Canadian Constitutional Law

Canadian Constitutional Law September 22, 2012 Ian Greene

Schedule for today • Course expectations • Introductions • Electronic resources: www.yorku.ca/igreene • Introduction to public law and the Canadian legal system • Lunch at 12:00 noon, Senior Common Room (140 McLaughlin College upstairs) • Profs. Soennecken and Greene: guest lecturers around 3 pm (we’ll get together with Section A). Prof. Fredricksen will be in October and Prof. Barbosa in November)

Course Expectations • Seminar Presentations: sign-up sheet • Evaluation of readings in each class • Assignments • Seminar participation • Plagiarism & strategy to avoid it • Do your research, put your sources away, and write the first draft in your own words without looking at any of your sources. Then add footnotes indicating where ideas came from, and you may add up to four quotes for effect. • Assignments can be automatically checked by “turnitin,” which reports per centage of overlap with other sources (unless they are quoted and properly referenced), as well as the names of these sources.

Introductions • Name • How did you get interested in public administration? • How do you think your work (current or past) relates to Canadian constitutional law? • Graduate Diploma in Justice System Administration: • Take PPAL 6140 3.0 (for those not already in this year’s course, do it in your second year). This course is over and above MPPAL requirements (Profs Jacobs & Greene) • MRP has to be related to justice system administration • Internship • If interested, discuss with me

Electronic resources • www.yorku.ca/igreene: access to supplemental course readings, powerpoint presentations, audio files. • Excerpts from Greene’s The Charter of Rights (new edition) are posted on www.yorku.ca/igreene (optional supplemental reading). • I need your accurate email address: check the circulated list with the sign-up sheet

“Adjudication” is the dispute-resolution system used in courts. Characteristics? Law applied to facts Judge makes final decision Reasons presented for judgment How is adjudication different from arbitration and mediation? Arbitration: standards agreed to by disputing parties applied, but not usually the whole body of law Mediation: assistance in listening, understanding, and resolving (contract) What are "legal persons?“ People, corporations, and governments What's the difference between negative and positive law? Negative law: prohibited from certain behaviours (crim. law) Positive law: positive incentive to change behaviour (tax deductions for donations to political parties) Introduction to public law& Canadian legal system Preliminary Observations on the Law

Main sources of law: statute law (laws created by legislatures) case law (created by judges) Other (informal) sources: Ten Commandments, Magna Carta (1209), canon law, writings of legal scholars (eg. Coke ~ 1630, and Blackstone ~ 1770), community standards (eg. obscenity cases), Hogg's & Monahan’s texts. ratio decidendi; obiter dicta common = general common law judges "find" the law Parliamentary sovereignty or legislative supremacy. Aggregate legislature can do anything. Seven-fifty-formula; unanimity formula; some-but-not-all formula; provinces alone; feds alone. Constitutional conventions: “rules of political behaviour regarded by political actors as binding,” eg responsible gov’t Sources of Law

Reception: All English statutes enacted prior to reception are law in Canada, unless changed in Canada. NB & NS: 1758 Quebec: 1759: French civil law. 1763: English public law PEI: 1763 Ontario: 1792 Newfoundland: 1832 BC: 1858 Man, Alta., Sask: 1870. Federal gov't: date depends on when federal laws were inherited from former colonies. Eg. Quebec, 1763; Ont. 1792. Imperial statutes remained in force until Statute of Westminster, 1931. Development of common law courts and courts of equity Preamble to BNA Act: implied Bill of Rights Barristers and Solicitors Judicial Committee of the Privy Council (JCPC); 1949 England: specialized appeal j's; Canada: generalist appeal j's. British Legal Tradition

Reference questions (SCC and provincial courts of appeal) • common law • stare decisis • adversary system • Superior court judges travel on circuits to visit smaller centres • Why don’t judges have to retire until 70 or 75? • County and District courts now merged with superior courts • judicial independence: purpose to promote judicial impartiality • Valente decision (1985) • security of tenure • financial security • judicial control over adjudicative matters • judicial discipline: Canadian Jud Council & prov. Jud. Councils (eg. - Hryciuk)

Schools of jurisprudence • Judicial positivism (John Austin, A.V. Dicey, H.L.A. Hart) • The only law that exists is the written law • Good judges can always interpret the positive law correctly • Natural law (John Locke, John Rawls, Ronald Dworkin) • There are “higher” laws that positive law ought to emulate. These higher laws might be created by religion, logic, or ethical principles. • Judicial realism (Karl Llewellyn) • Even if judges try to be impartial, the law can never be perfectly clear. What makes judges decide the way they do? • Canadian Judicial realism: Sidney Peck, Peter Russell, many current scholars. • Critical Legal Theory • a branch of “critical theory,” which examines institutions from the perspective of class analysis.

