International Public Law: Customs and Conventions\nThe Domestic Enactment of International Law\n([[Labour Conventions Reference (A.-G. Canada v. A.-G. Ontario) (1937)]])\nDominance of national law over international law, but interpretive effect of the latter on the former\nIn [[re Foreign Legations Case [1943]]] R.C.S. 208\nR. v. Milne [1987] 2 R.C.S. 512\nBaker v. Canada (Ministry of Citizenship and Immigration) [1999] 2 R.C.S. 817
Section 5: Parliamentary Privilege\nParliamentary Privilege and the Canadian Charter of Rights and Freedoms\n[[New Brunswick Broadcasting Co. v. Nova Scotia (1993)]]\n[[Chevrette’s Note on Parliamentary Privilege]]\n
A.-G. Que. v. Blaikie 1979 2 R.C.S. 1016\nF: PQ adopts [[La Charte de la Langue Française (1977)]] declaring French to be the only official language, notably before the courts. This provincial legislation conflicts with the Constitution (s.133 “language provisions” [[CA 1867|Constitution Act, 1867]]), which is also a part of Quebec’s provincial constitution. Blaikie requests the Charte be declared [[ultra vires]].\n\nQ: Can the province modify s.133 unilaterally, insofar as it concerns its own legislature and judiciary?\nD: NO.\n\nR: The provisions restricting the use of languages other than French violates s.133 [[CA 1867|Constitution Act, 1867]] which requires that English have official status in the courts and statutes.\nQuebec argues it has right to alter provincial constitution (then under s.92(1) [[CA 1867|Constitution Act, 1867]]; now s.45 [[CA 1982|Constitution Act, 1982]]) which includes language of legislature and judiciary.\n\nIn Appeal, QC CJ concludes that s.133 is an integral part of both federal and provincial constitutions because it was integral to the agreement of 1867 (to protect anglo minority in QC). Thus, it cannot be changed unilaterally, English and French must be used, and the law is ultra vires.\n\nC: The language requirement of s.133 extends even to those courts and administrative tribunals not provided for in s.96 (that is, those courts were the province creates the court and appoints the judges): the framers could not foresee tribunals, but they nevertheless fall under the same category of ‘justice’.\nIn terms of legislation, the ambit of s.133 extends to all laws and regulations. For political reasons, the judges excluded municipal laws from the language requirements of s.133.\n
The Act of Union passed in July 1840, abolished the legislatures of Lower Canada and Upper Canada and established a new political entity, the Province of Canada to replace them. This act affecting the political union of The Canadas was similar in nature and in goals to the other Acts of Union enacted by the British Parliament.\n\nThe act was inspired by the [[Durham Report]]. The union was also proposed to solve pressing financial issues in Upper Canada, which was mostly destitute thanks to mismanagement.\n\nIt was also hoped that by merging the rapidly growing anglophone Upper Canada with the slowly growing francophone Lower Canada the French cultural presence in North America would disappear gradually. Thus the act also contained measures banning the French language from official use in the Legislative Assembly.\n\nThe new, merged colony was named the Province of Canada, with Upper Canada known unofficially as Canada West and Lower Canada as Canada East. Canada West, with its 450,000 inhabitants, was represented by 42 seats in the Parliament's legislative assembly, the same number as the more-populated Canada East, with 650,000 inhabitants. The francophone majority as well as numerous anglophones considered this an injustice. In Lower Canada, Louis-Joseph Papineau demanded representation by population and the recall of the Union.\n\nIn 1848, following the example of Nova Scotia, the Canadian colony was granted responsible government and under the Baldwin-Lafontaine government many of the more-unfair restrictions were removed.\n\nBy the late 1850s, massive immigration from the British Isles to Canada West changed the previous demographic imbalance between the English and French sections of the colony. Many politicians in Canada West began to lobby for Rep-by-Pop as they no longer considered the equal representation mandated by the Act of Union to be just.\n\nIn the end, the Act of Union failed to shut down the Francophones' political influence, especially after responsible government was granted to the colony. By voting en bloc while the Anglophones of Canada West were highly factionalized, the Francophones of Canada East guaranteed a strong, unified French Canadian presence in the legislative assembly. However, their presence remained inferior to their demographic weight in the executive and legislative councils. The government of Lafontaine-Baldwin succeeded in repealing the measure against the French language in the Assembly, in the courts, and in the civil administration. With the double majority principle, West and East Canada were so to speak "reseparated" and for a short while, both sides were managed independently. Joint premierships shared by an Anglophone from Canada West and a Francophone from Canada East became the rule, but did not prevent continual legislative deadlock resulting from the conflicting aspirations of the two Canadas. Dissatisfaction resulting from this deadlock was the chief factor leading to Canadian [[Confederation]] in 1867
An administrative tribunal is a body created by legislation to fulfill specific adjudicative functions instead of courts. The number of administrative tribunals has greatly increased over the past 100 years, largely as a result of increasing social and economic regulation.\n\nHogg (7.3e) gives five reasons for creating administrative tribunals:\n1) Specialization – they can hire and develop individuals with experience and expertise;\n2) Innovation – they can help develop innovate policies and remedies;\n3) Initiative – they can investigate, do research, educate, formulate policy;\n4) Volume – they can deal with large caseloads of a similar type;\n5) Economy – they can be less formal, less time-consuming, and less expensive.\n\nThe line between administrative tribunals and courts is sometimes a thin one, and can lead to uncertainty regarding jurisdiction and powers of appeal. (see [[Alliance|Alliance des Professeurs Catholiques de Montréal v. Québec, (1953)]]).\n\n[[Privative Clauses]] may purport to extend the jurisdiction of an administrative tribunal so as so render its decision final.
F: Air Canada wants to recover for taxes it paid prior to 1974 under a law it argues is //ultra vires//. Prior to 1974, suing the Crown required permission of the Lieutenant Governor: Air Canada asks, but the A.G. recommends that the L.G. deny permission.\n\nQ: Can the government refuse to allow permission?\n\nD/R: No. The court issues a mandamus order requiring the A.G. to recommend that the L.-G. accept the petition.\n\nThe legislature still has the constitutional competence to fix conditions and limits to have a question heard before the court, but cannot make them impossible. The amount of time they can delay is a gray area: it would be acceptable to delay 30 days, probably not 2 years.\n\nNote:\nThe rule that one must advise the government before suing it is codified in [[art. 95 CPC]] in Quebec and arts.60-1 in the rules of the Supreme Court.
F: Alberta proposed a tax on banks that the banks contest.\n\nD:\nThe statute was //ultra vires// because it was in relation to banking (91.15) rather than taxation (92.2).\n\n\nThe Court also considered the //effect// of the law on the banks when coming to its decision.
Alliance des Professeurs Catholiques de Montréal v. Québec (Labour Relations Board), [1953] 2 R.C.S. 140\n\nF: Alliance calls a strike in violation of the Public Services Employees Disputes Act and the Board, without notifying the Alliance, cancels the appellant's certificate of representation. Alliance asked for a writ of prohibition and declaration of nullity. \n\nQ: Should the revocation of the certificate of representation be held null and of no effect?\n\nD: YES \n\nR: Two judges come to the same conclusion using different reasoning.\n\nRinfret J. rests his judgment on procedural faults: the decision was delivered before it was officially before the Board; Alliance was never informed of the motion nor given the chance to argue its case.\nThe Board’s discretion must be exercised according to legal principles the decision was contrary to the principles of justice, upon which the Board’s discretion is contingent. The arbitrary decision goes beyond the jurisdiction of the Board, and therefore is null.\n\nRand J. goes further: beyond procedural problems, the Board did not have the jurisdiction to revoke accreditation, because such a power would be inconsistent with the aims of the statute that created it (the proof is that, according to the strict rules for granting accreditation, the Alliance could have immediately reapplied and the Commission would be bound to re-grant them accreditation).\n\nNote: This judgment deals with [[Privative Clauses]], which act to increase the jurisdiction of administrative tribunals by denying recourse to courts (ex. “The decision of the minister is final and without appeal.”). However, given that administrative tribunals are created by legislation, this threatens the separation of powers. Consequently, the courts interpret such clauses rigorously so as not to exclude completely the competence of the courts. Rinfret does not judge the status of the clause, but reminds us such a clause could not be invoked to protect a decision made in the absence of jurisdiction.
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F: Amax challenges a law requiring it to pay taxes to the government of Saskatchewan, arguing the law is ultra vires. Amax nevertheless pays the taxes, unsuccessfully soliciting a guarantee that the taxes will be paid back should the law be declared ultra vires. The Crown argues immunity under s. 5.7 of the Crown Proceedings Act (CP Act), which prohibits actions against the state for the exercise of power given by statute, even if that statute surpassed the powers of the legislative body that created it.\n\nQ: Is the immunity afforded by s. 5.7 of the CP Act constitutionally invalid?\n\nD: YES.\n\nR: Permitting an authority to surpass its limits by claiming immunity, which in itself is based on a law that surpassed its powers, is the same as allowing the authority to surpass its own powers directly (see Justice Kerwin in BC Power v. BC Electric). Thus, s.5.7 CP Act is //ultra vires// insofar as it prevents repayment of money paid under a law that surpasses the competence of the legislature that passed it.\n
The [[Constitution Act, 1982]] established four legal formulas for amending the Constitution. Before this time, there was no domestic means to change the Constitution. Generally, Canada's [[Parliament]] would adopt a Resolution requesting that the [[Imperial Parliament]] adopt an amending law. This happened x times between 1867 and 1982.\n\nThe formulas are: \n\n1) Unanimous Formula\nThe first formula concerns matters at the ‘heart’ of Confederation (s.41, CA 1982):\na. Offices of the Queen, Governor General, and Lieutenant Governors\nb. Each province must have at least as many seats in HOC as it had in Senate in 1982\nc. Use of the French and English languages, except within a single province (s.133 Ca 1867)\nd. The “composition” of the Supreme Court of Canada\ne. Amendments to “this part”.\nUnder this formula, changes are done by federal Parliament, and the Legislative Assembly of each Province.\n\n 2) The [[Seven-Fifty Formula]]\nThe matters included are in s.42, CA 1982. The formula itself is set out in s.38, CA 1982.\na. Proportionate representation of the provinces in the House of Commons\nb. Powers of and methods of selecting Senators\nc. The number of Senators for each province and the residence qualifications\nd. The constitutional position of the Supreme Court of Canada (except its “composition”)\ne. Extending existing provinces into territories\nf. Creating new provinces\n\n3) Changes that affect one or more provinces, and that go beyond the Provincial Constitution (s.43 CA 1982)\na. Boundaries between provinces\nb. The use of French and English within the province (see [[Blaikie]], [[Manitoba Act 1870]], [[Reference on Language Rights in Manitoba]])\nChanges under this formula are done by[[Parliament]]and by the legislatures of the provinces affected.\n\n4) Federal [[Parliament]] only (s.44 CA 1982)\nChanges that affect only:\na. Executive government of Canada\nb. HOC\nc. Senate\nCan be changed by [[Parliament]] without consent of the Provinces.\n\nNote: Under any formula, amendments maybe be passed without the Senate after a period of 180 days has elapsed (s. 47).\n\nSources:\nEugene A. Forsey How Canadians Govern Themselves (6th ed.).\nConstitution Act 1982\n
F: As the unemployment rate and the inflation rate climb simultaneously, the Trudeau government passes legislation to attempt to control inflation.\n\nD: Four judges (Laskin, Judson, Spence and Dickson) say the law is valid as a measure of emergency.\nThree judges (Martland, Ritchie and Pigeon) come to the same conclusion but say they agree with Beetz and Grandpré (invalid as a measure of urgency in the name of the national dimension) on the rest. There is one majority on the result, and another on the reasons.\n\nLaskin’s logic: The judge’s evaluation of a situation of crisis is not completely separate from that of the legislator: the judge must apply a criteria of rationality between facts and legislation. To this end, the Court can take account of certain proofs if necessary, but otherwise there is a control of rationality. This allows respect ot eh goal of the power of urgency in the Constitution. But the Court evaluates most importantly the validity of the law, not the existence of an emergency.\nLaskin concludes there is a situation of emergency, although Parliament should have stated it explicitly. However, all emergency must be temporary, so the law is not valid for good, but only for the crisis (distinguishes emergency power from permanent ‘national concern’). Laskin doesn’t go there because the law is valid under emergency powers.\n\nBeetz imposes a formal requirement: must express explicitly the intention to use emergency powers (this is apparently not recognized by Ritchie, Martland and Pigeon).\n\n[incomplete]
Latin: a principle of natural justice which prohibits a judicial decision which impacts upon individual rights without giving all parties in the dispute a right to be heard. [[Habeas corpus]] was an early expression of the audi alteram partem principle. In more recent years, it has been extended to include the right to receive notice of a hearing and to be given an opportunity to be represented or heard.
