A valid criminal law purpose Connected to a prohibition Backed by a penalty

o Regulatory v criminal law: the complexity of the law isn’t enough to make it regulatory legislation as opposed to criminal

And it’s distinguishable from existing provincial property regulation schemes – intention isn’t to regulate property but to ensure that only those who prove themselves qualified are permitted to possess the property (gun)

o Property and civil rights v criminal law: is distinguishable from existing provincial property regulation schemes diff purposes behind the restriction on firearms (ie: because they’re dangerous and often used as weapons vs other kinds of property)

The provisions can’t be severed from the rest of the Act they’re tightly linked to the Act’s goal of promoting safety (are integral and necessary)

Doesn’t trench on provincial powers in a way that would upset the balance of federalism because:o Mere fact that guns are property doesn’t suffice to show that a gun control law is in pith and substance a

provincial mattero The Act doesn’t sig hinder the ability of provinces to regulate the property and civil rights aspects of gunso The double aspect doctrine permits Parliament to address the safety aspect of firearms (even if provinces

can regulate in terms of the property aspects)o The Act doesn’t precipitate the fed gov’s entry into a new field since gun control has been fed’s authority

since ConfederationRATIO

Must look to the pith and substance and classification to determine which government has jurisdictionCOMMENTS

QC didn’t care in this one (usually very protective of rights but not this time – context so soon after the shooting at Polytechnique)

Québec (Procureur général) c. Lacombe, [2010] 2 RCS 453 résumé and para 19, 31-58

FACTS Company has an air excursions business on a lake in QC Obtained license from the fed Dept. of Transport under the fed Aeronautics Act QC municipality applied for an injunction to order the company to cease aviation activities on the lake because it

was in violation of a municipal zoning by-law Superior Court found the legislation was a valid municipal zoning by-law with only incidental effects on the fed

subject of aeronautics but Court of Appeal set the ruling asideISSUES

Is the by-law valid provincial law? NO If so, is it inapplicable under the doctrine of interjurisdictional law? N/A If applicable, is it superseded by fed law under the doctrine of paramountcy? N/A

HOLDING No. Appeal dismissed. The law is ultra vires provincial jurisdiction

REASONING Pith and substance: the essence of the law is to regulate the location of water aerodromes in the municipality, a

matter within the exclusive fed authority over aeronautics Ancillary powers doctrine: (pouvoirs accessoires) a provision which is in pith and substance outside the

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competence of its enacting body will be saved where it’s an important part of a broader legislative scheme that’s within the competence of the enacting body

o Degree of integration required increases proportionally to the seriousness of the encroachment from a rational functional test to a necessity test

Necessity test: necessarily incidental to effective legislation Rational functional test: whether there is a rational, functional connection between what is good

and what’s challenged does it further the purposes of the valid legislative scheme of which it’s a part

o (Not to be confused with the incidental effects rule: applies when a provision in pith and substance lies within the competence of the enacting body but touches on a subject assigned to the other level of gov holds a provision won’t be invalid merely because it has an incidental effect on a legislative competence that falls beyond the jurisdiction of its enacting body)

o (Not to be confused with the double aspect doctrine: recognizes the overlapping jurisdictions of the two levels of gov the fact that a matter may for one purpose and in one aspect fall within fed jurisdiction doesn’t mean that it can’t, for another purpose and in another aspect, fall within provincial competence)

o This case: the by-law isn’t a serious intrusion on fed but it fails the rational and functional test: it doesn’t further the purposes of the valid legislative scheme of which it’s a part (ban is to protect vacationers but it extends over the entire municipality)

RATIO A provision that fails the pith and substance test can be saved with the ancillary powers doctrine if, depending on

the seriousness of the intrusion on the other jurisdiction, it passes the necessity or rational, functional tests

Doctrine d’interprétation de la répartition des compétences   (Nov 15)

APPLICABILITÉ : la doctrine de l’exclusivité des compétences (« interjurisdictional immunity ») Compétences matérielles : Droit criminel vs. santé; Aéronautique vs. propriété et droits civils;

Télécommunications

Effects accessoireso Secondaireso Incidents

Vs les pouvoirs accessoires o Ancillaryo When the intrusion is so serious that its illegalo Sometimes the dispositions of an otherwise valid law will be safeguarded (sauvegardees) exceptionally if