Trial Courts: Improvisors (~10%) no single process, but for most outcomes would be the same Strict Formalists (~ 20%) particular process followed, and always leads to the same conclusion. Pragmatic formalists (~45%) particular process followed (check list, shifting balance, water rising), but judges might decide differently. Intuitivists (~25%) “gut feeling” Appeal courts: Panel process different Supreme Court of Canada a public law court (~100) leave to appeal (~600 apps) Problems with justice system for some litigants and lawyers, a game delay in client’s interest (nearly half of trial lawyers) judges limited by adversary system re control of caseflow Role of courts: dispute resolution, prevent abuse of power, official constitutional philosophers, pawns in other peoples’ battles Judicial decision-making

Appeal courts • Minor appeals heard by a single judge in a higher court (summary conviction appeals) • Major appeals heard by the provincial Court of Appeal • Ontario has about 18 Court of Appeal judges; usually they sit in panels of 3 (sometimes 5) • The Federal Court (Appeal Division) has about a dozen judges; hear cases in panels of 3. • Supreme Court (9 judges) most often hears cases in panels of 7; sometimes panels of 5 or 9. • per curiam (or per coram) vs. seriatim decisions

Stare decisis: a rigid form of doctrine of precedent Ways around stare decisis: Distinguish Ratio is really obiter Per incuriam Emphasize different majority opinion ignore Hierarchy of courts determining application of stare decisis SCC can choose not to follow precedent. Ont CA: policy: follow What if conflicting precedents? Stare Decisis

Other Important Terms • Legislation: • primary legislation (enacted by a sovereign legislature, i.e. Parliament or provincial legislature) • subordinate legislation (eg. Orders in Council, city bylaws, CRTC regulations) • Both are law; subordinate must be clearly authorized by primary • Manner and form requirements for judges to recognize a law • Canada’s constitution: • 1. Written parts a) Canada Act, 1982 (British statute that makes CA, 1982 law and declares that no British statute will in future extend to Canada) b) S. 52 CA 1982: ~30 statutes and orders listed in the schedule to the Schedule to the Const. Act, 1982, most importantly the Constitution Act, 1867 (formerly called the BNA Act; contains division of powers), and the Constitution Act, 1982 (contains the Charter and the five amending formulas) - Others: statutes & orders established new provinces, or amended the BNA Act.

See abridged written constitution in the Appendix in Russell et al, & the unabridged version in the Appendix in Monahan. • You need to know the following parts for career purposes (most of the following in my own words) • CONSTITUTION ACT, 1867 • Ss. 56, 57 & 90:reservation and disallowance • 91. the "preamble" to S.91 is the"POGG" clause (peace, order and good government): It shall be lawful for [Parliament] to make laws for the peace, order and good government of Canada, in relation to all matters NOT coming within the subject-matters assigned exclusively to the Provinces inS. 92. For greater certainty, Parliament may make laws with regard to matters covered by the following list. However, this list merely provides examples, and these examples are not to be interpreted by courts as limiting Parliament's power. • 2. Trade and Commerce2A. Unemployment insurance (added in 1940)3.Unlimited taxing powers (direct and indirect)14.Currency & coinage15. Banking24. Indians, and lands reserved for Indians27.The Criminal Law

92. The provincial legislatures have exclusive power to make laws regarding the following: • 92 - 2.Direct taxation10. Local works and undertakings EXCEPT a) interprovincial railways & telegraphs b) international shipping c) any works that Parliament has declared are within federal jurisdiction. (“declaratory power”): eg. Grain elevators, local railways, canals, bridges, some mines, some factories. Used 470 times, but not since 1961.13.Property and civil rights (meaning private law) 14.The administration of justice in the province, including the establishment of all courts except the Supreme Court of Canada and the Federal Court, and prosecution of criminal cases.16. All matters of a merely local or private nature. 92A (added in 1982). The provinces can regulate non-renewable natural resources, including forestry and electrical energy, and can even regulate exports. However, the federal government can also regulate exports in this area, and federal laws are paramount.

