58 Gold ConstitutionalLaw Full Year2003

7/27/2019 58 Gold ConstitutionalLaw Full Year2003

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Constitutional Law

Constitutional Law Course Summary..................................................................................7The Colonial Laws Validity Act, 1865........................................................................7Constitution Act of 1867..............................................................................................7The Statute of Westminster, 1931................................................................................7The Canada Act 1982 (P174).......................................................................................7

The Constitution Act, 1982 (P174)..............................................................................7Terms Constitutional Law, Conventions, Constitution.................................................8Campbell v. A.G.B.C...................................................................................................8Dicey (P1)....................................................................................................................8Separation of Powers (P4)...........................................................................................8Regina v. Governor of Her Majestys Prison Brockhill Ex Parte Evans.....................8Kleinwort Benson v. Lincoln City Council, Mayor of Southwark, Birmingham CityCouncil, Mayor of Kensington and Chelsea................................................................9Earldom of Norfolk Peerage Claim.............................................................................9Bentham, Jeremy..........................................................................................................9A.G. Alberta v. A.G. Canada [1943] A.C. 356 (P35)..................................................9

B.C. Power Corp. v. B.C. Electric Co. [1962] 34 D.L.R. (2nd) 196 (P27)...............10Amax Potash v. Government of Saskatchewan [1976] 71 D.L.R. (3rd) 1 (P29).......10Singer v. Ministry of Community and Social Services (Handout)............................11F. Hoffman-La Roche v. Secretary of State for Trade and Industry [1974] 2 All E.R.1128 (P41)..................................................................................................................11R. v. Swain [1991] 5 C.R. (4th) 253 (P57)................................................................12R. v. Brydges [1990] 74 C.R. (3rd) 129 (P60)...........................................................12A.G. Quebec v. Blaikie [1979] 101 D.L.R. (3rd) 394 (P353) Blaikie 1................12A.G. Quebec v. Blaikie [1981] 123 D.L.R. (3rd) 15 (P359) Blaikie 2..................13Manitoba....................................................................................................................13Patriation....................................................................................................................13

Re Manitoba Language Rights [1985] 1 S.C.R. 721 (P371).....................................13Issues related to the de facto doctrine and res judicata .............................................14Bilodeau v. A.G. Manitoba [1986] 3 W.W.R. 673 (P389)........................................14

Severance.......................................................................................................................14Textual Severance......................................................................................................15Substantial Severance................................................................................................15Severance Clause.......................................................................................................15Pith and Substance.....................................................................................................15Notre Dame de Bonsecours.......................................................................................15A.G.B.C. v. A.G. Canada [1937] A.C. 377 (P89)......................................................15A.G. Alberta v. A.G. Canada [1947] A.C. 503 (P62)................................................15Madden v. Nelson and Fort Sheppard Ry. Co...........................................................16A.G. Saskatchewan v. A.G. Canada [1949] A.C. 110 (P68).....................................16Dunkley v. Evans [1981] 3 All E.R. 285 (P74).........................................................17Daymond v. South West Water Authority [1976] 1 All E.R. 39 (P74).....................17D.P.P. v. Hutchinson [1990] 2 All E.R. 836 (P72)....................................................17

Constitutional Exemption from Legislation...................................................................17Canadian Charter of Rights and Freedoms, s.1 Reasonable Limits....................17Canadian Charter of Rights and Freedoms, s.12 Cruel & Unusual.....................18

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Canadian Charter of Rights and Freedoms, s.24(1) Inoperative.........................18Constitution Act, 1982, s.52(1) Supremacy of Consitution................................18R. v. Chief [1989] 74 C.R. (3rd) (P78) Charter s.24(1)..........................................18Schacter v. The Queen [1992] 93 D.L.R. (4th) 1 (P92) CA 1982 s.52(1)..............18McKay v. The Queen [1965] S.C.R. 798 (P82) Ultra Vires...................................19

NY Wine Statute Found Unconstitutional (Handout)................................................19Ladore v. Bennett [1939] A.C. 468 (P120)................................................................19Board of Trustees of Lethbridge v. Independent Order of Foresters [1940] A.C. 513(P125).........................................................................................................................20Bill of Rights Assented to on August 10, 1960......................................................20A.G. Ontario v. Barfried Enterprises [1963] 5 C.R. 570 (P115)...............................20Carnation Company v. Quebec Agricultural Marketing Board [1968] S.C.R. 238(P109).........................................................................................................................20

Self-imposed restraints on legislative power.................................................................21In Re The Initiative and Referendum Act [1919] A.C. 935 (P193)...........................21McCawley v. The King [1920] A.C. 691 (P183).......................................................21

A.G. N.S.W. v. Trethowan [1932] A.C. 526 (P228).................................................22Ellen Street Estates v. Minister of Health [1934] 1 K.B. 590 (P179)........................23The Commission of Marcel Faribault [1967] (P181, 182)........................................23Re Ontario Public Service Employees Union v. A.G. Ontario [1987] 41 D.L.R. (4th)1 (Handout)................................................................................................................23Re Eurig Estate [1998] 2 R.C.S. 565 (Handout)........................................................24Amendment Considerations.......................................................................................24

Constitutional issues......................................................................................................25Division of Powers.........................................................................................................25

Characterization: Steps of Interpretation (P215).......................................................25Morgentaler Province does not have criminal jurisdiction....................................25Division of Powers Doctrines....................................................................................26GM v. City National Leasing [1989] 1 SCR 641 (P225)...........................................26Multiple Access v. McCutcheon [1982] 2 SCR 161 (P232) Double aspect..........26McKay v. The Queen [1965] S.C.R. 798 (P82) Ultra Vires...................................27Sante Securite du Travail v. Bell [1988] 1 SCR 749 (P246) Inter-jurisdictionalimmunity, reading down..........................................................................................27Irwin Toy...................................................................................................................27Inter-jurisdictional Immunity.....................................................................................27Classical Model of Divison of Powers.......................................................................28Modern Model of Division of Powers.......................................................................28Paramountcy..............................................................................................................28Ross v. Registrar of Motor Vehicles..........................................................................28Incompatibility of Policy\Purpose.............................................................................28Bank of Montreal v. Hall (1990) 1 SCR 121 (P264).................................................29Why should federal laws prevail?..............................................................................29

Peace, Order, Good Gov't..............................................................................................29Concerns....................................................................................................................29Reference re Anti-Inflation Act Inflation not a national concern..........................29National Concerns Dimensions Inflation not national concern..............................31

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Functions of Judicial Review.....................................................................................31Philip Bobbett's Judiciary Functions..........................................................................31R. v. Crown Zellerbach Canada [1988] 1 S.C.R. 401 (P303) Small aggregates canbe single matters of national concern.......................................................................31Le Dain J. on POGG and National Concern doctrine................................................32

Brun and Tremblay (P315) Crown Zellerbach sucks.............................................32La Forest J..................................................................................................................32Environmental Regulation.............................................................................................32

Friends of the Oldman River Society v. Canada (M. of Transport)..........................32R. v. Hydro-Qubec Federal Criminal Law Power................................................32Ontario Hydro v. Ontario (Labor Relations Board) Nuclear labor........................32

Delegation......................................................................................................................33Nova Scotia Delegation Case.....................................................................................33Delegated/subordinate legislation..............................................................................33Limitations on delegation..........................................................................................33

Economic Regulation.....................................................................................................33

Objectives..................................................................................................................33Parsons Property and civil rights reg. most local commerce.................................34Economic reg.............................................................................................................34Carnation Company v. Quebec Agricultural Marketing Board [1968] S.C.R. 238(P109).........................................................................................................................34Paul Weiler: Carnation and Manitoba Egg are the same. (P338)..............................35Burns Foods (1975) Characterization.....................................................................35Re Agricultural Mkting Act (1978) Good faith inter-delegation...........................35Monahan, Patrick.......................................................................................................35

Federal Economic Regulation........................................................................................35Leading case is Citizens Insurance Co. v. Parsons (1881)......................................3591.2 Trade and Commerce.........................................................................................36Prof. Swinton.............................................................................................................36Labatt.........................................................................................................................36Canadian Nat'l Transport ..........................................................................................36GM v. City National Leasing National Economic Union......................................36

