Federalism & Allocation of Powers (1) Flashcards
Six forms of Interpretation of Constitution
Philipp Bobbitt, an American academic, came up with six forms of interpretation. They were then taken by a guy named Elliot, who is a Canadian scholar, and he says that we can use Bobbitt’s forms of interpretation to interpret our own constitution and understand what the judges are doing.
What are the six forms of interpretation?
Historical Principle of Interpretation: “Arguments that marshals the intent of the draftsman of the Constitution and the people who adopted the Constitution”
Textual Principle of Interpretation: “Arguments that are drawn from a consideration of the present sense of the words of the provision in question”
Doctrinal Principle of Interpretation: “Argument from previously decided cases”
Prudential Principle of Interpretation: “Arguments about costs and benefits”
Ethical Principle of Interpretation: “Constitutional argument whose force relies on a characterization of American institutions and the role within them of the American people”
Structural Principle of Interpretation: “Inferences from the existence of constitutional structures and the relationships which the Constitution ordains among these structures”
Edwards v Canada [1930]
The Living Tree Doctrine (Person’s Case)
This case was brought forward by a woman in 1929. A woman by the name of Edwards went in front of the Privy Council (we did not have our Supreme Court yet). Edwards went in front of the Privy Council and said that she understood that in 1867 women were not given the right to vote or any rights, but that it was time be given political rights. Edwards wanted the word “person” to be interpreted with regards to women being able to sit as senators in Parliament. She wanted the word “persons” to be interpreted to mean both men and women.
The Privy Council said: While constitutional stability and integrity is of the utmost importance, the Constitution “also planted in Canada a living tree capable of growth and expansion within its natural limits”.
Reference Re Same-Sex Marriage [2004]
The Living Tree Doctrine
We have Chief Supreme Court Justice, Beverly McLachlin:
“‘frozen concepts’ reasoning runs contrary to one of the most fundamental principles of Canadian constitutional interpretation, that our Constitution is a living tree which, by way of progressive interpretation, accommodates and addresses the realities of modern life.”
Roncarelli v Duplessis [1959]
(Rule of Law)
“fundamental postulate of our constitutional structure”.
Reference Re Secession of Quebec [1998]
(Rule of Law)
“At its most basic level, the rule of law vouches for the citizens and residents of the country a stable, predictable and ordered society in which to conduct their affairs. Provides a shield for individuals from arbitrary state actions.”
Reference Re Manitoba Language Rights [1995]
(Rule of Law)
This case gives you the features and the contours; it gives you certain elements of what you might expect to be the rule of law in Canadian Constitutional Law.
one law for all (public/government & private persons)
creation and maintenance of an actual order of positive laws.
ultimate sources in the legal rule.
The relationship between the state and the individual must be regulated by law.
Left door wide-open to pretty much everything under the sun being part of the rule of law, and judicial independence.
British Columbia v Imperial Tobacco Canada Ltd. [2005]
(Judicial Independence)
The second organizing principle on which they can decide cases, where they can decide on the basis of the Constitution, and the rule of law, is judicial independence.
The judiciary is not bound by any other branch of government, but further, if I am a judge I am immovable.
British Columbia v Christie
(Judicial Independence)
About a guy that said that the right to counsel should be a constitutional right. The court said no – you cannot have everything under the sun entered as a constitutional principle.
If you put the right to counsel as a constitutional right it would be very costly for the courts, because that means that every single person is entitled to it. Second, it creates problems.
“It is clear from a review of these principles the general access to legal services is not a currently recognized aspect of the rule of law.”
Federalism
Prof. Donald Smiley from the University of Toronto came up with a good definition of Federalism:
Legislative powers are distributed between a central and a regional government;
The powers of the central and regional governments are not subject to change by the other level of government; and
Individual citizens are subject to laws enacted by both the central and the regional government.
Russell v The Queen (1882)
(Pith and Substance)
This is a case back in the days where there was a prohibition… There was what we called the Temperance Act on liquor.
Technically, liquor would be falling under property and civil rights because liquor is something that you can own.
What happened was that the Temperance Act was actually a federal law. The federal level doesn’t have power over property and civil rights. So, there was a contention because it was actually prohibiting the sale of alcohol, and the problem was that Russel was found to be in violation of that Act. He claimed that it wasn’t a problem at all, however, because this has to do with property and civil rights, and because this was a federal act it was unconstitutional.
The court said that technically it looked like it was property and civil rights. However, if it is for the public good, and it concerns the public health, and it is for the greater good of the entire Dominion (entire country), the federal level has the power to legislate over it. Therefore, Russell was in violation of the Temperance Act.
POGG incidentally affecting property and civil rights:
“An evil which is assumed to exist throughout the Dominion”
“Pith and substance”of the law is public safety – law enacted for a valid purpose.
Most important, what the court said about it is that in pith and substance (the matter)… The essence of it is Public Safety. So, it looks like it is property because we are regulating alcohol, but the pith and substance – the matter, the essence of it – is actually public safety, and that can be enacted by the federal government.