2 conditions are met: A disposition in a law that’s otherwise valid but that impinges on provincial powers or fed If the intrusion isn’t too serious, the link to the rest of the valid law has to be rational If the intrusion is very serious, it must be necessary

Accessoires = competency = pouvoir

Exclusivity

Interjurisdictional immunity Doctrine des compétences exclusives

o Assumes overlap in jurisdiction so the doctrine assures that there’s a ‘heart’ of exclusive jurisdiction that even if the overlap gets bigger with court decisions, that ‘heart’ will remain exclusive

Accessory/incidental effects : when a law is valid in one jurisdiction and has a relatively small effect in the other jurisdiction (fed or prov) and it’s tolerated

Pouvoirs accessoires: when there’s an article in a law that is otherwise valid but that article(s) cause problems and are invalid

o The law will be by definition valid, but there are articles that are noto Can we save them since they’re integrated in a valdi law? YES – we save themo One of the techniques we can use to save the problematic articles is the ‘doctrine des pouvoirs

accessoires’ Read para 36 of Lacombe for distinction between pouvoirs accessoires and effets accessoires

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When there’s a clear conflict, federal wins Courts prefer to go to the double aspect where there’s a prepondérance fed creates a disequilibrium toward fed

Carter c. Canada (PG), 2015 CSC 5 résumé + paras. 42-53

FACTS S. 241(b) of the Crim Code says everyone who aids a person committing suicide commits an indictable offense

and s. 14 says no person may consent to death being inflicted on themo Prohibit the provision of assistance in dying in CA

Challenged the constitutionality of these Crim Code provisions Trial judge ruled them unconstitutional because it violates s. 7 Charter rights of suffering competent adults Court of Appeal reversed it, arguing judge must follow precedent in Rodriguez v BC

ISSUES Are the provisions prohibiting assisted suicide constitutionally invalid?

HOLDING Appeal allowed. The provisions infringe s. 7 of the Charter and are of no force or effect to the extent that they

prohibit physician-assisted death for a competent adult person who 1) clearly consents and 2) has a grievous and irremediable medical condition that causes enduring and intolerable suffering

REASONING Although the doctrine that lower courts must follow the decisions of higher courts is fundamental, a judge can

revisit precedent cases where:1. A new legal issue is raised2. There is a change in the circumstances or evidence that fundamentally shifts the parameters of the debateo “stare decisis is not a straitjacket that condemns the law to stasis)o Both these conditions are met in this case

Does the prohibition interfere with the ‘core’ of the provincial jurisdiction over health?o Doctrine of interjurisdictional immunity: premised on the idea that the heads of power in ss. 91 and 92

are ‘exclusive’ and therefore have a ‘minimum and unassailable’ core of content that is immune from the application of legislation enacted by the other level of gov

In this case, would need to show that the prohibition impairs the ‘protected core’ of the provincial jurisdiction over health rejected argument

Court rejected a similar argument in Canada v PHSo The prohibition on assisted suicide is, in general, a valid exercise of the federal criminal law power under

s. 91(27) of the Constitution Act, 1867, and it does not impair the protected core of the provincial jurisdiction over health

RATIO The doctrine of interjurisdictional immunity holds that there is a core of content in jurisdictional powers that is

unassailable and immune from the other level of gov’s legislation

Québec (PG) c. Canadian Owners and Pilots Association, [2010] 2 RCS 536 résumé and para 25-61

FACTS L and G built an aerodrome registered under the fed Aeronautics Act on their land zoned as agricultural in QC S. 26 of the Agriculture Preservation Act (ARPALAA) prohibits the use of lots in a designated agricultural region

for any purpose other than agricultural Since they didn’t receive prior permission from the Commission to build it, the Commission ordered them to

return the land to agricultural purposes L and G challenge the Commission’s order for them to return it to agricultural use on the ground that aeronautics

is within fed jurisdictionISSUES

Is s. 26 of ARPALAA constitutionally valid? YES If valid, is it applicable under the doctrine of interjurisdictional immunity? NO If valid, is it operable under the doctrine of federal paramountcy? N/A

HOLDING Appeal dismissed. S. 26 is valid provincial legislation but not applicable insofar as it abrogates fed jurisdiction

under the doctrine of interjurisdictional immunityREASONING

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Pith and substance: is legislation about land use planning and agriculture provincial Does s. 26, having been found valid, apply in a situation where it impacts on the fed power over aeronautics? Doctrine of interjurisdictional immunity: steps:

1. Does the provincial law trench on the protected ‘core’ of a fed competence?2. If so, is the provincial law’s effect on the exercise of the protected fed power sufficiently serious to

invoke the doctrine of interjurisdictional immunityo In this case: s. 26 inapplicable to the extent that it impacts the fed power over aeronautics, which is

supported by the fed general power to make laws for the peace order and good government of CA (power to determine location of airports and aerodromes is an essential and indivisible part of aeronautics ie: lies within the protected core of the fed power)

If s. 26 applied, it would force the federal Parliament to choose between accepting that the province can forbid the placement of aerodromes on the one hand, or specifically legislating to override the provincial law on the other hand ie: although it wouldn’t ‘sterilize’ Parliament’s power, it would seriously affect the manner in which the power can be exercised by forcing it to adopt a more burdensome scheme than exists now

BUT must determine if the intrusion impairs the fed exercise of the core competence Doctrine of federal paramountcy doesn’t apply here: can flow either from the impossibility of complying with

both fed and provincial laws or from the frustration of a fed purpose here, can comply with both by demolishing the aerodrome and no evidence that a fed purpose re the location of aerodromes is frustrated by the provincial legislation

RATIO Although a provision may, by pith and substance, fall under provincial jurisdiction, the provision may still be

inapplicable insofar as it abrogates fed jurisdiction under the doctrine of interjurisdictional immunity

Canada (PG) c. PHS Community Services Society, [2011] 3 RCS 134 résumé and para 57-70

FACTS Insite is a safe injection facility in Vancouver’s downtown eastside that provides medical supervision to

intravenous drug users. It has operated since 2003 under an exemption from the prohibition on possession and trafficking of illicit drugs

in the Controlled Drugs and Substances Act (CDSA). In 2008 the federal Minister of Health failed to extend Insite’s CDSA exemption, which brought about this

action.  The claimants, the operator and clients of Insite, argued that the division of powers makes the federal CDSA

prohibitions inapplicable to the provincial health activities of Insite staff and patrons. The claimants also submitted that sections of the CDSA were of no effect because they violated the claimants’ s.7 Charter rights. 

ISSUES Are ss. 4(1) and 5(1) of the CDSA constitutionally inapplicable to the activities of the staff and clients at Insite by

virtue of the division of powers? NO Do ss. 4(1) and 5(1) of the CDSA infringe the rights guaranteed by s. 7 of the Charter and if so, is the

infringement justified under s. 1 of the Charter? YES NOHOLDING

Must grant exemptionREASONING

Division of powers Pith and substance: the impugned provisions are valid exercises of the fed criminal law power

o Fact they have the incidental effect of regulating provincial health institutions doesn’t mean they’re not constitutionally invalid

Provincial programs designed to advance the public interest aren’t, by virtue of that, exempt from the operation of criminal laws unless the law is expressly or impliedly so limited CDSA doesn’t have such a limit

The doctrine of interjurisdictional immunity doesn’t apply decisions re what treatment may be offered in provincial health facilities doesn’t constitute a protected core of the provincial power over healthcare and so isn’t immune from fed interference

o Recent confinement of the doctrine due to 3 related concerns: The doctrine is in tension with the dominant approach that permits concurrent fed and provincial

legislation with respect to a matter, provided the legislation is directed at a legitimate fed or provincial aspect (ie: recognition of sig overlap and that govs should legislate for their own purposes in these areas of overlap)

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The doctrine is in tension with the emergent practice of cooperative federalism which increasingly features interlocking fed and provincial legislative schemes courts should avoid blocking application of measures taken to be enacted in furtherance of the public interest (ie: courts should allow both levels of gov to jointly regulate areas that fall within their jurisdictions)

The doctrine may overshoot the fed or provincial power in which it’s grounded and create legislative ‘no go’ zones where neither level of gov regulates – since it’s not necessary for the gov benefitting from the imunity to actually regulate in the field in question, it can create ‘legal vacuums’

Since there’s no protected core, and fed law trumps provincial, don’t need to inquire into whether the doctrine of paramountcy applies

Deprivation of s. 7 Charter right (s. 5(1) isn’t really applicable here since trafficking doesn’t occur at Insite) In order to make use of the life-saving and health-protecting services at Insite, clients must be allowed to be in the

possession of drugs on the premises s. 4(1) engages s. 7 Charter rights But the possibility of an exemption from the Minister of Health saves s. 4(1) from violating s. 7 of the Charter

o Discretion isn’t absolute: must conform to the Charter o In this case: failure to grant the exception engages s. 7 rights by placing a limit on them and contravenes

the principles of fundamental justice No s. 1 justification could succeed: goals of the CDSA are the maintenance and promotion of public health and

safety Minister’s decision to refused the exemption bears no relation to these objectives so can’t justify the s. 7 infringement

RATIO The federal CDSA provisions do apply to provincial health activities. While the provisions do not violate the

claimants’ s. 7 rights, the Minister’s failure to provide an exemption does.