Natural Resources..........................................................................................................37CIGOL v. Gov't of Saskatchewan [1978]..................................................................37Central Canada Potash v. Sask. [1979] International price fixing bad...................38Criminal Law.............................................................................................................38Federal........................................................................................................................38Provincial...................................................................................................................38Board of Commerce...................................................................................................39P.A.T.A......................................................................................................................39Margarine...................................................................................................................39Recent expansions under 91.27 .................................................................................39MacDonald v. Canada Health is a criminal law purpose.......................................39Arguments against validity of MacDonald................................................................39Arguments for validity of MacDonald (Majority).....................................................39R. v. Hydro-Qubec (P400).......................................................................................40

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Firearms Act...............................................................................................................41Arguing a criminal law legislation.............................................................................41Provincial reach to criminal law................................................................................41Nova Scotia Board of Censors v. McNeil (P416)......................................................41Dupont........................................................................................................................41

Westendorp v. The Queen (P421)..............................................................................41Power to enforce comes from power to legislate.......................................................42Federalism and Spending Power................................................................................42Measures taken under spending power......................................................................42Conditions for health funding....................................................................................42Arguments against conditions....................................................................................42Pro conditions............................................................................................................421937 Unemployment insurance reference.................................................................42

Quebec Sovereignty.......................................................................................................43Quebec Secession Reference.....................................................................................43Four Constitutional Principles...................................................................................43

John Major (Globe and Mail)....................................................................................44The court rejected two extreme positions..................................................................44Young.........................................................................................................................44Reactions....................................................................................................................44What should be the majority vote in order to negotiate?...........................................44Who else should be at the table?................................................................................44Other constitutional principles...................................................................................44

Application of Charter...................................................................................................45Offered measures of protection..................................................................................45BNA 1867..................................................................................................................45Rights and liberties were not MATTERS for which there were jurisdictional claims....................................................................................................................................45Minority Rights..........................................................................................................46All provinces have enacted human rights codes as of Ontario 1952, after WW2.....46Canadian Bill of Rights..............................................................................................46Canadian Charter of Rights and Freedoms Influenced by.........................................46Concern about legitimacy of judicial review. (Weimer?).........................................46Veterans Affairs Act Pension Administration........................................................471. Is right/freedom infringed?....................................................................................472. Is infringement justified?.......................................................................................47Nova Scotia Case (P752)...........................................................................................47Oakes Test (Leading case on s.1)..............................................................................48Hogg...........................................................................................................................48Dickson (P757): Factors to consider..........................................................................48Edmonton Journal Case.............................................................................................49

Charter Issues.................................................................................................................49PRO Entrenchment of Charter...................................................................................49CON Entrenchment of Charter..................................................................................49Gold............................................................................................................................49Weinrib......................................................................................................................50

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Monahan....................................................................................................................50Hogg...........................................................................................................................50

S.33 Override.................................................................................................................51Ford v. Qubec (AG).................................................................................................51Weinrib, Lorraine.......................................................................................................51

Morton........................................................................................................................51Hogg...........................................................................................................................51Framework of Charter....................................................................................................51

Local 580 v. Dolphin Delivery (1986) (early case) Expression.............................51Courts struggling to understand the purpose of the charter.......................................52Pepsi Cola..................................................................................................................52Govt vs. Private Activity..........................................................................................52Guelph (P787) Not subject to Charter: Independent, no coercion.........................52Community College Subject to Charter: Govt approval req.................................52Hospital Not subject to Charter: Day to day ops. run privately.............................53Slaight Private actor subject to Charter: Power of compulsion..............................53

Eldridge Charter applies to Medicare services?.....................................................53In the case of non-governmental actors.....................................................................53When does the gov't's failure to act attract the charter?.................................................53

Vriend : Alberta Human Rights law .........................................................................53Positive Obligations...................................................................................................54Who is protected by the charter, aside from human beings?.....................................54Sources of remedies and standing..............................................................................54

Freedom of Religion......................................................................................................54Fundamental freedoms...............................................................................................54Division of powers.....................................................................................................55Big M Drug Mart.......................................................................................................55R. v. Edwards Books and Art (1986) Retail Business Holiday Act.......................55Applying S.1: Day of rest..........................................................................................56Opening municipal council meeting with prayer?.....................................................57Sudbury......................................................................................................................57

Freedom of Expression: Commercial Speech (Advertising).........................................57Irwin Toy...................................................................................................................57Tobacco Act...............................................................................................................57Why is advertising included in freedom of expression?............................................57Included in Freedom of Expression...........................................................................58Test for constitutionality............................................................................................58

Freedom of Expression: Hate Speech............................................................................58R. v. Keegstra (1990).................................................................................................58Options.......................................................................................................................58

Equality Rights...............................................................................................................58Out with narrow Bill of Rights interpretation (P1141)..............................................59Andrews.....................................................................................................................59Law Survivors pension distinction not an equality issue......................................59Miron v. Trudel..........................................................................................................60Walsh Marital status distinction not a violation of dignity....................................60

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Goselin Different welfare payments not a violation of dignity..............................60M v. H Gay spouse distinction is a violation of dignity.........................................60

Taxation Power..............................................................................................................60Direct vs. Indirect.......................................................................................................61

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Constitutional Law Course Summary

The Colonial Laws Validity Act, 1865

S.5: Legislature of a colony has full power to make constitutional law, as long as it

conforms to appropriate Manner and Form. Scott says this is declaratory of the commonlaw.

This was the basis for deciding McCawley v. The King. The Governor had the right toappoint McCawley to the Supreme Court, even though the term was not certain.

Constitution Act of 1867

In 1949, s.91(1) was added, establishes powers of parliament over constitutionalchanges, subject to certain limitations. (It later became s.44 in the Constitution Act,1982) This section acts as a check on the broad powers provided by s.5 of the ColonialLaws Validity Act, 1865.

The Statute of Westminster, 1931

S.2(1): The Colonial Laws Validity Act, 1865, shall not apply to any law made after thecommencement of this Act by the Parliament of a Dominion. (Does this repeal the needfor appropriate manner and form asserted by s.5 of that act?)

S.2(2): Parliaments of Dominion are allowed to make acts that are inconsistent withImperial acts.

S.7(1): Nothing in this Act shall be deemed to apply to the repeal, amendment oralteration of the British North America Acts, 1867 to 1930, or any order, rule or regulationmade thereunder. [So acts made under s.91(1) or s.91(2) of B.N.A., 1867 wereamendments to the BNA acts?]

The Canada Act 1982 (P174)Received royal assent and came into force on March 29, 1982.

Schedule A is a French version of the Canada Act, equal to the English version. Schedule B is the bilingual Constitution Act, 1982.

S.2 terminates the power of the UK Parliament to legislate for Canada.

The Constitution Act, 1982 (P174)

Separated into 7 parts.o Part 1 is the Canadian Charter of Rights and Freedoms.o Part 2 recognizes aboriginal and treaty rights.o Part 3 is a federal and provincial commitment to regional equality.o Part 4 provides for constitutional conference.o Part 5 is the Procedure for Amending Constitution of Canada, replacing s.91(1)

and s.92(1) of the British North America Act, 1867 (B.N.A., 1867) with s.44 and

s.45.o Part 6 amended the B.N.A., 1867 (Constitution Act, 1867) by adding a new

provincial legislative power under s.92.o Part 7 includes s.52 (Supremacy and Definition of Constitution)

Subject to s.58 and s.59, came into force April 17, 1982, when the Queen proclaimed itso and was announced in the Canada Gazette.

The equality guarantees (s.15) did not come into force until April 17, 1985, in accordancewith s.32(2).

S.53(1) and Schedule, Item 17 repealed:

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o S.4 of the Statute of Westminster , 1931 as it related to Canada. From then on,no act of the UK Parliament passed after April 17, 1982 shall extend to Canadaas part of its law, regardless of Canadian request/consent.

o S.7(1) of the Statute of Westminster , 1931 as it related to Canada. (Does thismeans that s.5 of the Colonial Laws Validity Act is gone? Was s.7 necessary?)

The Constitution Acts are protected from repeal by s.7(3) of the Statute of Westminster,

1931 and by s.52(1) and s.52(3) of the Constitution Act, 1982.