S: Although it would be possible to obey both prov and fed laws, Courts rule bank not obliged to obey prov law because inconsistent with fed law.\n\nF: A farmer borrows money from the bank, giving surety on his equipment. Federal law creates a particular surety allowing bank to recover without giving the loaner a last chance to repay. Provincial law gives a last chance beyond the contract and forces the bank to send a notice and give another deadline before seizing assets.\n\nD/R: If we apply the Ross/Multiple Access criteria: no conflict, because nothing requires the bank to seize. However, this case is incompatible with previous jurisprudence (even though Laforest pretends to use the rule in Multiple Access). Here, the court interprets federal intention by looking for a ‘real conflict of application’, not the dual compliance test!!\n\nThe SCC suggests that it is a question of permission. They answer the question in Ross: the Parliament can in fact express its intention to occupy the field, as long as it’s clear. The SCC seems to slide towards an analysis of objective character (completely invented), while the precedent jurisprudence analysed only the application and not the intention.\n\nThe advantage of dual compliance is that it is more objective in its application, while the test of intention is much more subjective, and the result consequently less predictable.\n\nAnother problem is that dual compliance was created at the same time as the pith and substance doctrine which opens the possibility of large areas of competing competence. There is therefore an impact of the distribution of powers: the federal government could occupy a lot more space, and consequently more provincial laws would be inoperant.\n
F: The Bank of Toronto contests a provincial tax.\nQ: Is the tax invalid because:\n(1) it is not “direct” and does not fall within s.92(2) (because it will be passed on to the consumer);\n(2) the provinces could abuse their taxation power, “crush the banks out of existence” and thus impinge on the federal power to create banks under s.91(15), or the federal power to regulate trade and commerce in s.91(2), or the federal power of general taxation in s.91(3)?\nD/R:\n(1) From Mill’s definition, a direct tax “is demanded from the very persons who it is intended or desired should pay it”, while indirect taxes “are demanded from on person in the expectation and intention that he shall indemnify himself at the expense of another” (ie. customs). [CP 138¶8]\nThe Lords hold that the tax was intended to be charged to the bank, even if it finds a way to pass it on to the consumers (this goes to the unclear distinction between direct and indirect).\n(2) There is a presumption of non-abuse on the part of the provincial legislator: “People who are trusted with the great power of making laws for property and civil rights may well be trusted to levy taxes.” [CP 139¶15]\n“Regulation of trade and commerce” could not have intended to be so broad, or the legislator would not have enumerated other federal powers which would have fallen under it.\nThe judges also make reference to the plenary character of the distribution of powers [CP 140¶17]\nC: In practice, the “direct/indirect” distinction has virtually disappeared (provincial sales taxes rest on the fiction that the stores, and not consumers, are being taxed).
S: Decided that minimum wage for federal undertakings should not be subject to provincial wage laws.\n\nThis seems to be contradiction to [[Montcalm Construction Inc. v. Minimum Wage Commission (1979)]].
Bill of Rights (1689): List of rights against the monarchy. It establishes the sovereignty of the law, and thus the sovereignty of Parliament. Interdiction de “cruel and unusual punishment”. Idea free speech, free elections, free Parl procedures not to be controlled outside of Parliament. [see [[Re Resolution to Amend the Constitution (1981 SCC)]], [[New Brunswick Broadcasting Co. v. Nova Scotia (1993)]]. \n\nThe Canadian Bill of Rights was passed in [[1960]] as an ordinary Parliamentary statute and therefore did not apply to the provinces. It was superceded by the [[Charter]] in [[1982]] but the two provisions not duplicated: the Bill’s due process clause [[S. 1(a)]] and its guarantee of fair hearing for the determination of rights and obligations [[S. 2(e)]], continue as operative restraints on federal activity.
This case is the practical application of the [[Re Manitoba Language Rights (1985)]] reference.\n\nF: Bilodeau is charged under the Highway Traffic Act and given a summary conviction under the Summary Convictions Act. He disputes on the grounds that both laws are ultra vires, having been written and published in English only.\n\nQ: (1) Are the laws invalid? (2) Can a conviction based on invalid laws be upheld?\n\nR: Yes, the laws are invalid. However, they are declared de facto valid for the time to translate and pass them in both languages. The rule of law thus upholds the conviction even if the laws it is based on are invalid. Wilson J., dissenting, argues that the summary conviction itself should have been bilingual, and is thus invalid.\n
A reference in the exportation of Common Law, Blackstone distinguishes [[« desert and uncultivated » (or settled) colonies|settled colonies]] and [[colonies won by conquest or treaty|conquered colonies]]. In the latter, laws in place stay in place until the King changes them, except those against the « Law of God ».
F: The Crown passes statutes authorizing expropriation of a company. The company contests the constitutional validity of the law, and the Crown admits the Court has the jurisdiction to review the constitutional validity of the statutes. However, the Crown denies the Court has jurisdiction to sequester the company’s assets while the validity of the statute is decided, on the basis that normally the Crown’s property cannot be sequestered.\n\nD/R: Whether or not the company’s assets are the property of the Crown depends on the judgment: to respect the principle (that Crown property not sequestered) would be to pre-judge the dispute.\nThe Court rules that it has the same jurisdiction “to preserve assets whose title is dependent on the validity of the legislation as it has to determine the validity of the legislation itself.” Thus, the court has jurisdiction to hold the assets while it decides to whom they belong.\nThe Crown cannot do indirectly what it cannot do directly.\n
F: Grenada, 1774 – (1) The King of England issues a proclamation granting a legislative assembly to the colony of Grenada. (2) Later, the King issues a proclamation purporting to impose a tax on the residents of the colony.\n• Tax collector (Hall) collected a tax from Campbell in July 1764.\n• Campbell claims that the tax was taken illegally as the king no longer had the prerogative power once an assembly was called.\n\nQ: Does the granting of a legislature eliminate the King’s prerogative to impose a tax? Yes.\n\nD/R: The King has power to legislate over [[conquered colonies]] (subordinate to his own power within Parliament). However, this power ends when he grants a colony a legislative assembly. Had the facts (1) and (2) been issued in the reverse order, the tax would have been valid.\n\nNote: This is also applicable to Quebec, because they share the [[Royal Proclamation, 1763]] as their constitution.\n\nSee also [[Reception of European Law]].\n\nResulting Principles:\n\na. A country conquered is subject to the legislature (parliament of Britain). If the king has legislative power in a colony does not mean that the parliament does not (Parliament is paramount).\nb. Article of capitulation are sacred (here Mansfield makes this a legal principle).\nc. Law of legislative government of all dominion equally affects all person and all property within the limits.\nd. The laws of the conquered country continue in force until they are altered.\ne. If the king acting alone, then he is subordinate to his own power in parliament. The king cannot exempt an inhabitant from a particular dominion. \nf. King lost his power to legislate in this conquered colony from the Royal Proclamation which promised the coming of an assembly.
The last imperial statute to affect Canada was the [[Canada Act, 1982]], which included the [[Constitution Act, 1982]] as Schedule B. It repealed the [[Statute of Westminster, 1931]], replacing its protection of the [[British North America Act|Constitution Act, 1867]] with S. 52(1) which declares any law inconsistent with the Constitution of Canada (which includes the renamed BNA Act, the [[Constitution Act, 1867]] and its amendments) “of no force and effect.” The Canada Act also provided domestic procedures for the amendment of all parts of the Constitution of Canada eliminating any necessity to rely on Westminster (as previously entrenched in the BNA Act).\n\nAfter 1895, Constitutional amendments were requested by a “joint address” of the Canadian House of Commons and Senate and were then passed by the UK Parliament. The unanimous consent of the provinces had been obtained for all amendments directly affecting their powers but no practice had been established for the majority of constitutional amendments. When Trudeau proposed [[patriating|patriation]] the Constitution, potentially without unanimous provincial consent, three provinces appealed.
Re Canada Assistance Plan (1991) was a constitutional challenge to a bill placing a limit on the growth of CAP transfer payments to Alberta, BC and Ontario. The CAP was a federal statute authorizing cost-sharing agreements with the provinces for certain social assistance and welfare programs under which the federal government entered into agreements which could be amended only with the consent of the province. The provinces argued the bill was a unilateral amendment of the three agreements. The SCC held that, following the principle of parliamentary sovereignty, Parliament could amend the CAP however it pleased because the requirement for provincial consent was not a manner and form requirement and was thus not binding on itself and it clarified that it would require a very clear indication in a non-constitutional statute before finding “an intention of the legislative body to bind itself in the future.” The Court also rejected an argument that a doctrine of “legitimate expectations” constrained the federal government from introducing bills to Parliament that would defeat the legitimate expectations of provinces (the Executive can’t introduce a bill to Parliament counter to an agreement into which it entered), describing “a restraint on the Executive in the introduction of legislation” as “a fetter on the sovereignty of Parliament itself” (because the Executive would thus be binding future Parliaments through these agreements).
In classic Canadian style, the Canadian constitution is a compromise between the American and British styles. The [[Constitution Act, 1867]] (CA 1867 hereafter: it was called the BNA Act 1867 until 1982) created a federal constitutional union of four colonies. The union featured a federal Parliament charged with certain responsibilities of federal interest, leaving all others of “a local of Private nature” to the existing colonies (which would become provinces in the new federal union). CA 1867 is a law of British Parliament that plays several roles, one of which is Imperial Parliament.\n\nCA 1867 is, in substance, a formal constitution. Three years after its passage, courts began to declare other laws “unconstitutional”.\n\nThe [[Constitution Act, 1982]] recognized this state of affairs more formally, (Cf. art. 52, CA 1982) but there is no exhaustive definition of Canada’s Constitution. Among the texts mentioned by 2b, there are numerous texts that were not entrenched, and thus could be easily modified by legislatures. Furthermore, the text is not complete, because certain principles were not written. \nExamples:\n• principle of judiciary independence: though implicit in certain provisions of the CA, this principle is not considered to come from common law, but from interpretation of the constitution. Filtre de la jurisprudence constitutionnelle de la CSC qui édicte certains principes.\n• Prime Minister: Another example is the Prime Minister, who is absent from the Constitution in any formal way. The appointment of the PM, the resignation in case of lost election, and the other rules governing the PM are all political (not legal) conventions.\n\nMore and more framework laws delegated regulatory or administrative powers to specialized organisms.
S: Sets out the criteria a public-interest group must meet in order to be allowed to mount a constitutional challenge in court.\n\nF: Prior to this case standing for public-interest litigants was governed by the "[[Borowski test|Minister of Justice v. Borowski]]," which was given broad application. The Canadian Council of Churches sought a judicial declaration that recent amendments to the Immigration Act, 1976 on the determination process of evaluating whether a refugee came within the definition of Convention Refugee were unconstitutional, and therefore of no force or effect. The Attorney General of Canada moved to strike out the claim on the basis that the Council did not have standing to bring the action. \n\nQ: Does the Council have standing to challenge the validity of the amendments?\n\nD: No.\n\nR: The Court acknowledged the need for public-interest standing in principle, to ensure that government is not immunized from constitutional challenges to legislation but also stressed the need to strike a balance between ensuring access to the courts and preserving judicial resources. \n\nThe current test for standing, as summarized in this decision, considers three factors:\n 1. is there a serious issue raised as to the invalidity of legislation in question?\n 2. has it been established that the plaintiff is directly affected by the legislation or, if not, does the plaintiff have a genuine interest in its validity?\n 3. is there another reasonable and effective way to bring the issue before the Court?\n\nThe case satisfied 1 and 2 but failed on 3, the most onerous factor. Since a refugee would have standing to challenge the law, there would clearly be a reasonable and effective way to bring the issue to the Court. The Court dismissed the argument that refugees did not have effective access to the courts to bring a claim. The Court further dismissed the claim that the potential imposition of a removal order would bar them from challenging it, as the Federal Court could grant an injunction to prevent deportation.
These represent negotiations between the French gouverneur Vaudreuil and the English General Amherst.\n\nVaudreuil asked that the French be permitted to follow the Coutume de Paris, and that they not be obliged to take arms against France.\n\nAmherst's ambiguous answer - "They become subjects of the King" - contributes to the uncertainty about the law that existed in Quebec from 1760 until the [[Royal Proclamation, 1763]].
F: A Quebec law created the Quebec Agricultural Marketing board, which regulated the sale of raw milk by farmers to the Carnation Company which processed the milk. Under this plan, Carnation had to pay higher prices for its milk than would have been payable in a free market, and indeed higher prices than other processors purchasing from farmers in the same area. Carnation shipped the bulk of its product out of the province.\n\nQ: Was the law //ultra vires// because it affected inter-provincial trade?\n\nD/R: No. The marketing law was "in relation to" trade within the province, and that it merely "affected" interprovincial trade, and is thus //intra vires// of the province.\n\nA law that has effects outside the authority of the legislative body is not in and of itself //ultra vires//: the effects and the object will factor into the analysis of the [[pith and substance]].