Rogers c. Châteauguay 2016 CSC 23 résumé and para 57-72

DIDN’T READ – NOTES FROM TORYS (LAW FIRM) WEBSITEFACTS

The dispute arose from Rogers' proposal to install a cellphone tower in the municipality of Châteauguay, Québec to fill a gap in its cellular network in the area

Rogers received the Minister of Industry's authorization under the Radiocommunication Act to construct the tower on a site that Rogers identified as suitable, but the municipality blocked its construction by imposing a “notice of reserve” on the proposed site

Under QC law, the notice of reserve blocked Rogers from building on that siteISSUES

Is the notice of reserve ultra vires provincial powers? YESHOLDING

Appeal allowed. The determination of communication towers’ location is exclusively federalREASONING

Rogers argued that the notice of reserve related, in pith and substance, to radiocommunication (an area of exclusive federal jurisdiction), that it was invalid on the basis of interjurisdictional immunity and inoperative on the basis of federal paramountcy, and that it exceeded the powers of the City

The SCC accepted Rogers’ argument that radiocommunication is an area of exclusive federal jurisdiction and that the notice of reserve related, in pith and substance, to radiocommunication

It also agreed that siting radiocommunication infrastructure goes to the core of Parliament’s exclusive power over radiocommunication, and that the notice of reserve impaired the exercise of that core power

Because the Court invalidated the notice of reserve on those bases, it did not need to consider Rogers' paramountcy and administrative law arguments

Doctrine d’interprétation de la répartition des compétences (Nov 17)

OPÉRABILITÉ : la doctrine de la prépondérance Compétences matérielles : Droit criminel vs santé

On mycourses she put a powerpoint on the repartition des consequences

Unclear the diff between these74

1) Effects2) Pouvoirs « soft »3) Pouvoirs « hard »

Competences en mateiere de sante Hospitals are provincial except for a few maritime ones

1982 : drug question – can we impose treatment on addicts?

Fed takes care of health of veterans(?), refugees, Aboriginals, ___?Problem is fed doesnt have any resources/institutions so they end up paying provincial govs to provide care

1971 Hauser :

criminalizing a lot of stuff because it’s esentially the only power the fed still has – problematic because expanding crim into places it maybe shouldn’t be

Carter :

Rothman :

Applicability : 2 errors : doesnt go with pouvoirs accessoires – goes with immunité inter-jurisdictionel, with the doctrine of____

Not ‘une loi’ but a disposition of a law because talking about how to save a disposition of a law that is otherwise valid

Rothmans, Benson & Hedges Inc. c. Saskatchewan [2005] 1 RCS 188 le jugement est court!

FACTS RBH sought a declaration that s. 6 of the Sask Tobacco Control Act is, by virtue of the paramountcy doctrine,

inoperative in light of s. 30 of the federal Tobacco Act S. 30 allows retailers to display tobacco products while s. 6 bans all advertising and display anywhere people

under 18 are allowedISSUES

Is the provincial Tobacco Control Act inoperative by virtue of the paramountcy doctrine? NOHOLDING

No. Appeal allowed. Provincial legislation is not inoperativeREASONING

To determine whether s. 6 is sufficiently inconsistent with s. 30 so as to be rendered inoperative through the paramountcy doctrine, must ask 2 questions:

1. Can a person simultaneously comply with the provincial and fed provisions?2. Does the provincial provision frustrate Parliament’s purpose in enacting its provision?