Terms Constitutional Law, Conventions, Constitution

Campbell v.A.G.B.C.Aboriginal Rights - Is the Nisga'a treaty constitutionally valid?

Constitution Act 1982 s. 35 establishes rights for Aboriginals.

Constitution Act 1867 s. 91(24) gives parliament powers over Indians and lands reservedfor Indians.

Issues

1. Parliament gives powers to Nisga'a government which prevail over laws of Canada in case ofconflict.2. If treaty becomes entrenched in constitution, it cannot be changed except by amending theconstitution through part five (sections 38, 47.1) of Constitution Act 1982.3. Constitution Act 1867 s. 91(12) gives parliament powers over all fishing, which conflicts withgiving those powers to the Nisga'a.4. It is not in Canada's best interests to have hundreds of self-governing 'mini-states' allindependent of federal law.

Dicey (P1)

A.V. Dicey provides broad definition of what makes up constitutional law, including prettymuch all laws. Practical use necessitates a narrower view.

Dicey makes distinction between laws and conventions. Questions are either of law orfact. Conventions: Rules of custom or behavior that are not legally enforceable, but stilladhered to.

Bell v. Town of Burlington [1915] 34 O.L.R. 619 (P3)Supreme Court of Ontario

Taxation without representation argued unconstitutional. Answer- there is no legal rulefor representation.

Separation of Powers (P4)

There is no perfect separation of executive, legislative and judicial powers. If judicialdecisions are declaratory of the law, then judges make legislative decisions.

Regina v. Governor of Her Majestys Prison Brockhill Ex Parte Evans

House of Lords Prisoner disagrees with release date set by Governor of prison, applies for habeas

corpus, judicial review. On 15 November the Queen's Bench division orders herimmediate release, agreeing that her release should have been 17 September.

Damages Awarded: 5000 for 59 extra days imprisonment.

Tort of false imprisonment is one of strict liability. Should the crown be responsible forthe Governor, as parents are for their children, or would that encourage more

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irresponsible behavior by public servants? Solicitor General stood behind him, eventhough the treasury paid damages, because he wants to retain the image that the lawhas been followed where relevant. After the decision, the law is applied retrospectively,as in Earl of Norfolk, and Governor of the prison is liable, even though he was followingprocedure.

Kleinwort Benson v. Lincoln City Council, Mayor of Southwark,Birmingham City Council, Mayor of Kensington and Chelsea

House of Lords Kleinwort Benson is a bank that engaged in a series of interest rate swaps with the

respondents. The appellant argued that money was paid under mistake of law and,though contrary to prevailing law, should be recoverable.

Lord Goff of Chieveley allowed the appeal holding that:o There is a general right to recover money paid under a mistake, whether of fact

or law, subject to defenses available in the law of restitution. The basis is that ofunjust enrichment.

o The claim that one honestly believed they were entitled to the money receivedcannot be used as a defense for keeping the money.

o Fulfilling a contract that turns out to be void does not preclude the other partysrecovery of money paid under mistake of law.

Lord Lloyd of Berwick dismisses the appeals, though he would like to do otherwise.

Earldom of Norfolk Peerage Claim

Peerage surrendered in 1302 and re-granted in 1312.

In 1906, the law was declared such that peerage could not and could never have beensurrendered. The surrender was bad; the re-grant was bad, 600 years later. Morecommonly, you can't bring an action after certain time has passed, 6 years in manycases. This redefinition of the law is not done very often, because precedent is anecessary stabilizer of law.

Bentham, JeremyP9 - When your dog does anything you want to break him of, you wait till he does it, and thenbeat him for it. This is the way you make laws for your dog: and this is the way the judges makelaw for you and me. (Open civil code portrayed to be better than secretive common case law, inhis opinion.)

Constitution Act 1867 s. 91.27 Criminal law under federal jurisdiction.

1892 Canadian Criminal Code established, but did not abolish common law crimes. Itwas influenced by English Draft Code

1955 Canadian Criminal Code established which abolished common law crimes.

A.G. Alberta v. A.G. Canada [1943] A.C. 356 (P35)

Privy Council Depression, drought in western N.A. Province steps in with the Debt Adjustment Act,

1937 and rules that no one can bring suits or executions against Alberta resident debtors.Those wishing to sue debtors must apply for permits, subject to veto by juries.

Constitution Act s. 92(13) Property and civil rights lie under provincial jurisdiction.

Constitution Act s. 91(21) Bankruptcy and insolvency are federally governed.

Does the Act relate to property or bankruptcy? Is the province trying to protect peoplewho can't pay? Of course, and so it is ultra vires and invalid.

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The Catch-22: S.11 of Debt Adjustment Act includes an extension on the statute oflimitations to bring suit (if a creditor can't get a permit), so theoretically creditors can suewhen the dust settles. In reality, if the Debt Adjustment Act is deemed to have beeninvalid, so is s.11 protection, and those who haven't been able to sue are out of luck.

B.C. Power Corp. v. B.C. Electric Co. [1962] 34 D.L.R. (2nd) 196 (P27)

Supreme Court of Canada Parliament creates BC Power, which is holding company for BC Electric. BC decides to

expropriate Hydro operations. Shares of BC Electric would belong to Queen in right ofBC. All assets of BC Electric go to BC Hydro.

The main issue in this decision is that shares of B.C. Electric would be mixed with thoseof Hydro during litigation, transformed like an omelet which cannot be unmade'. B.C.Power is asking for an order of receivership to protect assets it does not own, pendingdetermination of the case. A receiver can appoint directors. The Crown contended thatsuch an order cannot be made because it would affect the property and interests of theCrown.

Kerwin C.J.C held that the Crown could not claim immunity based on an interest inproperty that was established through legislation which may be invalid. To do so would

achieve the same results as if the legislation were valid. Abbott J. dissented with the opinion that such an order was outside court jurisdiction.

Amax Potash v. Government of Saskatchewan [1976] 71 D.L.R. (3rd) 1(P29)

Supreme Court of Canada The appellants, including Amax, produce potash for national and international sale.

In 1974, Saskatchewan passed an Act to Amend The Mineral Taxation Act, 1973-74(Sask.), c.65, which gave powers to the Lt. Governor in Council to make orders for thetaxation of potash producers (s.25a). Shortly thereafter, the Lt. Governor made PotashReserve Tax Regulations, 1974, imposing a quarterly tax on potash, based on apercentage of the value of production. The tax could amount to $120,000,000 annually.

If companies didnt pay tax, they would be subject to fines and seizures, even though thevalidity of the tax was in litigation as it may have been indirect. Percentage taxes areindirect because they tend to be passed on. If it were a property tax, it would be directand therefore valid for a province to levy.

Direct Tax : Tax whose natural tendency is to be borne by the person who first pays it.

Indirect Tax : Tax intended to be shifted to others.

In correspondence with the Minister of Natural Resources of Saskatchewan, Amaxestablished their intent to pay the tax under protest, and requested an assurance that themoney would be returned in the event that the tax was declared ultra vires. Theirargument is that money paid under mistake of law is treated as money paid undermistake of fact, which is recoverable. The Minister refused that assurance andthreatened unspecified action if the money were not paid.

The appellants had requested that the money be paid pursuant to a court order and not

the statute, so that it might be recoverable. This motion was dismissed by Johnson J. Amax requested that the action be declared ultra vires and that they get back their cash.

The province argued that s.5(7) of the Proceedings Against the Crown Act prohibits legalaction and retrieval of cash paid, pursuant to s.92(1), (13), (14) and (16) of the BritishNorth America Act, 1867. Amax suggested that s.5(7) may be ultra vires.

Dickson J. agreed with the appellants with regard to s.5(7). He stated that the provisionwould give both parliament and provincial legislatures the right to act in violation of theconstitution and then make their actions constitutionally valid, doing indirectly what they

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could not do directly. "If a state cannot take by unconstitutional means, it cannot retainby unconstitutional means." He referenced B.C. Electricand held the s.5(7) is ultra vires.

Though Amax succeeded in having s.5(7) declared ultra vires, they were denied theirmotion for an order of interim preservation of property. The money would have to be paidto the province and repayment would be decided when the litigation is completed.

Problem Set related to Amax: Q: If s.5(7) is cured by removing the parts which bar recovery of taxes, is the section still

bad? After all, there needs to be some sort of indemnity for the Crown. If the crownrequired civil servants to be subject to legal action, no one would work for thegovernment.

