Public Law I: Nov. 4/05 Criminal Law, Cooperative & Executive Federalism

1. Public Law I: Nov. 4/05Criminal Law, Cooperative & Executive Federalism • November 17: Mr. Justice Peter Cory will speak on the Innocence Project in 140 McLaughlin, 12 noon. • November 10: Ray Aldred, an Aboriginal leader, will speak on the Aboriginal contribution to justice in Canada (noon, 140 McL) • Glendon webct discussion issues • Final exam: Friday December 9, 9 – 12, Stedman A or B, or Glendon 144. • R. v. Hydro Quebec (1997) •Ref re Firearms Act (2000) • Bedard v. Dawson •Westendorp v. The Queen • Nova Scotia Interdelegation Case •PEI Potato Marketing Board Case • Aeronautics Case •Radio Case • Labour Conventions Case •Stevenson article on federalism (Kit, 124)

2. Impugned: Canadian Environmental Protection Act, SC 1988, ss 34-35, and regulations issued by L. Bouchard in 1989. Hydro Quebec charged in 1990 with releasing PCBs contrary to regs. HQ claimed Act and regs ultra vires. Claim: don’t fall under any heads in s. 91. Won at trial and Q Ap Ct. Granted leave to appeal to SCC in 1995. 5-4 decision: leg and regs intra vires. Majority: La Forest, L’Heureux-Dube, Gonthier, Cory, McLachlin. “Environment” is not a distinct subject-matter that falls under ss. 91 or 92. If “pith and substance” of leg falls under s. 91 or 92, legislation is valid. (Do you see “double aspect” doctrine here?) R. v. Hydro-Quebec (1997)

3. Does leg fall under 91(27) [crim law]? Feds can decide what “evils” they want to supress, with penal sanction. Fed criminal power subject to “fundamental justice” safeguards in Charter; higher level of “mens rea” required for “true” (serious) crimes. Criminal power may not be employed “colourably” (used as an excuse to invade provincial powers.) Test: does a “legitimate public purpose” underlie the prohibition? Protection of environment is a legitimate public purpose for criminal law. Prot of Environ is an “international problem,” requiring action by all gov’ts. Provinces are not precluded from acting as well. Hydro Quebec (2)

4. Hydro Quebec argued that the legislation is regulatory, not criminal. Crim. Leg. simply prohibits. Majority: the prohibition is limited and targeted and “avoids resort to unnecessarily broad prohibitions.” Impugned sections of Act do not deal with prot of environment generally, but control of toxic substances. This requires precision because of complexity of subject. Act targets only subjects dangerous to the environment. Therefore, individual assessment of dangers is needed. Regulations are appropriate because of complexity, and need for ongoing assessment and fine-tuning. Because intra vires under 91(27), not necessary to consider POGG argument. Hydro Quebec (3)

5. Lamer, Sopinka, Iacobucci, Major Criminal power argument: prot of environment is a legit public purpose under crim law under prot of human health, but this leg goes well beyond the goal of protecting health. Regs are not really intended merely to protect health, but to regulate environmental pollution. A valid criminal law must establish a prohibition. Ss 34-35 don’t; they regulate. Ministers of Health & Envirnoment can, through reg (OC), place specific substances on a list, and regulate their use. It’s an “odd crime” where a Minister has discretion to prohibit certain conduct from time to time. Quebec Hydro (4): Dissent

6. Provinces can be exempted from leg if they have the same regulations. Prov. Legislation cannot be criminal. Giving feds the power to define “toxic” and thus regulate allows feds to invade prov jurisdiction unfairly. POGG national concern? Must be a “new” matter with “singleness, distinctiveness and indivisibility.” Dn of “toxic substance” is too broad to meet this test. POGG National Concern? The dn includes substances that cross prov boundaries, but also includes substances that don’t. Provincial control is possible. Therefore, “Prov inability” test (Cr Zellerbach) not met. T&C: no. Hydro Quebec (5)