In this case: the law is operative because there’s no inconsistency between s. 6 and s. 30o A retailer can comply with both: by not allowing <18 year olds in or by not displaying tobacco productso S. 6 doesn’t frustrate the legislative purpose underlying s. 30 which is to address a national public health

problem and which did not grant retailers a positive entitlement to display tobacco productsRATIO

If a person can comply with both the fed and provincial provisions and if the provincial provision doesn’t frustrate Parliament’s purpose in enacting its provision, the provincial provision is not rendered inoperative through the paramountcy doctrine

Diversité des modèles fédéraux (Nov 22) – Plenary (Poirier)

Diversity of international federal modelsTypology and analytical grid to analyze federal organizations

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(Will not ask us about the specifics of the different systems, will at the most ask us comparative questions to better understand CA)

SEE POWERPOINTS

What is federalism: a political value concept Self rule + shared rule = federalism Are between 25-30 federal states in the world that encompass ~40% of the world’s population New pattern of post-conflict states declared themselves a federation – one of the tools of leaders to solve conflict

and maintain peaceo Ex: Iraq? South Sudan? The Philippines? Sri Lanka?o Is this the most efficient way to do this? It’s a modelo CA has been big in this push to promote federalism by sending specialists around the world – it’s a better

exporter of ideas than an importer and Poirier thinks CA has to learn how better to learn from other countries

State structures Unitary: centralized/deconcentrated

Federal-type systems which aren’t quite states Confederations Federacies / associate states Condominiums Leagues / alliances / international organizations Where there are diff ways of sharing power and recognizing autonomy

Criteria for the existence of a federation List is not exhaustive and not definitive 2 or more orders of gov with direct relations with citizens (uses ‘order’ because ‘level’ implies hierarchy and

that’s not always true in all federations – ex: provinces in CA are not legally subordinate to fed) Institutions of self-rule (autonomy) + of joint rule (participation) Framework = protected by a constitution that cannot be altered unilaterally by one order

o Can sometimes do indirectly what it can’t directly – ex: by fed gov influencing what provinces can do Some institution to protect and uphold the constitution – courts in CA Solidarity? Is it necessary – likely – but then what is solidarity?

o Ex: in CA does it mean recognition of diversity? Of coming together in times of crisis? Common ‘civic’ culture? Some would say you can’t have a federation with no sense of common identity (Poirier

disagrees – thinks you can have a sense of belonging to the same project without having a sense of common identity)

The hybrid state Increasingly, theorists are recognizing that all these systems are quite diff – within the federal ‘family’ and within

a system, can have parts that are very reminiscent of a diff system Dynamic approach to state structures – countries move along a transformation of systems sometimes

Conceptual vocabulary to understand (Poirier’s work in progress, a heuristic) Old v recent (or recently ‘revived’) Imposed from outside v chosen by the people/the elite Evolutive v revolutionary (‘big bang’ moment) Monarchichal v republican (or traditional leadership) Parliamentary v presidential (or Council as in Switzerland)

o US presidential system – in general, the president has some powers but doesn’t control Congress – not responsible before Congress like in CA

o In CA, if have majority gov, if the PM and the gov decide on a particular approach with the provinces, Parliament will follow

Results from a process of union/association v dissociation (desegregation/devolution)o This will affect the sense of citizenship, issues of federal loyalty and solidarity etc

Uni-national society v multinational society Territorial federalism v multinational ‘personal’ / ‘ethno-federalism’ Symmetrical v asymmetrical

o At least 5 diff meanings: In socio-demographic make-up With regard to the respective size (geography, demography) of var. constitutive elements

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Classical / dualist / legislative v integrated / administrative / executive federalism

Souveraineté parlementaire et armes à feux : le fédéralisme coopératif dans la ligne de mire – Poirier - 2015

o SCC has evoked the principle of cooperative federalism over the years to promote a de facto or de jure legislative overlap

o Has also used it as a justification for removing or ignoring technical obstacles to the normative networks on which cooperative arrangements rest and which belie the profound dualist nature of the official Canadian federal architecture

o SCC’s 2015 ruling on the abolition of the Long-gun registry: offers fertile ground for reflecting on a third dimension of cooperative federalism which arises when federal partners don’t wish to collaborate

o In it, SCC refused to revisit its maximalist understanding of Parliamentary sovereignty in light of cooperative federalism

o Thus implicitly refused to infuse constitutional law with any obligation on the part of the fed partners to act in good faith in their dealings with one another

o Lengthy dissent asserting a commitment to cooperative federalismo End result is an uneasy co-existence of two distinct and contradictory conceptions of federalism in

