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CONSTITUTIONAL LAW

FALL OUTLINELAW 100 (Y03)

Prof. Jeremy Webber

Outline by Brian Eberdt

December 17th, 2007

Introduction 1

Aboriginals and the Constitution 1

Royal Proclamation of 1763 1

Treaties and Colonization 1

Constitutional Amendment 2

The Five Amending Formulas (see handout for further detail) 2

The Secession Reference 3

Arguments of the Amicus Curiae and Responses Thereof 3

Constitutional Principles 4

Parliamentary Sovereignty 5

Democratic Decision-Making as the First Principle of Contemporary Constitutionalism - Jer-emy Webber 5

Parliamentary Privilege - Canada v. Vaid (2005) 5

Parliamentary Sovereignty 6

Reference Re: Canada Assistance Plan (1991) 6

Canadian Bill of Rights (1960) 7

R. v. Mercure (1988) 7

PS (cont.) : Abdication/Delegation 8

Reference Re: Initiative and Referendum Act (1919) 8

Reference Re: Regulations in Relation to Chemicals (1943) 8

The Case of Proclamations (1610) 8

Considerations on Representative Government - Mill 9

PS (cont.) : Executive Authority 9

Roncarelli v. Duplessis (1959) 9

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The Judiciary 9

Structure 9

Reference Re Residential Tenancies Act (1981) 10

Nova Scotia (A.G.) v. Sobeys’ Stores Ltd. (1989) 11

Reference Re Provincial Judges (1997) 11

Introduction to Division of Powers 12

Citizens Insurance Company v. Parsons (1881-1882) 12

Reference Re Same Sex Marriage (2004) 12

R. v. Morgentaler (1993) 13

Double Aspect and Paramountcy 14

Paramountcy 14

Interjurisdictional Immunity 15

Canada Western Bank v. Alberta (2007) 15

Federalism and Aboriginal Peoples 15

Natural Parents v. Supt. of Child Welfare (1976) 16

Dick v. R. (1986) 16

Kitkatla Band v. British Columbia (2002) 17

Peace, Order, and Good Government 17

Reference re Anti-Inflation Act (1976) 18

R. v. Crown Zellerbach Canada Ltd. 19

Spending Power 19

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Introduction• a Constitution lacks an iron foundation; constantly responding to outside pressures• attempts to integrate Aboriginals into Constitution illustrates the need for it to be dynamic

Aboriginals and the Constitution

Royal Proclamation of 1763

• was an attempt to ensure that the ignorance of Aboriginal title and Aboriginal rights didn’t threaten the viability of the colony itself

• was a precursor to the Canadian Constitution - laid foundation for treaty process• considers the rights of Aboriginals and French• continues to have significant legal significance

• Aboriginal lands still may not be purchased privately• is the reason why Aboriginal matters are dealt with federally

• Primary Points of the Proclamation• there should be no intrusion onto Aboriginal lands• there should be no private purchases of Aboriginal lands• only Governor or Military of a Territory were permitted to make purchases of Aboriginal

Land• such a purchase must occur at a public meeting of respective Aboriginals

• from 20s - 50s, under Indian Act, it was illegal for natives to raise funds to mount a legal claim to their land

• Nisgaa case ended this after a fight for their title beginning in 1880s

Treaties and Colonization

• through colonization, treaties became increasingly standardized from east to west• Robinson Treaty (around Lake Superior) led standard for what became known as ‘numbered

treaties’• process continued up until 1921 - creation of NWT with Treaty 11• treaty formation became more cavalier; people with entitlements were left out of the conversa-

tion• 60s marked a change in Aboriginals’ relation to treaty system

• Guerren, White and Bob illustrated that Aboriginal title continued to exist• R. v. White and Bob

C o n s t i t u t i o n a l L a w F a l l O u t l i n e

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• SCC upheld treaty hunting rights of Indian people on Vancouver Island against provincial hunting regulations

• R. v. Calder• was not a prima facie victory for aboriginal title BUT was victory in the sense that majority

agreed that title did, at one time, exist• R. v. Guerin (1984)

• affirmed the existence of an Aboriginal title from Calder• held: in taking Aboriginal lands under the Indian Act, Crown has responsibility to those

who inhabit it (fiduciary duty)• R. v. Sioui (1990)

• continues to recognize Indian rights in their lands• these cases resulted in Constitutional protection of Aboriginal rights (Constitution Act 1982, s.