7. Important cases • Reference re Firearms Act (2000) • Bedard v. Dawson (1923) • Westendorp v. The Queen (1983)

8. Reference re Firearms Act (2000) • Early 1990s: an increase in firearms-related killings, especially men killing former spouses. Each year, there were about 1000 deaths from firearms. • Federal response: Firearms Act of 1995, which required registration of all firearms. • A great deal of opposition from gun owners in Western and Northern Canada (farmers, hunters), eg. Ted Morton (who hunts for recreation). • Alberta government: sent reference question to Alberta Court of Appeal: is Firearms Act intra vires federal jurisdiction? • Alberta’s argument: the regulation of firearms falls under 92(13), “property and civil rights,” and the Act is therefore ultra vires. • Alberta CA upheld the law in a 3-2 decision.

9. Ref re Firearms Act (cont’d) • Supreme Court: all 9 judges heard the case; decision was by “The Court.” • Supreme Court: “The law in pith and substance is directed to enhancing public safety by controlling access to firearms through prohibitions and penalties. This brings it under the federal criminal law power [s. 91(27)]. While the law has regulatory aspects, they are secondary to its primary criminal law purpose. The intrusion of the law into the provincial jurisdiction over property and civil rights is not so excessive as to upset the balance of federalism.” • “legislation may be classified as criminal law if it possesses three prerequisites: a valid criminal law purpose backed by a prohibition and a penalty” • The gun control law has a valid criminal purpose (promote public safety) • The law creates a criminal prohibition (can’t possess a gun unless it’s registered) backed by penalties (summary conviction criminal code offence). • Double aspect doctrine also applies: provinces can also regulate property such as guns.

10. Bedard v. Dawson (1923) • In early 1900s, Quebec gov’t passed legislation prohibiting any property (home, apartment, or other building) from being used for disorderly purposes. A conviction for prostitution or gambling under the criminal code, if the prostitution or gambling occurred in that building, was proof that the building was being used for disorderly purposes. If the prohibited use continued, then any person could apply for an injunction to stop the building from being so used, and if it continued to be so used, the building could be locked up by the authorities.

11. Bedard vs. Dawson (cont’d) • Bedard objected to an injunction – claimed that the Quebec legislation was really criminal legislation under 91(27) • Dawson: the Quebec legislation is valid under 92(13). • Supreme Court of Canada: 5-0 seriatim decision: the Quebec legislation is valid as a regulation of property and civil rights. The mischief is having a disorderly house in one’s neighbourhood. The remedy is to prohibit such establishments. The feds can’t regulate property in this way.

12. Westendorp v. The Queen (1983) • In 1974, the City of Calgary passed a by-law to control use of streets and sidewalks (vendors, walking on sidewalks, clearing streets, parades, etc.) It had the authority to enact this secondary legislation because of the primary legislation: The Municipal Government Act [Alberta]. • In 1981, Calgary amended the by-law to add s. 6.1, which prohibited anyone from approaching anyone on a city street or sidewalk “for the purpose of prostitution.” • Lenore Westendorp was charged under the by-law, and pleaded not guilty on the grounds that the by-law was ultra vires provincial powers.

13. Westendorp was acquitted at trial in the Provincial Court; judge found s. 6.1 of the by-law ultra vires. Crown appealed; AB Ct of Appeal found the by-law intra vires. AB Ct Ap decision by Roger Kerans: pith and substance of by-law is to control a nuisance, not to prohibit prostitution. Prostitutes can still operate elsewhere, off the streets. Appeal by Westendorp to Supreme Court of Canada. 9 judge panel; decision written by Chief Justice Laskin. Laskin: Kerans is wrong. The by-law regulates public morality, so it is a crimininal law. It is colourable, because it is dressed up to look like a simple regulation of the use of streets. Kerans’ reasoning is “baffling.” Charter issue: not relevant because the by-law is ultra vires the province and therefore the City. Westendorp (continued)

