canada's constitution and charter

Question 1

doctrine of precedent

Answer 1

• lower courts must apply decisions of higher courts in same jurisdiction (binding)
• unless can distinguish case from previous decision based of different facts - argue that it doesn’t apply
• all courts bound to decisions of SCC (except SCC)
• decisions of higher courts in other jurisdictions are persuasive but not binding

Question 2

constitution act 1982

Answer 2

• supreme law of canada
• precedence over any other law or decision
• number of acts

Question 3

part 1 of constitution: charter of rights and freedom related to environment

Answer 3

• s7: life, liberty, security of person - health in eyes of court
• s33: not withstanding clause: governments choose not to invoke, allows escape from charter

Question 4

to whom does constitution act 1982 apply?

Answer 4

• protects citizens rights, defending rights from government
• if a corporation has violated, cant do anything directly - must find policy that enables corporation to do things

Question 5

other parts of constitution

Answer 5

• s35: rights of indigenous people
• s38: amending constitution - federal gov + 2/3 of provinces who have at least 50% of population
  s52: primacy of constitution
  part VII: constitution includes acts referred to in attached schedule

Question 6

constitution act 1867

Answer 6

• division of powers
• parliament or provincial
• peace order and good government: emergency or issue of national concern
• pollution and environment: might need courts to decide, courts say it shouldnt just fall to one level of gov

Question 7

concurrent jurisdiction

Answer 7

• provincial and federal law over same matter
• intra vires = concurrent
• if both can be complied without violating the other - no problem, both are valid
• if cant comply with both: paramountcy principle (fed gov wins)

Question 8

why do appeal court decisions (like SCC) include dissenting opinions

Answer 8

• dissenting opinion: disagreement with majority
• might have case come along later and may want to draw on dissenting opinion
  justice system recognizes possibility of disagreement - not just 1 answer
• answer may change in future

Question 9

salmon farming - provincial regulations?

Answer 9

• happens within province
• localized ecosystems they would understand better
• agriculture is mostly provincial, but somewhat shared

Question 10

salmon farming - federal regulations?

Answer 10

• would be consistent across provinces

- federal government has control over fisheries

Question 11

salmon farming - why does it matter if its prov or fed?

Answer 11

• people concerned about impact
• province as lax as possible because of job creation
• environmentalists argue it should be federal

Question 12

morton v BC issue, facts, context

Answer 12

• issue: are BC laws regarding salmon ultra vires
• facts: salmon farms operating in coastal waters, regulated by province
• context: salmon farms properly regulated?

Question 13

applicant: morton

Answer 13

• went to ecojustice with constitutional argument
• pith and substance: province managing a federal ocean fishery
• federal government is abdicating its responsibility

Question 14

provinces argument (morton v BC)

Answer 14

• salmon farming is farming in water, not fishing

- if it is a fishery, then its in a private fishery, outside of federal jurisdiction

Question 15

BC supreme court: morton wins

Answer 15

• SCC determined its a fishery
• hinkson J: farmed fish are part of fishery or are a fishery - fall under fed jurisdiction
• legislation interferes with core of regulation of fisheries
• feds given a year to develop laws on salmon farming

Question 16

why didnt BC appeal decision

Answer 16

• not because they thought they would lose

- because of media - raised public interest about salmon farming

Question 17

implications of morton v BC for other provinces

Answer 17

• regulatory inconsistency across country

Question 18

another possible outcome for morton v BC

Answer 18

• prov does have control but must regulate better

Question 19

why did morton bring case forward

Answer 19

• concerned about impact of salmon farming

Question 20

old man river society (omrs) v canada - la forest

Answer 20

• one of first cases to recognize environment as topic in court
• protection of environment is a major challenge
• both feds and provs should have jurisdiction
• too complex to leave to 1 level of government

Question 21

omrs v canada facts

Answer 21

• alberta wants dam, omrs doesnt
• feds gave permission (navigable waters act); hands off, its a provincial issue
• omrs took feds to court
• omrs wants to quash approval under navigable waters act and force government to follow its own EA orders

Question 22

omrs v canada court

Answer 22

• initial trial decision: no
• friends appealed, court was unanimously in favour of friends
• feds appealed to SCC, many provinces and groups got involved so court took case even though dam was almost built
• SCC decided that feds must conduct EA on dam on aspect of fed responsibility

Question 23

la forest’s comeback

Answer 23

• previous case argued that it should be a shared responsibility but most judges didnt agree
• in this case they did agree, set precedent
• environment too big and complex to be assigned to 1 level
• EA must have a meaningful role in decision making

Question 24

trans mountain pipeline expansion battle: facts

Answer 24

• AB wants to pipe bitumen to coast
• BC doesnt want to increase flow of oil through province
• BC enacts legislation to regulate pipeline to protect land and water form environmental risk - need permit for bitument ot pass

Question 25

pipeline: BC court of appeal arguments and decision

Answer 25

• is this constitutional? within BC’s power?
• BC: feds can regulate, but because impacts are focused on BC, we have right to regulate
• BC court: issue of national importance, laws sya there shouldnt be concurrent jurisdiction, outside of BC’s jurisdiction