Review for Final Examination, Mid-Term to End of Term

POGG II

Beginning with Can Temp Fed., cases, these cases demonstrate an expansion of judicial interpretation of POGG, as compared with its diminution during the Watson-Haldane era.

Employment & Soc Ins Ref (1937)

• Impugned legislation:   Employment & Social Insurance Act, 1935 (part of new deal legislation to get Canada out of depression). It created an unemployment insurance program in Canada, for the first time.
• Opposition Leader Mackenzie King:  it's good legislation, but ultra vires.  When he became Prime Minister later in 1935, King referred the question of the validity of the Act to the SCC, which ruled the legislation ultra vires.
• Lord Atkin at JCPC:  agreed
• Atkin:  the subject matter, “unemployment insurance," falls under s. 92(13).  Therefore, neither POGG nor T&C can be used to justify the legislation as federal.
• Louis St. Laurent (future PM) was the lawyer for the federal crown.  He argued that the impugned legislation can support under fed. taxation and spending power.  Atkin did not agree.
• Result:  constitutional amendment in 1940 supported by all the provincial premiers and the federal Parliament, which gave the federal government the power to create an unemployment insurance program.

AG Ont. v. Can Temperance Federation (1946)

• Impugned:  Canada Temperance Act, 1927
• Ont Referred question of validity of Act to Ont CA.  Lost there and in SCC.
• Appeal to JCPC by Ont (supported by AB & NB)
• Issue:  given Snider decision, should JCPC overrule Russell (1882)?
• 1927 Canada Temperance Act essentially same as 1882 Canada Temperance Act. In Snider, Haldane wrote that  there must have been an emergency in 1882.  Ontario argued that there was no emergency in 1946.
• Vis. Simon:  Russell "decision firmly embedded in Canadian constitutional law."  Simon wrote that Haldane's explanation in Snider was  "too narrowly expressed."  There 1878 Act was permanent, not emergency legislation.  Subject of legislation was really a matter of inherent national concern.
• This case represents the revival of the national concern branch of POGG.

Johannesson v. West St. Paul, 1952 (SCC)

• Impugned:  the part of the Man. Municipal Act allowing municipalities to regulate aerodromes.
• Johannesson needed a particular location on Red River to repair his bush planes.  Mun. of West St. Paul opposed his proposed aerodrome:  too noisy.
• Aeronautics case (1932) upheld fed regulation under S. 132 of BNA Act
• Current fed reg’s under Chicago Convention (1947), not Br Empire Treaty (3 judges thought this didn’t matter)
• Five decisions:  Kerwin, Locke, Rinfret, Kellock & Estey (seriatim), all reaching the same conclusion:  the impugned legislation is ultra vires the province (ratio).  • • Two other judges concurred, but didn’t write separate decisions.
• Does aeronautics fall under S. 92 (13) or (16)?  Yes, but aeronautics transcends them as a matter of national concern under POGG.
• (What does inter alia mean?)
• This case further strengthens the national concern branch of POGG.

 Ref re Offshore Min Rights of BC (1967)

• Reference to SCC from fed cabinet:  who owns & can exploit the ocean floor below the low water mark to a 3 mile limit?
• A hot political issue in the 1960s; feds hoped this reference would settle the issue in their favour.
• Opinion of "the court." (Why are some opinions per curiam?)
• S. 109:  provincess own "lands, mines & minerals."
• Where was BC boundary in 1871?  Did it extend beyond low water mark?  Conflicting precedents existed.
• SCC:  British Crown retained control over Canada's territorial sea until Statute of Westminster
• Now territorial sea part of territory of Canada, not BC
• 1972-1980:  Quebec & Atl prov's applied pressure on Ottawa for undersea resource royalties.
• 1984:  SCC ruled that Canada owns Hibernia.
• Mulroney gov’t negotiated "Atlantic accord:" Nfld offshore treated like land?based resources by feds.


Ref re Anti-Inflation Act (1976)

• Trudeau campaigned against wage & price controls during 1974 election.  After elect. victory, he reversed his position.
• 1975:  federal Anti-Inflation Act enacted.  All prov's cooperated.  Ont pub empl unions challenged in court, so the feds sent a ref question to the SCC to settle the issue.
• AG of Canada defended Act under nat concern branch of POGG, and also argued that an economic crisis equals an emergency.
• There were two decisions for the majority, by Laskin and Ritchie.  However, the dissenters agreed with Ritchie’s interpretation of  POGG, leaving the Court’s interpretation of POGG unclear.
• Laskin (+3 judges):  Laskin had been law prof, and wrote leading text before Hogg on Can. const. law.
Reviewed history of POGG
Const must adapt to change.
 -If judges can defend as crisis, not nec to look at national concern argument.
 -Evidence shows there is a rational basis for believing a crisis exists (Stats Can)
 -Lipsey & 39 economists in an affidavit argued that 1975 inflation is not a crisis.  Laskin:  there is disagreement amongst economists, and it’s not up to SCC to decide.  (Beginning of use of soc sci evidence in court.)
 -Fed power supported by 91 (14?21 ex 17), & T&C, so it’s intra vires.
 -Ont. order-in-council, however, is ultra vires; needs primary legislation.