Canadian constitutional lawDIDN’T READ THE PAPER – THIS IS THE ABSTRACT

Introduction (Multinational Federations) – Pinder – 2007

Multinational federations are intended to provide a framework that can accommodate and as far as possible resolve some of the most intractable political conflicts of our time: those that stem from competing national visions, whether within or between established states

The EU is a particularly interesting example of the integration of a group of states into a federal system through a series of steps which may well lead to a federation

Nation: a people who share the same culture, where culture means a system of ideas and signs and associations and ways of behaving and communicating

Sovereignty: legal or political freedom from external controlo In federal states: is divided between a federal center and its constituent parts

Federations: has government at two or more levels each with a direct relationship with the citizens Multinational federations: a federal state among whose component states there is at least one distinct nation (ex:

CA with QC and Aboriginal nations)o Expectations of security, economic and environmental benefits are key to their successo Also democratic political institutions in both levels of govo Rely on institutions and procedures that encourage consensus rather than allowing the will of the simple

majority to prevail – to protect minoritieso A measure of cultural compatibility is necessary to make shared rule possible obviously more

diversity in multinational federations than single-nation ones But must have a minimum of common civic and political culture to sustain a system of liberal

democracy

Federal Principles, Federal Organization – Hueglin and Fenna – 2015

Federalism acknowledges a group identity of a spatial/locational/territorial nature alongside an individual identity Unitary state: Parliament holds supreme and undivided legislative authority

o Local govs may be entrusted with sig admin and regulatory responsibilities but these powers exist only as long as and to the extent that Parliament so decides ie: are delegated powers

Federal state: legislative division of powers between the national government and provincial governments is guaranteed in a constitutional document

o Often 3-tiered with local govs having no constitutional guarantees and being delegated powers that can be revoked at any time

Confederal state: member states remain the locus of sovereignty and retain the bulk of their powers, assigning a min of powers and responsibilities to their common gov

o Do aim to create some form of common governance but fall short of being federations because: They receive their authority only from the member-state govs and not directly from the people –

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so depend on the states’ goodwill They are unable to raise revenue directly

o EU has a number of confederal chars but it’s more than that because sig powers have been transferred to a EU level of governance and because the powers apply directly to individual citizens and businesses

Centralization vs decentralization are independent of federal/confederal/unitary While the association of democracy and constitutionalism holds true for most modern federal systems worthy of

the name, it is not logically imperative Modern democracies are universally constructed on the principle of liberal individualism – federalism modifies

that by also giving status to communities The most general principle of federalism holds that humans possess by nature individual as well as group

identities Critical weakness of federalism: it only recognizes group identities that are territorial in nature

o Problematic because even the most territorially defined communities are unlikely to fit perfectly into a set of borders

Ex: Francophones outside of QC Federalism differs from pluralism in 2 ways:

o It’s more than pluralism by formally recognizing group identities as legitimate and autonomous participants in the political process

o It is less than pluralism by limiting this recognition to spatial communities only Federalist recognition of group identity in the organization of politics is incomplete as it only accommodates

social concerns and identities of citizens when they happen to coincide with regional boundaries One way of dealing with this problem is to extend the federalist recognition of group identity to social

constituents – not part of the federalist mainstream and has practical difficulties Pre-modern times people lived in small autonomous isolated communities and then in 17th cent started the process

of territorial state-buildingo Powerful ideology of nationalism developed, making one people out of societies that in reality still

continued to live in relative autonomous spheres of social lifeo Group identities were no longer recognized as units of political self-determinationo It’s this notion of unitary centralized territorial governance that federalism rejects

A number of basic ways in which powers can be divided:o (Early constitutions like CA enumerated only a small number of general powers leading to problems of

interpretation and unintended concurrency new constitutions have learned from those mistakes)o Subsidiary: prescribes a political process of negotiated and flexible power-sharing within each policy

field and according to specific criteria of democracy, efficiency, and proportionality – ex: the EU General tendency in federal states that the general govs have grown stronger – through generous interpretation of

central gov powers by the judiciary and by growing fiscal power o Centralization has gone faster in some federations than others

Codified constitution is an essential part of a federal state because it provides a legal point of reference for the division of powers

o The most intricate question for federations is that of constitutional amendment – who has the power to change the existing division of powers typically requires both levels of gov agreement

