Constitutional Law notes for exam PDF

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DIALOGUE BETWEEN COURTS AND See Hogg (36(b) R V R v had laid down procedures for disclosure of information in the hands of third parties in order to enable an accused make full answer and defence with the court holding that a trial judge must balance the privacy interests of complainants and third p...

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DIALOGUE BETWEEN COURTS AND PARLIAMENT/LEGISLATURE See Hogg (36.5(b) R V Mills- R v O’connor had laid down procedures for disclosure of information in the hands of third parties in order to enable an accused make full answer and defence with the court holding that a trial judge must balance the privacy interests of complainants and third parties with the accused’s right to a fair trial, and in this case, ordering a disclosure of private therapeutic records, parliament amended the Criminal Code (Bill C-46) to set out a procedure for disclosure of personal records, including medical records, in all sexual offence cases. R V Mills was therefore decided on the basis of the new legislative regime which was more restrictive than the preo’connor era so that records which may have been disclosed invoking O’connor on grounds of the need for accused to make full answer and defence may be withheld under the new regime in the interest of privacy & equality rights of the complainant. This was a notable example of dialogue at work as the court held that “the law develops through dialogue between courts and parliament. R v Hall-In R V Morales, the SC had held that denial of bail to an accused on ground that it was necessary in the public interest was too vague to satisfy the requirement of s.11(e) of the charter which prohibits denial of bail without just cause, parliament replaced the impugned legislation with a new provision that sanctioned bail denial in order to maintain public confidence in the admin of justice, a provision which was subsequently upheld by the SC held in R V Hall after an apparent dialogue with parliament.) NOTE-There are times when COERSION MAY REPLACE DIALOGUE–Doucet-Boudreau v Nova Scotia

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FEDERALISM AS A “FUNDAMENTAL GUIDING PRINCIPLE

Canadian Western Bank at para. 21: Federalism has been a “fundamental guiding principle” of our constitutional order since the time of Confederation -REFERENCE RE SECESSION OF QUEBEC, [1998] 2 S.C.R. 217, AT PARA. 55. “Federalism was the political mechanism by which diversity could be reconciled with unity. ” (para. 43)….The principle of 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. ” (para. 58) CO-OPERATIVE FEDERALISM Despite the fact that jurisdiction over subject matters was meant to be exclusive when the Constitution Act was drafted in 1867, the needs of modern government, the increased demands of citizens for better and more social services and the immense financial resources of the central authority have imposed a high degree of intergovernmental cooperation between provincial and federal governments in Canada. Cooperative federalism is, in essence, a series of pragmatic and piecemeal responses by the federal and provincial governments to the circumstances of their mutual interdependence. As such, cooperative federalism is to be contrasted to a form of classical federalism in which the two levels carried out their respective responsibilities as assigned by the Constitution Act in relative isolation from one another; it is also the successor of a centralized form of federalism which emerged during and after the Second World War (some argued that cooperative federalism was just one more revised form of the same centralization movement). In Canada, cooperative federalism has four main features: 1) the reliance on formal constitutional amendments and on judicial review was largely replaced by procedures of continuous interaction, chiefly through federal-provincial conferences between the federal and provincial governments; 2) the federal government consulted the provinces

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prior to committing itself to policies affecting the provinces; 3) all governments attempted to articulate policies in fiscal matters, and in devising policies for economic stability and growth; 4) the establishment of more institutionalized structures and processes of intergovernmental relations. Co-operative Federalism involves  Complexities of interdependence and networks of relationships  e.g. marketing schemes: “Each level of government enacted laws and regulations, based on their respective legislative competencies, to create a unified and coherent regulatory scheme:” Federation des producteurs de volailles du Québec v. Pelland, [2005] 1 S.C.R. 292 at para. 38.  “to foster co-operation among governments and legislatures for the common good ”  “recognition that the task of maintaining the balance of powers in practice falls primarily to governments, and constitutional doctrine must facilitate, not undermine what this Court has called ‘co-operative federalism’.” -CANADIAN WESTERN BANK ii.