• Ritchie (+2 judges), separate concurring decision:
-Rejects Laskin's crisis doctrine.
-There is evidence of an emergency (white paper).
-An emergency can occur in peace time.
-Therefore, impugned anti?inflation act intra vires.

• Beetz (+1 judge), dissenting:
-Anti-inflation act invades 92(13).
-Parliament has not declared an emergency, so there's no emergency.  Stick with Haldane’s emergency doctrine.
-Inflation is not a matter of national concern.
-Legislation is ultra vires.

 Queen v. Crown Zellerbach (1988)

• Impugned:  federal Ocean Dumping Control Act, pursuant to int. treaty of 1972.
• CZ dumped wood waste in "internal" salt waters in a strait on Vancouver Island
• CZ claims fed legis overbroad because wood waste did not pollute.
• Feds:  defend under POGG "national concern" doctrine
• Feds won 4-3
• Le Dain (+3 judges):
-Created "provincial inability" test.  Ocean pollution is a matter of national concern.  It can't be regulated effectively by provinces. If coordinated provincial regulation were possible, there would be no “provincial inability.”
-Fed regulator should decide what does or does not pollute.
• La Forest (+2judges):
dissents; agrees with CZ.  No evidence that it's necessary to monitor everything dumped.

Trade and Commerce [91(2)] vs. Property and Civil Rights [92(13)]

Citizens Insurance Co. v. Parsons, 1881

-Impugned legislation:  Ontario Fire Insurance Policy Act.
-There was a fire in Parsons' warehouse; Parsons wanted insurance payment to cover damages.
-Insurance Co argued that Parsons didn't observe the fine print.
-Parsons argued that the fine print didn't conform to the Act.
-The Insurance Company argued that the Act is ultra vires the legislative powers of Ontario, because only the federal government can regulate insurance companies
under the Trade and Commerce power - S. 91(2).

-Sir Montague Smith, who wrote the decision for the JCPC, discusses how ss. 91 & 92 overlap.  He indicates that the JCPC will interpret the BNA Act as an
ordinary statute.

-Smith invokes the presumption that specific parts of the law take precedence over general parts.  Which is more specific:  "property and civil rights," or "trade and
commerce."  Because property and civil rights is more specific, it takes precedence.

-Following the "cubby hole" doctrine, he askes whether the subject matter (regulation of insurance) falls under S. 92(13)?  Yes it does.  Does it also fall under S.
91(2)-T&C?  No.  The federal government can incorporate companies with national objectives?  (Why?  Because the provinces, under S. 92(11), can incorporate
companies with provincial objectives.  Because "national objectives" wasn't mentioned here, the framers must have meant that the incorporation of companies with
national objectives must be a federal power.)  But this doesn't prevent provinces from regulating the intraprovincial transactions, even of companies that are federally
incorporated, as the Citizens Insurance Co. was.

-Smith concludes that there are three aspects of T&C:  international, interprovincial and general.  He doesn't say much to define these three aspects; that will be for
later court decisions.

--Make sure you review the Board of Commerce case before class, as this case is relevant to the interpretation of the Trade and Commerce power, as well as POGG.--
 


Proprietary Articles Trade Assoc Reference (1931)

-Impugned:  federal anti-combines legislation (akin to Bd of Commerce case)
-Lord Atkin wrote for JCPC.
-Intra vires under fed. Criminal power (91[27])
-Test for what constitutes a "criminal" law:  are there "penal consequences"?
-Bd of Commerce case distinguished.  Proper due process safeguards in instant (current) case.
-Atkin writes that Haldane was wrong (in Bd of Com & Snider) that T&C is subordinate to other enumerated heads of power in Section 91.

Natural Products Marketing Act Reference (1937)

-Impugned:  fed marketing legis as part of "new deal"
-All provinces supported and had dovetailing legislation
-Lord Atkin:  ultra vires because it trenches on intra-provincial marketing in 92(13)
-But provincial marketing legis had also been struck down as trenching in interprovincial T&C power.
-One is left wondering whether any marketing legislation can be found intra vires by the courts, as most products are sold both intra-provincially and extra-provincially and therefore fall under both federal and provincial jurisdiction.

Ontario farm products marketing case (1957)

(This case isn't included in the course kit, but is reviewed as part of the history of judicial interpretation of Trade and Commerce.)