Secession: an argument can be made that having entered a federal union voluntarily, a member should also have the right to withdraw as an act of self-determination

o Yet, framers of federal constitutions have generally foreclosed that possibility Ongoing negotiation between levels of gov is essential because the powers of federalism can never really be

organized into watertight compartments – done via:o Federal constitutions typically make some provisions for joint rule through bicameralism: 2 legislative

chambers, at the national levelo Intergovernmental relations: less formalized processes of policy coordination and political bargaining

Federalism is committed to social solidarity – means partnership, mutual aid, and protection regardless of which part is stronger or weaker

o Guarantees the social and cultural well-being of the people living in diff parts of the country Virtues of a federal system: 6 sets of arguments that can be made:

o By dividing power between competing levels of gov, federalism creates constitutional checks and balances against the abuse of that power

o Federalism allows for local or regional self-determination: accommodating regional diversity and providing local communities greater scope to advance their own welfare

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o Governmental efficacy: the government closest to the people governs besto By creating multiple centers of policy-making, federalism allows for much greater and less costly policy

experimentation and learningo The virtues of competitive federalism: if individuals or businesses are unhappy with policies in one

region they can move to anothero Federalism as a fail-sage mechanism of governance with built-in redundancy: mistakes at one level can

be corrected at the other Vices of a federal system:

o May readily obstruct policy-making and frustrate the will of the majorityo May be a problem in the way it entrenches, institutionalizes, and perpetuates the very cleavages that it is

designed to manage

Paix, ordre et bon gouvernement (POGG) (Nov 24)

Aeronautic : all federal but to say there’s no way provincial could legislative would be moving back toward interjurisdictional immunity so courts tend to prefer paramountcy

THE EXAM WILL HAVE A QUESTION LIKE THE ONE WE JUST DID AS PRACTICE (SEE THE DOC) 5-6 short questions and 1 or 2 longer Exam is 2 hours Allowed unannotated but highlighted and color-coded post-its constitution and a 2-sided cheat sheet

POGG Has a centralizing effect A broad interpretation of s. 91(2) of POGG would have limited the provincial powers in s. 92(13)(16) But premise of federation was to protect the provincial interests so didn’t want to interpret it too narrowly Federal competencies_____ Battle as to the conception of federalism(?)

Many branches in POGG theory took Lots of revision of the old jurisprudence POGG emergency: Loi anti-inflation

o Beetz didn’t think of it as emergency – utilized another analysis(?) POGG national concern: Crown Zellerbach

o Returned to Beetz’s analysis(?) POGG situations where fed can legislate

o Urgencyo National dimensiono Residuaireo Incapacité provincial (debate if this is one)

Crown Zellerbacho Weren’t putting it directly in the watero No proof that the debris was dispersing in the water or that they were toxic o Federal law protected against marine pollution – but had trouble proving toxicityo And it was provincial territory they were dumping it on and province didn’t care that they were doing it –

back then there were fewer environmental concerns and likely provinces would have supported the corporations

o CZC was doing it without asking federal authorityo Was the federal requirement ultra vires?o Not in the constitution specifically – marine protectiono POGG via national concern

If something is entirely unclear in the constitution, the easiest way to deal with it is to just say it’s all federal – that’s how some countries do it (just list the provincial and anything else is fed – can also do that vice versa) – CA decided to list both but now it creates problems

But in CA when it’s not prévu, first ask if it’s local – if it is then it’s provincialo To be fed, must practically show it has an inter-provincial and/or national effect

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Essentially, POGG supersedes and obseletifies the amendment process of the entire constitution

Renvoi : Loi anti-inflation, [1976] 2 RCS 373 ; p. 381 (questions du Renvoi), Partie II (pp. 391-427)

FACTS Anti-Inflation Act served to contain and reduce the current levels of inflation which Parliament saw as being

contrary to the interests of all Canadians – recognized as matter of serious national concern Didn’t purport to apply to matters generally within the provincial public sector but ss. 4(3) and 4(4) provided that

the Minister might enter into an agreement with the gov of a province to make the act binding in accordance with the terms of the agreement in that province and its public sector

ISSUES Is the Act ultra vires Parliament either in whole or in part, and if so, in what particular and to what extent? NO If the Act is intra vires Parliament, is the Agreement with ON effective under the Act to render it binding? NO

HOLDING No and No

REASONING The Act embraces sectors of industry and services that are under provincial regulatory authority The Act is valid legislation for the peace, order and good governance (POGG) of CA and doesn’t in the

circumstances under which it was enacted and having regard to its temporary char, invade provincial legislative jurisdiction

o Provincial concern about rising inflation and concurrent unemployment was public record and only 2 provinces had not entered into agreements to apply the fed guidelines

o The preamble was sufficiently indicative that Parliament was introducing it to in response to what it saw as a serious national condition

o In enacting it, Parliament was proceeding from legislative power bases entitling it to wage war on inflation through monetary and fiscal policies

The agreement between CA and ON was not binding as the provincial exec had no authority to impose by mere agreement legal obligations upon persons in the province (?)