Education and concurrent powers • 93. The provinces control education, except that the feds can intervene to protect Roman Catholic schools in Ontario and separate schools in any province that existed at the time the province entered Confederation. • 95. Agriculture and Immigration are concurrent powers (both the feds and the provinces can legislate). If there is a conflict, the federal legislation is paramount.

Judiciary provisions • 96. The federal cabinet has the power to appoint all superior court judges in the provinces. • 99. Superior court judgescannot be removed except by joint address of the Senate and House of Commons. Superior court judges hold office "during good behaviour" to the retirement age of 75 (to protect judicial independence). • 100. The salaries of superior court judges are set by Parliament, not by the cabinet (to protect judicial independence). • 101. Parliament may establish a Supreme Court of Canada (which it did in 1875) and other courts to adjudicate federal laws other than the Criminal Code (eg. the Federal Court, which hears federal administrative law cases, and the Tax Court.)

Other important provisions in CA, 1867 • 109. The provinces own the natural resources within them. • 121. There shall be no customs duties or restrictions of trade between provinces. • 132. Parliament can make any law to implement British Empire treaties, even if the law invades provincial jurisdiction. However, after 1931 the courts interpreted this section to mean that provincial approval is required for any non-British Empire treaty which affects matters under provincial control. • 133. English and French can be used in Parliament, and Canada's laws must be in both languages. Likewise, English or French may be used in Quebec's National Assembly, and Quebec's laws must be in both languages. Either language may be used in the courts of Quebec, the Supreme Court of Canada, the Federal Court and the Tax Court.

CA, 1982 • Ss 1-34: The Charter of Rights (you don’t need to know the content of the Charter until November class) • S. 35: Aboriginal rights • S. 36: commitment to equalization payments, so that poorer provices can provide adequate services.

Constitutional Crisis of 1981/82 • 1867: Canada independent re its internal affairs • Balfour Declaration (1926) and Statute of Westminster (1931): Canada recognized as an independent state re foreign relations • BNA Act (1867) was an imperial statute, therefore could only be amended by British Parliament. 1926-1981: many failed constitutional conferences. • Victoria Charter nearly successful (1971): Amending formula would include Parliament, Ontario, Quebec, 2/4 Western provinces, 2/4 Atlantic provinces. Failed when a new gov’t elected in Alberta, and Quebec premier couldn’t get cabinet to agree. • Alberta suggested an alternative: Parliament, and 2/3 of provinces representing 50% of Canadian population.

In Canada, there are 5 amending formulas for the constitution: Unanimity formula (Queen, GG, LGs, composition of SCC, senate floor rule, federal language rights, amending formulas “some but not all” (eg. language within province, denominational school rights, change in prov. borders) Provinces can amend own constitutions Fed gov’t can amend its internal constitution General amending formula (seven-fifty): the rest of the constitution (incl div of powers & Charter) can be amended with Parliament, 7 out of 10 provinces representing 50% of pop. Dissenting provinces may opt out, and get reasonable compensation if amendment affects culture or education. Canadian Constitutional Amendment

AMENDING FORMULAS (more detail) • 38-40 & 42. The 7-50 formula. Most of the narrow constitution, including the Charter of Rights and the division of powers in ss. 91 and 92 of the C.A., 1867, can beamended with the agreement of seven provinces representing 50% of Canada's population and Parliament. (That is, either Ontario or Quebec must be included.) Up to3 provinces could opt out of such an amendment. If they opt out of an amendment which transfers educational or cultural matters to Ottawa, these provinces shall becompensated financially by Ottawa (Ottawa must give to the opting-out provinces what they are spending, per capita, on the opting-in provinces). • There is a 3-year timelimit which begins with the first resolution for amendment (which could be in any provincial legislature or Parliament). No amendment may take effect according to this procedure until at least one year after the first resolution has passed (unless all governments have passed resolutions).