WHAT DOES CO-OPERATIVE FEDERALISM AS A PRINCIPLE MEAN FOR HOW WE GO ABOUT CONSTITUTIONAL INTERPRETATION?

 “The determination of which head of power a particular law falls under is not an exact science. In a federal system, each level of government can expect to have its jurisdiction affected by the other to a certain degree. As Dickson C.J. stated in GENERAL MOTORS OF CANADA LTD. … ‘Overlap of legislation is to be expected and accommodated in a federal state. ’ Laws mainly in relation to the jurisdiction of one level of government may overflow into, or have ‘incidental effects’ upon, the jurisdiction of the other level of government. It is a matter of balance and of federalism: no one level of government is isolated from the other, nor can it usurp the functions of the other”. (FIREARMS REFERENCE, PARA. 26)

Reference re Secession of Quebec The Governor in Council (effectively, the Cabinet of Canada) submitted the request for an advisory opinion on the following three specific questions:

1. Under the Constitution of Canada, can the National Assembly, legislature or government of Quebec effect the secession of Quebec from Canada unilaterally? 2.

Does international law give the National Assembly, legislature or government of Quebec the right to effect the secession of Quebec 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?

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?

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RIGHT TO SECEDE UNDER CANADIAN LAW The court addressed the three questions in order. First, they stated that under the Canadian Constitution (and with Quebec being a party to it since its inception), unilateral secession was not legal. However, should a referendum decide in favour of independence, the rest of Canada "would have no basis to deny the right of the government of Quebec to pursue secession." Negotiations would have to follow to define the terms under which Quebec would gain independence, should it maintain that goal. In this section of the judgment they stated that the Constitution is made up of written and unwritten principles (based on text, historical context, and previous constitutional jurisprudence) and that there are four fundamental tenets of the Canadian constitution. Those 4 interrelated and equally important principles or values are: 1.

Federalism – the principle that seeks to “reconcile diversity with unity” by giving federal authority over only those issues of common interest amongst culturally diverse and politically independent provinces. The purpose of Canada’s federalism is not only to create a loose association amongst provinces, but a true national unity.

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Democracy – the principle that seeks to promote participation in effective representative selfgovernment, which respects and responds to all voices in a marketplace of ideas.

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Constitutionalism and the Rule of Law – the principles that protect citizens from state actions by forcing governments to act under the rule of law, the constitution of Canada being the supreme law. The constitution’s entrenched protections of minorities ensures that the country does not operate simply on majority rule, and enables a true democracy in which minority voices are fairly considered.

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Protection of Minorities – the principle that guides the other principles, but one which is also independent and fundamental because of its uniqueness to Canada relative to other federal, constitutional democracies.

They held that these pieces cannot be viewed independently but all interact as part of the Constitutional framework of Canada. Rights to secede under international law and self-determination The answer to the second question, which concerned Quebec's right under international law to secede, gave the opinion that the international law on secession was not applicable to the situation of Quebec. The court pointed out that international law "does not specifically grant component parts of sovereign states the legal right to secede unilaterally from their 'parent' state." The Supreme Court of Canada's opinion stated that the right of a people to self determination was expected to be exercised within the framework of existing states, by negotiation, for example. Such a right could only be exercised unilaterally under certain circumstances, under current international law. The court held that: The various international documents that support the existence of a people's right to self-determination also contain parallel statements supportive of the conclusion that the exercise of such a right must be sufficiently limited to prevent threats to an existing state's territorial integrity or the stability of relations between sovereign states. and that A state whose government represents the whole of the people or peoples resident within its territory, on a basis of equality and without discrimination, and respects the principles of self-determination in its own internal arrangements, is entitled to the protection under international law of its territorial integrity.