F: Facts/ Faits\nQ: Questions\nD: Decision\nR: Reasoning/ Raisonnement\nC: Comments/ Commentaires
F: The War Measures Act delegates legislative authority to the Governor in Council to make regulations in time of war (vertical delegation).\nIn turn, the Gov in Council makes regulations (Regulations in Relation to Chemicals) that delegate authority for controlling munitions and supply to the Minister of Munitions and Supply.\nQ: Does the Governor in Council have the authority to delegate such powers?\nCited: War Measures Act; Gray\nD: YES.\nR: \nThe WMA confers broad powers upon the Governor in Council, which transferred virtually the whole legislative authority of the Parliament to the federal cabinet for the duration of the war. In re Gray, 1918, this sweeping delegation was held to be valid, although the judges each mentioned that the power of delegation was not absolute, and that “abdication”, “abandonment”, or “surrender” of Parl power would be invalid.\nTheoretically, G in C could modify Parliamentary procedures, which means the delegation is actually close to total abdication (*** good exam question). \n[14.1(d) Hogg].\n\nThe law does not explicitly preclude the delegation (para 19). However, since the legislative power of the G in C is itself delegated, one might invoke the maxim that delegated powers cannot be delegated (non potestas deleges).\nThe Court rules that G in C exercises primary legislative powers, so delegation is the primary delegation: in consequence, the delegated body has the same powers as Parliament.\n\nIn this case, Parliament did not abdicate its powers: it retains responsibility for the actions of the executive, and also the power to discontinue subordinate instruments delegated by the Governor in Council (para 48). The authority of the G in C is as full as that of Parliament, within prescribed limits (para 49).\n\nIn conclusion, there are no real constitutional limits to vertical delegation of powers: only limited in that abdication not a possibility.\n\n[looked at current WMA – in some circumstances fed legislation can take priority over provincial. ex. FLQ]\n\nC:\nAmerican context: courts forbid legislative body to delegate undefined authority to the executive: they must be clearly defined by the law. This can be evaluated by the “intelligible standard” (which is so large that essentially must only express legislative objective).\nWhitman (2001): One judge questioned “intelligible standard”: insufficient to protect separation of powers. We will probably see a tightening of criteria where leg. can delegate to exec.\n\nBack to Canada: Gray & Chemicals allow us to imagine more restrictive limits: would the court react the same in peacetime? Answer given in [[Re: Law of 1968-9 (Breathalyser Case)|Law of 1968-69 Reference]].\n\n(KW: re: chemicals)
Important case for interpreting ss. 91 and 92.\n\nParsons established the rule that ss. 91 and 92 cannot be interpreted independently of one another. S.91 comprises a general/residuary power of the federal government (POGG) with specific enumerated examples. However, the scope of “property and civil rights” in s.92 is almost as broad.\n\nParsons gives one way of approaching the question of distribution of powers. (see handout). The theory of double aspect allows a law to fit into more than one category. In this case, must ask the question of pith and substance which will determine whether the law is intra or ultra vires.\n\nParsons is also crucial for balancing 91(2) [trade and commerce] and 92(13) [property and civil rights], a balance that hasn’t changed since. Had Parsons interpreted 91(2) more broadly, the Canadian federation would have been much more centralised. The CP concluded that “trade and commerce” should not be interpreted as “general trade and commerce”. Also, logically, if 91(2) was so broad, then 91(15,17,18,19,21) would be completely useless.\n\nThe interpretation of “trade and commerce” was never clear, and gave rise to controversy until [[General Motors of Canada Ltd c. City National Leasing (1989)]].\n
The purpose of the Act was to remove any apparent inconsistency between local (colonial) and British ("imperial") legislation. Thus it confirmed that colonial legislation (provided it had been passed in the proper manner) was to have full effect within the colony, limited only to the extent that it was in contradiction with ("repugnant to") any Act of Parliament that had been applied to the colony. This had the effect of strengthening the position of colonial legislatures, while at the same time restating their ultimate subordination to the Westminster Parliament.\n\nBy the mid-1920s it was accepted by the British government that the dominions would have full legislative autonomy. This was given legislative effect in 1931 by the [[Statute of Westminster, 1931]], which repealed the application of the Colonial Laws Validity Act to the dominions.\n\no Colonial laws are void if repugnant to imperial laws, but not if they are repugnant to a received statute or the Royal Prerogative. \no In BNA act, S.129 is subject to the restrictions of this act. \no Provides the legislature with the power to change any law except for imperial statutes. \no Defines what is a colonial law – must state that it is applicable to the colony.\no Introduces judicial review → what to do if domestic law inconsistent with an imperial act. \n\nThis law clarifies the hierarchy of norms in the colonies : imperial laws (when they apply – art. 1) have precedence over all colonial laws (art. 2). [[CA 1867|Constitution Act, 1867]] is therefore superior to ordinary laws, as is the case for the American Constitution. (Rigid model)
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Confederation was negotiated at the [[Charlottetown (1854)]], [[Quebec City (1864)]] and London conferences and was given effect at the latter by the [[British North America Act|Constitution Act, 1867]], (1867). It established: \na) the Dominion of Canada made up of the now united provinces of Canada, Nova Scotia and New Brunswick \nb) representation by population within the lower house of the national, bi-cameral Parliament (the House of Commons) and representation by region in its upper house (the Senate);\nc) Parliament’s authority over commerce, transportation and communication, banking, taxation, criminal law and marriage and divorce.\nd) separate provincial legislatures with authority over education, culture, municipal institutions and private law;\ne) a common market connected by rail; \nf) a military powerful enough to resist the U.S. Union army.\nYet S. 129 of the BNA Act dictated that the provinces varied legal systems would remain the same and could be modified by either the federal or provincial government. \n\nS. 146 stated that B.C., P.E.I. and Newfoundland could be admitted to Canada by imperial order in council at the request of the Colony. In 1870, the Northwestern Territory and Rupert’s Land were admitted by imperial order at the request of the Parliament of Canada and re-divided into the Northwest Territories, entirely subject to the federal Parliament, and the province of Manitoba. In 1898, the Yukon was carved out of the Northwest Territories as were Alberta and Saskatchewan in 1905. The constitutions of these last three provinces are thus federal statutes and the reception date for all was set as 1870. B.C. was admitted in 1871, its reception date having been set as 1858 by its legislature while P.E.I. was admitted in 1873 with N.S.’s reception date of 1758 and Newfoundland was admitted in 1949 with a reception date of 1832.
The Constitutional Act of 1791 was an Act of the Parliament of Great Britain which changed the government of the province of Quebec to accommodate the many English-speaking settlers, known as the United Empire Loyalists, who had arrived from the United States following the American Revolution. Quebec was divided in two when the act took effect on December 26, 1791. The western half became Upper Canada (now southern Ontario) and the eastern half Lower Canada (now southern Quebec). \n\nUpper Canada received English law and institutions, while Lower Canada retained French law and institutions, including seigneurial land tenure, and privileges accorded to the Roman Catholic church. \n\nRepresentative governments were established in both colonies with the creation of a legislative assembly; Quebec had not previously had representative government. Along with each assembly there was also an appointed upper house, the Legislative Council, created for wealthy landowners; within the Legislative Council was the Executive Council, acting as a cabinet for the governor. \n\nThe Constitutional Act also tried to create an established church by creating clergy reserves. grants of land reserved for the support of the Protestant clergy. \n\nThe act was problematic for both English speakers and French speakers; the French Canadians felt they might be overshadowed by English settlement and increased rights for Protestants, while the new English-speaking settlers felt the French Canadians still had too much power. However, both groups preferred the act and the institutions it created to the [[Quebec Act, 1774]] which it replaced.\n\nThe act is often seen as a watershed in the development of French Canadian nationalism as it provided for a province (Lower Canada) that was seen by les Canadiens to be their own, separate from the Anglo Upper Canada. The disconnect between this French Canadian ideal of Lower Canada as a distinct, national homeland and the reality of the continued Anglo political and economic dominance of the province after 1791 led to discontent and a desire for reform among various segments of the Canadien populace. The French Canadian frustration at the nature of Lower Canadian political and economic life in "their" province eventually helped fuel the Lower Canada Rebellion of 1837-38.
The Constitution Act, 1867 (formerly called the British North America Act, 1867, and still known informally as the BNA Act), constitutes a major part of Canada's constitution. The Act entails the original creation of a federal dominion and defines much of the operation of the Government of Canada, including its federal structure, the House of Commons, the Senate, the justice system, and the taxation system. It received its current name in 1982, with the patriation of the constitution (having originally been enacted by the British Parliament). Amendments were also made at this time: section 92A was added, giving provinces greater control over non-renewable natural resources.\n\n\nSummary:\n\nDid not actually create an independent country.\nS.6 – Refers to Upper / Lower Canada – not E / W\nS.13 – Closest reference to PM \nS.55 – GG may affirm or withhold assent for an act. \nS.91/92 – division of powers\n101 – right to set up the SCC – only done in 1875\n129 – All laws shall continue to be in effect as if nothing happened. Unless they were inconsistent with the constitution.\n132 – The power of treaty making is still with the UK, this power is recognized in the Westminster treaty of 1931.\n133- official languages. Both English and French are considered official languages in Canada. All official records will be in both languages. \n146 – provision for the introduction of new provinces into Canada. Gives UK permission to add certain colonies into the dominion of Canada. \n\nDetails:\n\nThe new constitution of 1864-67 is quite different from the formal and grandiose American model : « We, the people… » The CA 1867 is more in the British tradition, in that it keeps the large part of British customs (see preamble to CA 1867, often cited in jurisprudence).\n\nConvention of the Prime Minister:\nHas its origins in a letter from GG Monk to MacDonald (24/5/1867): suggests only one PM instead of two. The conventional practice of duality finished after Monk’s letter. The letter also established the responsibility of the PM for the nomination of other ministers, and that the PM should be the person who is most able to control the House of Commons.\n\nSeparation of powers:\nExecutive power to the Queen (art. 9). \nNew bicameral legislature for all of Canada (art. 17). HoC and Senate after UK model, with some exceptions. Independence of the Senate (long-term) from the elected MPs (short-medium term).Senate: regional, HoC: rep. by pop. (“no taxation w.out representation”)\nFederal system distribution of powers in art. 91 & 92; Provincial constitutions (art. 58 & following); Public property remains in control of provinces (s.117); inter-provincial free trade (s.121).\nRoyal Assent arts. 56 &57 (disappeared in conventional sense in 1947); Law in place remains until changed by competent authority (s. 129). This means a provincial law adopted in Quebec in 1785 and not subsequently modified stays in effect. However, to change it, it would now be Canadian Parliament’s competence (under s.91).\nDistribution of powers in era where whole domains didn’t exist: in practice, courts often decide what goes where. Taxation powers not always proportionate to responsibilities (ex. health, education). Much of federal practice exists outside of law.\nPossibility of adding new territory (preamble, s.146), could be done by decree with the same force as an Imperial Law (constitutional value).\nProvision for laws of common law provinces (ON, NB, NS) in property and civil law to be uniform (s.94).\nSuperior Courts (s.96); independence of the judiciary (s.129).\nLimited institutional bilingualism in QC (s.133). Laws must be published in En & Fr and citizens could address the courts in the language of their choice (but the judge wouldn’t necessarily understand).\nSome laws could be deconstitutionalized by being modified by other laws: ex. s.35: “Until the Parliament of Canada otherwise provides…”. While the Constitution Act had to include details (the Imperial Parliament would lose some powers with the creation of the Dominion) it nevertheless left many open to modification.\n
• Established that Fed. Parl. could establish new provinces from its territories (s.2) and with permission of province, modify provincial borders (s.3).\n• Federal gov’t assures “peace, order, and good government” in the territories (s.4).\n• Retroactively entrenches Manitoba Act, 1870 and act regarding government of NWT (ss.5,6)
The Constitution Act, 1982 adopted domestic amending procedures (S. 38-49) and a Charter of Rights (S. 1-34); recognized aboriginal rights (S. 35) and guaranteed equality (S. 36); extended provincial powers over natural resources (ss. 50-51) and entrenched the Constitution (S. 52); it failed to better accommodate Quebec within the federation. \n\nRepatriation essentially accomplished two things:\n1) Canadian Charter of Rights and Freedoms (s.1-34)\n2) Amendment formulas for the Constitution\nProblem: No way of modifying Canada’s Constitution domestically. Trudeau decides to, but only ON & NB agree at first. Between 1931 & 1982 modifications were done by joint resolution of the HoC and Senate with the agreement of provinces concerned. Three provinces sent references to their s.96 courts to determine validity of a resolution, brought to SCC.\nAdopted by Canada Act, 1982 (UK) by request of two Houses. Constitutional Act, 1982 is annexed. UK gives up all authority. (Except: by principle of continuous Parliamentary Sovereignty, UK can repeal any law, so in theory could repeal Canada Act. However, SCC could decide to ignore.\n\n\ns.1: Inspired by European Convention on Human Rights. Legislation passed within “free and democratic society”.\ns.32: application to federal Parliament and provincial legislatures.\ns.33 “notwithstanding clause”, a compromise to break the “gang of 8”. Whether this clause could be used to cover all laws passed by a provincial legislature is debatable: in practice, the clause is so sacred that its use is politically dangerous. Also, any use of the clause must be renewed after 5 years, so there is guaranteed to be an election in that time.\n\ns.52: established Constitution as supreme law, gives non-exhaustive list of documents. But some dispositions not given entrenched status.\nOthers: s.38: Amending procedures; s.40: provincial “opting out”; s.41 provincial unanimity required for several changes; [s.41 mentions “composition of the Supreme Court” – does this entrench SCC?\ns.146 – how provinces should be admitted – some from act of Canadian Parliament, others from an order of Council in London.
\nSCC said human rights legislation takes precedence over inconsistent later statutes even without a primacy clause. Because HR legislation is “of a special nature and declares public policy regarding matters of general concern,” it may not be repealed or amended “save by clear legislative pronouncement.” \nHogg doesn’t like it: Doctrine of implied repeal: where two statutes are inconsistent the later is deemed to have impliedly repealed the former. \nDespite changes which might have taken place during 1980 consolidation, the law is seen as existing/ in force since it was originally enacted in 1974.
The Declaratory Theory of Common Law said that judges didn't 'create' the principles of common law, but that these principles always existed, and judges merely 'found' them.\n\nThis is relevant to the reception of law: if you believe that judges 'find' universal principles, it doesn't matter if they are 'found' in London or in Winnipeg: you will apply them just the same. In the case of the British Empire, this meant that the principles in British jurisprudence were applied to the whole of the Empire, even in colonies that were already separate. House of Lords decisions finally stopped having binding authority when appeals to the Privy Council were abolished.\n\nIn contrast, statutes would not be relevant in a colony past a set 'cut-off date'. If the 'cut-off' date for Ontario was set as 1792, for example, than a British statute passed in 1793 would not be followed.\n\nAn exception to the principle that common law was received throughout the Empire can be found in [[Fleming v. Atkinson (1959)]].\n\n[What I'm not sure about is whether there is a definitive time where House of Lords decisions stopped having binding authority, or if it was only when the Supreme Court became the court of last resort]
[[Touch Me?]]\n[[MainMenu]]
Formal: all state actions are subject to the law and must be authorized by the law\nSubstantial: collection of principles of justice that the law can drawn on as long as its done very clearly (parliamentary sovereignty)\n\nManitoba Fisheries Ltd. v. The Queen [1979] 1 R.C.S. 101\n\n[[Wells v. Newfoundland (1999)]] 3 R.C.S. 199\n
F: Ontario NDP passes Agricultural Labour Relations Act giving trade union and collective bargaining rights to agricultural workers and then the Conservatives pass the Labour Relations and Employment Statute Law Amendment Act (LRESLAA) which repeals the LRA and terminates agreements made under it. \nQ: 1) Does the LRESLAA violate section 2(d) (right to freedom of association ) or 15(1) of the Charter. 2) justifies under section 1\nD: 1) Yes, 2) No\nR: The Court held that the Ontario provincial Labour Relations Act, which contained a clause that excluded of agricultural workers, while creating an association amongst other employees, was a violation of their right to freedom of association. The impugned clause was struck down.\nThe Court suspended the declaration of invalidity for 18 months to allow time for amending legislation to be drafted and enacted (see [[Re Manitoba Language Rights (1985)]], temporary validity).\n\n
Lord Durham was sent to the colonies to examine the causes of the Rebellions of 1837 in both Upper and Lower Canada. He advised that Canada should adopt responsible government. He also suggested that the two provinces be united into one and that constitutional authority should remain in England.