35)

Constitutional Amendment

The Five Amending Formulas (see handout for further detail)

1. General Amending Formula - “The 750 Rule” (ss. 38-40)• amendment must be approved by

• HOC• Senate (may be dispensed with by s. 47)• Legislatures of 2/3 of Provinces

• amounts to majority of members in 7 of the provinces• requires each of the members’ approval, not merely members present

• used unless any of the conditions below are required

2. Unanimity Formula (s. 41)• requires support of every provincial legislature• amendments to the amending formula use this formula

3. Some, but not all, Provinces Formula (s. 43)• must be approved by

• HOC• Senate• Provinces that would be affected by the amendment


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• used to to deal with bilingualism in New Brunswick

4. Federal Only Amending Formula (s. 44)• initiated by Parliament• handles amendments dealing with Executive, HOC, or Senate• subject to ss. 41 and 42

5. Province Only (s. 45)• for amendments to provincial constitutions

What is it to be entrenched?• when something requires a special degree of consent in order to be activated

• can not be enacted by regular legislation

• amendments accomplished through the first three formulas would be referred to as “en-trenched” because they require multiple level of consent

The Secession Reference• Québec referendum of 1980 was close, at 60% support• failure of Meech Lake accord contributed to resurgence of sovereignty support in Québec• failure to adequately recognize Québec’s needs in Charlottetown Accord instigated the 1995

Québec Referendum• was extremely close (0.6% away from winning)

• SCC’s reputation was on the line when they wrote the reference• was essential that it be entirely free of any political bias

• NOTE: it was delivered by “the court” representing the unanimity of the judges• occurs rarely in SCC decisions• gives greater weight to the reference - nobody disagreed

• SCC responded with Reference re Secession of Québec (1998)• was an attempt to determine whether Québec actually could separate, in the event that a

future referendum was successful• although there was a healthy contingent of québecois judges present, as a province, Qué-

bec did not co-operate

Arguments of the Amicus Curiae and Responses Thereof

• reference made use of an amicus curiae who determined what arguments Québec would have to make in order to claim that they, in fact, could separate

“Government may not rely on SCC in such a faculty as has been done.”C o n s t i t u t i o n a l L a w F a l l O u t l i n e

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• although court exists primarily for matters, it is not unconstitutional for it to act in this ca-pacity

• only requirement to do so is that the question be clearly of legal matter• although decision is not binding in theory, it is in practice

• court concluded that secession could only occur as an amendment, but did not consider how such an amendment would occur

• Québec claimed that their secession would be such a fundamental change that the amending formulas would not apply

Constitutional Principles

• controversial element of the document was court’s reference to constitutional principles that would be in effect if secession were to take place

• these principles are not actually written into the Constitution, but are incorporated by refer-ence in the preamble

Federalism• deals with the separation of powers• each level of government is sovereign within its own jurisdiction

Democracy• governments of the country are to be both representative and responsible

• requires that the government will step down upon non-confidence vote• ruling party must have the majority of the seats (not always the case)• constitutional conventions - certain parts of parliament should be self-regulating• self-government - democratic government implies that people should be able to govern

themselves• reference paid particular attention to relationship between democracy and federalism• sovereigntists argued that this principle implied that a successful referendum would allow

Québec to separate• court responded: secession would affect many more than just Québecers, thus, majority of

Canada would be required• strikes to heart of democracy: institutionalization of democracy requires that the institution

define the bounds of who gets to make which decisions• in this case: the province or the country as a whole?

Constitutionalism and the Rule of Law• closely related concepts• “the exercise of all public power must find its ultimate source in a legal rule”C o n s t i t u t i o n a l L a w F a l l O u t l i n e

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• principles of law should have stability• government should act through its own rules, not operate in capricious fashion

• constitutionalism emphasizes that all government in Canada operate according to the Consti-tution

Minority Protection• groups within Québec, particularly first nations, were strongly opposed to unilateral inde-

pendence

Application to Secession• if there were a majority vote to a clearly worded referendum question, different branches of

government would negotiate• this was not necessarily required by the constitution