7-50 formula continued • No province can opt out of an amendment affecting: • - proportionate representation of the provinces inthe House of Commons • -the Senate • -the Supreme Court of Canada • -the extension of existing provinces north • -establishment of new provinces

Amending forumlas (cont’d) • 41. The unanimity formula. Unanimous agreement of all provincial legislatures and Parliament is required for amendments affecting: • a) the Queen, Governor General and Lieutenant-Governorsb) the "Senate floor rule" (no province can have fewer MPs than Senators).c) the use of English or French in S. 133 or the Charterd) the composition of the Supreme Court, ande) changes to the amending formulas. • 43. The "some but not all" forumla: Amendments which affect some but not all provinces need by approved only by the provincial legislatures affected and Parliament. • 44. Parliament may amend parts of the constitution that affect only Parliament. • 45. Legislatures may amend parts of their constitutions that affect only them.

U.S.: Congress proposes amendments (2/3 of both houses) Proposals have to be ratified by ¾ of state legislatures, or ¾ of state constitutional conventions Comparison: U.S. constitution amended 17 times in 21 decades (rate .08/year) Canadian constitution amended 32 times in 13 decades (.23 to 1982, and 9 after) (rate .24/year) Canada’s constitution is more flexible Major Can. amendments: 1940: unempl ins 1951: old age pensions 1964: old age pensions broadened to include supplementary, survivors, disability (CPP) 1982: Charter and amending formulas 1983: S. 35.1: must be a constitutional conf including native peoples before native rights amended 1987-1998: 3 amendments to den school rts in Nfld 1997: den school rts Quebec 1993: equality of Fr & Eng in New Brunswick U.S. & Canada: Comparison of Constitutional amendment process

Canada 1927-1982: six failed attempts to find a domestic amending formula 1971 – Victoria charter came close 1982: success achieved after SCC decision (discussed later in course) Meech Lake & Charlottetown Accords (discussed later) U.S.: 6 amendments proposed by Congress but not ratified by states, including ERA (equal treatment of women in all legislation) Impact of court decisions: 1940, 1951 amendments in Canada a reaction to court decisions Civil war amendments in U.S. a reaction to court decisions 1918: SCUS decision led to amendment to prohibit child labour. 1938: Roosevelt threatened to “pack” court. Court overruled 1918 decision. Amendment failures

United States Washington: cabinet advisory & responsible to president Jefferson: declared that U.S. could purchase new territory; never challenged in court Political parties developed without constitutional amendment Congress assumed vast powers over economy in 1930s and 1940s Canada Feds assume they have power to do something under POGG, or provinces assume they have power to do something under 92(13) After 1995, fed legislation passed to prevent cabinet ministers from proposing amendments under 7-50 without support of Quebec, Ont, B.C., 2/3 prairie provinces, 2/4 Atlantic; Quebec recognized as distinct society Clarity Act (2000) Was Dicey right that in the U.S., judges are supreme because they declare the constitution? Does Dicey’s analysis apply to Canada? Informal constitutional amendment

Unwritten parts of the constitution 1. Constitutional conventions -Rule of law -Judicial independence -Responsible government -cabinet responsible to the legislature -Ministerial accountability -Cabinet solidarity -Gov Gen and Lieut Gov’s must act according to the advice of the first minister, unless that advice is unconstitutional -The leader of the group in H of C or prov leg that can command the support of the majority of members becomes first minister and chooses cabinet. First minister tells GG or LG when to call election, unless another group can form gov’t 2. The ratio in the judicial decisions about the meaning of the constitution (eg. the ratio in the cases we’ll be studying in this course)

Codification of laws Coutume de Paris (1580) Confusion after 1759 Royal Proclamation (1763) – civil law abolished Quebec Act 1774 – civil law restored for private law Codification: 1866: Civil Code of Lower Canada (CCLC) 1994: Civil Code of Quebec (CCQ) Deductive Reasoning Inquisitorial System (not in Quebec) Code, la doctrine, precedent Quebec courts: Court of Appeal (s.96) Superior Court (s.96) Court of Quebec (provincial – s. 92(14)) Civil and common law approaches coming closer together Quebec and Civil Law Approach

Natural Justice & Fairness • Natural Justice • Nemo judex in sua causa • Audi alteram partem • Functions of Admin. Agencies: • Legislative • Administrative • Executive • Judicial or quasi-jud. • Judicial review • Jurisdictional • Abuse of power • Natural justice • Jud or quasi-jud • Doctrine of fairness • Privative clauses • Can’t hide behind priv clause if const issue, or patently unreasonable