-Fed gov't referred Ontario marketing legislation to SCC.  Majority:  intra vires, if extra-provincial trade not affected.
-Judges explored the reality of the movement of produce being traded more than previous courts.
-Invoked "aspect" doctrine:  trade can be a provincial matter for one purpose, and a federal matter for another.
-Judges seemed to want to find a way out of the stalemate created by the Natural Products reference of 1937.

Chicken & Egg Reference (1971)

-In 1970, Que gov't authorized Quebec egg marketing agency to restrict import of eggs from out of province.
-Ont and Man were suppliers of eggs to Quebec.
-Que supplied chickens to other provinces; in retaliation, the other provinces restricted Quebec chickens.  Thus, there was a "chicken and egg war."
-Man passed egg marketing legis identical to Quebec's and referred it to Manitoba Court of Appeal.  Because Manitoba couldn't refer the Quebec legislation to its
own court, it enacted idential legislation to the Quebec legislation (even though Manitoba didn't import eggs) and referred that legislation to its Court of Appeal.  The
government hoped to lose, and then appeal the decision to the SCC.

-The Man legis was struck down, as hoped by the Manitoba government, by the Manitoba CA.  Manitoba appealed to SCC. (What could Manitoba have done if
the legislation had been upheld by the Man. Ct?  The strategy would have been foiled.)

-9 judges on panel:  three concurring decisions 6 + 2 + 1 (all agreed that the legislation is ultra vires).
-Martland:  Pith and substance:  interprovincial T&C.

-This was Bora Laskin's first major decision after his appointment to the SCC.  He is obviously annoyed that case is fabricated.  Why?  Judges need to base their
decisions on factual evidence.  For example, if Manitoba imported very few eggs, then perhaps the legislation could be described as primarily intraprovincial.

-Laskin claims that obiter in many decisions since Parsons has led to attenuation of the (from his perspective proper) literal interp of T&C.
-Prov. Marketing legislation OK if producers in other provinces treated the same a local producers.
-Purpose of this legislation:  to control the import of eggs.  Therefore it is ultra vires; trenches on fed control over interprovincial T&C.
-Laskin provides a scholarly analysis both of case law and realities of trade in eggs & other goods.  As well, he says that it's not necessary to invoke s. 121, because
Trade and Commerce settles the issue.  Why did he even mention S. 121?  Because he thinks it's important and wants to signal to lawyers that he wants to hear
arguments on S. 121 in future cases.

Labatt v. A.-G. Canada (1980)

(This case isn't included in the course kit, but is reviewed as part of the history of judicial interpretation of Trade and Commerce.)

-Impugned legis:  Fed food & drug act reg's setting standards for "light beer."
-In several recent cases, SCC failed to allows feds to use "general" aspect of T&C to regulate fair practice, or regulate grades of apples.
-Estey (+5):  impugned legis. really local in character.
-Not international, and not really interprovincial
-Laskin (+2):  dissents.  Feds can equalize  competitive advantage under interprov T&C.  Also, S. 121 prohibits interprov trade barriers.
 

The JCPC and its critics

Vaughan

-After 1949:  many academics condemned JCPC for bad jurisprudence, and decentralist tendencies.
-Browne defended JCPC as applying correct rules of construction.
-1971:  Alan Cairns defended results of JCPC decisions from a sociological perspective
-Peter Russell defended JCPC results from a "balance" perspective, & pointed out Fathers of Confed had differing views
-Vaughan claims Browne, Cairns and Russell are all wrong; BNA Act was centralist, and JCPC guilty of bad jurisprudence
-Vaughan's argument
  -G.P. Browne argues that the JCPC was correct in determining that there are 3 bases of power:  POGG, list in s. 91, and s. 92.
  -Vaughan:  there are really just 2 (POGG & s.91 list are inseparable), and so JCPC was wrong.
  -Browne:  claims that JCPC followed stare decisis.
  -Vaughan:  JCPC did not consist of fools or knaves, but politicians attempting to "enunciate a basis for provincial legislative authority."
  -JCPC ignored the intent Fathers of Confed., who created a centralist state in reaction  to U.S. Civil War.

Look carefully at Section 91 of BNA Act (now CA, 1867):

It shall be lawful for the Queen, by and with the Advice and Consent of the Senate and House of Commons, to make Laws for the Peace, Order, and good
Government of Canada, in relation to all Matters not coming within the Classes of Subjects by this Act assigned exclusively to the Legislatures of the Provinces;
and for greater Certainty, but not so as to restrict the Generality of the foregoing Terms of this Section, it is hereby declared that (notwithstanding anything in this
Act) the exclusive Legislative Authority of the Parliament of Canada extends to all Matters coming within the Classes of Subjects next hereinafter enumerated; that is
to say, [29 enumerated heads]
"deeming" paragraph:
And any Matter coming within any of the Classes of Subjects enumerated in this Section shall not be deemed to come within the Class of Matters of a local or
private Nature comprised in the Enumeration of the Classes of Subjects by this Act assigned exclusively to the Legislatures of the Provinces.