• court decides that the result of those negotiations would be binding

Parliamentary Sovereignty

Democratic Decision-Making as the First Principle of Contemporary Constitutional-

ism - Jeremy Webber

• representative government allows constituents to voice their grievances directly to their MPs• two reasons that favour democratic systems

• there’s good reason to allow equality• there’s good reason to allow participation

• in a certain light, it is the equality of access to the system that makes citizens feel as if they have little say

• the maintenance of the democratic voice in our Constitution is an ongoing process• consider the Electoral Reform Process that was underway in Ontario recently

Parliamentary Privilege - Canada v. Vaid (2005)

• defined• the idea that the parliament should be protected from the law for the purposes of achiev-

ing their prescribed parliamentary roles (also applies to the judiciary)• only applies while members are in the house

• the case considers the idea that all of HOC’s employees are covered by parliamentary privi-lege

• dealt with the unjust firing of one of the members’ chauffeurs


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• held: the hiring and firing of all employees working for the HOC is ultra vires of parliamentary privilege

Parliamentary Sovereignty

• defined• the dominance of Parliament within the legal system (aka parliamentary supremacy)• allows Parliament to do what it wants (within limits of its authority)

• passing of the Constitution Act, 1982 has made Canada more of a constitutional sovereignty• illustrates that the executive may not bind the legislature

Reference Re: Canada Assistance Plan (1991)

• Canada Assistance Plan (CAP) was an Act of Parliament in which government entered into profit sharing with the provinces

• BC agreed to pay for 50% of welfare payments• program existed for 20 years, to be changed in Mulroney era

• Mulroney amended CAP, reducing funding to most wealthy provinces (BC, Alberta, Ontario)• BC appealed, claiming that federal government lacks the authority to do so• highlights the interaction between the executive and legislature

Interpretation of what the agreement purports to say• BC claims that government breached funding agreement• SCC finds that specifics of payment weren’t in agreement• disagreement over static or ambulatory interpretation style

• static - amount was decided when agreement made• ambulatory - amount was not fixed

• it was the executive that entered into the agreement, not the government• therefore, future governments should not be bound

• government can not bind parliament - parliament cannot be bound by executive action

What the Statute Says• since federal/provincial agreements have no binding force, parliament was not bound to itself• rationale: it’s essential to allow subsequent governments to make changes that they wish• federal government may override private agreements• federal government is only held accountable to upholding agreements by political reprecussi-

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Doctrine of Legitimate Expectations• if government conducts itself in a way that creates legitimate expectations, it must not revertC o n s t i t u t i o n a l L a w F a l l O u t l i n e

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• BC claims that government has violated the doctrine• SCC responds: it’s the legislature that’s taking action (subject to different rules)

Manner and Form Requirements• technically, the executive is capable of binding Parliament,

but only to the extent that it stipulates how it does some-thing (the manner and form)

• thus, an enactment must not bind the Parliament in substance• nevertheless, there may be instances where it has procedurally bound itself in a way that is

tantamount to binding itself in form• if Parliament wishes to bind itself procedurally, it must do so expressly (did not do so here)• in CAP, SCC found that subjecting Parliament’s will to the provincial government, it amounts

to a substantial constraint• generally, actions that require more than the majority are deemed to be “substantial”

Canadian Bill of Rights (1960)

• declares the existence of a series of rights• sets constraints on extent to which those rights may be infringed• NOTE: the statute may not prohibit future acts from violating the Bill

• this would bind Parliament in substance• s. 2 circumvents this obstacle by allowing Acts to violate it if they expressly say so

• otherwise, the Bill will apply

R. v. Mercure (1988)

• facts: Mercure tries to fight ticket on the basis that it was only in English• in other provinces (Manitoba), the bilingual requirement is constitutionally entrenched • Saskatchewan decides not to repeal the bilingual requirement in the Saskatchewan Act, they

decide that they no longer wish to adhere to it• court agreed that Sask. had discontinued there use

• clarified that this did not mean that requirement was eliminated from legislation• since the requirement was still on the books, they could not continue to disregard it

• had they written it out of legislation, there would have been more difficulty due to them de-nying fundamental rights

• in order to comply with bilingual requirements of the day, they added provisions, in English and French, stating that their English only versions were valid

• this broadens the extent to which the Parliament may not bind itself


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Webber refers to these phenomena as constitutional “wrinkles”