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The court stated in its opinion that under international law, the right to secede was meant for peoples under a colonial rule or foreign occupation. Otherwise, so long as a people has the meaningful exercise of its right to self-determination within an existing nation state, there is no right to secede unilaterally. For close to 40 of the last 50 years, the Prime Minister of Canada has been a Quebecer. During this period, Quebecers have held from time to time all the most important positions in the federal Cabinet. During the 8 years prior to June 1997, the Prime Minister and the Leader of the Official Opposition in the House of Commons were both Quebecers. At present, the Right Honourable Chief Justice and two other members of the Court, the Chief of Staff of the Canadian Armed Forces and the Canadian ambassador to the United States, not to mention the Deputy Secretary-General of the United Nations, are all Quebecers. The international achievements of Quebecers in most fields of human endeavour are too numerous to list. Since the dynamism of the Quebec people has been directed toward the business sector, it has been clearly successful in Quebec, the rest of Canada and abroad. The Supreme Court further stated that: Quebec could not, despite a clear referendum result, purport to invoke a right of self-determination to dictate the terms of a proposed secession to the other parties to the federation. The democratic vote, by however strong a majority, would have no legal effect on its own and 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 Canada as a whole. 4. JUDICIAL REVIEW & PRINCIPLES OF INTERPRETATION  In a federal system, where legislative authority is divided between two levels of government (with exclusive jurisdiction in their respective sphere) it is inevitable that disputes will arise regarding whether one level of government has acted within its constitutional authority or has impermissibly trenched on the exclusive authority of the other  There will also inevitably be cases where both levels of government, each acting within its proper sphere, enact legislation that overlaps or possibly conflicts ROLE OF THE COURTS  s. 52(1) of the Constitution Act, 1982:“The Constitution of Canada 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.”  Courts are the impartial arbitrators of federalism disputes HOGG ON JUDICIAL REVIEW ON FEDERALISM GROUNDS    

Hogg’s view is that judges are not well suited to the task “Lack democratic accountability”, “limitations inherent in the adversarial judicial process” Hogg advocates for judicial restraint: “the legislation should be overridden only where its validity is unclear” Presumption of constitutionality

NOTE GENERALLY s.91-lists matters that are competent to the feds S.92-lists matters that are competent to the Provinces s.93-provincial power over education S.95-Concurrent powers of the feds and provinces over agriculture & Immigration

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NOTE THE FOLLOWING PRELIMINARY BUT RELATED PRINCIPLES AND DOCTRINES I.

NECESSARILY INCIDENTAL

This principle or doctrine permits one level of governments to intrude substantially on other level of government so long as most important features of their laws remain within jurisdiction When an impugned law or provision is examined in isolation, it would appear to intrude into the jurisdiction of the other level of government. However, if the larger scheme of which the impugned provision is part is constitutionally valid, the impugned provision may also be found valid because of its relationship to the larger scheme. This will depend on how well the offending provisions are integrated into the valid legislative scheme. If they are not closely related they will be severed and declared invalid. As long as the dominant purpose is valid (pith and substance), then anything else that is necessarily incidental to that purpose will not make the legislation invalid. (e.g. if Toronto created new provisions dealing with traffic flow, which also happened to crack-down on homeless and pot smokers, it could be argued that “removing” of the homeless was only incidental). E.g.

General Motors of Canada Ltd. v. City National Leasing (1989) SCC (Necessarily incidental)

F: The Fed gov’t enacted the Federal Combines Investigation Act (FCIA), S.33.1 of which creates a civil cause of action allowing companies the right to sue other companies which they feel are competing unfairly. This is ordinarily a matter within provincial jurisdiction in relation to Property & civil Rights in the province (s.9213). Canada leasing sued GM and GM argued that s. 33.1 of the Act (NOTE NOT THE WHOLE ENACTMENT BUT S.33 ALONE) was ultra –vires the Parliament since the creation of civil causes of action falls within provincial jurisdiction in relation to “property and civil rights” (s. 92(13)). Issue: Should S.33 .1 be severed and struck down because it invades provincial jurisdiction over property and civil rights? Decision: Civil causes and matters is ordinarily within provincial jurisdiction but the encroachment on the provincial head of power governing civil causes of action (the right to sue) is ok or excused (justified) because it is a “necessarily incidental” provision enacted in order to allow s. 33.1 of the Federal Combined Investigation Act to be effective (need to be able to sue in order to make Act effective).  