-Danger of judges becoming legislators (eg. "Persons" case:  Edwards v. A-G for Canada, 1930).  Living tree.  "large and liberal interp." for const.
-Cairns:  "rules of statutory construction are little more than a grab bag of contradictions."  Vaughan claims that  JCPC was smarter than this.
-Vaughan criticizes Russell's approach in the case book that didn't come.
-Most fathers of confederation wanted a unitary state; couldn't because of objections in Quebec; settled for a quasi-federal state.
-Vaughan examined transcripts of JCPC hearings
-Vaughn concludes that the judges of the JCPC were the "real" Fathers of Confederation

Cairns & Russell

-Cairns: Criticizing JCPC had become "thought-stifling convention wisdom.
-Doesn't agree with JCPC reasoning, but thank goodness for results.
-"Judge and company"
-Russell:  JCPC read classical federalism into BNA Act
-Fathers were not united in views
-Will approve of activism "if based on principles that embody the wisdom of collective experience."  eg. Duff in Alta Press, and Dickson in Hauser.

John Saywell on Watson and Haldane

-John Saywell is Professor Emeritus of History at York University, and a leading historical scholar of the JCPC.  He wrote The Lawmakers (2002).
The Watson Era (1889-1912)
-Watson born 1827, Scotland
-Civilian lawyer; didn’t have reputation as brilliant lawyer
-Supported Conservatives
-Solicitor general in 1874
-1876:  MP for Aberdeen & Glasgow universities
-1880:  Scots Lord of Appeal in House of Lords
-Member of JCPC for civil law appeals from Quebec
-1888-1899 – the “Canadian specialist” on JCPC
-Watson said he believed in applying rules of statutory interpretation strictly
-In practice, “indulged in wide-ranging conclusiosn and speculations about la guage, history, intentions and policy”
-Impressed by arguments of Blake, lawyer for Ontario
-St. Catherine’s milling case:  when aboriginals give up title to land, it reverts to the provincial crown. (S9. 109)
-Maritime Bank case:  prov. Lieutenant-governors are equal in status with Governor General.
-Local prohibition case:  a re-interpretation of Russell to give more power to provinces.

Haldane (1911-1928)
-Born in Edingurgh in 1856
-Studied philosophy; scholar of Hegel (decentralization)
-1877:  moved to London to study common law; QC in 1887
-Worked as a junior in a number of Canadian constitutional cases.  Great admirer of Watson
-Quotable quote from Saywell:
-Haldane was so good at most things yet not superlative in anything
-Haldane wanted to focus on “big, working principles,” but insisted on positivist approach
-1911-1928, participated in all but 63 of 204 appeals from Canada, and delivered decision in 24.
-Admitted that the JCPC shaped the Canadian constitution – gave it its “federal” nature
-Provinces are “independent kingdoms” that have delegated some powers to the central government.
-Saywell discusses Haldane’s re-interpretation of Russell decision in Snider.

Delegation
-Primary & subordinate legislation
-Delegation to cabinets, reg. Agencies, municipalities
-Delegation to another sovereign legislative body:  interdelegation
-Avoid overbroad delegation

-Manitoba initiative and referendum Act, 1916
-Alberta initiative and referendum act, 1913 (tested in 1916)
-Senate reference:  1979

-Depression:  all gov’ts wanted old-age pensions
-Rowell-Sirois Report:  interedelegate (1939)
-Nova Scotia first prov to pass necessary interdelegation legislation.  Referred to SCC.

Nova Scotia Interdelegation Case (1951)

-7 judges wrote separate opinions.  Decisions of Rinfret and Taschereau presented
-Rinfret:  right not to be subjected to laws unless passed by appropriate legislature (specificity rule)
-Lord Atkin in Labour Conventions:  “shop of state…watertight compartments.”
-Taschereau:  if interdelegation possible, everything might get interdelegated.

PEI Potato Marketing Bd v Willis (1952)

-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: int, 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 cont’d
-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 ths 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

Treaty-Making Cases

-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.

Labour Conventions Case (1937)
-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.

Terms:
-Extraterritorality
-Federal
-Provincial

Types of treaties:
-Head of states
-Intergovernmental
-Exchange of notes

Thursday:  Stevenson article, “Federalism and Intergovernmental Relations"
 

Garth Stevenson
Fed’ism & IntGov Rels

-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
-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?