PS (cont.) : Abdication/Delegation

Reference Re: Initiative and Referendum Act (1919)

• context: aftermath of WWI; potential for radicalism in the country• soldiers returned to Canada, enthusiastic for reform• resulted in large strike in Maitoba• case dealt with the validity of legislation to be passed in the province

• emphasizes the co-ordinate authority of federal government and provinces• should be seen as having equal authority• within their own jurisdictions, provinces are just as powerful as federal government• case was struck down, primarily as a means of government responding to social radicalism• gave the reason that the legislation would cut out the role of the Lieutenant Governor

• traditionally (s)he must give assent to a Bill• in actuality, legislature could have legitimately passed the Act• from Parliamentary Sovereignty perspective

• case took place in the time before Canada had gained independence from Britain• court was afraid to put a system into place that did not resemble Parliament

• keep in mind that such an amendment would have required the unanimity amendment for-mula, so it would have been significant

• case questions the limits to which parliament may transform itself

Reference Re: Regulations in Relation to Chemicals (1943)

• context: both World Wars had the effect of centralizing the government’s powers• in order to manage Parliament effectively, it delegated significant powers to the executive• War Measures Act involved many of the Governor General’s powers being delegated to the

Controller of Chemicals• this delegation was being challenged

• what distinguishes this case from the previous is that these measures are temporary• Parliament has the ability to retract the changes to legislation• a plebiscite is only advisory, whereas a referendum is legal

• in effect, both forms are only advisory• we see how the powers of the Crown are limited, yet some powers are reserved for the Crown

only (e.g. making of treaties, declaring war, etc.)

The Case of Proclamations (1610)

• highlights some privileges of the Crown that that are now held by the executive1. Immunity Against Suit2. Immunity from the Application of Statutes3. Crown Privilege to Privacy


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Considerations on Representative Government - Mill

• constitutional morality• considers constitutional convention - not enforced by courts, but through the political process• discusses the legislature as a means for airing arguments

PS (cont.) : Executive Authority

Roncarelli v. Duplessis (1959)

• context: took place during the “revolution tranquille”• Duplessis was both the Premier of the province as well as Attorney Geeral• long campaign against Jehovah’s witnesses in progress• War Measures Act placed significant restrictions on religious organizations• after the War, these restrictions were removed on Jehovah’s Witnesses in all provinces ex-

cept for Québec• facts: Roncarelli had been providing bail for members of the Jehovah’s Witness

• Duplessis revoked his liquor license as a result (effectively closing his restaurant)• Roncarelli sued under Article 1054 of the Civil Code

• as seen in Case of the Proclamations, in order to sue the government, one must first obtain per-mission from the government to do so

• held: Duplessis’ actions were in violation of the Civil Code• court circumvented the permission requirements because the only had to with actions of

an official while exercising their duties• Duplessis was not exercising his duties while performing the actions in question

• Duplessis responded that he was merely giving advice• his actions coined the term - détournement de pouvoir (turning of power to unintended ends• significant for both human rights as well as constitutional reasons• to remember:

• courts attempt to ensure that executive remains within its statutory authority• there is an understanding that governmental power should be restricted• appeals from Provincial Courts and s. 96 Courts go to Provincial Courts of Appeal, which

subsequently go to SCC

The Judiciary

Structure

• structure of Federal Courts is overlaid upon the provincial system


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Three Types of Courts

Provincial Federal Superior

Established provincially federally provincially

Appointed provincially federally federally

Relevant Statutes s. 92(14) s. 101 ss. 96 and 92(14)

Jurisdiction lowest level, generally handle criminal matters

only enforcement of federal law (limited)

general jurisdiction, in-cludes several jurisdic-tions (BC Supreme and Superior)

• Supreme Court of Canada is legislated by s. 101• was not always highest court

• Tribunals• fall under ss. 92(14) or 101

• Tax Court is a 101 court

The Case of Prohibitions (1607)• King took a matter over from courts and judged it himself• held: King’s justice should be administered by law, not merely his whim

The Act of Settlement (1701)• establishes limitations on monarch’s (executive’s) ability to remove or influence judges• analogous to current effect of ss. 99 and 100, establishing independence of judiciary

Reference Re Residential Tenancies Act (1981)