A: S.5(7) would need to be valid outside the sphere of taxes as well, otherwise thesection could prevent action for all kinds of colorable acts.

Singer v. Ministry of Community and Social Services (Handout)

Ontario Divisional Court 184-95 Brian Singer is 26 years old but functions at the level of a 2 year-old, due to a severe

mental handicap. He also displays self-injurious behavior typical of autism. In order to

combat this behavior and maintain a positive quality of life for their son, Brians parentshave authorized shock treatment for their son. A new law would require a patients informed consent for such treatment, which Brian

cannot provide. To allow the treatment without consent would be contrary to the personalsecurity assurances of s.7 of the Charter.

White J. allowed the treatment, after hearing that it was the only one that Brian hasresponded to. The legislation was deemed to be invalid in this case because the patientwould be worse off without the treatment. Not treated in same way as F Hoffman-LaRoche.

F. Hoffman-La Roche v. Secretary of State for Trade and Industry[1974] 2 All E.R. 1128 (P41)

House of Lords The Roche Group manufactures and holds patents for Librium and Valium. They are

allowed to calculate their prices to recoup research costs and make a fair profit, but suchcalculations are sometimes skewed by inflating research costs to justify higher prices.One advantage of inflating research costs is that a company can force the public to buildunnecessarily expensive facilities which will be reused for other projects.

The Secretary of State for Trade and Industry initiated an investigation, the MonopoliesCommission wrote a report, and it was decided that monopoly prices for the 2tranquilizers exist contrary to public best interest. The Secretary of State put forth theRegulation of Prices (Tranquillising Drugs)(No 3) Order, 1973, subject to approval ofeach house of Parliament. The Crown requested an interlocutory injunction to enforcelower prices pending that order.

The Roche Group appealed the injunction on the ground that it was ultra vires. There are

competing interests here.o The state pays for Medicare, and has a vested interest in lowering prices on two

particular drugs manufactured by HL.o If the injunction is granted and the order that forms its basis is declared invalid,

the Roche Group will have unfairly lost an estimated 8 million.o If the injunction is not granted, the current law will be undermined for as long as it

takes to grant a decision on the larger issue. The Roche Group, physicians,pharmacists, and even the Crown (for paying Medicare costs) will all havecontributed to a breach of law for paying the illegal prices.

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Defense:1. Commission (quasi-judicial) acted against natural justice (fair hearing and lack of bias).

audi alteram partem = hear both sides.

1137d - Commission decides who shall be heard, and are obliged to hear thosewho are sufficiently interested. Lord Diplock believes HL has a right to a hearing.

nemo judex un sau causa = nobody may be the judge in his own cause.

2. Prices were calculated arbitrarily3. State trying to take profits retro.

R. v. Swain [1991] 5 C.R. (4th) 253 (P57)

Supreme Court of Canada Man attacked wife and kids, got committed to Penetanguishene Mental Health Center,

improved, and was released for trial. He did not plead insanity, but the crown did so forhim and he was held indefinitely at Queen Street Mental Health Center, in accordancewith s.542(2) of criminal code, subject to release by Lt. Governor. No hearing, no timelimit, no criteria for invoking s.542(2).

Court struck down the provisions of Criminal Code that required psychiatric detention forthose who have been acquitted on ground of insanity, as contrary to ss.7 and 9 of the

Charter. Because of the possible danger involved in releasing all insanity acquittees, thecourt granted 6 months of temporary validity to allow preparation of new procedures.

The downside of temporary validity is that it weakens law by promoting bad legislationwhich will be cleaned up when problems invariably result.

R. v. Brydges [1990] 74 C.R. (3rd) 129 (P60)

Supreme Court of Canada Bridges, accused of murder, asked about free legal aid when interrogated by police.

Police talked him out of seeing a lawyer by asking him is he had any reason to do so (i.e.guilt) Brydges made damaging statements that were later used against him in court.

Trial judge found for Brydges, appellate court reversed decision, appellate court reversedreversal.

Lamer J. held that police have a constitutional duty to advise persons under arrest oflegal aid, but adds 30 days of temporary validity in order to allow time for the changeover.

A.G. Quebec v. Blaikie [1979] 101 D.L.R. (3rd) 394 (P353) Blaikie 1

Supreme Court of Canada Held that Quebecs Charter of the French Language (Bill 101), 1977 was in conflict with

s.133 of the Constitution Act, 1867 because it purported to:o Introduce bills in the legislature in French only.o Enact statutes in French only.

S.133 says acts must be PASSED and ASSENTED to in both English and French.Quebec has a history of making changes and adding translations to acts after they'vebeen passed. Quebec argued that language falls under their jurisdiction through s.92(1)

of the Constitution Act, 1867, but the protection of minority rights prevailed. The day after this decision, the legislature of Quebec re-enacted in both languages all of

the statutes that had only been enacted in French. Quebec was only 2 years in defaultand already had bilingual texts of the acts. One overnight session was sufficient to fix theproblem. (Hogg P1114)

S.133 of the Constitution Act requires:o Simultaneous enactment of delegated legislation and statutes in both English

and French.o Equal authority and status for both the English and French versions.

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A.G. Quebec v. Blaikie [1981] 123 D.L.R. (3rd) 15 (P359) Blaikie 2

Supreme Court of Canada Held that only regulations made by the courts, the government (Lt. Governor, Executive

Council and Ministers, as an extension of the legislature) or subject to governmentapproval were subject to s.133 of the Constitution Act, 1867.

Manitoba

How did parliament obtain power to create Manitoba in 1870 with the Manitoba Act?They didn't have the power until Constitution Act 1871. See s. 4, regulating powers overland that is part of Canada but not a province. S. 5 declares retroactively valid theManitoba Act. s. 23 Manitoba Act. C.A 133.

Patriation

Once patriation takes place, Imperial law can no longer simply declare Colonial laws (i.e.Manitoba laws) to be valid.

S.43 allows amendment of the constitution by proclamation of the Governor General andapproval of two federal houses and the assembly of the province in question (of course

the assembly of Manitoba is in this case invalid). An amendment was worked out such that future legislation would be bilingual but the

previous legislation would be valid retroactively (temporary validity) without having to betranslated. Circularly, this made the provincial assembly valid, which allows for use ofsection 43(45?).

Case had to be heard by the Supreme Court directly from the Provincial Magistrate,because the Court of Appeal did not exist prior to 1908. Case had to be argued withoutusing any unilingual acts.

Re Manitoba Language Rights [1985] 1 S.C.R. 721 (P371)

Supreme Court of Canada Constitution Act, 1867 s.133: Acts of the legislature shall be printed and published in both

English and French. Manitoba Act, 1870 s.23: Almost same wording as the Constitution Act, 1867 s.133.

Entrenches s.133, creating manner and form requirements for future legislation. Manitoba enacted the Official Language Act, 1890: Notwithstanding any statutes or laws,

Manitoba is going to use only English in their Acts and records. An Act Respecting the Operation of s.23 of the Manitoba Act in Regard to Statutes, 1980

(ARO23MA) s.4(1): Legislation introduced in one Official language would be translatedinto the other language after enactment and the translation would have the same forceand effect.

Questions put to the court:

Are the requirements of s.23 and s.133 mandatory? (A: Yes)

Are statutes and regulations not printed and published bilingually invalid because ofs.23? (A: Yes, but they are temporarily valid until translated.)

If invalid, do they have any force or effect? (A: Yes, because of temp. validity) Are any provisions of ARO23MA inconsistent with s.23, and of no force or effect? (A: If

ARO23MA was not printed and published bilingually, it is completely invalid and of noforce or effect. Either way, ss.1-5 are invalid and of no force or effect because they areat odds with s.23 in purporting to authorize:

o Unilingual enactment, with translation later.o Enactment of a translation by certification and deposit with a clerk of the house,

giving force of law without royal assent by Lt. Governor.

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o Resolution of ambiguities by reference to text in one language, while texts aresupposed to be equally authoritative.

Even though Manitoba laws were deemed to be of no force and effect, they were savedby the de facto doctrine and rule of law, and given temporary validity. The de factodoctrine gives effect to expectations of those who relied upon invalid laws. Rule of lawallows for measures, such as temporary validity, to be taken in order to avoid legal chaos.