Can. Ind Gas & Oil v. Sask, 1977 (CIGOL)

-1973:  OPEC inc’d world price of oil
-Windfall gains by oil companies in Canada
-Sask gov’t wanted diff between old price and new price
-Expropriated oil & gas land tracts, and imposed royalty surcharge equal to diff
-7-2:  Sask leg ultra vires

-Martland + 6:
-Indirect tax, because paid for by consumers
-Tax really an export tax; 98% of Sask oil exported to US, E Can
-Dickson:  S. 109
-Price sets the tax, so tax paid by the companies, not consumers
-Decision led to S. 92A (amendment in 1982)

Section 109, CA 1867
S.109
All Lands, Mines, Minerals, and Royalties belonging to the several Provinces of Canada, Nova Scotia, and New Brunswick at the Union, and all Sums then due or payable for such Lands, Mines, Minerals, or Royalties, shall belong to the several Provinces of Ontario, Quebec, Nova Scotia, and New Brunswick
in which the same are situate or arise, subject to any Trusts existing in respect thereof, and to any Interest other than that of the Province in the same.
 

Cent Can Potash & AG Can v Sask, 1979

Background
-1960s:  potash mines developed in Sask; Sask can supply world for 1500 years.
-Other major producer:  New Mexico, but mines less efficient
-By 1967, Sask potash selling in US at well below NM prod price
-Most NM companies had interests in Sask mines
-U.S. gov’t threatened to restrict imports from Sask
-NM and Sask worked out a pro-rationing scheme to restrict Sask output so that NM mines could operate Gov’t in Ottawa not opposed, so no court challenge
-1971:  Sask changed pro-rationing formula;  Cent Can Potash tried to force gov’t to honour old plan through mandamus.
-CCP went to court; Ottawa intervened to argue that the Saskatchewan legislation encroached on federal jurisdiction.
-All 7 judges on panel, led by Chief Justice Laskin, found the Sask scheme unconstitutional.
-Provinces own natural resources, but this does not give them the power to control interprovincial or international trade and commerce.
-Any legislation that is in pith and substance an attempt to regulate interprovincial and international trade and commerce is ultra vires provincial powers.

The Potash decision, together with the CIGOL decision we discussed in the last class, led to a great deal of resentment on the part of the Western provinces, and led directly to the demand to include S. 92A in the constitutional package agreed to in November, 1981.

Here's Section 92A, another constitutional amendment to the division of powers that came about as a reaction to judicial decisions:

92A. NON-RENEWABLE NATURAL RESOURCES, FORESTRY RESOURCES AND ELECTRICAL ENERGY

                                              (1) In each province, the legislature may exclusively make laws in
                                              relation to

                                                     (a) exploration for non-renewable natural resources
                                                        in the province;
                                                     (b) development, conservation and management of
                                                        non-renewable natural resources and forestry
                                                        resources in the province, including laws in
                                                        relation to the rate of primary production
                                                        therefrom; and
                                                     (c) development, conservation and management of
                                                        sites and facilities in the province for the
                                                        generation and production of electrical energy.
 

                         Export from
                         provinces of
                         resources
                                              (2) In each province, the legislature may make laws in relation to the
                                              export from the province to another part of Canada of the primary
                                              production from non-renewable natural resources and forestry
                                              resources in the province and the production from facilities in the
                                              province for the generation of electrical energy, but such laws may not
                                              authorize or provide for discrimination in prices or in supplies exported
                                              to another part of Canada.
                         Authority of
                         Parliament
                                              (3) Nothing in subsection (2) derogates from the authority of
                                              Parliament to enact laws in relation to the matters referred to in that
                                              subsection and, where such a law of Parliament and a law of a
                                              province conflict, the law of Parliament prevails to the extent of the
                                              conflict.
                         Taxation of
                         resources
                                              (4) In each province, the legislature may make laws in relation to the
                                              raising of money by any mode or system of taxation in respect of

                                                     (a)
                                                        non-renewable natural resources and forestry
                                                        resources in the province and the primary
                                                        production therefrom, and
                                                     (b)
                                                        sites and facilities in the province for the
                                                        generation of electrical energy and the production
                                                        therefrom,

                                              whether or not such production is exported in whole or in part from the
                                              province, but such laws may not authorize or provide for taxation that
                                              differentiates between production exported to another part of Canada
                                              and production not exported from the province.
                         "Primary
                         production"
                                              (5) The expression "primary production" has the meaning assigned by
                                              the Sixth Schedule.
                         Existing powers or
                         rights
                                              (6) Nothing in subsections (1) to (5) derogates from any powers or
                                              rights that a legislature or government of a province had immediately
                                              before the coming into force of this section.
 


