Canadian Constitutional Administrative Law January 16 2008 Ian

Canadian Constitutional & Administrative Law January 16, 2008 Ian Greene

Schedule for tonight • Course administrative matters – Chapter One of The Charter of Rights • Questions from last week’s class (and terms not covered) • Additional important terms and concepts • Analysis of Constitution Act, 1867 & 1982 • Related concepts • Roncarelli v. Duplessis

Judicial decision-making • 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 (about half of trial lawyers) – judges limited by adversary system re control of caseflow • Role of courts: dispute resolution, prevent abuse of power, official const. philosophers, pawns in other peoples’ battles

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.

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

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 cleary 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 “highlights on the Canadian Constitution” under “supplemental materials” on 6100 web page on /igreene • • • You need to know the bolded parts of the web document for career purposes 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 in S. 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 Commerce 2 A. Unemployment insurance (added in 1940) 3. Unlimited taxing powers (direct and indirect) 14. Currency & coinage 15. Banking 24. Indians, and lands reserved for Indians 27. The Criminal Law

92. The provincial legislatures have exclusive power to make laws regarding the following: • 92 - 2. Direct taxation 10. 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. 92 A (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 judges cannot 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 Feb 5/08 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.

Canadian Constitutional Amendment • 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.

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 be amended with the agreement of seven provinces representing 50% of Canada's population and Parliament. (That is, either Ontario or Quebec must be included. ) Up to 3 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 be compensated 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 time limit 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: • a) proportionate representation of the provinces in the House of Commons b & c) the Senate d) the Supreme Court of Canada e) the extension of existing provinces north f) 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-Governors b) the "Senate floor rule" (no province can have fewer MPs than Senators). c) the use of English or French in S. 133 or the Charter d) the composition of the Supreme Court, and e) 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. & Canada: Comparison of Constitutional amendment process • • • 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

Amendment failures • 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.

Informal constitutional amendment • 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 1930 s and 1940 s • 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?

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 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)

Quebec and Civil Law Approach • Codification of laws Coutume de Paris (1580) Confusion after 1759 Royal Proclamation (1763) Quebec Act 1774 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

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

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

Rules of Statutory Interpretation (1) n n n 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 n Express inclusion of some items implies exclusion of items not mentioned n Aids: n – Interpretation statutes – Definition sections of statutes

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

Presumptions n n n 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 n For crown immunity (now n mostly replaced by statutes allowing suits against crown) Every word is deliberate n Specific given precedence over general n More recent > older n Leg. did not intend drafting error (cts can correct) n

Roncarelli v Duplessis [1959] SCR 121 • What was decided? – For Roncarelli: 6 judges • • Kerwin (Chief Justice; mostly agrees with Martland) Rand for himself & Judson Martland for himself and Locke Abbott (most junior judge) – For Duplessis: 3 judges (dissenting) • Taschereau (presented after Chief Justice because he’s the next most senior judge; became CJ in ‘ 63) • Cartwright (became CJ in ‘ 67) • Fauteux (became CJ in ’ 70)

Important points • Even the premier is not above the law; application of the common law to protect the rule of law. • Majority were “activist; ” minority were “restrained. ” Majority referred to Dicey. • How secure is the rule of law, given the approach of the minority? • Majority: – ‘there is no such thing as untrammelled “discretion”’ (p 10, Rand & Judson) – Discretion implies good faith; bad faith akin to fraud and corruption. Good faith is carrying out a statute according to its intent. • Note how long it took the case to get to the Supreme Court • Context of the times. (What dangers are there to the rule of law as a result of 9 -11? )

F. R. Scott, lawyer and poet, counsel for Roncarelli