Expanded the application of the charter under section 32. The Court was sharply divided on the interpretation of section 15 of the Charter.\nEach of the appellants was born deaf and their preferred means of communication were sign language. They contended that the absence of interpreters impairs their ability to communicate with their doctors and other health care providers, and thus increases the risk of misdiagnosis and ineffective treatment. Is a hospital bound by the Charter? \nThe BC medical system made no explicit distinction between deaf and hearing persons; both were entitled to the full range of publicly medical services but the SCC said effective communication was essential to these services and that the failure to provide sign-language interpretation denied deaf people a benefit provided to hearing people (adverse effect descrimination.) \nEldrigde is an exception to the rule that Charter only applies where the government has a power of compulsion in contrast to Stoffman v. Vancouver General Hospital which stated re: hospitals mandatory retirement policy that, though established and empowered by statute and providing a public service, the hospital did not exercise any powers of compulsion in providing medical services and was not controlled by government and therefore was not subject to the Charter.\nLa Forest, J. for the majority in Eldridge, suggested that Charter didn’t apply to day-to-day operations but did apply when hospitals implement a specific government policy or program. Hogg doesn’t like it, says this distinction doesn’t fly and that Charter should not have applied here either though the BC Human Rights Act would have been a better way to enforce the justice’s sympathy for the deaf plaintiffs. \nDictum upholding the Canada Health Act and confirming federal spending power in areas of exclusive provincial jurisdiction.\nThe order requiring sign-language interpretation was suspended for six months (see temporary validity).\nPurposive interpretation allows the scope of Charter rights to be restricted without undermining the civil libertarian values its protects by discovering the purpose of each Charter right and including only activity that comes within that purpose.
F: The English Secretary of State makes a domestic regulation (requiring a percentage of ownership be British in order to register fishing vessels) that contravenes provisions of an international treaty (European Communities Act (1972)).\n\nQ: Do the treaty obligations entered into by a previous Parliament bind the current Parliament? YES.\n\nR: The Imperial Parliament accepted this limitation to its Sovereignty when it enacted the European Communities Act in 1972.\n\nComment: This decision is an exception to the pure model of parliamentary sovereignty in the UK. It is presented as if the principle of supremacy of Community law was perfectly accepted since 1972.\nAnother interpretation is that EEC has quasi-constitutional status: repealing its laws must be done expressly.\n\nummm check date
Finlay receives welfare: one month, to compensate for overpayment the previous month, he is given less than the minimum necessary. He argues that the contributions the federal government gives the provincial government to support the regime are illegal, because the province violates several regulations.\n\nQ. Does Finlay have standing?\n\nD/R. Finlay does not have sufficiently direct and personal reason to have general standing (he does not show that Manitoba would change if feds didn't pay), but the court grants him standing to act in public interest.\n\nC: This administrative case shows an application of [[standing]].
Fleming v. Atkinson (1959) is an exception to the general rule that common law was applied throughout the Empire even after a colony's cut-off date (see [[Reception of European Law]], [[Declaratory Theory]]). The principle in the relevant English precedent was inapplicable because the historical basis for the law was never the case in Ontario.\n\nF: Atkinson's car collides with Fleming's cow straying on the road.\nQ: Do we apply the British precedent in Searle v. Wallbank (1947), (in which the House of Lords held that farmers have the right to let animals wander on the road adjoining their property without a duty in tort)?\nD : No.\nR : Judge Judson outlined two reasons why the British precedent never applied to Ontario law. First, the judge distinguished between historical circumstances leading to the law: in England, the roads formed are a part of the adjoining properties, whereas in Ontario ownership is retained by the Highway Authority. The result is that the principle contained in Searle never applied to Ontario law.\nSecond, in passing, the judge specified that the principle dates from a period where wandering animals posed no significant danger to traffic, whereas, with the advent of the automobile, the danger is significant.\nC :This is an exception to the universality of the CL (a key component of the [[Declaratory Theory]]).\n
SCC strikes down [[Quebec]]’s prohibition of English-language commercial signs. \n\nRequirement that public signs be only in [[French]] was held to infringe freedom of expression and not be justifiable under [[S. 1]]. While the Court held that the protection and enhancement of the French language was a sufficiently important object to justify a limit on [[freedom of expression]], it found the banning of English a disproportionate impairment of the rights of English-speakers (see R. v Oakes 3). Thus, a law could require French to be predominant but not exclude the use of English. \n\n[[Charter]] of Rights restriction of the powers of provincial legislatures – Quebec National Assembly’s power to implement French language policy – importance of provincial Charters and the federal [[Bill of Rights]] – “[[primacy clauses]]” (declare a statute as supreme over other statutes, future and past) – freedom of expression ([[S. 2(b)]]) protects a speaker’s choice of language and commercial expression\n\nSCC legitimates Bill 62, An Act respecting the Constitution Act, 1982 which, in protest against the Charter, added a [[notwithstanding clause]] to every Quebec statute. SCC concluded that such an omnibus Bill meets the manner and form procedural requirements of the [[S. 33]] by legally inserting into each of the acts the appropriate declaration. It thus defeated an argument that, in order to meet the democratic promotion of debate which application of the notwithstanding clause was meant to create, a legislature must specify each legislation in which the clause is to be inserted. The SCC also held that the Bill did not have to specify which rights were being infringed by which legislation (62 simply referenced Art. 2 and 7-15, or the entire Charter). The Bill was only held to be unconstitutional with regard to its retroactive effect because rights cannot be removed retroactively. \n\nA S. 1 (freedom of expression) justification failed…\n\nS. 58 of Quebec’s language law was invalid for conflict with the Quebec Charter of Rights and Freedoms, not the Charter of Rights, which had been overridden under S. 33. S. 69 of the language law was invalid for conflict with both the Quebec Charter of Rights and Freedoms and the Charter of Rights - evidence of the SCC treating the Quebec Charter as operating concurrently with the Charter of Rights. \n\nThe SCC held that a primacy clause (such as exists in the Bill of Rights and Charter) has the effect of rendering inoperative inconsistent statutes that do not contain the notwithstanding clause such as this Quebec statute purporting to derogate from one of the guaranteed rights. \n\nBeetz J. for the majority stated quasi-constitutional mechanisms that in some way duplicate the Charter, from the Bill of Rights to the Quebec Charter, should not be allowed to “fall into neglect.”\n\nFord overruled the distinction made in [[Quebec School Board]] ([[1984]]) between Charter infringements that limit a right and, as per S. 1, are therefore subject “to such reasonable limits prescribed by the law can be demonstrated in a free and democratic society” and those which do more than limit a right and therefore cannot be justified by S. 1. It removed the distinction except for the “rare case of a truly complete denial.” Thus more severe restrictions on charter rights are justifiable subject to S. 1.\n\nThe Quebec government eventually passed the law again with a notwithstanding clause.
F : Among other infractions, Vallière is accused of being a member of the FLQ, contrary to the « Turner » law. Is the « Turner » law invalid because it is judgment by legislation (and thus and infringement on judicial power ?\n\nD/R : The unanimous court points out two distinctions between Liyanage and the present case :\n1) In this case, the people the law targets have not yet been identified (so more fair) ; and\n2) The law infringes to a much smaller degree on the rights of the accused.\n\nConcl : No infringement on judicial power in the Turner law. It does not quite get into that « grey zone » where legislation infringes on judicial power.\n\nThis decision is an application of [[Liyanage v. the Queen (1967)]].
S: On the scope of the Trade and Commerce powers (s.91.2) of the Constitution Act, 1867 as well as the interpretation of the Ancillary doctrine.\nF: During the 1970s General Motors(GM) sold vehicles to City National Leasing (CNL) as well as one of it competitors. It was discovered that GM was giving CNL's competitor a better interest rate than CNL, which violated the federal Combines Investigation Act. In its defence GM argued that the provision in the Act that created the civil cause of action was outside the legislative competence of the federal government.\n\nQ: 1. whether the Combines Investigation Act, either in whole or in part, was intra vires Parliament under s. 91(2) of the Constitution Act, 1867, and\n2. whether s. 31.1 was within the legislative competence of Parliament.\n\nR: The Court found that the Act was valid under the General Trade and Commerce power, and that the provisions were necessarily incidental to the valid subject of the Act thus were valid as well.\nThe Court outlined the analysis for determining the constitutionality of a provision under the "general" branch of the Trade and Commerce power. First, it must be determined "whether the impugned provision can be viewed as intruding on provincial powers, and if so to what extent". Second, it must be determined "whether the act (or a severable part of it) in which the impugned provision is found is valid". This requires examination of several factors including:\n 1. the impugned legislation must be part of a general regulatory scheme;\n 2. the scheme must be monitored by the continuing oversight of a regulatory agency;\n 3. the legislation must be concerned with trade as a whole rather than with a particular industry;\n 4. the legislation should be of a nature that the provinces jointly or severally would be constitutionally incapable of enacting; and\n 5. the failure to include one or more provinces or localities in a legislative scheme would jeopardize the successful operation of the scheme in other parts of the country.\nThe Court then considered whether the provision could be found valid under the ancillary doctrine. First, the law as a whole must be valid. If so, the Court must consider the degree of encroachment outside of the government's jurisdiction. If it is a serious encroachment the provision will only be upheld if it is necessarily incidental" to the function of the entire Act. For minor encroachments the provision need only have a "rational connection" to the entire Act. On the facts the Court found that the provisions were ancillary to the Act and so were upheld.
o Provides for responsible government by setting the foundation for the convention of a Prime Minister and Cabinet\no Oath of new assembly = secular oath (to the crown). \no Governor should always follow the advice of his council. \no Governor must follow the advise of the cabinet. \no Responsible government came to Nova Scotia first (in 1848).\no Makes a statement about civil servants, their independence and how in the event of the government collapsing they can run the country.
The Ontario Court of Appeal found that the common law definition of marriage, which defined marriage as between one man and one woman, violated section 15 of the Charter.\nSurprisingly, the Court also held that there was to be no suspension of the remedy as it applied to the general population and that the new definition allowing same-sex couples to marry would take effect immediately. Old statute declared invalid. Reformulated definition.
F: Church of Scientology held a press conference on their intent to commence criminal contempt proceedings against Crown attorney Casey Hill. The allegations against Hill were found to be completely untrue so Hill sues for libel. \n\nQ: 1. Is the common law of defamation valid in light of the Canadian Charter of Rights and Freedoms? 2. Can the jury's award of damages can stand?\n\nD: Charter does not protect individuals from tort of defamation. The tort is in line with Charter values. Ontario award of damages upheld.\n\nR: The court rejected the Church of Scientology's contention that too much emphasis in the common law had been placed on the need to protect the reputation of plaintiffs at the expense of freedom of expression and that the "actual malice" standard of liability (USSC New York Times Co. v. Sullivan) should be adopted. RWDSU v. Dolphin Delivery Ltd. rule that the Charter cannot rewrite the common law continues to apply.\n\nIn other words, the basic rule is that absent government action, the Charter applies only indirectly to the common law.\n\nC: The jury award that was upheld in this appeal was the largest libel award in Canadian history ($1,600,000 CAD.)
S: This was the first time the doctrine of double aspect was applied to division of powers analysis.\nF: The province of Ontario delegated the authority to the Board of Commissioners to enact a regulation that prohibited the use of billiard tables during any time when the sale alcohol was prohibited under the Liquor Licence Act.\nR: Lord Fitzgerald, for the Privy Council, held that the province had the authority to delegate any of its residual powers under section 92(16). He examined the pith and substance of the law that delegated the power to the commission. The Act touched on powers that were exclusively in the authority of the municipal government and federal government (see Russell v. The Queen). Fitzgerald distinguished this fact with what is now the doctrine of double aspect, stating that “subjects which in one aspect and for one purpose fall within sect. 92, may in another aspect and for another purpose fall within sect. 91”. Consequently, when a law has some overlapping characteristics between the two heads of power it may still be valid.