Issues related to the de facto doctrine and res judicata

The doctrine implies that if someone took control over all or part of the legislative process(happened in Spanish parliament), then their laws might be relied upon and theconsequences protected by the de facto doctrine.

Fraud may be grounds to set aside contracts, but if acts were to be treated as void all thetime then there would be little stability. The rules in this respect must be applied narrowlyto acts. What happens if a bunch of students take parliament and start enacting laws?Courts may have to apply them. (Vice de Consentement?)

Divorces, name changes used to have to be done through private legislative acts. InDuBoulay v. DuBouleyon the French island of St. Lucia, a convict took on the last nameof a prominent family and got to keep it.

Bilodeau v.A.G. Manitoba [1986] 3 W.W.R. 673 (P389)Supreme Court of Canada

Appellant was charged with speeding contrary to the Highway Traffic Act, C.C.S.M.,c.1160, received a summons to appear in court pursuant to Summary Convictions Act,C.C.S.M., c.S230. Appellant argued that both acts were ultra vires the legislature ofManitoba because they were not bilingually printed and published as required by s.23 ofthe Manitoba Act, 1870.

Dickson C.J.C delivered the judgment that:o The Summary Convictions Act is invalid because it contravenes s.23 of the

Manitoba Act by being printed and published only in English. The summonsissued under the act is not subject to challenge, however, because of the defacto doctrine (gives effect to expectations of those who relied upon invalid laws.)

o The summons itself is also not subject to challenge for being printed in Englishonly, because this is not required by s.23.

o The Highway Traffic Act is invalid because it contravenes s.23 of the ManitobaAct by being printed and published only in English. This act is not saved by thede facto doctrine; the doctrine does not preserve a conviction under an invalidstatute when the validity of the statute was raised in defense. The conviction isinstead saved by the rule of law principle, which provides temporary validity tolaws not been saved by the de facto doctrine, res judicata, or mistake of law inorder to avoid madness of colossal proportions.

Wilson J. agreed with the others, but felt that the unilingual summons violated s.23.

The court recognized that the appellant successfully challenged the two statutes and wasonly convicted in order to avoid legal chaos. His costs were awarded.

The de facto doctrine and rule of law principle were referenced from Re Man. LanguageRights [1985] 1 S.C.R. 721.

Severance If a part of legislation or contract is invalid then the whole thing might be bad. Criminals

could then claim that all laws are invalid because some unrelated section of the code(license renewal) happens to be invalid. The concept of severance is that the badsections of a piece of legislation are removed from the good parts, which can ideallystand on their own legal footing.

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Textual Severance

Used to preserve the rest of an act, when one part is invalid. Courts may modify text butmust preserve the intention of the original text.

Substantial Severance

Used where textual severance may be impossible. An application of the law is severed.Does the law stand in relation to all other applications?

Severance Clause

Placed into statutes to indicate an intention that each section stand independently, in acase of severance. In theory, it reverses the presumption against severance.

Pith and Substance

A statute and all its parts collaborate to support one intention. In cases where severanceof one portion is contemplated, it is most often found that the remaining portion would notby itself further the pith and substance of the whole statute and the whole statute mustfall as invalid.

According to Hogg (P375), the Privy Council and the Supreme Court of Canada rarelyconsider severance to be appropriate (except in Charter infringement cases), largelybecause of this pith and substance consideration.

Notre Dame de Bonsecours

91.29 gives to federal jurisdiction covering anything not in the provincial enumeration.Specific provisions overrule more general ones. Notre Dame de Bonsecours municipallaw ordering that ditches be cleaned does apply to federal railways?

In cases where the railway (federal) clashes with municipal/provincial laws, the railwaytends to win. Railway declared to be for the advantage of Canada.

A.G.B.C. v. A.G. Canada [1937] A.C. 377 (P89)

Privy Council, on appeal from the Supreme Court of Canada The Natural Products Marketing Act, 1934 (NPMA), as amended by the Natural Products

Marketing Act Amendment Act, 1935, created a Dominion Marketing Board, which hasthe power to regulate all aspects of natural products trade. That these powers extend forno reason in areas of trade that solely concern commerce within the province, is ultravires the Dominion Parliament.

Lord Atkin delivered the judgment that the powers of the board were far ultra vires thejurisdiction allowed by s.91(2) of the Constitution Act, 1867. The power to controlinternally marketed goods interfered with the powers of the province to do so, under thecategory s.92(13). If local goods are controlled, they may be at a competitivedisadvantage to foreign products. The NPMA screws local farmers.

S.26 of the act directs that in the event that a section is found ultra vires or inoperative,

that section should be severed and the rest of the act should stand independently.Notwithstanding a severance clause which indicated the intention that each section standindependently, the Privy Council held that the texture of the act is inextricably interwoven;that the only intra vires sections are s.9 and part 2, both of which are ancillary to theothers and can not stand on their own.

A.G. Alberta v.A.G. Canada [1947] A.C. 503 (P62)

Privy Council, on appeal from the Supreme Court of Alberta This was a leading case on severance in Canada.

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Certain radical statutes are born out of the depression and drought, notably the AlbertaBill of Rights Act.

The preamble of the act discusses rights of Alberta citizenship, such as employment,pension, education and medical care. It positions these rights as the product of two worldwars, and charges Alberta with the duty of ensuring these rights are made available to

Alberta citizens and the duty of those citizens to enjoy them (the substance of Part 1.) To

this end, it mandates Alberta to use the resources at its disposal, including control overthe creation of credit as outlined in Part 2. Banks lend the same money over and over, such that $1000 in deposits can be created

out of an initial $100 deposit @ a 10% reserve rate. If there were a run on the bank, thecentral bank would have to step in. Part 2 requires that credit institutions of Alberta carry

Alberta Credit Certificates to maintain a 100% reserve on deposits, in essence managingtheir credit expansion. Are they trying to create enough money to equal totaltransactions, forgetting that money is reused and should not be multi-counted? Part 2also authorizes a provincial Board of Credit Commissioners to enforce its rules with fines,license suspension and imprisonment.

The Supreme Court of Alberta found Part 2 of the act to be ultra vires the legislature ofAlberta because it was in pith and substance related to banking, which is federallyregulated under s.91(15) of the Constitution Act, 1982. The A.G. for Alberta claimed that

the section was not related to banking, but property and civil rights in the province, whichfalls under provincial jurisdiction in s.92(13). Part 1 was found to be intra vires, valid andseverable from the rest of the act.

In this appeal, the A.G. for Alberta wants Part 2 declared intra vires and in a cross appealthe A.G. for Canada wants Part 1 declared inseverable, so that the entire act falls. Arethe civil rights sections severable (able to stand on their own and be valid) if the otherparts are declared invalid?

Privy Council says Part 1 is inseverable and useless. The whole act falls.

Scott says the first part was put in the act as 'Bill of Rights' decoration, but that alonedoes not necessarily make them useless. He thinks s.3-8 may be valid.

Where the effects of invalidity are expected to be considerable, there is a certificate ofvalidity in play.

Madden v. Nelson and Fort Sheppard Ry. Co. Case held that CP rail does not have to put up fences along its route to prevent hitting

cattle. Province does not have jurisdiction. Lord Halsbury - You can't do indirectly what you can't do directly. BUT you may be able

to do it under another power.

A.G. Saskatchewan v.A.G. Canada [1949] A.C. 110 (P68)

Privy Council, on appeal from the Supreme Court of Canada Re Farm Security Act of Saskatchewan

In the case of a crop failure, s.6 of the Saskatchewan Farm Security Act, 1944 declares:1) Purchaser does not have to make principal payments during the period of

suspension.2) Such payments are automatically postponed for one year.3) The principle will shrink to the extent that interest is charged, effectively nullifying

interest charges. This legislation is favorable to debtors (farmers with votes), with risk and responsibility

falling on creditors. Viscount Simon delivers the judgment. While property transfer falls under provincial

control, interest does not. Paragraph 3 of s.6(2) is ultra vires the provincial legislatureand very colorable, in that it clearly seeks to circumvent interest payments, which fallunder federal powers through s.91(19) of the Constitution Act, 1867. All three

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paragraphs are inextricably intertwined and s.6(2) should collapse in its entirety. The pithand substance of s.6 reveals that it is largely concerned with interest. The appeal isdismissed.

