Case Questions

Question 1

Russell v. The Queen (1882)

Answer 1

Canada Temperance Act, 1878
-Framework for prohibition

Facts:
-Charles Russell convicted
of “selling intoxicating
liquors,” contra CTA.
-NB SC convicted Russell
on basis of SCC ruling on
similar case. 

JCPC Decision:
-Upheld NB SC, Act is intra
vires.

Reasoning:
-Prohibition does not fit under any provincial heading – 92(9), (13) or (16).
-must fall under
federal jurisdiction, under
POGG

Question 2

Reference re Resolution to Amend the Constitution (Patriation Reference, 1981)

Answer 2

FACTS:
-Provincial opposition to a October 1980 unilateral federal resolution
to ask the British Parliament to enact the Constitution Act, 1981.

3 Questions:
-Q1: Would the proposed amendments to the Canadian Constitution alter the federal-provincial relationship?
¾ Yes (unanimous)
-Q2: Is there a constitutional convention that the federal government consult the provinces before asking for
amendments that would affect the federal-provincial relationship.
¾ Yes – 6-3 majority
-Q3: Is agreement of the provinces a constitutional requirement for amendments that affect federal- provincial relationships?
¾ No – 7-2 majority

No legal requirement of provincial consultation, but there is a constitutional convention requiring a “substantial degree” of provincial consent.

-Conventional requirement because most previous amendments affecting provinces had provincial consent,

No legal requirement because no instance of a conventional crystallizing into a law – just used as aids to interpreting common law and statute law.

Result was a new constitutional conference, agreement of all provinces except Quebec.
™ Led to a new reference the Quebec Veto Reference, 1982
™ Quebec: Is amending the constitution without Quebec’s consent was “unconstitutional in the conventional sense”?
™ Failure to include Quebec resulted in a decade of “mega-constitutional politics

Question 3

Reference re Secession of Quebec (1998)

Answer 3

1) Under the Constitution of Canada, can the National
Assembly…of Quebec effect the secession of Quebec from Canada unilaterally?
-No.
-However – “A clear majority vote in Quebec on a clear
question in favour of secession would confer democratic legitimacy on the secession initiative which all of the other participants in Confederation would have to
recognize.

2) Does international law give the National Assembly…
of Quebec the right to effect the secession of Quebec
from Canada unilaterally?
-UN 1960 Resolution – “All peoples have the right to
self-determination.”
-SCC: Québec does not meet the criteria of a “colonial
people or an oppressed people,” and it has not been
denied the opportunity to pursue its own development

3) If domestic and international law conflict, which takes
precedence?

Question 4

R. v. Sparrow (1990)

Answer 4

FACTS:
-1980s – fed Fisheries Act allowed special licenses to
be granted to Aboriginal bands.
-License granted to the Musqueam band near Vancouver allows them to use drift nets no longer than 50 fathoms.

ISSUE:
◦ Do Fisheries Act restrictions on the length of drift nets violate the Musqueam band’s “existing” Aboriginal rights under s. 35?

SCC DECISION:
◦ 7-0 decision of “The Court” by and large in favour of Sparrow (but case sent back to trial).