Also on extra-territoriality. Cross-border relations in deciding applicable law, jurisdiction.\n\nF: Attacked law was a Qc law targetting “long-arm statutes” allowing US courts to take jurisdiction over disputes. Law prevents business cases from leaving Qc.\n\nQc considers other provinces’ jurisdictions as foreign. Therefore, the law whose objective was to protect against US judicial imperialism has the same effect on other Cdn provinces.\n\nSCC says Cdn consttl law requires "courtesy" between prov, must be respected by all prov, and refuses to accept that the restriction could apply to prov outisde Qc (in this case BC), so Qc cannot prevent the business case from leaving.\n\nD: The Court, instead of ruling the pith and substance //ultra vires//, rules instead the law is inapplicable between provinces.\n\nC: Gelinas: nice result, but problems: 1) invented concept of ‘courtesy’; 2) invented ppe of ‘inapplicability of law against other prov.’\n
Version 1:\nF: Big tobacco disputes a statute aimed at recovering medical expenses incurred by the Province of BC treating smoking-related illnesses: they argue that such a law contravenes the Rule of Law because it applies only to them and is retroactive. \n\nQ: Is the legislation too specific (thus infringing on the separate power of the judiciary) or does its retroactivity make it unconstitutional?\n\nD: No. The statute does not contravene any principle of the Rule of Law, and so it stands.\n\nR: Statutes can be retroactive, and do not have do be general, contrary to the claims of the tobacco companies. \n\nC: The analysis here is only on a very superficial level, showing a reluctance to apply the Rule of Law except in extreme cases. The court also avoids the meat of the issue.\n\n\nVersion 2:\nBritish Columbia v. Imperial Tobacco Canada Ltd., [2005] 2 S.C.R. 473, 2005 SCC 49, is a decision of the Supreme Court of Canada where the Court found that the provincial Tobacco Damages and Health Care Costs Recovery Act, which allowed the government to sue tobacco companies, was constitutionally valid.\n\nBackground\n\nThe British Columbia government passed the Tobacco Damages and Health Care Costs Recovery Act that granted the government power to sue tobacco manufacturers for breach of duty to recover costs on the health care system for people suffering from tobacco related illnesses. The tobacco companies sued under the Act challenged its constitutional validity.\n\nOn June 5, 2003, the Supreme Court of British Columbia found that the Act violated the territorial limits of provincial law and was unconstitutional. The Court of Appeal, in May of 2004, overturned the decision on the basis that the pith and substance, ie. the dominant characteristic, of the law fell under the property and civil rights provision of the Constitution Act, 1867. The challenge against judicial independence, and rule of law were also dismissed.\n\nOn June 22, 2004, Imperial Tobacco appealed the case to the Supreme Court of Canada. On the same day, four other tobacco companies and the Canadian Tobacco Manufacturers' Council also filed for appeal. On December 17, 2004, the Supreme Court agreed to hear the case and it upheld the decision of the Court of Appeal on September 29, 2005.\n\nThree issues were put to the Court:\n\n 1. Is the Act ultra vires the province by reason of extra-territoriality?\n 2. Is the Act constitutionally invalid as being inconsistent with judicial independence?\n 3. Is the Act constitutionally invalid for violating the rule of law?\n\nThe Court answered "no" to all of these issues.\n\nOpinion of the Court\nThe unanimous opinion was written by Major J.\n\nExtra-territoriality\nSimilar to the reasoning of the Court of Appeal, Major found that the pith and substance of the Act was within the authority of the province under section 92(13) of the Constitution Act, 1867. The subject matter of the Act, compensation for health costs, and the effect, suing companies who harmed those in the province, all point at a valid provincial law. No other province has a greater relationship to the cause of action. The duty breached by the companies in the manufacturing and selling of tobacco has little significance, Major said, on the connection between the cause of action and the province.\n\nJudicial independence\nAt no point during an action under the Act is the independence of the judiciary interfered with. The Court dismissed the suggestion that the shift in burden to the accused or the unconventional rules of procedure and evidence created by the Act have any effect on \n\nRule of law\nThe tobacco companies had claimed that the retrospectivity and retroactivity of the Act violated the rule of law by creating an unfair trial. Further, they felt that legislation should neither target a particular sector nor confer special privileges on the government.\n\nThe rule of law, as protected by the Constitution, does not require that Acts ensure a fair civil trial or avoid giving the government advantages.\n\nThe Supreme Court held that accepting this amorphous conception of the rule of law would render several provisions of the Charter redundant because they are more narrowly formulated.\n\nSignificance\n\nThe Court limited the four unwritten principles of the Constitution, which were outlined in Reference re Secession of Quebec. It reaffirmed that a textual basis for review must be submitted because of the stability and predictability provided by a written constitution.
F: Irwin Toy challenges a law banning publicity that targets people younger than 13 yeras old. They argue first the law is //ultra vires//:\n# the law is //invalid// because it primarily targets tv broadcasting, and is thus outside the jurisdiction of Quebec provincial legislature ([[pith and substance]])\n# the law is //inapplicable// insofar as it regulates television (by [[interjurisdictional immunity]])\n# the law is //inoperant// because of conflict with the federal broadcasting law ([[federal paramountcy|paramountcy]])\n# the law is in fact criminal law\n\n1. The effect on television broadcasting are insufficient to conclude the law is colourable legislation.\n\n2. The Court redefines the "vital part" test to rule that the legislation would have to "paralyze" the functions in a federally-regulated area (in this case, broadcasting) for it to be inapplicable. In this case, the lack of publicity revenue, although substantial, would not paralyze the station.\n\n3. The Court finds there is no real conflict, as the two systems were conceived to co-exist. Neither broadcasters nor advertisers are in a situation where they are forced to obey one law and break the other.\n\n4. Although the law lays out penalties, there are other valid penal laws with a legitimate provincial objective.\n\nThey also argue the law interferes with freedom of speech (Charter 2b). The Court rules that advertising is a sphere of activity protected by freedom of speech (must have //content// that means something, and a //form// that is non-violent). Further, although the goal was not to restrain freedom of speech, the effects do restrain. The Court rules that the law does infringe freedom of speech, but the effects are justified under s.1.
F: Three statutes regarding Labour were enacted by federal Parliament to fulfill obligations arising from international labour conventions entered into by the federal executive. The bulk of the statutes deal with powers delegated to the Provinces by s.92, [[Constitution Act, 1867 |CA 1867]].\n\nQ: Are statutes on matters of provincial competence valid because they were enacted to meet Canada’s international treaty obligations? NO.\n\nR: Separation of treaty formation and performance: in the Dualist Tradition of Commonwealth countries: the executive can form treaties (incurring international obligations), but only the appropriate legislative can perform them, and make them domestic law. In Canada, performance is distributed by the federal system (not one, but eleven legislative bodies), and performance must be done by the appropriate bodies under ss.91 & 92.\n\nFormation of treaties fall under [[POGG]].\n\n(KW: conventions de travail)
Lavell v. A.G., [1974] R.C.S. 1349\nA.G. Can. v. Lavell (1973) focused on the application of provisions of the Indian Act that cause an Indian woman to lose status if she married a non-Indian man. The SCC reversed its position in [[R. v. Drybones (1969)]], upholding, among others, the provisions of the Indian Act that defined the term “Indian.” It also upheld the doctrine of parliamentary sovereignty in this case, confirming Parliament’s power to enact discriminatory laws, including based on sex though these were overturned when S. 15 of the [[Charter]] came into force in 1985.\n\nThis decision was again reversed by [[Sandra Lovelace Nicholas]]' appeal to the UN Human Rights Commission
F: The Law of 1968-9 (the Law) contains a proclamation clause (s. 120) that gives authority to enact “This Act or any of the provisions of this Act” to the Privy Council (vertical delegation of powers from the legislative to the executive). The Privy Council purported to enact only certain provisions of the Law.\nQ: Is the Law valid as enacted?\nD: YES, as enacted (majority: Judson, Abbott, Fauteux, Hall; Laskin concurring). NO: no part was enacted (minority: Martland, Ritchie, Spence, Pigeon).\nR: \nMinority: If the execution could be partial, it could lead to a law that goes against the original intentions of the legislator. It should be all or nothing.\nMajority: The proclamation clause clearly gave the Privy Council discretion to choose which parts to enact.\n\nC: Proclamation clauses are common - they allow time to prepare for putting the law into effect. What is uncommon is the wording of “any or all” because the modifications were on different subjects.\nThe government enacted the part established strict responsibility, not the part protecting civil liberties. Scandalous! But the legislative branch could pass another law – so do not need to give legislature to revisit its delegation.\nCriticism of majority: At its logical limit, the discretion the court gives to the executive is virtually unlimited – they might select sections to enact so as completely to distort the meaning of the legislation (for an illustration, see the letters of Georges Sand).\n\n(KW: breathalyser, breathalizer, breathalyzer, breathaliser)
version 1:\nF: The province of NB claims priority over the other creditors of the Maritime Bank, on the basis that the Crown takes priority. The appelants argue that there is no connection between the Crown and the provinces under BNA Act 1867, and that the provinces’ power is delegated by the Crown.\nD: Appeal dismissed.\nR: The administrative and legislative powers of each province are “exclusive and supreme” within the limits prescribed by s.92. The provincial legislature is not subordinate to the Government of Canada, nor does it derive its powers from the federal government. The provincial Crown is as fully representative of the Queen as the federal Crown.\nC: A problem arises when we consider that executive power follows legislative power: where are the limits of provincial sovereignty? It is unclear from this case why provinces could not enter into international treaties.\nOn the exclusive powers of provinces within their sphere of competence, see also Conventions de travail.\n\nversion 2:\n5.3c 9.2 10.1\nLiquidators of the Maritimes Bank –Common Law recognized that the crown was a privileged creditor generally. Why wouldn’t the crown, in New Brunswick, not have access to this status? \n\nArguments: Argument against the crown’s rights in New Brunswick was that it was a mere delegated power, and the only crown power was the governor general in Ottawa.\nThe privy council said no. Under the BNA act, the lieutenant governors had sovereign power.The Privy Council said that the distributing powers (sections 91 and 92 of BNA Act) was creating sovereign entities within their own spheres. Just because the “center” appointed the provincial lieutenant governors, that didn’t mean that the powers were delegated.\nLieutenant governor – the “crown in right” of every province.\nThis goes to show that courts have relied on general principles when interpreting the BNA Act.\n(Since federal executive has power to disallow provincial bills – this would be an argument against this)\n\n\nParliamentary Sovereignty:\n British constitutionalism was imported – move from monarch to democracy. \n1610 – Case of Proclamation. Common Law courts decided that the King had no power to legislate by prerogatives. Maybe in Colonies, but not in England.\n\n\nBasic distinction between entrenched provisions and unentrenched provisions: article 52 of Constitution Act 1982 – any law that is not consistent with constitution is of no effect – as a way of preserving the rule of law. But the definition in art. 52 is not exhaustive (secession reference). \n\n(KW: liquidateurs, banque, maritime)
F: Ceylon – Following an unsuccessfully attempted coup d’état, the perpetrators are imprisoned and charged without following the normal criminal procedures. Later, new special criminal legislation is retroactively put in place, including a new offence, with the effect that the treatment of perps is validated. The perps challenge the constitutionality of the retroactive criminal laws.\nQ: Is the retroactive legislation unconstitutional?\nD: YES.\nR: \nArgument 1: The Parliament of Ceylon is not sovereign, and thus cannot pass legislation against the fundamental principles of justice. Since the Constitution of Ceylon was a prerogative act passed by sovereign, and not a legislative act, and since the Parliament derives its authority from the Constitution, Parliament indirectly derives its authority from the Crown. Recall [[Campbell v. Hall (1774)]], Mansfied J.: the Sovereign limited in its legislative powers, and does not have power pass laws contrary to natural principles of justice (although this limit was never taken up by subsequent jurists). If the Crown cannot pass laws contrary to natural principles, and the Parliament derives its power from the Crown, the Parliament also cannot pass laws contrary to the natural principles of justice.\n\nThe court rejects this argument, and refuses to invalidate legislation based on a “vague and uncertain phrase”. [[Colonial Laws Validity Act|Colonial Laws Validity Act, 1865]] clarifies: colonial laws only invalid if contrary to specific Act, “but not otherwise”. Parl of Ceylon is sovereign, i.e. all powers exercised by sov’n Parl. can exist under Constt of Ceylon. (Note: Ceylon is not federal, so same Parl. has all legislative powers. But Parl. does not have unlimited powers. Constt can be changed by vote of 2/3. See comment below.)\n\n2. The law is unconstitutional because it is an “unjustifiable assumption of power by the legislature” in that it condemns by legislation.\nThe court accepts the argument that Parliamentary authority is limited by the Constt, and that a distinction must be maintained between legislative and judicial power. There is a separation of function: separate power in the judicature (CP 207 3e col). However, not every criminal leg. of this type inevitably usurps power (CP 207 4e).\n\n3. Even if the law was constitutional, the right to fair process could not be denied without express derogation. (Not necessary to consider this question.)\n\nConcl:\nThe Parliament of Ceylon is not limited in its ability to legislate by the “immutable principles of justice”. However, it is limited in the sense that it cannot pass judgment through legislation, which would erode the powers of the judiciary.\n\nC: Could Parl have been successful by changing the Constt. (with 2/3 majority)? CP bases its conclusion on Constt. CP does not answer this question, because not posed in facts.\nHowever, some Constt. courts (Germany, India “basic structure of constt”) have said certain dispositions of Constt that are so fundamental that cannot be modified even with modification procedures. (Of course, this is more necessary in unitary countries where Parl can modify constt. Does not come as much into play in federal countries like Canada.)\n\n\nThis decision was used in Canada regarding the //War Measures Act// in 1970 in the decision \n
One of the first cases to consider [[POGG]]. It elaborated the question of [[national dimension]]:\n\nLord Watson held that the federal government's residual power under p.o.g.g. allowed them to enact laws and "ought to be strictly confined to such matters as are unquestionably of Canadian interest and importance and ought not to trench upon provincial legislation with respect to any of the classes of subjects enumerated in section 92".\n\nHowever, although it claimed to apply [[Russell v. R. (1881-2)]], it is difficult to reconcile with that case because while Russell classified alcohol control under POGG, this case upheld the provincial statute under 92.13 or 92.16.\n\nThis distinction was taken up in [[Ontario v. Canada Temperance Federation (1946)]].
Sets out enlarged notion of terra nullius : previous inhabitants of « [[settled colonies]] » deemed to be « without laws, without a sovereign, and primitive in their social organization ».