S. 33.1 is a remedial provision only and helps enforce substantive parts of the Act It is limited in scope and applies only to anti-competition laws and not causes of action in general (which would fall under s. 92(13)).

STEPS TO FOLLOW WHEN A CHALLENGE FOCUSES ON A SINGLE PROVISION 1) Is the Act as a whole (Federal combines Investigation Act) valid? (if NO, statute will be struck down) 2) If valid, is the specific offending provision, (In this case s.33(1) viewed in isolation, valid? 3) If not valid because of its intrusion on provincial jurisdiction, to what degree does it intrude on the other level of government’s jurisdiction? 4) Is the offending provision sufficiently integrated with the valid scheme that it wouldn’t make sense to severe the provision from the entire act?? Held-Provision sufficiently integrated with the valid Act. It is necessarily incidental to the enforcement of the act an the achievement of its purpose.

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See also:FIREARM REFERENCE CASE-where Federal criminal law power to regulate registration of guns had an incidental effect & indeed trenched on provincial jurisdiction over property & civil rights in the province but was allowed because the effect was minimal and only incidental to the main criminal law object concerning the regulation and registration of guns for public safety, which main object was a clear federal object. 2. DOUBLE ASPECT DOCTRINE (INCIDENCE OF CO-OPERATIVE FEDERALISM) Multiple Access V Mccutcheon Chattergee V Ontario A.G Firearm Reference case This doctrine acknowledges that some kinds of laws have both a federal and a provincial matter and are therefore competent to both the Federal and Provincial jurisdictions. e.g. Federal driving legislation – impaired driving deals with criminal matters. Provinces have also adopted traffic safety regulations with respect to conduct on the road - Shows s. 91 and 92 are NOT watertight compartments – there are overlaps Usually deals with two statutes, while necessarily incidental usually deals with one statute. The double aspect doctrine is applied “if the contrast between the relative importance of the two features is not so sharp” (Lederman, “Classification of Laws and the BNA Act”). Hogg elaborates that when the court finds that federal and provincial characteristics of a law are roughly equal in importance, then the conclusion is that laws of that kind may be enacted by either the parliament or a provincial legislature. But if the two rules call for inconsistent behavior from the same people, they are in conflict or collision and both cannot be obeyed. In these circumstances the courts have said that the federal rule is to prevail and the provincial one is inoperative and need not be observed (doctrine of Paramountcy – Rothmans, Canadian western bank, Bell, etc). Ask: Can you comply with both laws? If not, federal law prevails.

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MULTIPLE ACCESS LTD. V. MCCUTCHEON (1982) SCC (Insider trading prohibition by both fed & provincial laws) Facts: Two laws, one provincial law (Ontario Securities Act, RSO 1970, c. 416) and one federal law (Canada Corporations Act, C-32) prohibited insider trading in shares with the two laws having almost identical provisions. Alleged insiders seeking to avoid proceedings against them under the Ontario statutes Differences between the two acts (different Pith & Substance between the two): 

Federal law prohibited insider trading under federal corporate structures pursuant to its criminal law power which is enumerated in s. 91(27) as well as its power to incorporate companies in s. 91 (opening words).

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Provincial law dealt with insider trading provisions were valid in Pith & Substance in relation to the securities trade, which comes within “property and civil rights” s. 92(13).

Decision: Double aspect applied because there were two equally important perspectives on subject matter with no apparent conflict; therefore both could be upheld – they can coexist under the double aspect doctrine.  Even though they can co-exist, when it comes to deciding which one of the two will govern IN THE EVENT OF A CONFLICT, we resort to Paramountcy and the Federal law will prevail. Paramountcy applies as where one enactment says ‘yes,’ and...