14. Legislation can be primary (created by a sovereign legislature) or subordinate Subordinate powers can be delegated to cabinets, reg. agencies, municipalities in same jurisdiction Delegation outside judisdiction (eg. To another sovereign legislative body) called interdelegation Judicial rule: avoid overbroad delegation Manitoba initiative and referendum Act, 1916 Alberta initiative & referendum act, 1913 (tested in 1916) Remember anti-inflation reference (1976): ON OC invalid: no primary legislation Senate reference: 1979 Parliament can’t create a new legislative body and delegate primary powers Depression: all gov’ts wanted old-age pensions Rowell-Sirois Report 1939: recommendated interdelegation Nova Scotia first prov to pass necessary interdelegation legislation. Referred to SCC. Delegation

15. 7 judges wrote separate opinions. Decisions of Rinfret and Taschereau presented in course kit Rinfret: we have a right not to be subjected to laws unless passed by appropriate legislature. (Also, specificity rule: interdelegation not specifically mentioned in BNA Act.) Lord Atkin in Labour Conventions: “shop of state…watertight compartments.” Taschereau: if interdelegation were possible, everything might get interdelegated. This would turn confederation on its head. A constitutional amendment gave feds the right to enact old age pension legislation concurrently with provinces, with provincial paramountcy. Nova Scotia Interdelegation Case (1951)

16. Fed Ag Products Marketing Act (1949) Feds could delegate power to reg interprov marketing to a prov bd OC in 1950 delegated interprov power to reg PEI pot’s to PEI PMB PEI ref’d Q of validity to PEI Sup Ct in banco. Conclusion: ultra vires, following NS InterDel. In SCC: NS InterDel disginguished. 9 js, 6 dec’s. Rinfret: Act clearly in fed juris (T&C interprov, Ag) NS Case just applies to del to legislatures. Feds can choose own board or agency (precedents) Praises fed-prov cooperation PEI Potato Marketing Bd v Willis (1952)

17. Rand: would be valid if Feds created a separate interprov marketing bd, and appointed same people to it as on PEI Bd. “Twin phantoms of this nature must, for practical purposes, give way to realistic necessities.” Last JCPC decision: Winner (1954) declared that only feds can license vehicles for interprovincial purposes. Feds delegated interprov transport regs to prov. transport boards. Couglin (1968): Fed transport del upheld. No need for const amen’t re interdelegation PEI Potato Marketing Bd cont’d

18. Treaty-signing power, and treaty-implementation power, are two different powers. The feds had them both until 1926, under S. 132 of the BNA Act. In 1926, Canada became equal to Great Britain in handling foreign affairs (Balfour Declaration, later confirmed by Statute of Westminster, 1931), and so S. 132 became obsolete. Aeronautics Case (1932) Canada was implementing a British Empire Treaty, but federal gov't has the power to implement a treaty on aeronautics under several heads of S. 91, such as defence, post office. Radio Case (1932) Section 132 is now obsolete. Therefore, the treaty-making and treaty-implementation powers are new, and fall under POGG. Treaty-Making Cases

19. Lord Atkin - wrote decision Distinguished Aeronautics and Radio cases. He said that the Radio case decided that power to regulate radio transmissions is new, and therefore falls under POGG. (Is that what you think was decided?) The treaty-signing power falls to the feds under POGG, but the treaty-implementation power depends on the subject-matter of the treaty. Matters that fall under S. 92 can only be implemented by the provinces. Extraterritoriality Federal Provincial Treaty-making powers Head of states Intergovernmental Exchange of notes Labour Conventions Case (1937)

20. Is decentralization only a result of JCPC? Since 1949, SCC balanced Prov revenues 5.9% of GNP (1960) 17.1% GNP (1995) Feds: 16.5 – 19.1% Causes of decentralization: Institutions Geography Cultural diversity Quebec nationalism Party system Jurisdictional conflict Immigration, pensions, fisheries, ab land claims, prosecutions, training programs Garth StevensonFed’ism & IntGov Rels

21. Fiscal conflict Free trade, tax collection, cond grants, energy, trans payments Intergovernmental mechanisms for dispute resolution Judicial review Cooperative federalism (WWII – 1960) Executive federalism (1960 – present) Central agencies Intergovernmental affairs departments First Ministers Conferences Why is Canada the most decentralized country in the industrialized world? Stevenson continued