Friends of the Oldman River Society v. Canada (Min of Transport) 1992

-Friends of Oldman River - an environmental group opposed to AB Gov’t’s plan to build a dam on the Oldman River west of Lethbridge (on Indian res) to store water for irrigation.  (Supported by folk singer Ian Tyson, who has a ranch in Southern Alberta.)
-AB gov’t did its own environmental assessment.
-Feds have regulatory authority under:
    -S. 91(10), “navigation & shipping”
    -S. 91(12), “sea coast & inland fisheries,” &
    -S. 91(24), “Indians, and lands reserved for Indians”
-Fed. Environmental Assessment & Review Process Guidelines Order requires fed. Dept’s of Transport & Fisheries to screen “undertakings” for env impact.  Only navigation impact reviewed; fed dept’s of Env & Fisheries didn’t do env assessment.
-1987:  fed Min of Transport approved
-1988:  project commenced
-1989:  Friends asked Fed Ct for orders of certiorari of fed approval, & mandamus.
-Friends lost in trial div
-Friends won in appeal div; fed approval order quashed
-appealed to SCC by fed gov’t
-SCC:  8-1 upheld order for cert & order to quash (but  here mandamus inappropriate)
-La Forest + 7:  Fed Guidelines Order requires fed gov’t to assess env impact of an undertaking under all relevant heads of fed power.  In this case, impact on fisheries and Indian lands was not reviewed.
-The Alberta crown is not immune; otherwise provinces could ignore fed jurisdiction
-“The environment” is not a separate head of power.  Both prov’s and fed’s can regulate aspects that fall within their own powers.  Fed Guidelines Order only pertains to fed powers -- 91(10), (12) & (24).
-The aspect of the Guidelines Order order which regulates fed agencies is intra vires either under 91(10), (12) & (24), or POGG.
-Fed powers can’t be used in a colourable fashion to interfere with prov powers.
-Legitimate use of Guidelines may impact prov powers as long as the pith and substance of the fed action takes place under 91(10), (12) or (24).
-The Friends acted as expeditiously as possible; the fed & prov gov’t’s caused unnecessary delays to their litigation.

Stevenson’s dissent:
-The provincial Crown is not bound by the fed legislation unless the fed legislation specifically mentions it; the Guidelines order does not.
-The Friends waited too long to challenge fed approval, and dam is already most built, so a challenge at this point is futile.
-In admin law, dec of motions judge to refuse injunction must be respected; appeal cts shouldn’t second guess

-So the Friends won, but then the feds conducted an environmental assessment as required by the Supreme Court, & eventually approved the dam anyway.  Was the litigation worth the cost to the environmental movement?  Some say yes, because this decision confirmed the importance of governments following their environmental legislation.  As well, the environmental movement gained a very high profile through the publicity this case generated.  Others would argue no -- the environmental movement would have been better off saving the enormous cost of litigation, and focusing on more effective lobbying of politicians at the federal and provincial level (and getting involved more in party politics themselves).  What do you think?
 

R. v. Hydro-Quebec (1997)

-Impugned:  Canadian Environmental Protection Act, SC 1988, ss 34-35, and regulations issued by Lucien Bouchard in 1989 (when he was still a federalist cabinet minister under Brian Mulroney).
-Hydro Quebec (HQ) was charged in 1990 with releasing PCBs contrary to Bouchard's regulations.  HQ claimed Act and regs ultra vires.  Claim:  reg's don’t fall under any heads in s. 91. HQ won at trial and Q Ap Ct.  Fed gov't granted leave to appeal to SCC in 1995.

-5-4 decision:  leg and regulations are intra vires.  (Hydro Quebec lost the appeal.)
-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 the application of the “double aspect” doctrine from the Local Prohibition case here?)

-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 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 impugned legislation is intra vires under 91(27), the majority wrote that it's not necessary to consider the POGG argument.

Dissent:  (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.
-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.
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, subject-matter does not fall under 91(2) either.

.

O’Hara v. British Columbia (1987)
-Impugned:  a prov cabinet order under the B.C. Inquiry Act appointing a prov commission to inquire into injuries sustained by a man while in custody at a police station.
-Issue:  does the inquiry invade federal jurisdiction over criminal law?
-Police officers thought it did, and petitioned B.C. Sup Ct to declare order ultra vires.  Police lost in BC Sup Ct, BC CA, and appealed to SCC.
-Dickson +7:    inquiry does not invade federal jurisdiction
-Inquiry’s purpose to “get to the bottom”of alleged police misconduct for disciplinary purposes.
-If inquiry had been to determine criminal liability, or to inquire into a federal institution, or had violated rights, it would be ultra vires.
-Estey (dissenting):   real purpose of inquiry is to identify wrongdoers preliminary to prosecution.  Therefore, order is ultra vires.
-This decision is a precedent for the Westray decision of 1995.
 