Hodge v The Queen (1883) 9 AC 117
(Double Aspect Doctrine)
While Parliament could enact temperance legislation to deal with federal aspects of the problem, the provinces could enact legislation dealing with its local aspects.
“The Provincial legislation was confined in its operation to municipalities in the province of Ontario, and was entirely local in its character and operation.”
But what the court said is not that the provinces are not allowed to enact any laws on alcohol or with regards to public safety…
That is an act where the Province of Ontario is actually trying to enact a law that is in accordance with the Temperance Act – it is trying to enforce it again.
So, while it was dealing with a federal legislation, the province could enact the legislation within the local aspects.
Why? Before, we said it was a federal law, and it was not property law. But what the court is saying is that there is a double aspect, which is another fancy name they found for a doctrine.
So, the same purpose is public safety. So, the Temperance Act is for public safety, and the purpose of this is public safety… But this Ontario Act also has the same purpose – safety.
So, it is both levels of the government that are legislating, but it doesn’t matter because of the Double Aspect Doctrine. This is one coin with two sides.
Aspect Doctrine: Does Parliament or the Provinces have a sufficient interest in a particular social or economic problem such that they should be permitted to regulate it?
Yes, there is double aspect. So, there is the same legislation, but it has two different aspects.
The Privy Council subsequently backed away from it’s endorsement of the doctrine since it seemed to embroil the judges in a political decision-making – an overlap between the Federal and provincial governments.
R v Morgentaler [1993]
(Pith and Substance)
This was about a doctor in Nova Scotia that decided to perform abortions. However, at that point there is a regulation that said abortions needed to be performed in hospitals.
Why did abortion need to be performed in hospitals? Public health concerns, safety, etc. Those were some of the arguments.
Morgantaler said that the federal law did not apply to him and that it was unconstitutional because it dealt with health matters, which falls in provincial jurisdiction.
The Court applied the Pith and Substance Doctrine.
The Supreme Court’s Justice Sopinka applied the two step-analysis, and he looked at the matter/essence of the law, and he tried to find where it fit exactly, and what the matter of the law was — was it really dealing with health, or was it criminal law?
It was found to be under criminal law — “The analysis of pith and substance is not, however, restricted to the four corners of the legislation.”
It is not just looking at the legislation, it is understanding. The court “will look beyond the direct legal effects to inquire into the social or economic purposes which the statute was enacted to achieve”.
“Its background and the circumstances surrounding its enactment and, in appropriate cases, will consider evidence of second form of “effect”, the actual predicted practical effect of the legislation in operation.”
“In this case, the primary objective of the legislation was to prohibit abortions outside hospitals as socially undesirable conduct. This legislation involves the regulation of the place where an abortion may be obtained, not from the viewpoint of healthcare policy, but from the viewpoint of public wrongs or crime.”
The legislation is “colourable”.
So, this is about killing someone. We don’t want people performing an abortion on the streets, not because of a public policy that we believe abortion needs to be safe and sanitary, but because we don’t want to have random murders on the streets in Canada.
So, this analysis makes the legislation “colourable”.
It means that sometimes a piece of legislation is enacted for a particular purpose and with a particular purpose in mind, but it is coloured because the effect of it is sliding into the jurisdiction of another level of government. This is the case for health, where this was actually a criminal law
Remedies
Severance: partial invalidation of the law.
Reading Down: saving the law by giving it a narrower interpretation that would preclude unconstitutional applications.
Constitutional Exemption: the law remains in force, but it is declared inapplicable to individuals or groups whose Charter rights are infringed by its effect.
Temporary Suspension of the Declaration of Invalidity: suspend the effect of the declaration for a period of time in order to allow Parliament or the provincial legislator to fill the void.
Multiple Access v McCutcheon [1982]
(Double Aspect Doctrine)
This case is about securities law, but it is not only about securities law; that is just what the court is saying. So, basically it is about granting a civil remedy for insider trading (what Martha Stewart did).
The Courts says that there is a double aspect to the two laws. The federal legislation was actually with regards to the corporate law aspect of things — the federal power of it, which is fine, because the federal level has power over the incorporation of companies. The provincial law, although it was identical — it was about the securities law, and about properties and civil rights, because securities are not stocks, but the instruments around stocks and are property. The other aspect was about the incorporation.
So the courts said that although we have two pieces of legislation that are technically identical, they have different purposes, so they were allowed to both sustain and be enacted.
General Motors of Canada v City National Leasing [1989]
(Necessary Incidental/Ancillary Powers Doctrine)
This is where the Supreme Court… The challenge was brought against a particular provision in a statute as opposed to a statute as a whole. The Court said that you need to apply a three-step process to know whether or not you are going to sustain the particular provision or if it has to be read down:
Did the impugned provision encroach on the jurisdiction of the other order of government? Yes or no?
Was impugned provision contained within a valid regulatory scheme? If it is illegal, there is no point in going through those steps. So is it valid — yes or no?
Was the impugned provision necessary (or did it “fit”) the valid regulatory scheme?
It is possible that it may fail stage I, but may still be upheld because of stage II and III. this is because it was necessary for the scheme to be operated.