[[Case Structure]]\n\n{ Course Outline }\nCHAPTER 0: The Constitution: Ideas, History and Sources\n[[SECTION 1|SECTION 1: Formal and Substantial Constitutionality]]: Formal and Substantial Constitutionality\n[[SECTION 2|SECTION 2: Historical Origins and the Reception of European Law]]: Historical Origins and the Reception of European Law\n[[SECTION 3|SECTION 3: The Sources of Canadian Constitutional Law]]: The Sources of Canadian Constitutional Law\n\nCHAPTER I: Parliamentary Sovereignty \n[[SECTION 1: |SECTION 1: Historical Perspective and Canada’s Reception]]Historical Perspective and Canada’s Reception\n[[SECTION 2: |SECTION 2: Can Parliament Bind its Successors?]]Can Parliament Bind its Successors?\n[[SECTION 3: |SECTION 3: Delegation and Abdication of Power : Referendums]] Delegation and Abdication of Power : Referendums \n[[SECTION 4: | SECTION 4: Parliamentary Sovereignty and International Law]]Parliamentary Sovereignty and International Law\n[[SECTION 5: | SECTION 5: Parliamentary Privilege]]Parliamentary Privilege\n\nChapter II – The Principle of Legality or the Rule of Law\n[[Definitions of the Rule of Law]]\n[[SECTION 1: |SECTION 1: Administrative Structures]]Administrative Structures\n[[SECTION 2: |SECTION 2: Administrative Powers]]Administrative Powers\n[[SECTION 3: |SECTION 3: Administrative Control]] Administrative Control\n\nCHAPTER III - The Separation of Powers\n \n[[SECTION 1: |SECTION 1: Historical Background]]Historical Background\n[[SECTION 2: |SECTION 2: Legislative Power and Executive Power]]Legislative Power and Executive Power \n[[SECTION 3: |SECTION 3: Judicial Power]] Judicial Power\n\nCHAPTER IV - Constitutional Supremacy and Judicial Control of Constitutionality\n \n[[SECTION 1: |SECTION 1: The Foundation of the Principle]]The Foundation of the Principle\n\n\nSECTION 2: The Protected Nature of the Principle\n• [[British Columbia Power Corp. v. British Columbia Electric Co. (1962)]]\n• *[[Amax Potash Ltd. v. Saskatchewan (1977)]]\n• *[[Air Canada v. A.G. British Columbia (1986)]]\n• CP Air Lines Ltd. c. B.C., [1989] 1 R.C.S. 1133 \n• *L’article 95 du Code de procédure civile, R.S.Q. C-25\n• *Les articles 60 et 61 des Règles de la Cour suprême \n\nSECTION 3: LES EFFETS DU PRINCIPE\n3.1 L’interprétation constitutionnelle et la présomption de constitutionnalité\n• Edwards c. P.G. Canada, [1930] A.C. 124: interprétation évolutive \n• La présomption de constitutionnalité au sens substantif : interprétation conciliatrice (reading down) et divisibilité de la loi (severability).\n- [[McKay c. La Reine (1965)]]\n- Union Colliery Co. of British Columbia, [1899] A.C. 580 (quant au partage des compétences)\n- Comité pour la République du Canada c. Canada, [1991] 1 R.C.S. 139 (quant à la Charte canadienne) \n- R. c. Morgentaler, [1988] 1 R.C.S. 30 (quant à la Charte canadienne) \n• La présomption de constitutionnalité au sens procédural\n- Le fardeau de la preuve\n- L’effectivité de la loi jusqu’au jugement final et définitif\n- Les mesures provisionnelles:\n- *[[Manitoba (A.G.) v. Metropolitan Stores (1987)]]\n \n3.2 La sanction d’inconstitutionnalité\n• *Comparer art. 52 (1) L.c. 1982 et art.2 de la Loi sur la validité des lois coloniales\n• Effet Inter partes ou effet erga omnes\n• Appréciation In concreto (invalid as applied) et appréciation in abstracto (invalid on its face)\n- *[[R. v. Oakes (1986)]]\n- *[[Osborne v. Canada (Conseil du trésor) (1991)]]\n• Effet d’inclusion et effet d’exclusion (reading in et reading down)\n- *[[Schachter v. Canada (1992)]]\n- *Vriend c. Alberta, [1998] 1 R.C.S. 493\n- [[Dunmore c. Ontario (2001)]] 3 R.C.S. 1016\n- [[Halpern c. A.-G. Canada]], 60 O.R. (3d) 321\n• La (souvent impossible) rétroactivité\n- *Renvoi relatif aux droits linguistiques au Manitoba\n- *Bilodeau c. P.G. Manitoba\n \nSECTION 4: LES VOIES DE RECOURS (LES QUESTIONS DE PREUVE ET L’INTÉRÊT À POURSUIVRE SERONT ÉTUDIÉS À LA SESSION D’HIVER)\n4.1 Le renvoi ou avis consultatif\n• Renvoi sur la validité de la procédure de renvoi, [1912] A.C. 571.\n\n4.2 Une distinction fondamentale : le recours principal et le recours incident\n\n4.3 Les brefs de prérogative\n• Habeas corpus\n• Quo warranto\n• Mandamus\n• Certiorari\n\n4.4 Les autres recours\n• Action déclaratoire\n• Injonction\n• Demande et défense\n• autres\n \n4.5 Précisions sur l’abolition des appels au Comité judiciaire du Conseil privé\n• Renvoi sur l’abolition des appels au Comité judiciaire, [1947] A.C. 127.\n\n
F: The Manitoba Labour Board puts in place a temporary agreement between union and employer, as authorized under the Labour Relations Act (CCSM chap L10). The employer contests the constitutional validity of the statute, and requests a suspension of the agreement until the ruling on validity. Denied in fi, granted in appeal.\n\nQ: Can the effects of a law be suspended while its constitutionality is decided?\n\nD/R:\nYES in exceptional cases, but in this case, no.\n\nCriteria:\n1) //l'apparence de droit// or the a very serious question.\n2) irreparable harm\n3) la //prépondérance des inconvénients// in the public interest.\n\nSuspension can be //erga omnes// or //inter partes//.
F: John Adams appointed 42 Federalists, including William Marbury, to newly created courts on the second-to-last day of his term. Marbury's and others’ commissions were signed by Adams and John Marshall, his Secretary of State but to be effective the commissions had to be delivered to them and John Marshall did not deliver Marbury's commission. Marshall had been appointed as Chief Justice of the Supreme Court of the United States but had continued to act as Secretary of State until Jefferson, a Republican, was inaugurated as President.\n\nJefferson treated as void 25 of the 42 commissions, including Marbury's, because they had not been officially delivered and ordered James Madison, his new Secretary, not to deliver the Marbury commission. Marbury filed suit against Madison to force him to deliver it.\n\nQ: (1) Can Congress change the original jurisdiction of the Supreme Court or is Constitution supreme? (2) Does the Supreme Court have the power to decide this question (of Constitutionality)?\n\nD: The Constitution must be above all other laws passed by Congress and the Supreme Court has the power of judicial review of the Constitutionality of laws. \n\nR: Because Marbury filed his petition for the writ of mandamus directly in the Supreme Court, the Court needed to be able to exercise original jurisdiction over the case in order to have the power to hear it. Marbury's case does not fit into the types of cases the Supreme Court can hear under its original jurisdiction.\n\nC: In essence, he declared that Madison should have delivered the commission to Marbury, but then held that the section of the Judiciary Act of 1789 that gave the Supreme Court the power to issue writs of mandamus exceeded the authority allotted the Court under Article III of the Constitution, and was therefore null and void. Thus he was able to chastise the Jeffersonians and yet not create a situation in which a court order would be flouted. In his answer to second last question, Marshall formalizes the notion of judicial review.\n\n
F: Municipal law (by delegated provincial authority) forbids election signs.\n\nQ: Does this include federal elections?\n\nD: No. That would be outside provincial power.\n\nR: The court reads the rule as not applying to federal elections ("reading down").\n\nC: Here, reading down runs counter to the [[pith and substance]] doctrine, which allows a law to have accessory effects.
S: The Court developed what is known as the Borowski test for public interest standing to challenge a law.\n\nF: Joseph Borowski, a prominent abortion activist in Saskatchewan who wanted to challenge the abortion provisions under section 251 of the Criminal Code as violations to right to life in the Canadian Bill of Rights was found to have standing to challenge the law.\n\nR: Based on Thorson v. Attorney General of Canada, [1975], a plaintiff seeking a declaration to invalidate a law must show that they are directly affected by it, or have a genuine interest as a citizen and there be no reasonable and effective alternative means to challenge the law.\n\nBorowski was found to meet this requirement as it would be difficult to bring such an issue to court without having an interest group make a challenge.\n\nThe test was later re-articulated more narrowly in the decision of [[Canadian Council of Churches v. Canada (Minister of Employment and Immigration) (1992)]].
Q: Do provincial labour laws applied to the employees of a construction company that had a contract with the federal government to build the landing strips at Mirabel Airport on land belonging to the Crown in right of Canada? \n\nD: While aeronautics fell within federal jurisdiction, the salaries paid by an independent business are so far removed from aerial navigation and use of an airport that the power to regulate the matter could not form an integral part of the primary jurisdiction of Parliament over aeronautics or be tied to the development of a federal operation. \n\nFederal lands are not extraterritorial enclaves within provincial boundaries and that valid and generally relevant provincial laws apply to them.\n\n(So federal paramountcy is rejected).
F: A company incorporated under the federal Canada Corporations Act was charged with insider trading under the Ontario Securities Act. The company argued that the provisions of the Act were inoperative under the paramountcy doctrine as they overlapped with insider trading provisions in the federal Competition Act.\n\nI: 1. whether ss. 100.4 and 100.5 of the Canada Corporations Act are ultra vires Parliament;\n 2. whether ss. 113 and 114 of The Securities Act are ultra vires the Ontario Legistature, and \n3. if both are intra vires, whether ss. 113 and 114 of the Ontario Act are suspended and inoperative by reason of the doctrine of paramountcy.\n\nD: The Acts were valid and the doctrine of paramountcy did not apply.\n\nR: Paramountcy requires that each law be valid and that the laws be inconsistent with each other.\n\nThe Securities Act was valid under the provincial authority over matters of "property and civil rights" under section 92(13) of the Constitution Act, 1867. The federal Competition Act was valid under the "trade and commerce" power of the federal government as well as the federal peace, order and good government power. There was no conflict between the acts: they duplicated each other and had the same legislative objective. A conflict entails compliance with one law will necessarily violate the other.
F: Nova Scotia Legislature exercises its parliamentary privilege to ban cameras in its legislative assembly.\n\nQ: Do the Charter guarantees of freedom of the press take precedence over the exercise of parliamentary privileges?\n\nD: NO. (Judgments of Lamer and McLachlin are important).\n\nR: Tradition of judicial restraint: NS legislative assembly could ban the televising of its proceedings as part of its powers of “[[parliamentary privilege]].” Parliamentary privilege – while a part of the common law because, like the royal prerogative, it is defined and limited by the courts – is also distinct in that the SCC defined it as part of the “Constitution of Canada” in NB Broadcasting and is thus exempt from the protections of the [[Charter]] (it rests on equal footing with the Charter). In other words, the Charter must be interpreted as including the traditions of the Constitution and cannot be invoked against a right with constitutional status (one part of the Constitution cannot be repealed or restricted by another).\n\nThe court held that the list of documents “included” in the Constitution (S. 52(2)) by its preamble is not exhaustive and that the unwritten doctrine of parliamentary privilege should be included in this list (theory of the legislative tree and its fruit). This resulted in a tension between the written and unwritten constitution. \n\nParliamentary privileges are immune from judicial control. The status of Lex Parliaments originates in an agreement between the Crown the courts not to meddle in each other’s affairs.\nHowever, this immunity is not absolute: powers derived from Parliamentary privilege must be absolutely necessary to the normal course of its functions. Thus, the courts cannot judge the exercise of a Parliamentary privilege, but can, however, verify its validity, existence, and scope.The test justice McLachlin developed for the breadth of legislative powers and rights like parliamentary privilege was that they need be “necessary to their capacity to function as legislative bodies.”
F: Public servants in Ontario challenged provisions in Ontario’s Public Service Act that prohibited public servants from engaging in a variety of political activities, including running for the federal Parliament without taking a leave of absence, fund-raising on behalf of federal political parties, and expressing opinions in public on federal political issues. This was a pre-Charter case, so the plaintiffs took aim at the restrictions on political activity only insofar as they precluded federal political activity. The plaintiffs argued that such restrictions were outside the powers of a provincial Legislature. \n\nQ: Could a provincial law prohibiting public servants from running as candidates in elections validly prohibit participation in federal as well as provincial elections\n\nD/R: Yes. The SCC held that the province had the power to regulate its own public service, and in pursuit of political neutrality the regulation could extent to restrictions on federal as well as provincial political activity. While the decision was unanimous, the justices held that political restrictions were not simply labour relations laws but were part of the constitution of the province under either s. 92(1) (now s. 45 of the CA, 1982) or the tenure of provincial offices under s. 92 (4). \n\nC: It was an application of the Pith and Substance Doctrine, which stipulates that a law “in relation to” a provincial matter may validly “affect” a federal matter.\nRecognised the convention of political neutrality of Crown servants. \nThe case included an obiter dictum which denied provinces the power to introduce “political institutions foreign to and incompatible with the Canadian system.”\n\nCites [[Re Initiative and Referendum Act (1919)]]\nThe Charter issue was resolved in [[Osborne v. Canada (1991)]]\n\n(KW: sefpo)
This case revisited the decision in [[Russell v. R. (1881-2)]]: while it stops short of approving of that decision, it does apply the same logic.\n\nThis case also clearly establishes the [[national dimension]] branch of [[POGG]], as not requiring a national emergency.
S: Canada Pacific, which operates an interprovincial railway and is an undertaking within federal jurisdiction, was held to be bound by Ontario’s Environmental Protection Act.\n\nF: Canada Pacific burned away dead grass to free right-of-way in compliance with the federal Railway Act. The smoke bothered the neighbours, and the company was charged under provincial environmental legislation.\n\nR:\nThe Court held that burning grass was not the only way to keep the right-of-way clear, and that the provincial legislation did not aim at the management and control of an undertaking, so prov legislation was still applicable.\n\nThis test favours the provincial law than the vital part test, which the Court never recited or attempted to apply: it seems evident that the right-of-way would be a vital part of operating a railway.\n\n(The company appealed to the Supreme Court of Canada, which dismissed the appeal on the issue orally because it had been answered in CPR v. Notre Dame de Bonsecours [1899] a very similar case. It did not explain how to reconcile this case with the "vital part" criteria.)
The court rejected a section 7 Charter challenge against the government for allowing the US government to test cruise missiles over Canadian territory. It was argued that the use of cruise missiles by the US government increased the risk of nuclear war and that Canada's participation made Canada a more likely target. Dickson, C.J. struck down the claim on the basis that given the unpredictibility of foreign policy decisions of sovereign nations, suggestion of an increase in danger can only be speculative. It would be impossible to prove a causal link between the testing and the increased threat.\nWilson J. dismissed the use of the political question in Canadian law. She distinguished US from Canadian constitutional law where separation is not a core principle. Instead, there is an overlap between the branches and section 24 of the Charter requires judicial review of the executive branch of the government. For an issue to be justicible the question must raise a legal issue. She further noted that exercise of the royal prerogative can be judicially reviewed under section 32 of the Charter.