Peace, order and good government: federal power to deal with emergencies and matter of national concern are implicit in the BNAA

Past jurisprudence on the subject: o Russell: declared object of Parliament in passing the Act is there should be uniform legislation in all the

provinces respecting the traffic in intoxicating liquors with a view to promote temperance in CA dealing with public order and safety fall within the general authority of Parliament to make laws for POGG

o Local Prohibition: certain standards for the invocation of the fed general power which tighten but don’t alter the grounds upon which the Russell case was decided

o Board of Commerce: to enquire into and restrain or prohibit making of unfair profits and the holding of necessaries of life found it threatens the moral and social wellbeing of CA so the fed legislation was in support of POGG

o Fort Frances: first where ‘emergency’ is used – in a time of war and court wasn’t going to question Parliament’s power too much at that point – seems to suggest in times of war there’s a power implicit in the Constitution that, irrespective of ss. 91 and 92, endows Parliament with extraordinary authority to protect the general interest

o Natural Products Marketing Reference: required that there be some crisis or peril to support federal legislation for POGG – although war was an example, crises in peace are not excluded

o Canadian Temperance Federation Competing arguments on whether the Act is supportable as crisis legislation raises 4 issues:

o Did the Act itself belie the fed contention because of the form of the Act and because of the exclusion of the provincial public sector from its imperative scope notwithstanding that it is framed as a temporary measure albeit subject to extension of its operation?

o Is the fed contention assisted by the preamble to a statute?o Does the extrinsic evidence put forth and other matters the Court can take judicial notice of show there

was a rational basis for the Act as a crisis measure?o Is it a tenable argument that exceptional char could be lent to the legislation as rising beyond local or

provincial concerns because Parliament could reasonably take the view that it was a necessary measure to

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fortify action in other related areas of fed authority?RATIO

The national concern doctrine of the federal peace, order and good government power is valid for legislation required to meet a ‘crisis’ or ‘national emergency’

NOTES ARE NOT VERY GOOD – SKIMMED

R c. Crown Zellerbach Canada ltd., [1988] 1 RCS para 27-44

FACTS CZC dumped woodwaste in Beaver Cove waters in BC, contravening s. 4(1) of the Ocean Dumping Control Act,

federal legislation that prohibits it except in accordance with terms of a permito Only applies to salt water

Trial judge and court of appeal held s. 4(1) was ultra vires ParliamentISSUES

Is s. 4(1) of the Act ultra vires in its application to the dumping of waste in waters other than fresh waters within a province?

HOLDING No. Appeal allowed. It’s constitutional with respect to POGG

REASONING The Act is concerned with dumping of substances which could be harmful on marine environment and may be

characterized as directed to the control or regulation of marine population S. 91(2) of the Constitution Act, 1867 is insufficient alone to prove s. 4(1)’s validity It is constitutionally valid in relation to a matter falling within the national concern doctrine of the POGG power

of Parliament National concern doctrine:

o It is separate and distinct from the national emergency doctrine of the POGG which is chiefly distinguishable by the fact that it provides a constitutional basis for what is necessarily legislation of a temporary nature

o It applies to both new matters which didn’t exist at Confederation and to matters which although originally matters of a local or private nature in a province have since in the absence of national emergency, become matters of national concern

o To qualify, a matter 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 reconcilable with the fundamental dist of legislative power under the Constitution

Relevant to consider what would be the effect on extra-provincial interests of a provincial failure to deal effectively with the control or regulation of the intra-provincial aspects of the matter provincial inability test

o In this case: control of marine pollution meets this test – is a matter of concern to CA as a whole but not an emergency

RATIO

NOTES ARE NOT VERY GOOD – SKIMMED

RÉCAPITULATION et préparation à l’examen (Nov 29)

Les droits fondamentaux La constitutionnalisation des droits autochtones Introduction (sept 14)

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