Should the whole farm security act collapse, according to the severability test? Whatabout the sections that let people to live on their land after it has been repossessed?Scott thinks the rest of the provisions are valid and stand independently of the severed

portions.

Dunkley v. Evans [1981] 3 All E.R. 285 (P74)

The West Coast Herring Order, 1978 prohibited fishing for herring in certain areas,including a very small portion of water (0.8% of the total area) that was not within thepower of the Minister of Agriculture, Fisheries and Food to prohibit under the Sea Fish

Act, 1967. The appellant was convicted of fishing in an area to which the jurisdiction didextend, but argued that the Ministers order was ultra vires in entirety, because textualseverance was not possible.

Ormrod L.J. held that the order would stand, because it passed the test of substantialseverance. The fact that the text doesnt lend itself to surgical textual severance doesnot mean that it should fail.

Daymond v. South West Water Authority[1976] 1 All E.R. 39 (P74)

S.30(1) of the Water Act 1973 gave power to water authorities to collect fees. When itcame time to collect a general services charge for sewerage services, there was proteston the part of a man whose property was not connected to a sewer. The law clearly didnot apply to him, although it did not say so.

The House of Lords held, 3 to 2, that there was no authority to charge those who are notconnected to sewers. Though there was no discussion of severability, the text satisfiedthe test of substantial severability, should the invalid portions be removed.

D.P.P. v. Hutchinson [1990] 2 All E.R. 836 (P72)

Privy Council

Jean Emily Hutchinson and Georgina Smith entered a military airbase that was set up onGreenham Common land under the authority of the Military Lands Act 1892, whichallowed the Secretary of State and Defense to make byelaws appropriating andregulating land for military purposes. The byelaws were valid unless they interfered withrights of common. In this case, there are 61 parties that had rights of common to theGreenham lands and were being kept out for security reasons. The appellants did nothave rights of common, but appeal on basis that the byelaws were invalid nonetheless.

Collateral challenge to the validity of an instrument.

Is the byelaw severable? There was unanimous agreement that the appeal should beallowed on the grounds that the offending portions of the byelaw cannot be severedtextually or substantially. If they were to allow access to anyone having rights ofcommon, the security of the airbase would disappear and the byelaw would substantiallychange. The whole byelaw is invalid, and cannot be enforced against trespassers.

Appeal allowed.

Constitutional Exemption from Legislation

Canadian Charter of Rights and Freedoms, s.1 Reasonable Limits

Rights and freedoms are subject to reasonable limits prescribed by law, justified

in free and democratic society.

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Canadian Charter of Rights and Freedoms, s.12 Cruel & Unusual

Right to not be subject to cruel and unusual treatment or punishment.

Canadian Charter of Rights and Freedoms, s.24(1) Inoperative

an individual remedy for actions taken under a valid law which violate an

individuals Charter rights

Constitution Act, 1982, s.52(1) Supremacy of Consitution

striking down of any law that is inconsistent with the provisions of the

Constitution, but only to the extent of the inconsistency.

R. v. Chief[1989] 74 C.R. (3rd) (P78) Charter s.24(1)

Yukon Territory Court of Appeal Trapper sentenced to 21 days imprisonment after domestic dispute. The Criminal Code

s.100 required that the defendant be prohibited from possessing firearms for 5 years,however since the defendant depended on hunting for his livelihood and familysustenance, the code contradicts s.12 of the Canadian Charter of Rights and Freedoms.The trial judge read down the code and, instead of imposing a five year prohibition onpossession of firearms, he restricted the defendant from possessing them on hisresidential property. The crown appealed.

McEachern C.J.Y.T. dismissed the appeal, agreeing that s. 100 is cruel and unusual anddoes not treat all defendants equally, though it does apply fairly in most cases (its notcontrary to s.1 of Charter) and should not be struck down. He also says that the remedymust conform to s. 24(1), and the trial judge was inappropriate in reading down theoffensive s.100. Esson J.A. concurs. They say s.100 should be declared inoperative forthe defendant and the probation order should be amended to include a reducedprohibition on firearms.

Section was too broad, applied to too many cases. The law can continue to apply to themajority of people.

Schacter v. The Queen [1992] 93 D.L.R. (4th) 1 (P92) CA 1982 s.52(1)

Supreme Court of Canada Contrary to the principles of Charter s.15 (equality rights), Schacter did not get paternity

benefits when his wife gave birth, even though s. 30 of Unemployment Insurance Act1971 provides 15 weeks for maternity benefits and s. 32 provides 15 weeks for Adoptiveparents. The law was discriminating between natural and adoptive parents.

Trial judge used s.24.1 of Charter to grant declaratory relief and gave natural parents thesame benefits as adoptive parents got. Remedy was appealed to Supreme Court.

Lamer C.J.C., Sopinka, Gonthier, Cory and McLachlin JJ. hold that:o s.52 of the Constitution Act, 1982 requires that the offending section of the

Unemployment Insurance Act (s.32, because it was so narrow) eventually bestruck down, and have no force or effect, and that such action be suspended untilthe legislature has a chance to fill the resulting void.

In this case, the legislation had been changed during the proceedings ofthis case, so there is no need to invalidate s.32. New proposal reducesadoptive benefits to 10 weeks and expands it to include natural fathers.Benefits for adoptive fathers only apply if you are living in the provincewhere the adoption took place.

Striking down the benefit would not help anyone, but hurt others.

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Reading in the deprived group is not feasible because that may nothave been the intent of the legislation, because that would interfere withbudgetary decisions, because the excluded group vastly outnumbers theincluded group such that the nature of the scheme would be changed.

o s.24.1 of the Charter does not give court power to make such wide remedies andshould only be used for individual exemptions.

Whether striking down, reading down, or reading in, the courts must choose the leastintrusive solution.

McKay v. The Queen [1965] S.C.R. 798 (P82) Ultra Vires

Supreme Court of Canada Zoning bylaws permit certain signs on premises, but do not list federal election signs.

Moses and Sarah McKay were convicted of putting up such signs on their property. 5 to 4 division. Taschereau C.J. and Cartwright, Abbott, Judson and Spence JJ. read

down by severing the appropriate section. Under s.92 of the B.N.A. act, provinces werenot given jurisdiction over federal election proceedings, and were not empowered tomake laws concerning that subject, so the meaning of the municipal law could not haveintended to prohibit federal election signs. Such intention would not fall under

permissible incidental effects, but impermissible intrusion. Fauteux, Martland, Ritchie and Hall JJ. dissented, arguing that s.91 of the B.N.A. act

does not address this issue through federal powers, and that the pith and substance ofthe zoning law is in relation to property and civil rights in the province, which is underprovincial power in s.92(13).

Note: Hogg agrees with the dissent1, as does Dickson C.J.C2, emphasizing pith and

substance doctrine.

NY Wine Statute Found Unconstitutional (Handout)

Out of state wines cannot be shipped directly to the consumer, but must be purchasedthrough wholesalers. NY state produced wine can be shipped within the state to finalconsumer. This protectionist measure is ultra vires the state.

Solution: Sever the part about NY? Sever everything? Scott says refusing the exceptiontransforms the law too much (NY being much worse off), and that the whole thing shouldfall.

Ladore v. Bennett[1939] A.C. 468 (P120)

Privy Council, on appeal from the Court of Appeal for Ontario The municipalities of Windsor, East Windsor, Sandwich and Walkerville were on the

verge of insolvency, and so they were all merged into The Corporation of the City ofWindsor. The Amalgamation Acts, Municipal Board Act, 1932 and the Municipal Affairs

Act, 1935 all contributed to consolidating and managing the debts of the newmunicipality, including postponement of payment and variations in terms, includinginterest.

Lord Atkin says that the acts are, in pith and substance, of relation to Ontario municipal

institutions and justified under s.92(8). If these acts interfere with bankruptcy andinsolvency provisions (s.91(21)) or interest (s.91(19)), then that should be considered anincidental effect. Appeal dismissed.