• most recent usage of the test to determine whether provinces have encroached upon jurisdic-tion of Superior Courts

The s. 96 Test• to determine whether province has encroached upon power of s. 96 courts• each of the three steps must be satisfied in order for legislation in question to be invalid,

amounting to an encroachment

1. Historical Test• is matter “broadly conformable” to s. 96 court jurisdiction at time of confederation• is the power “identical or analogous” to a power exercised by a s. 96 court


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2. Is it a judicial decision?• is it a “lis” (dispute between parties)?• if it’s something where the courts go into the community to try and correct something,

then it’s valid (ie not s. 96)• if it’s something that parties bring to the court, then it encroaches

3. Is that decision incidental and integrated into a broader, non-judicial context?• is the adjudicative function “a sole or central function”• if powers are incidental or ancillary, this does not encroach

Tomko Case• deals with provincially established labour tribunals, which deal with labour disputes• functions of the tribunal resembled judicial function (issuing injunctions)• actions passed first test of encroachment• by the second part, there actions were valid (did not encroach)• they went far beyond what a court would be allowed to do in the circumstances

Nova Scotia (A.G.) v. Sobeys’ Stores Ltd. (1989)

• court found encroachment at first step; what court would have done at confederation• BUT many of the provinces involved did not exist at confederation

• Nova Scotia suggests that the other provinces should provide reference• court rules that the conditions present in the U.K. at confederation should be used as reference• if both Superior and Provincial (inferior) courts exercised the power, the balance must be ob-

served

MacMillan Blodel v. Simpson• established that powers may not be removed from the court (here, ability to punish for being

in contempt of court)

McEvoy• establishes that there are some restrictions on Federal Courts, yet there role must not be

eroded

Reference Re Provincial Judges (1997)

• issue: how much 11(d) restricts extent to which province can reduce judges’ salaries• held: decision could not be made on 11(d) alone• Lamer J. invoked the preamble

• he says that judicial independence is a constitutional principle• nevertheless, province could affect judges’ salaries


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• La Forest J. argues for precisely defined constitutional provisions so that people will know what the scope is (by virtue of s. 96)

• court decides to deal with more law than was required in an attempt to sort out matters (i.e. constitutional principles)

Introduction to Division of Powers• generally, courts won’t grant concurrency, but there are two exceptions

• agriculture - province exercise majority of the powers• immigration - Québec is one of the few provinces still exercising major role

Defining Characteristics of Powers in the Federal Jurisdiction• pertain to key national institutions (mail, census, etc.)• matters that go beyond the Canadian borders• things to do with a federal market: money, weights, measures• inter-provincial matters• matters related to banks• First Nations Issues• criminal matters

Defining Characteristics of Powers in the Provincial Jurisdiction• general authority over local matters s. 92 (16)• private law: contracts, torts, property (in accordance with Québec’s Civil Law)• cultural, religious matters

Citizens Insurance Company v. Parsons (1881-1882)

• issue: whether insurance pertained to contract law (provincial) or trade and commerce (fed-eral)

• held: contracts fell under province, through 92(13)• sets a trend for a more narrow interpretation of federal powers• 91(2), Trade and Commerce, was deemed to handle: political arrangements, inter-provincial

trade, and trade regulation

Reference Re Same Sex Marriage (2004)

• opponents sought same sex marriage to be treated as a common law matter• held: definition of marriage that allows for same sex marriage should be allowed

• this interpretation was aided by the Constitution• with respect to question of Québec’s Civil Law requirement, they decline to answer• focus of decision was on division of power issuesC o n s t i t u t i o n a l L a w F a l l O u t l i n e

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• 91(26) grants Ottawa power over marriage and divorce• opponents claim that this power was based upon an opposite sex definition

• legislating otherwise would go beyond “natural limits” of the term• supported doctrine of originalism - the term is crystallized in time

• judges opted in favour of living tree interpretation: definitions evolve over time• nevertheless, provinces would still have some authority through 92(12), solemnization over

marriages

R. v. Morgentaler (1993)

• issue: whether the Medical Services Act falls under federal or provincial jurisdiction• held: the legislation on encroached upon Ottawa’s criminal jurisdiction• context:

• Morgentaler has been the subject of three major SCC cases• in 1976, he was tried criminally for practicing abortions• in 1988, he argued that abortion prohibitions were in violation of Charter rights

• conditionally successful• here, Morgentaler argued a Charter breach as well as division of powers conflict• province argued that legislation was passed under health care jurisdiction, s. 92(7)• Morgentaler argued that legislation was criminal law, only appeared to deal with health (col-

ourability)• court sought to find pith and substance of legislation

• stated: as long as legislation is valid in pith and substance, incidental affects in other juris-dictions are permissible

• court examines the following• legal effect

• constitutionality depends on legal, not practical, effect• what technical changes will be made to the law?