Rules of Statutory Interpretation (1) • Why are rules needed? • Intent of legislature • “reasonable person” test • 1.Plain meaning rule • 2.“golden rule”: avoid absurdity & inconsistency • 3.What was the mischief & remedy? • Specific words help explain general ones nearby • Express inclusion of some items implies exclusion of items not mentioned • Aids: • Interpretation statutes • Definition sections of statutes

Rules of Statutory Interpretation (2) • More Aids: • Context in statute • Other similar statutes • Legislative history • Minimal weight. Why? • Books on rules of interpretation, & legal dictionaries • French & English text • International conventions & treaties (sometimes) • Preamble (but not marginal notes) • Headings (except in Ontario – excluded by statute)

Presumptions • Criminal law: in favour of accused • Taxation law: in favour of taxpayer • Against alteration of common law • Mens rea (guilty mind), unless express absolute liability • Against retroactivity • Against ousting jurisdiction of courts • For crown immunity (now mostly replaced by statutes allowing suits against crown) • Every word is deliberate • Specific given precedence over general • More recent > older • Leg. did not intend drafting error (cts can correct)

Rights in liberal democracies • 1. optimal freedom J.S. Mill: “harm” principle for limits 2. procedural fairness when there are limits 3. equality of application of rights and freedoms • Limits to rights: -some differences in ability (eg. qualifications for driver's license, or to become a doctor) -promote honesty (eg. limits to freedom of speech: suits for defamation) -need to preserve public order -to deal with emergencies -resolve conflicts of rights -community-wide restrictions on moral behaviour (eg pornography)

Political theory of liberalism European Renaissance of 15th century Protestant reformation Glorious Revolution (England: 1688) John Locke: Second Treatise on Gov’t 1690 rule of law “one rule for the Rich and Poor, for the Favourite at Court and the Country Man at Plough” judicial indepencence common law protections for individual freedom: strict attention to rule of law: Entick v. Carrington 1765 mens rea crown must prove case beyond reasonable doubt free confessions can’t be forced to self-incriminate prerogative writs (habeas corpus) Development of democratic values growth of franchise Origins of Rights-Consciousness in Canada

U.S. Bill of Rights Jefferson (declaration of independence): “…all men are created equal [and] endowed by their Creator with certain unalienable rights [including] Life, Liberty and the pursuit of Happiness.”(1776) To get 1787 constitution ratified, state leaders insisted on a Bill of Rights; added in 1789 as first 10 amendments to 1787 constitution: freedom of speech, press, assembly & religion procedural rights: no unreasonable search or seizure, right not to testify against self, can’t be punished twice for same offence, due process safeguards, no cruel or unusual punishment positive legal rights: speedy trial, jury trial for serious cases, reasonable bail, to bear arms, and to refuse accommodation to soldiers Rights-Consciousness (2)

Canada’s bilingual and bireligious heritage demands in 1864 for guarantees of minority language and minority religious education rights prior to Confederation in 1867 “small bill of rights”: S. 133 of BNA Act: Eng or Fr in Parl, Quebec leg., and Can & fed courts; similar guarantees in Manitoba in 1870, & AB and Sask in 1905 S. 93: safeguards existing denominational school rights Legislative Supremacy Preamble to BNA Act: Canada’s constitution “similar in principle” to that of the U.K. legislative supremacy one aspect of U.K. constitution: seems to contradict idea of a constitutional bill of rights A.V. Dicey: Introduction to the Study of the Law of the Constitution (1885) human rights protected by common law written constitution is too rigid; trust legislature Rights-Consciousness (3)

B.C.: disc leg against Orientals 1899: JCPC stuck down law restricting employment of Orientals as ultra vires prov. Jurisdiction 1902: JCPC upheld denial of vote to Orientals - leg sup Private suits by Blacks against pte disc: some succeeded, most didn’t because cts emphasized private right to contract Sask: disc leg ag Orientals: upheld by SCC, 1914 “Persons” case: 1930 Alberta Press Case (1938) impugned: package of Social Credit legislation: unanimously struck down “Duff doctrine”: because Can. const is “similar in principle” to that of U.K., courts can strike down legislation violating trad. human rights. Also, Canada is a democracy: H of C is representative. “Free public discussion … is the breath of life for parliamentary institutions” Civil Liberty Cases prior to Can Bill of Rts