1Peter Hogg, Constitutional Law of Canada, Carswell, 2002, p385-386.2O.P.S.E.U v. A.G. Ont. [1987] 41 D.L.R. (4th) 15

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Board of Trustees of Lethbridge v. Independent Order of Foresters[1940] A.C. 513 (P125)

Privy Council, on appeal from the Supreme Court of Alberta Government cuts interest on bonds, so the provinces cut interest on provincially

guaranteed bonds in an effort to save money, using the following acts:

o S.3 of the Provincially Guaranteed Securities Proceedings Act, c.11 of 1937(Prohibits action for the recovery of money payable under guaranteed securities.)o S.3 of the Provincial Guaranteed Securities Interest Act, c.12 of 1937 (Reduces

rate of interest on securities guaranteed by Alberta.)o The Provincial Securities Interest Act, c.13 of 1937 (Reduces rate of interest on

securities issued by province.) Viscount Caldecote L.C. delivered the judgment. The Privy Council was not convinced

by the arguments brought forth by the appellant (Lethbridge.) The pith and substance ofthese acts is clearly interest, which falls under s.91(19) of the Constitution Act, 1867.There can be no question that the Interest Act of 1927 already deals with this subject.

Here, the province has altered liability on bonds and then prevents recoverable actionwith c.11. That provision was struck down as being colorable. If it were allowed, theprovince could recover interest through the courts that could not be contested, doing

indirectly what they could not do directly. This case is distinguished from Ledore v. Bennett, where intrusion into the federal sphere

was deemed incidental. (See Amex, BC Electric for similar examples of recoverydenied.)

Bill of Rights Assented to on August 10, 1960

S.2: Every law of Canada shall, unless it is expressly declared by an Act of theParliament of Canada that it shall operate notwithstanding the Canadian Bill of Rightsis subject to it. Laws must expressly mention the bill in order to be inconsistent with it.

Manner and form issue. Law which dictates how other laws are to be made.

A.G. Ontario v. Barfried Enterprises [1963] 5 C.R. 570 (P115)

Supreme Court of Canada The Unconscionable Transactions Relief Act gives provincial judges power to reform

loans with harsh and unconscionable costs, including interest costs. Taschereau C.J. and Cartwright, Fauteux, Judson, and Hall JJ. held that the act is in pith

and substance of relation to provincial matters (s.92(13)), and should it interfereincidentally with s.2 of the Interest Act, R.S.C. 1952, c.156 (federal under s.91(19)), thenthat would be permissible. The Relief Act is intra vires the province of Ontario.

Martland and Ritchie JJ. dissented, arguing that the interference was not just incidental,but in direct conflict and that legislation of Parliament must prevail.

Carnation Company v. Quebec Agricultural Marketing Board [1968]S.C.R. 238 (P109)

Supreme Court of Canada, on appeal from the Queens Bench, QC The Quebec Agricultural Marketing Board (QAMB) was created by the Quebec

Agricultural Marketing Act, 1955-56 (Que.), c.37. It authorized a Producers Board tonegotiate with Carnation on behalf of its farmers a trade price for their milk. When theycould not come to an agreement, the QAMB used its authority to determine the price thatCarnation would pay.

As Carnation exports much of its production outside the province, they claimed that theQAMB was ultra vires in setting the price and interfering with the regulation of trade andcommerce, under federal jurisdiction pursuant to s.91(2) of the Constitution Act, 1867.

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Carnations appeal was dismissed, delivered by Martland J., because the pith andsubstance of the orders was to regulate only a specific relationship between theproducers and Carnation. There is no evidence that they either tried, or succeeded tocontrol trade and commerce outside that sphere. Any intrusion to that effect is incidental.

Self-imposed restraints on legislative power

Restraints as to the substance of future laws:

Condition Precedent must be fulfilled before a contract will become effective.Condition Subsequent is one which dissolves a contract.

In Re The Initiative and Referendum Act[1919] A.C. 935 (P193)Privy Council, on appeal from the Court of Appeal of Manitoba

The Initiative and Referendum Act (6 Geo. 5) c.59, Manitoba, s.7 confers upon electors ofthat province the power to make law by voting on proposals, subject to veto anddisallowance of the Lt. Governor in Council. S.11 of the same act allows the populationso repeal laws and acts through the same voting mechanism.

Lt. Governor argued that this leaves his out of the loop. The first hearing held that the actwas intra vires, but the Court of Appeal disagreed. The case was taken straight to thePrivy Council without stopping at the Supreme Court of Canada.

Viscount Haldane delivered the judgment, declaring the act ultra vires because:o The Legislature of a province cannot confer its powers upon a body other than

itself.o The power to amend the constitution of the province, s.92(1) of the Constitution

Act, 1867 specifically excepts the office of the Lt. Governor. Historically, the Lt.Governor is as much an independent representative of the Queen as is theGovernor General, and is outside the jurisdiction of the province.

o S.7 of the act dispensed with the assent of the Lt. Governor for proposed bills,renders him powerless to prevent it from becoming an actual law. The Lt.Governor is wholly excluded. Canada does not have the same veto rules that

you see in U.S. Royal assent is the issue here, and is not provided for. The Privy Council found the offending provisions to be so interwoven into the scheme

that they are not severable. Note: Legislature can alter the constitution with s.92(1)/s.45 subject to certain constraints:

o Only refers to the internal constitution of the province. (see A.G. Quebec v.Blaikie [1979] 2 S.C.R. 1016)

o Must respect the offices of the crown.o Since s.92(1)/s.45 are not amendable by the province, there must always exist a

legislature of some form in the province. (Manitoba CA inferred this case to bean attempt to replace the provincial legislature with direct legislation notunderstood by s.92(1).)

McCawley v. The King[1920] A.C. 691 (P183)Privy Council, on appeal from the High Court of Australia Industrial Arbitration Act, 1916 s.6 allows for creation of Court of Industrial Arbitration

(CIA) presided over by 3 judges who sit for 7-year terms until reappointment. S.6(5)indicates declares this court to be a branch of the Supreme Court. S.6(6) says Governorin Council can appoint any CIA judge to be a Supreme Court judge (an appointment thatlasts during good behavior.)

In 1917, McCawley was appointed CIA judge and then commissioned by the Governor tobe a Supreme Court judge. The commission is objected to by Feez and Stumm

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(relators?), who challenge the quo warranto (right by which someone holds judicial office)behind it on the basis that:

o Industrial Arbitration Act s.6(6) is contrary to Constitution Act of Queensland,1867 and is therefore ultra vires.

o Governor has no authority to appoint Supreme Court judges for life

The majority of the court agreed. The only dissent was from Real J. saying that s.6 is a

legal modification of the provisions of the Constitution Act, even if they are inconsistent.McCawley appealed unsuccessfully to the High Court of Australia, in a 4 to 3 decision. Lord Birkenhead and the Privy Council decided to allow the appeal, overturning the

decisions of the High Court of Australia and the Supreme Court of Queensland on thebasis that:

o The Constitution Act of Queensland is not controlled, not is it uncontrolled. ITcan be modified by acts respecting the required manner and form.

o The Imperial Act, s.7 provides the Legislature of Queensland Full powertomake further provision.

o The Colonial Laws Validity Act, 1865 s.5 provides the Legislature full power tomake Laws respecting the Constitutionpassed in such Manner and Form.

o The Industrial Arbitration Act s.6(6) is not ultra vires and, even if it were, thelanguage of the commission is interpreted to mean that the Supreme Court

appointment would end as soon as a CIA judge were to step down from hisformer court (7-year term.) As stated in s.12a of 31 Vict., No. 6 (Queensland)expressions used in the instrument shallhave the same respective meaningsas in the Act conferring the power.

Construe condition so that it survives rather than perishes. The difference

between serving during good behavior and serving for 7 years is reconciled by'reading down'.

A.G. N.S.W. v. Trethowan [1932] A.C. 526 (P228)

Privy Council, on appeal from the High Court of Australia Constitution Act, 1902 enacted by legislature of N.S.W was amended in 1929 by adding

s.7a (no bill for abolishing the Legislative Council or repealing this section should bepresented to Governor for Queens assent until it had been voted on by a majority ofelectors.) The Legislative Council becomes entrenched, but since its conservative andretards change, people want it gone.