• mischief• what is the problem that the law attempts to resolve?• Hansard indicated that it was largely criminal context

• pith and substance was deemed to be the control of abortion• examination of the penalties made it seem more like criminal• Sopinka J. did not explicitly say legislation was colourable (we know that it was)• severability

• the attempt to determine if the legislation may be valid in part• none of the legislation was said to be able to stand


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Double Aspect and Paramountcy

Paramountcy

Three step test to determine the effect of a jurisdictional overlap:1. Are both laws valid?

• determine whether both level of government could validly enact the legislation• remember that some enactments may involve both level of government

2. Are both laws consistent?• determine whether the laws conflict with one another• is a citizen being told to do two conflicting things?

3. If both the above are true, federal legislation takes precedence by virtue of paramountcy• province may still pass the law, but it will have no legal effect

What exactly is an inconsistency?• previously, courts would have applied the “occupied field test”

• it is no longer valid for fear that it may excessively exclude the province (McCucheon)• modern federalism is more tolerant of overlapping jurisdictions

• determining exactly what a field is can be difficult• McCutcheon illustrates the possibility of overlapping laws which do not come into conflict

• if you can simultaneously obey both laws, then there’s no conflict• thus, there must be an operational conflict• established the test for paramountcy above

• Rothmas shows us the possibility of having two prohibitions (in respect to tobacco advertis-ing), with the federal one being more demanding than the provincial

• thus, both can be adhered to without legal conflict• court clarifies that inconsistency only exists where it frustrates the purpose of the federal

law• Mangat deemed that the purpose of the legislation was to permit the use of immigration

agents - this would not displace federal legislation


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• consider sale of liquor on aircraft, although there is provincial liquor boards, it would be ab-surd for this to apply on cross-Canada flight, thus, it’s in federal jurisdiction (aeronautics)

Interjurisdictional Immunity

• prohibits valid laws from affecting their jurisdiction, even in the absence of federal laws deal-ing with the matter

• rationale: provincial law should not be allowed to touch the federal area of power• doctrine is highly inconsistent with principles discussed thus far

• heavily criticized by Hogg and others• it would have the affect of creating an overly centralized government• nevertheless, it is not yet overturned

CSST v. Bell Canada (1998) a.k.a. Bell Canada 2• issue: is provincial legislation regulating health and safety interfering with federal jurisdiction

• remember, Bell deals with signals crossing inter-provincial boundaries• context: earlier case dealing with provincial worker’s compensation applied• court claimed that interjurisdictional immunity should apply

• argued province can not touch: management of the undertaking, labour relations, or work-ing conditions

• judges argued for the essentialism of interjurisdictional immunity• we see that only Ottawa may regulate the regulations of federally regulated industries

Canada Western Bank v. Alberta (2007)

• issue: validity of provincial legislation dealing with insurance• criticizes interjurisdictional immunity for introducing uncertainty to the law• rules that legislation must not affect the core of federal jurisdiction

• defined as day to day management, operations, or relations of federally regulated industry• creates the question of how tightly this ‘core’ is defined• tightens up the test for applying interjurisdictional immunity• held: selling of insurance does not trespass on interjurisdictional immunity• court decides that it’s preferable to deal with the issue through doctrine of paramountcy• judges rule that interjurisdictional immunity should only be applied in areas where it has

been applied before• note the discussion of inter-provincial bus lines

• federal undertaking, yet buses must still obey provincial speed limits

Federalism and Aboriginal Peopless. 88 of the Indian ActC o n s t i t u t i o n a l L a w F a l l O u t l i n e

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• included to make provincial legislation applicable to aboriginals• propositions

• delegation of powers is permitted• Ottawa cannot delegate its powers to provinces or vice versa• above proposition may be circumvented by