CN v. Courtois (1988)

-Impugned:  Quebec Occupational Health and Safety Act, as it applies to an investigation of an accident involving two CN trains.
-Issue:  Can a province investigate an industry under  federal jurisdiction, and make recommendations for changes to ensure safety?
-Quebec CA:  an investigation by a provincial body might be OK if recommendations not binding on fed. Undertakings.
-SCC (Beetz + 6, unanimous):  the real issue is whether the province has the constitutional authority to investigate a federal undertaking.  Provinces do not have this power.  The federal Occupational Health and Safety Act applies, not the provincial one.
-(summons duces tecum – a summons to attend with particular documents.  This is not an important point, but mentioned here in case you're confused when reading the case.)

AGT v. Canada (CRTC) (1989)

-Impugned:  authority of CRTC over Alberta Government Telephones (AGT)
-AGT (which later became privatized and is now Telus) was at the time a provincial crown corp, provincially regulated.  CNCP telecommunications wanted an order from CRTC in 1982 to facilitate interchange of communications.  AGT objected, claiming crown immunity.
-Questions:  a) is AGT an interprovincial undertaking under 92(10)(a)?  B) If so, is AGT subject to CRTC regulations?
-Dickson + 4:  AGT falls under federal jurisdiction under 92(10)(a).  Although AGT does not have services outside Alberta, its customers can all make long-distance calls, and so the services it sells are really interprovincial in nature.  AGT can claim crown immunity, but CRTC regulations can be changed to include it.
-This decision astounded many lawyers, according to Hogg.

Wilson (dissenting):  AGT cannot claim crown immunity.


Ontario Hydro v. Ontario (Labour Relations Board) (1993)

-A society of employees of Ont Hydro applied for certification to represent employees to Ont Lab Rels Bd; opposed by a coalition of employees.  Coalition argued that because nuclear power plants are federal undertakings under 92(10)(c), they must be certified under Canada Labour Code.  Ont LRB agreed.  Decision challenged by Society (supported by unions), and Ont Hydro.
-La Forest + 2, & Lamer (separate concurring):  an industry under 92(10)(c) is under federal jurisdiction for labour relations.
-Sopkina +2 (dissenting):  Parliament’s jurisdiction over a “declared” work extends only to what is integral to the federal interest in the work.  Parliament is interested in regulating nuclear power, not labour relations.  (La Forest, however, argues that the two subjects are intricately connected.)

Main Events surrounding Patriation controversy
Balfour declaration:  1926
Statute of Westminster:  1931
Quiet Revolution:  1960 +
Trudeau becomes PM, 1968
Victoria Charter:  1971
Senate reference:  1979
Quebec referendum:  1980
Negotiations re patriation & Charter, 1980-81
Unilateral attempt to patriate by Trudeau, 1981

Patriation reference, 1981
Agreement of Nov. 5, 1981 (Que not inc’d)
Canada Act signed, April 1982
Quebec veto ref, 1982
Meech Lake Acc, 1987-1990
Charlottetown Accord, 1992
Quebec referendum:  1995
Resolution on recognition of Quebec as a Distinct Society (1995)
Act respecting constitutional amendment, and resolution to recognize Quebec as a “distinct society.” (1996)
Calgary Declaration (1997)
Quebec secession reference (1998)
Social Union Framework Agreement (1999)
Clarity Act (2000)
                                                   Patriation reference (1981)
Would the proposed amendments affect provincial powers:  Yes (unanimous)
Is there a convention of provincial consultation?
Yes:  Martland, Ritchie, Dickson, Beetz, Chouinard & Lamer (substantial, not unanimous)
No:  Laskin, Estey & McIntyre:  No

Has the convention hardened into constitutional law?
No:  Laskin, Dickson, Beetz, Estey, McIntyre, Chouinard & Lamer
Yes:  Martland & Ritchie
                                                  Alan Cairns:  three equalities
Citizens
Provinces
Two nations

Debate over assymetrical federalism
Charter:  a constraint on federalism
Charter’s popularity in Quebec
                                                      Meech Lake Accord
Meech Lake Accord:
“distinct society” clause
“constitutionalize” immigration agreements
Provinces submit names for vacancies to SCC
Any province can opt out of a shared cost program in areas of prov. jurisdiction & receive compensation if the province operates a similar program that meets
“national standards.”

Compensation provided for any province opting out of any constitional amenendment under 7-50 formula that transfers prov powers to Ottawa.
Additions:
Senate reform:  prov’s nominate Senators to begin with
First ministers conf on economy annually
Annual constitutional conferences to discuss Senate reform, fisheries and other matters.
                                                     Charlottetown Accord
Everything in Meech Lake plus:
Canada Clause
Aboriginal rights strengthened, including right to negotiate self-government
Non-justiciable social charter
Measures to strengthen s. 121
Senate reform:  6 elected senators from each province, and 1 from each Territory, plus Aboriginal representation
SCC appointments:  feds can appoint if provinces don’t nominate.
Guarantee of 25% of seats in H of C for Quebec
Prov. authority in areas of prov. Jurisdiction strengthened.
Fed powers of disallowance and reservation repealed
Fed declaratory power limited; require prov. consent.