In 1930, both houses of the legislature passed bills to repeal s.7a and to abolish theLegislative Council, without the bills having been approved by referendum. Members ofthe Legislative Council sued John Peden and the AG for trying to sidestep s.7a and woninjunctions preventing the bills from being presented for assent. Injunctions preventinglaw from passing are difficult to get, because if the law eventually gets passed but hasbeen delayed, there is irreparable time lost where the law should have been effective.Validating the need for injunctions sometimes requires symbolic action, such as gettingbooted off the high court train. The defendants appealed unsuccessfully to the HighCourt of Australia, before pleading their case to the Privy Council.

Held that the legislature was within its rights to add s.7a to the Constitution Act, 1902,

based on s.5 of the Colonial Laws Validity Act, 1865, and that the two bills cannot bepresented to the Governor for Royal assent until voted for by the majority.

colonial legislature shall havefull powerto make laws respectingthe constitution, powers and procedure of such legislaturepassed insuch manner and form... A referendum as specified in s.7a fits intothe meaning of manner and form described in the CLVA, 1865. Thebills were not lawfully presented.

s.5 Colonial Laws Validity Act, 1865

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There are inherent limits on legislative sovereignty. Ferguson J. of the lower court says(P202) parliament can't bind itself in UK, does not mean it is beyond the power of the kingto do so, but you can't pass a law today which can't be repealed by whatever powerstructure exists tomorrow. (Middle P203 lists crazy changes that might be made.) 7amay be valid, but 7a(6) goes a little far in preventing 7a from being repealed. If the effect

is to make the law unrepealable, then it runs contrary to the constitution.

Ellen Street Estates v. Minister of Health [1934] 1 K.B. 590 (P179)

Court of Appeal London County Council wants to clear out an area that includes the plaintiffs house, and

compensate him through compulsory acquisition (expropriation.) Plaintiff objects under theHousing Act 1930, and complains that the purchase price was calculated by an arbitratorusing the Housing Act 1925, which is inconsistent with the Acquisition of Land Act 1919 andrestricted by s.7(1) of that same act.

Ellen Street Estates wants the earlier act to prevail over the later acts. Scrutton L.J. says thatis contrary to the constitutional position that Parliament can alter an act previously passed. IfParliament could declare its statutes unrepealable, then a government could entrench itspolicies even after a new party has been elected. Maugham L.J. and Talbot J. agree. Theyread the ALA 1919 as not having the appropriate manner and form instructions ("mustexpressly state notwithstanding") to control later acts. (See Trethowan case)

The Commission of Marcel Faribault[1967] (P181, 182)

Commission appoints Faribeau to be Legislative Councillor for the Division of Repentignyuntil 'pleasure' dictates his dismissal. Normal appointment to the Quebec upper house isuntil age of 75.

Is this valid? No, the commission can't do that. What are the remedies?o The commission is good and Faribault gets to stay until he is 75.o Commission is bad.

Difference between this and McCawley is that the term would have to be INCREASED in

this case, giving MORE than what was intended. (Bought the tires, gets the whole car.)

Re Ontario Public Service Employees Union v.A.G. Ontario [1987] 41D.L.R. (4th) 1 (Handout)

Supreme Court of Canada Three members of the union (crown employees and civil servants) want to engage in

political activities prohibited by the Public Service Act, R.S.O. 1980, c.418 (PSA) ofOntario. These activities include running for election to Parliament without leave ofabsence, soliciting funds, and publicly expressing opinions on federal issues.

The Ontario PSA restricts activities in the following ways:o S.12 restricts crown employees from running while working and, should they get

elected, requires that they resign from their former position.

o S.13 forbids canvassing on behalf of candidates.o S.14 requires a leave of absence for those who want to express political views

that support a provincial or federal party.o S.15 restricts any assistance to political parties to non-working hours.o S.16 threatens dismissal for failure to respect any of the above restrictions.

Before the Charter of Rights and Freedoms, the Supreme Court of Ontario decided (forthe defendant) based on distribution of powers by the Constitution Act, 1867.

o Plaintiffs argued that Ontario could not interfere with federal elections.

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o Defendant says 92(1), (4), and (13) support the PSA. Labrosse J. agreed thatthe pith and substance of the Act was labor relations, provincial jurisdiction validunder 92(13) (Property and Civil Rights?) The incidental effects on federalelections could be forgiven for ensuring impartiality and protecting civil rights.

Dickson J. declines to allow Charter arguments, because they had not been discussed inthe previous hearings. He denied the appellants assertion of interjurisdictional immunity

(legislation enacted by one order of govt cannot interfere withthe other order ofgovt), based on pith and substance doctrine (a law in relation to a provincial mattermay validly affect a federal matter.) and the federal legislative ability to protect itself.

Beetz J. says the provisions are constitutional in nature and constitute an ordinarylegislative amendment of the constitution of Ontario, within the meaning of s.92(1) of theConstitution Act, 1867. He also supported his conclusion with s.92(4), which allowsprovinces to appoint provincial officers (operating in harmony with the federal equivalent.)

Note: 92(1) is now s.45 of the Constitution Act, 1982. 92.4.

Re Eurig Estate [1998] 2 R.C.S. 565 (Handout)

Supreme Court of Canada Mary Eurig is the executor of her husbands estate and is being charged $5710 in

probate fees in order to obtain letters probate (evidence that she owns husbandsproperty.) The Authority behind these fees is the Administration of Justice Act s.5c andO. Reg. 293/92 s.2(1). Eurigs case was dismissed by the Ontario Court and Court of

Appeal. Lamer C.J. and lHeureux-Dub, Cory, Iacobucci and Major JJ allow the appeal because:

o Based on the decision of Duff J. in Lawson, the probate levy is a tax, not a fee.

It is enforceable by law, levied by a public body, intended for a publicpurpose, and there is no reasonable nexus between the amount chargedand the cost of the service provided.

o Although direct taxes are intra vires the province, pursuant to s.92(2) of theConstitution Act, 1867, s. 53 (through s.90) requires that provincial bills for taxesshall originate in the legislature. S.53 has not been expressly amended so it isstill the law and the law as such prevents obscure and unfair taxing.

o S.5 of the Administration of Justice Act allows the Lieutenant Governor in Councilto impose fees, but not taxes. This tax is therefore ultra vires s.5.

McLachlin and Binnie JJ. disagree with Major J. on the issue of s.53. They say it doesnot apply here because Reg. 293/92 is not a bill. Lt. Governor can be authorized to tax,but must be given that authority in clear and unambiguous language.

Gonthier and Bastarache JJ. (dissenting) argue that:o With the abolition of bicameral legislature at the provincial level, the intention of

s.53 no longer applies. Even if it does apply, the Administration of Justice Actwas introduced in the Legislative Assembly of Ontario and is simply delegatingtaxing powers to the Lt. Governor in Council. They argue that the feesdescribed in s.5 is broad enough to include direct taxes.

Note: As of the Constitution Act, 1982, the Constitution is no longer a Dog Act, andrequires express repeal. It cant be amended simply by passing inconsistent legislation.

Scott is skeptical of this decision.

Amendment Considerations

S.41 laws are highly entrenched, whereas those that require special mention are sort of'low level' entrenchment. Is s.41 is so broad that it can be used to create a nazi state?

Is it possible to pass an amendment by normal process to delete a provision causing youtrouble, then proceed to do what you wanted to do in the first place?

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Constitutional issues

Legitimacy of judicial review.

Values, interests advanced or compromised by con law.

Perspectives of evaluation (w. other disciplines)

Division of Powers

Interpreting the division of powers as laid out in the constitution Act, 1867

Characterization: Steps of Interpretation (P215)

1) Identify matter (pith) of law.2) Place it in 91 or 92.

See Casebook P205-212

Morgentaler Province does not have criminal jurisdiction

Turned on how the law was characterized. Dr. Morgentaler wanted to open an abortion clinic in Nova Scotia, and was

charged under the Medical Services Act. Argues that the law is invalid because itwas ultra vires the province and violated s.7 of Charter.

Purpose outlined in the text (on its face)

o 'Purpose' clause: Province has jurisdiction over health regulation, limiting

privatization, property and civil rights.

Actual purpose of law was to shut down abortion clinic

o Evidence of duplication

Criminal had code already provided structure relating to abortion,

bannin

58 Gold ConstitutionalLaw Full Year2003

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