Treatment of Japanese Canadians during WWII: courts did not intervene “Gouzenko affair” in 1945: secret trials of 26 under War Measures Act without usual procedural protections. Led to Can Civ Liberties Association Duplessis era: SCC used division of powers to protect human rights Saumur, 1953: SCC struck down Que City bylaw about littering, but aimed at Jehovah’s Witnesses Switzman v. Elbling, 1957: SCC struck down Padlock Law because it trenched on Parl’s crim law jurisdiction Roncarelli v. Duplessis, 1959: Roncarelli posted bail for JWs, and Duplessis cancelled his restaurant liquor license. (will discuss in more detail in October class) Civ Liberty Cases prior to Can Bill of Rts (2)

Spearheaded by PM John Diefenbaker, and enacted in 1960 S. 1: rights to life, liberty, sec of person, enjoyment of property, equality before law, freedom of religion, speech, assembly, association and press have existed and continue to exist without discrimination by reason of race, national origin, colour, religion or sex S. 2: lists traditional common law legal rights: habeas corpus, no arbitrary detention or imprisonment, no cruel or unusual punishment, no arrest without lawful reason, right to retain lawyer without delay, right not to be forced to incriminate self, innocent until proven guilty, ind and imp tribunal, reasonable bail, interpreter. Right to a fair hearing in accord with fundamental justice to determine rights and obligations. “notwithstanding clause” Canadian Bill of Rights

Robertson & Rosetanni v. the Queen (1963) impugned: fed. Lord’s Day Act Ritchie (for majority): Freedom of religion “has existed;” therefore no violation Fr of Rel means an absence of disabilities, but govt’s can promote religious practices Although Act as a religious purpose, the effect is purely secular Cartwright dissented: both purpose & effect of Act compel, under penal sanction, observance of a particular religious holy day Courts can strike down laws under Bill of Rights; otherwise the “notwithstanding” clause would not be necessary Canadian Bill of Rights (2)

Drybones (1970) impugned: section of Indian Act that made it an offence for an Indian to be intoxicated off a reservation. No reservations in NWT. Drybones claimed equality before the law violated Ritchie (for majority): Where it is “an offence…on account of race…to do something which all Canadians who are not members of that race may do…” there is a violation of equality. Ritchie adopts Cartwright’s reasoning from Rosetanni that notwithstanding clause means Bill of Rights is more than a rule of construction. Cartwright dissented. Said he’d changed his mind since Rosetanni. It would be dangerous for the courts to usurp legislature’s role by deciding what statutes violate Bill of Rights. Canadian Bill of Rights (3)

Lavell & Bedard (1974) impugned: part of Indian Act that states that if an Indian man marries a non-Indian, he retains status and his children inherit it, but if an Indian woman marries a non-Indian, she forfeits her status, as do her children. Ritchie for majority (5-4): equality before the law, according to Dicey, means equality in the administration of the law. If all Indian women are treated equally, there’s no necessary discrimination. (Indian women aren’t compelled by law to marry non-Indians). Bliss (1979): impugned: part of Un Ins Act that stipulated longer qualifying period for work absence due to pregnancy. SCC: no discrimination, as the provision applies to everyone. Canadian Bill of Rights (4)

Oil, Chem and Atomic Workers case (1963): SCC says it’s OK for BC gov’t to prohibit union political contributions if received from check-off. 1969: SCC upholds Alberta discriminatory legislation against Hutterites Dupond (1978): SCC upholds a Montreal by-law that allowed Council to ban all demonstrations for 30-day periods. Beetz: Demonstrations are not “speech in action,” therefore no violation of freedom of speech Beetz dismissed the Duff Doctrine Laskin: strong dissent SCC’s record under Bill of Rights led to support for idea of a constitutional Charter of Rights Canadian Bill of Rights (5)

Next classes • October class: seven important Division of Powers cases decided by the Judicial Committee of the Privy Council or the Supreme Court of Canada, & Roncarelli v. Duplessis • November class: 13 important Charter of Rights cases decided by the Supreme Court of Canada

Canadian Constitutional Law