F: Federal public servants attacked provisions in the federal Public Service Employment Act that prohibited them from “engaging in work” for or against a candidate for election to Parliament or for or against a federal political party. \n\nQ: Were the restrictions on public activity by public servants held constitutional?\n \nD: No: The SCC held that the Act did limit freedom of expression under s. 2(b), and that it was not justified under s. 1. \n\nR: The objective of maintaining a neutral public service would justify limits on expression, but these limits did not pursue that objective by the least drastic means (see [[Oakes |R. v. Oakes (1986)]] test. The Act was over-inclusive as to both the range of activity that was prohibited, and the range of public servants who were covered. A narrowed prohibition would have been sufficient to protect the value of neutrality with less impact on freedom of expression. \n\nC: This is an example of a convention being transformed into law by being enacted as a statute. By implementing the conventional rule, in this case the convention of public service neutrality, the Legislation makes the rule subject to the Charter of Rights. In its application of the Oakes rule, the court also read down the law to keep it in effect despite its a violation of rights that was deemed reasonable.\n\nSee: [[OPSEU v. Ontario (1987)]]
[CP 140]\nF: Appellants install neon signs.\nRatio: Absolute discretionary power cannot be delegated to public officials.\n
The principle of POGG is found in the opening words of s.91 CA 1867, which gives the federal government the power "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 the Act assigned exclusively to the Legislatures of the provinces;...".\n\nIt can be explained either as the "general" power of Parliament (of which enumerated clauses are only parts) or as the "residuary" power (everything left over after enumerated clauses are taken out). (Hogg prefers the latter).\n\nFrom the POGG power, Hogg outlines three branches of legislative power: the "[[national concern or national dimension|national dimension]]" branch, the "[[emergency|emergency power]]" branch, and the "gap" branch (but Gelinas argues the latter is unnecessary, as [[Zellerbach|R. v. Crown Zellerbach (1988)]] combines it with the national dimension.) (Monahan argues there is a fourth branch, of "matter of interprovincial concern of significance, but let's not get carried away.)\n\nNote that at the provincial level, both 92.13 (property and civil rights) and 92.16 (matters of local and private nature) have also been interpreted broadly as heads of power. It is important to realize that "new" powers might be classified under either of these in addition to POGG if the "nature" of the new power is determined to align better with them.
Canada's Parliament consists of the House of Commons, the Senate, and the Governor General.
\nGenerally, when an [[Administrative Tribunal]] is delegated adjudicating powers, its decisions are subject to review by superior courts (by the writ of //certiorari//).\n\nTo avoid judicial review, legislative bodies often insert “privative clauses” that purport to make an administrative tribunal’s decision final. However, these clauses are usually given little effect. For example, in [[Alliance des Professeurs Catholiques de Montréal v. Québec, (1953)]], the Supreme Court ruled on the jurisdiction of the Labor Board despite a privative clause in the legislation that had created it.\n\nIn [[Woodward v. B.C. Minister of Finance (1972 SCC)]], the court ruled that privative clauses could make it impossible for a superior court to review the case for errors of law, but the clause could not make it impossible for a superior court to rule whether the tribunal exceeded its competence.
The Quebec Act of 1774 was an Act of the Parliament of Great Britain setting out procedures of governance in the area of Quebec.\n\nAfter the Seven Years' War, a victorious Great Britain achieved a peace agreement through the [[Treaty of Paris, 1763]]. The territory located along the St. Lawrence River, called Canada by the French, was ceded to the British, who renamed it Quebec after its capital.\n\nWith unrest growing in the colonies to the south, the British were worried that the French Canadians might also support the growing rebellion. In order to secure the allegiance of the approximately 70,000 French Canadians to the British crown, Governor James Murray compromised between the conflicting demands of the new subjects and those of the newly arrived British subjects. This eventually resulted in the Quebec Act of 1774.\n\nEffects on the Province of Quebec\nThe Quebec Act restored the former French civil tradition for private law, which had been ended in 1763 but kept English Criminal law. \n\nIt allowed for the Roman Catholic faith to be practiced, recognizing the Catholic church and allowing it to receives there dues (DIME = 10% of income).\n\nIt replaced the oath to Elizabeth I and her heirs with one to George III which had no reference to the Protestant faith. This allowed for the majority of the population of Canada to participate in the public affairs of the colony. In other words, for the first time since becoming a colony, French Canadians were able to participate in the affairs of the colonial government. \n\nFinally, the act annexed, to Quebec, the area east of the Mississippi River and north of the Ohio River.
F:Kellogg's attacks the provisions of the Quebec Consumer Protection Act that prohibit advertising aimed at children.\n\nQ: Is the provincial law invalid or inapplicable because television broadcasting falls under 92.10?\n\nD: No, the law is //intra vires//.\n\nR: The pith and substance of the law was to regulate advertisers, and the effects on television broadcasting are incidental.\n\nThe law seems to apply to broadcasters, and not just advertisers. The court concludes the law does not apply to them (a form of 'reading down').\n\nKellogg does not fall under 92.10, so [[interjurisdictional immunity]] is avoided.
S: SCC struck down the Lord's Day Act for violating section 2 of the Canadian Charter of Rights and Freedoms. \n\nF: Big M Drug Mart charged with unlawfully carrying on the sale of goods on a Sunday contrary to the Lord's Day Act of 1906. \n\nQ: Does the Act infringe the right to freedom of conscience and religion? Justified under section 1? Is the Act //intra vires// Parliament's criminal power under section 91(27) of the Constitution Act, 1867?\n\nD: 1. Yes. 2. No. 3. Yes.\n\nR: There is no true secular basis for the legislation and its only purpose was, in effect, to establish a state religious-based requirement. Invalid because unconstitutional under s.52, as opposed to s. 24 (for those whose rights are violated). Corporation is not a natural person, cannot have a religion so this right can't be violated.\n\nThe Lord's Day Act was the first law in Charter jurisprudence to be struck down in its entirety, and some of the s. 1 analysis in the decision played a role in developing the Oakes test.
S: Along with Charter remedies for contravening laws (s.52) and contravening behaviour (s.24), there is a remedy for evidence obtained in contravention of the Charter.\n\nF. An officer executed unreasonable search and seizure (chokehold on a suspected heroin dealer in a pub), violation of Charter s.8.\n\nQ. Does s.24.2 allow exclusion of evidence ?\n\nD. YES, s.24.2 is among the remedies (along with s.52, s.24) provided by the Charter.\n\nR. Court rules that where admitting the evidence would bring disrepute to the court, then 24.2 permits excluding it.\n\n(The Court also elaborated a test to determine whether or not admitting the evidence would bring disrepute to the court : the criteria were 1. factors affecting the fairness of the trial (whether there would be another means of obtaining the evidence); 2. factors relevant to the seriousness of the violation (whether admission would condone illegal practices of police); and; 3. factors relevant to the effect of excluding the evidence (on the reputation of the administration of justice).)\n
F: A BC company disputes a federal law against dumping materials into saltwater (Ocean Dumping Act). The company argues that applying the law to interior waters is //ultra vires// of federal Parliament.\n\nQ: Does the federal powers of POGG (specifically the “national dimension”) give it jurisdiction over pollution of interior saltwater bodies?\n\nD: The law is intra vires: regulating pollution of saltwater bodies is federal jurisdiction.\n\nR:\nJudge Le Dain sums up the “national dimension” question:\n1) The national dimension is separate and distinct from the theory of national emergency (the latter lays a constitutional foundation for provisional legislation).\n2) The national dimension applies equally to matter not existing at the time of Confederation as it does to matters that existed but have become matters of national concern (without a situation of emergency).\n3) To say a matter has a national dimension, it must have a singless (unicité), distinctiveness (particularité) and indivisibility that clearly distinguish it from provincial matters, and be compatible with the distribution of legislative powers of the Constitution.\n4) When deciding whether singleness, distinctiveness and indivisibility are satisfied, it is useful to examine what would happen if one province failed effectively to regulate the matter (provincial incapacity).\n\nIn this case, the pollution of saltwater satisfies the singleness criterion because it can be separated from freshwater (so the federal power won’t intrude in an unlimited fashion over provincial power). It satisfies the indivisibility criterion in the sense that pollution in one body of salt water while affect other bodies (consistent with principles of international law).\n
Version 1:\nIn R. v Drybones (1969), the SCC held that the racial classification “Indian” (S. 95 Indian Act), making it an offence for an Indian to be intoxicated on a reserve, violated the equality guarantee of S. 1(b) of the Canadian [[Bill of Rights]], guaranteeing “equality before the law.” It cast doubt on all of the provisions of the Indian Act and on the principle of a special regime of law for Indians though in retrospect this regime was not threatened by the decision. \n\nThe case also effectively ended almost ten years of conflicting judicial opinions in holding that S.2 of the Canadian Bill of Rights was not merely a rule of interpretation but instead had the effect of overriding, and, as per the holding of Ritchie J for the majority rendering “inoperative,” inconsistent federal statutes. Drybones thus elevated the Bill of Rights above other federal statutes and answered the question of whether Parliament could bind itself by the enactment of a simple statute. Nevertheless, few cases have applied the Bill of Rights.\n\nWhile the doctrine of repeal – in a conflict between two laws of the same legislature the latter is deemed to have impliedly repealed the former – is the general rule of common law, the Bill of Rights purports to apply to later statutes against this rule. It thus infringes on the principle of parliamentary sovereignty - that a Parliament’s powers of legislation are unlimited within its jurisdiction - because a sitting Parliament could make inoperative a future Parliament’s legislation. Therefore early commentators denied the Bill of Rights could override future legislation. The Bill was later seen as binding on the “manner and form” of future legislation – parliamentary sovereignty gives Parliament the right to bind itself procedurally though it cannot place limits on the substance of future legislation. Thus, Parliament has bound itself to enact laws inconsistent with the Bill only in a specified manner and form: it must include an express “notwithstanding” declaration. As a result, instead of weakening the Bill, its exemption clause validates it. Justice Laskin describes the Bill as “a half-way house between a purely common law regime and a constitutional one; it may aptly be described as a quasi-constitutional instrument” and its overriding effect is reaffirmed in an obiter in [[Lavell v. A.G., (1973)]].\n\nVersion 2:\nF: An Indian is drunk off the reserve, contrary to s.94(b) of the Indian Act (ss.94-99 repealed 1985). The defendant argues the law is contrary to the Canadian Bill of Rights and is thus inoperative.\n\nQ: (1) Does s.94(b) of the Indian Act discriminate unfairly in violation of the Canadian Bill of Rights? (2) If yes, are laws in violation of the Canadian Bill of Rights rendered inoperative?\nD: (1) YES; (2) YES (majority: Ritchie, Fauteux, Martland, Judson, Spence); (1) NO; (2) YES/NO (dissidence: Cartwright, CJ., Pigeon, Abbott JJ.).\n\nR: Majority: (1) S.94(b) violates the principle of “equality before the law”, which means no unfair discrimination based on sex, race, etc.\n(2) The Bill of Rights allows judges to declare conflicting laws inoperant.\nDissidence: (1) Abbott J.: “Equality before the law” has no meaning unless is repudiates all discrimination based on race, sex, etc. (agrees with majority). Pigeon J.: The Declaration of Rights intended for the courts to preserve existing rights (that is, those under existing legislation) and not to establish rights: discrimination is necessary to government.\n(2) All: The Bill of Rights is a rule of interpretation, but does not render conflicting laws inoperant. Had the legislator intended for the Bill to render laws inoperative, it would have been stipulated explicitly.\n\nNote: This case was subsequently confined to its own facts.
Following [[R. v. Big M Drug Mart Ltd. (1985)]], the Ontario legislature passes a similar law claiming to have a secular objective.\n\n1) Is the objective secular?\nExamples in US and Japan of similar laws not for religious reasons. Service industry is not covered by the law. Court decides legislation is secular, and therefore within provincial scope.\n\n2) Could legislation with a valid objective nevertheless have effects that attack Charter rights ?\nAnalysis of effects is fact-specific : court hears Jewish witnesses, but not other religions. Court rules that accomodation for Jewish is sufficient.\n
F: Hydro Quebec was charged with polluting rivers in violation of the regulations under the Canadian Environmental Protection Act (which forbids certain substances while leaving it to the administration to define what those substances are).\n\nHQ argued that the Act and the related regulations were //ultra vires// of the federal government as the subject of the Act did not fall under s. 91 CA 1867. HQ won in Qc CA.\n\nQ: Was the act valid federal law?\nD: YES (SCC 5-4).\n\nDissent: judges argue that the legislative objective is not criminal: “Criminal law… must attain a public objective… by imposition of prohibitions and punishments”. The law in this case did not aim at prohibiting pollution, but regulating it. In addition, the infraction did not exist before the ‘intervention’ of the administration (in defining forbidden substances) (para 55).\n\nReglementation of products: related to false advertising (moral). In Labatt, court ruled fed parl went too far in regulating, too far removed from crim, so rightfully in prov aspect.\n\nMajority: Parliament has "plenary powers" in criminal law to prohibit acts by imposing penalties. It is subject only to the reservation that it cannot be [[colourable|colourability]]. Pollution is a legitimate "evil" that Parliament seeks to control.\n\nC: This case, along with [[RJR MacDonald|RJR-MacDonald v. Canada (1995)]], shows a tendency towards crim regulation that strays far from its traditional form and substance.
In R. v. Mercure (1988), the SCC held that the Saskatchewan Legislature was bound by a statutory requirement enacted in 1876 (before the creation of the province of Saskatchewan (1905)) that its statutes must be enacted in both French and English. Justice La Forest, for the majority, treated the statute as a self-imposed “manner and form” requirement of the Legislature’s predecessor (relying in part on Hogg), which could be freely repealed or amended by the Legislature, and added that it was in the Legislature’s “constituent instrument.” The SCC accordingly struck down one of the Legislature’s English only statutes. Alberta faced the same situation in [[R. v. Pacquette (1990)]] and both provinces subsequently enacted statutes in both languages validating past English-only statutes and repealing the requirement for the future.\n\nNote: This case (and Pacquette) can be distinguished from the situation in [[Manitoba|Re Manitoba Language Rights (1985)]] by the fact that in Saskatchewan and Alberta the bilingual requirements were notentrenched, as they were in Manitoba.