• administrative delegation• delegation of powers to subordinate agency

• incorporation by reference• federal legislation pointing to provincial legislation

• anticipatory incorporation reference• when incorporation by reference will only occur at certain times

Natural Parents v. Supt. of Child Welfare (1976)

• context: in conjunction with residential schools, adopting-out aboriginal children to non-aboriginal families had devastating effect on aboriginal culture

• facts: aboriginal parents are trying to challenge an adoption so that their aunt can care for the child

• relevant authorities• federal - s. 91(24) - Indians, and Lands reserved for Indians

• what is the scope of this legislation• provincial - Adoption Act

• does its effect on aboriginals interfere with interjurisdictional immunity• can it be incorporated by reference through s. 88

• Laskin J.• s. 88 allows provincial law to apply, when it would not have been able to do so otherwise• this is the position that carries on• otherwise, the provincial law would have infringed on interjurisdictional immunity• therefore, Adoption Act applies by incorporation, as federal law

• Martland J. (was supported by fewer judges, but was not dissenting)• claimed that s. 88 had no work to do, provincial law could apply ex proprio vigore• the Adoption Act doesn’t single out aboriginals• in his view, s. 88 is merely declaratory

• the practical effect of their judgements was the same

Dick v. R. (1986)

• issue: the constitutional validity of a fine imposed on aboriginals for hunting dear• specifically, can the Wildlife Act apply to status Indians

• Beetz J. (majority)• even if hunting and fishing go to heart of Indianness, regulations should apply


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• ruled that s. 88 should not be interpreted in how they affect people, but how they apply generally

• Lambert J.A. (dissent)• claimed that hunting and fishing go to the heart of aboriginal peoples’ identity

• thus, would infringe zone of interjurisdictional immunity• s. 88 should not validate regulations

• because legislation affects core of Indianness, provincial laws could not be considered to be of “general application”

• it was left undecided whether or not hunting enters sphere of interjurisdictional immunity• but if it did, s. 88 would have enabled the regulations

• since the case, aspects of s. 88 have been clarified - it should be interpreted as more than de-claratory

• keep in mind that before s. 35, Indian treaties had no effect at all under s. 88

Kitkatla Band v. British Columbia (2002)

• issue: whether B.C.’s Heritage Conservation Act applies to culturally modified trees• court decided that act was within provincial jurisdiction through s. 92(13) - Property and Civil

Rights• Application of the GM Test (to determine pith and substance)

• passes the test because it does not intrude into federal jurisdiction• evidentiary problem

• trees could not be tied to a specific band• not enough evidence to determine extent to which issue falls under s. 91(24)

• thus, the court pulls back the meaning of Indianness, and consequently interjurisdictional immunity, in order to allow the province to regulate

• given these conclusions, court decided that it was unnecessary to consider application of s. 88

Peace, Order, and Good Government• the term comes from the introductory language of s. 91• initially, this was the general expression for federal powers

• later it became more restricted• Three Branches of POGG

1. Residual Branch• federal government absorbs the ‘residual’ powers not accounted for by the enumer-

ated powers, new powers fall to federal government• in actuality, the enumerated powers are so broad that they cover most matters• Hogg argues that this branch should only refer to “clear gaps”

2. Emergency Branch


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• dealt with in Anti-Inflation3. National Dimensions/Concerns Branch

• dealt with in Anti-Inflation

Reference re Anti-Inflation Act (1976)

• context• was in reaction to the Vietnam War and the Oil Crisis• as in Parsons, it was felt that provinces should be given wider powers• this case acted as a test to see whether SCC would reverse the overly provincialist inter-

pretation of the privy council• validity of the Anti-Inflation Act was evaluated from the perspective of emergency branch and

national concerns branch of POGG• residual branch was deemed not to apply

Emergency Branch• generally invoked in times of war, could also be disease or economic emergency• Beetz J. argues that the emergency branch acts as a unilateral amendment to the division of

powers• finds the act to be ineligible for this branch

• duration of powers is implicitly limited• Canadian Labour Congress said that it could not be justified as such because rates weren’t

“seriously” high and proposed interventions wouldn’t be effective• Laskin J., in the majority, ultimately rules that the Act is admissible under this branch