                                            Social Union Framework Agreement (1999)
All Canadians are equal
Needs must be met everywhere
Social programs should be adequate and sustainable
Promote mobility within Canada
Public accountability and transparency
Evaluate results of programs
Participative democracy
Funding predictability
Fed-prov consultation, not unilateral action
 

Québec Secession Reference (1998)
Stéphane Dion
Critical of “yes” side in 1995 referendum
Asked by PM to become Min of Intergovernmental Affairs in 1996 & contest by-election
Proponent of “Plan B:”  fed gov’t should be active in opposing Québec separatism.
 Guy Bertrand (a former sovereignist leader in Québec turned federalist)
 began a litigation process in which challenged the Québec government’s attempts to institute sovereignty on Charter of Rights grounds.
Québec government tried to block Bertrand’s challenge, so fed gov’t continued the litigation through the reference (part of “Plan B”)
Québec Secession Reference (2)
Argued in Feb, 1998
Québec gov’t wouldn’t participate, so SCC appointed André Joli-Cœur as amicus curiae.
Amicus argued that reference jurisdiction of SCC is ultra vires.
Can an appeal court be given original jurisdiction?  Yes.
Can an appeal court advise?  In Canada, yes (despite rule about no specific mention).
 

Justiciability:
Too theoretical?
Too political?
Not ripe?
Canada does not have as strict a separation of powers as U.S.
Advisory opinion different from a litigated case.
Québec Secession Reference (3)
Questions:
1. Under Can Const, can Québec secede unilaterally, without a constitutional amendment?
2.  Under Int law, can Québec secede unilaterally?
3.  If conflict between (1) and (2), which takes precedence?
Why did SCC write such a lengthy judgment?
1.  Can Québec secede unilaterally under constitution?
Arguments in favour based on democracy.
What is democracy?
Our democracy is based on shared values, and unilateral secession puts these at risk.  Thus, duty to negotiate.
Was SCC too activist, or not activist enough re “clear question” and “clear majority”?

Québec Secession Reference (4)
2.  Does international law give Québec the right to secede unilaterlally?
Amicus:  right to self-determination belongs to all “peoples.”
Do Québeckers constitute a “people”?
SCC:  not necessary to decide, because even if yes, the right only exists where a “people” is mistreated.

-right to secession only arises under international law where “a people” is governed as part of a colonial empire, “is subject to alien subjugation, domination or exploitation; and possibly where ‘a people’ is denied any meaningful exercise of its right to self-determination within the state of which it forms a part.”
Québec Secession Reference (5)
Spring of 2000:  Bill C-20:  “An Act to give effect to the requirement for clarity….”
Within 30 days of a prov legislature tabling a referendum question, Ho f C must declare whether question is “clear.”
If question considered “clear,” and a majority votes in favour, H of C must determine whether majority is “clear.”  Consider:
Size of majority
Proportion voting
Views of political parties
View of Senate
Québec Secession Reference (6)
After SCC decision:  PQ gov’t seemed to support decision.
Jacques-Yvan Morin (former Québec intergovernmental affairs minister):  SCC decision means feds can’t refuse to negotiate, but can put up many obstacles to Quebec secession.
Kenneth McRoberts:  The Trudeau strategy for Canadian unity has failed.
Hogg:
Québec can no longer claim that it can secede unilaterally.
The “duty to negotiate” secession in face of a “clear majority” vote in favour in a province is unprecedented in world history.
 

Gall – last chapter
 • New directions:
  – Is law the best way to implement a public policy?
  – If so, think about federalism issues in potential litigation.  What mechanisms are there for cooperation?
  – Technology
  • A tool for judges
  • Education for lawyers and judges
  • Electronic law library
 • Public image of legal profession
  – Public education
  – Legal accountability
  – Case management, ADR, mediation
  – Legal fees
  – Legal insurance
  – Continuing education (prof. Dev. LLM at Osgoode)
  – Alternative careers for lawyers
  – Law reform (Canada Law Commission)
 

                                               W.A. Bogart, Courts & Country, Ch 4

 • Do courts promote a fairer society, or act as a roadblock to advancement?
  – Federal administrative agencies (eg. CRTC, Hum Rts Comm):  640.
  – Ontario:  36 reg bodies (eg. Lab rels bd,WSIB – ½ million claims/yr), 44 licensing appeal tribunals, 8 compensation boards, 19 arbitration agencies, 95 advisory
boards.
 • Leg’s try to keep courts from supervising admin agencies too closely.  Why?
 • Should courts intervene in admin trib’s rarely, when there are clear issues of fairness?
 • Bogart:  courts may be good, at times, in signaling unfairness, but are not usually good at finding solutions.