National Dimensions Branch• despite being in dissent for emergency branch, Beetz J.’s judgment of national dimensions set

precedent for subsequent cases (Richie J. agrees with him here)• he does not feel that the act falls under the branch• unlike emergency branch, powers valid here would always be valid, not just temporarily

• thus, validity under this branch adds a new element to the list of federal powers• Beetz J. emphasizes the caution required in making such actions

• Beetz J. notes that there already are certain powers (federal and provincial) dealing with infla-tion

• he claims that new issues must have their own integrity• scale and impact must be consistent with existing structure of powers

National Dimensions in other contexts• issues that satisfy the national dimensions branch

• aeronautics, radio communications, National Capital Region, atomic energy• in the future, air pollution might be eligibly


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• issues that fail to meet the criteria• inflation, environment, culture (Kitkatla)

R. v. Crown Zellerbach Canada Ltd.

• consolidates the tests from above and applies them to the context of the environment• generally, water off B.C. coast is under federal jurisdiction, with some exceptions (e.g. Straight

of Georgia)• criteria for this is whether the water falls within the “jaws of the land”

• Beaver Cove, the water body in question, meets this criterion• the environment is not a jurisdictional category unto itself

• it’s generally divided into the appropriately applicable powers of provinces and Ottawa• here, Ottawa attempts to assert jurisdiction over all salt water pollution• LeDain J. expresses the conclusions of the court

• national concern doctrine applies to new matters as well as matters that have become mat-ters of national concern (without emergency)

• to be eligible for national concerns, the matter must possess• singleness• distinctiveness• indivisibility (clearly distinguishable from provincial matters)• scale of impact that is reconcilable with division of powers

• matters which will have extra-provincial impacts will be federal• court rules that marine water pollution should be federal, when conclusions are applied

• no division between federal and provincial water - difficult to divide regulation• there would be extra-provincial impacts

Spending Power• spending power is based on the ‘shadow constitution’

• as long as Ottawa can achieve its ends with money, it can go well beyond its jurisdiction• taxation powers are imbalanced; Ottawa gets most of the money

• during WWII, federal government had the entirety of taxation power• afterwards, it only retreated partially• fiscal imbalance is the current term with which refer to the assymmetry

• Québec, unlike other provinces, refused a lot of the funding resulting in a lot of double-taxing

Forms of Government Expenditures• Conditional Grants

• funds in return for the adherence to certain conditions (e.g. Canada Health Act)• Shared-Cost ProgramsC o n s t i t u t i o n a l L a w F a l l O u t l i n e

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• Ottawa agrees to participate as long as provinces provide matching funds• Direct Grants

• Ottawa bypasses governments and enters into provincial jurisdiction (e.g. Federal Multi-cultural Policy)

Other Forms (technically not spending power)• equalization payments (s. 36, Constitution Act 1982)

• help bridge the gap in particular areas between rich and poor provinces• tax expenditures

• instead of giving a grant, the government gives a comparable tax break

Validity• there are numerous arguments for the invalidity of spending power• ultimately, if funding were to be removed, it would be difficult to give it back

• i.e. Ottawa is obliged to tax, but not to give back to provinces• Winterhaven Stables and Re CAP highlight the ambivalence to reject these funds

• also point out that• spending is different than legislating• the spending in question involves a consensual transfer of resources

• Petter says that these powers descend from Crown prerogative, validating them to a certain extent

• provinces do have control of the Consolidated Revenue Fund• these actions fall under the government’s existence as a corporate entity

• without using legislative powers, it’s able to do many things• the act of spending money is something that legal entity is allowed to do

• these actions don’t actually change the law in Canada• consider the analogy of of provincial Crown corporations (federally owned)

• they are equally as legitimate as spending powers

Opponents• Québec, due to their retention of their own federal funding, is a natural opponent• some right-leaning opponents question the proportion of funding that goes to social programs• others question whether it is the case that Ottawa is best at providing these programs

• most social programs began in the provincial jurisdiction• Petter supports this view• Québec, for instance, is more generous in its social programs with provincial funding• problem with this view is that it makes it hard for smaller provinces to compete

Meech Lake and Charlottetown Accords


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• state that there would be a right to opt out of new spending power programs on the condition that the province establishes its own program that meets national objectives

• keep in mind that these accords never became binding• nevertheless, when creating new spending power programs, Ottawa implies a right to opt out


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