F: This happens after the Criminal Code provisions forbidding abortion are declared unconstitutional. The NS government charges Morgentaler for performing abortions in violation of a health services legislation, passed in reaction to Morgantaler announcing he would open an abortion clinic, that bans abortions performed outside of hospitals.\n\nThe province invokes s.92(7):\nThe Establishment, Maintenance, and Management of Hospitals (...)\n\nOfficially, the law aims to preserve the health care system. Were the court limited to the text (“four corners”) of the legislation, it would have difficulty analysing pith and substance, so the Court gives itself permission to examine external proof (Hansard, committee meetings). The Court distinguishes between legal effect and practical effect.\n\nThe crux of the argument (which is accepted by the Court): the province essentially re-adopted the inconstitutional provisions of the Criminal Code: the pith and substance is to prohibit abortions as an undesirable social practice.\n\nIs it necessary to use the concept of disguised (or “colourable”) legislation? (Fr: “théorie du détournement de pouvoir”). SCC holds that the law does not have to characterized as a disguised attempt to adopt criminal law. In fact, the colourable legislation doctrine is only a part (albeit an integral part) of the “pith and substance” doctrine, even if the two questions are often found separately.\n(both “colourable legislation” and “singling out” are tools of the “pith and substance” doctrine).\n
F: Nat Bell Liquors, Ltd. is charged with unlawfully keeping for sale a quantity of liquor contrary to Alberta The Liquor Act, 1916. The Liquor Act had been passed under the provisions of the Direct Legislation Act, 1913, which established that a bill could be voted on by the people of Alberta, and, if the majority voted for, would be passed as usual in the Alberta legislature. Nat Bell Liquors argues that both statutes are ultra vires because the authority for matters related to alcohol regulation were delegated to the provincial legislature "exclusively" (s.92 [[CA 1867|Constitution Act, 1867]]).\n\nQ: Does the word "exclusively" in s.92 of CA 1867 preclude the use of popular vote on laws prior to them being passed in the normal matter in the legislature?\nD: NO.\n\nR: The word "exclusively" means "exclusive from any other legislature" and not "exclusive from any outside influence". If the Legislature was excluded from passing laws the people had approved, they would be restricted to passing laws the people either disagreed with or are indifferent to (!). The court holds that The Liquor Act was validly passed and that The Direct Legislation Act is not attacked by this case.\n\nC: The Direct Legislation Act thus differed from the [[Manitoba Initiative and Referendum Act|Re Initiative and Referendum Act (1919)]] by requiring the statute be passed by the Legislature. Nevertheless, this duty was formal only and so the decision conflicts with the Manitoba reference. It also runs contrary to the rule of parliamentary sovereignty that a legislative body can’t bind itself as to the substance of future bills (see [[R. v. Drybones (1969)]]).
S: Set out the criteria for establishing that a limit to a Charter right is reasonable and demonstrably justified in a free and democratic society. \n\n1) sufficiently important objective: “the objective…must be ‘of sufficient importance to warrant overriding a constitutionally protected right or freedom’”\n“proportionality test” to “balance the interest of society with those of individuals and groups:”\n2) means:\n## rational connection - measures must be “carefully designed to achieve the objective,”\n## least drastic means - the statute impair the right as little as is necessary\n## proportionate effect - “proportionality between the effects of the measures…and the objective which has been identified as of ‘sufficient importance.”\n\nNote: Most S. 1 cases turn on least drastic means. \n\n\nF: David Edwin Oakes was caught with vials of hash oil as well as $619.45. Accordingly, he was charged with intended trafficking, under s.4(2) of the Narcotic Control Act (NCA). Section 8 of the Narcotic Control Act provided for a shift in onus onto the accused to prove that he was not in possession for the purpose of trafficking. Oakes made a constitutional challenge, claiming that the reverse onus created by the presumption of possession for purposes of trafficking violated the presumption of innocence guarantee under section 11(d) of the Charter.\n\nQ: Wether s.8 of the NCA was constitutional.\n\nD: Section 8 of the Narcotic Control Act violates the right to presumption of innocence under section 11(d) of the Canadian Charter of Rights and Freedoms and cannot be saved under section 1 of the Charter and is inoperant.\n\nR: The shift in onus violated both Oakes's section 11(d) rights and indirectly his section 7 rights, and could not be justified under section 1 of the charter. \n\nCharter rights are not absolute and it is necessary to limit them in order to achieve "collective goals of fundamental importance".\n\nThe Court presents a two step test (above) to justify a limitation based on the analysis in [[R. v. Big M Drug Mart Ltd. (1985)]].\n
S: SCC on rights of the mentally ill in their criminal defence. \n\nF: The common law rule permitting the Crown to adduce evidence of an accused's insanity and section 542(2) of the Criminal Code, which allowed for the indeterminate detention of an accused who is found not guilty by reason of mental incapacity, are challenged.\n\nQ:\n1) Are the criminal code provisions //intra vires// of fed Parliament?\n2) Does the common law rule allowing the prosecution to show mental instability violate ss.7,9 or 15? Justified s.1?\n3) Does the criminal code rule allowing detention of a non-guilty mentally unstable person violate ss.7,9,15? Justified s.1?\n\n\nR:\n2) The Court concludes the common law rule, as formulated, contravenes s.7 of the Charter (not justified under s.1: failed "minimal atteinte"). It then proceeds to something resembling 'reading down' in which it reformulates the common law rule to allow raising the issue of mental instability only after the judge concludes the accused is otherwise guilty. According to the Court, this passes s.15 in that the accused will be judged only on the defenses it chooses to raise.\n\n(1) Lamer, C.J.: The Court found that the pith and substance of the provision was "to protect society against dangerous individuals" which is a valid part of criminal law. The provision allowing for detention to be of indeterminate duration was in violation of section 7 of the Canadian Charter of Rights and Freedoms.\n\n(3) The Criminal Law provisions are also in violation of ss.7 and 9, not justified by s.1. The Court allows a transition period of 6 months, during which detainment of up to 60 days is allowed.
Calgary enacted a by‑law that essentially forbade the use of the streets and other public areas by those seeking to prostitute themselves or to obtain the services of a prostitute. These by‑laws were purportedly enacted under the municipal powers, derived from the provinces, to regulate the use of the streets and to restrict activity that encourages criminality. The Supreme Court of Canada struck down the Calgary by‑law for infringing on federal jurisdiction over criminal law. \n\nThe municipal bylaw was found to be //ultra vires// of the province. The law was colourable because its true intent (pith and substance) was to punish prostitution (federal criminal power under s.91), not to keep the streets safe as it claimed (which would be 92.16). (Grey zone of distribution of powers : local v. moral).\n\nCourt decided the //ultra vires// portion of the regulation was separable and so only the regulations on prostitution were struck.\n\nProcedural rule : the question of //ultra vires// comes logically before the Charter question : a law cannot infringe Charter right if it is ultra vires.\n
(source: Wikipedia - check v. other sources)\n\nF: Two tobacco companies challenged an act regulating tobacco advertising as being ultra vires the federal government's criminal law power and peace, order and good government power, and as being in violation of the right to freedom of expression under s.2b of the Canadian Charter of Rights and Freedoms.\n\nD/R:\nThe Act is valid under the criminal law power but sections 4, 8, and 9 of the Act violate freedom of expression (s.2b Charter) and cannot be saved under s.1. \n\nDivision of powers\nThe majority held that the Act was valid under the criminal law power. The Court stated that the criminal law power was broad, "plenary in nature", and not frozen in time. There were three purposes of the Act. It was intended to prohibit the advertisement of tobacco products (ss. 4 and 5), promotion of tobacco products (ss. 6 to 8) and sale of tobacco products without printed health warnings (s. 9). Health as a subject of legislation is not allocated to a single head of power, but in the context of protecting the public it has been found to be criminal in nature.\n\nThe Court found the Act was not [[colourable|colourability]]. The evil that the law is addressing does not have to be approached directly, and in these circumstances it would not be practical. Even though the subject was not one that was commonly recognized as being criminal does not necessarily invalidate it.\n\nCharter issues\nThe majority held that the impugned sections violated the freedom of expression under section 2(b) of the Charter. The right to freedom of expression includes the right to say nothing. The mandatory use of unattributed labels were a form of forced expression and so invoked section 2(b).\n\nThe majority held that the violation was not justified by s.1 Charter.\n
S: States that the Charter applies to governmental action, and to the common law except where matters are solely between private parties. Nevertheless, judges should interpret the common law in light of the Charter.\n\nF: The Retail, Wholesale and Department Store Union applied to the court to have Dolphin Delivery and Supercourier declared allies of Purolator, an employer of union members. This would have allowed the union to picket Dolphin while its employees would not have to cross the picket line.\n\nDolphin obtained an injunction against secondary picketing on their premises on the basis that the common law does not permit secondary picketing. The union brought the action for violation of their Charter rights to freedom of expression (section 2(b)) and association (section 2(d)) .\n\nD: 52(1) of the Constitution Act, 1982 (any law inconsistent with the Charter is of no force or effect) should be interpreted broadly to include statute law and common law but s. 32 (Charter should apply only to Parliament and legislatures) means that Charter will apply only to common law where the government is involved.\n\nWhile legislative, executive, and administrative branches fall within the purview of government, courts do not.\n\nAftermath: R. v. Rahey, [1987] 1 S.C.R. 58 reversed this and held that all courts are subject to Charter.
S: Established the requirement for a mens rea component for all offences with penal consequences and established fundamental justice as more than a procedural right similar to due process, but rather as a substantive right despite such rights being counter to the intent of the initial drafters of the Charter.\n\nF: Section 94(2) of the Motor Vehicle Act of British Columbia created an Absolute Liability offence of driving while with a suspended licence. To be convicted the Crown only needed to establish proof of driving regardless of whether the driver was aware of the suspension or not. A successful conviction carried a prison term of a minimum of seven days.\n\nD: The Act violated a principle of fundamental justice under s. 7 of the Charter.\n\nR: Any absolute liability offence which deprives the right to life, liberty or security of the person violates the principles of fundamental justice and offends the Charter. It is only through reasons of public interest can such offences be saved through section 1 of the Charter.\n\nThe Crown failed to show that the public interest of ridding the roads of bad drivers could be proportional to the limiting of people's rights by imprisoning them.\n\nLamer dismissed the practice of relying on the testimony of the original drafters of the Constitution as interpretive aids, effectively rejecting the use of an original intent approach to Constitutional interpretation. Reference was made to the living tree doctrine. The Court also rejected the more restricted definition of fundamental justice under the Canadian Bill of Rights, as described in Duke v. The Queen (1972).\n\nThe alternative view of fundamental justice as natural justice would place the rights to life, liberty, and security of person "in a sorely emaciated state."
Re Initiative and Referendum Act (1919) Privy Council dealt with a Manitoba law allowing the electorate to initiate a law through a petition signed by at least 8 % of the electorate. If not enacted by the Manitoba legislature, it could be passed by a referendum with a 50 % majority. The same procedure applied to repeals and would have resulted in a situation in which the legislature could modify the power of the people to pass law and visa versa. \n\nThe Council held that because the statute bypassed, and therefore modified the powers of, the Lieutenant Governor, it was an amendment to Manitoba’s constitution and therefore could not be amended by its legislature under [[S. 92(1)]] the [[Constitution Act, 1867]]. The Council thus struck the statute based on a legality made obsolete by convention. \n\nNote: The lower court, the Manitoba Court of Appeal, had held that direct democracy was bad because it invested the primary powers of legislation in the electorate, not the Legislature. The Privy Council refrained from commenting, but took up this argument obiter dictum: it interpreted the Constitution Act as dictating that primary law-making authority can only be exercised by the organs that it establishes or recognizes.\n\nAnother example of experiment with direct democracy is found in [[R. v. Nat Bell Liquors, Ltd. (1922)]].\n
SCC declared the Official Language Act, 1890, which had decreed that “the English language only” be used in Manitoba's legislature and the courts, invalid because s. 23 of the Manitoba Act, 1987 (a part of the Constitution of Canada) requires Manitoba’s statutes be enacted in French as well as English. \n\nThe Bill was, in effect, an attempt to repeal most of s. 23 and had been enforced by provincial governments for a century despite having been declared invalid 3 times by provincial courts. The SCC, citing [[Re Initiative and Referendum Act (1919)]] noted the translation would not have received royal assent and was unconstitutionally interfering with the LG’s powers. \n\nThe SCC held that unconstitutional laws were to be given “temporary force and effect for the minimum period necessary for their translation, re-enactment, printing and publication” (because Manitoba’s failure to enact laws in French had invalidated the entire Manitoba statute book) based on the “rule of law.” The re-enactment had to be simultaneous and with equal authority, and the procedure had to be consistent (ie. could not bypass the lieutenant governor).\n\nThe Court recognized that S. 52(1) of CA 1982 has replaced the Colonial Laws Validity Act as the foundation of judicial review. It reaffirmed the doctrine of repugnancy, which states that any law inconsistent with the CA is of no force and effect.\n\nThe questions posed were as follows:\nAre the requirements of s.133, [[CA 1867|Constitution Act, 1867]], and s.23, Manitoba Act 1870, regarding the usage of French and English imperative?\nYES.\nDoes s.23, Manitoba Act 1870 render invalid the laws and regulations in Manitoba not passed and published in both English and French?\nYES.\nAre the laws inoperative?\nYes, BUT we'll make them temporarily valid to give time to translate, pass again, and publish, this time in both languages.\nWhat about that law that we passed that said that we would ignore s.23?\nYou should have passed it in French too, but since you didn't, it's no good just like the rest of them.\nShit?\nYeah.\n\nNote: This decision was applied in [[Bilodeau c. P.-G. Manitoba (1986)]], [[Sinclair v. Que. (1992)]], [[R. v. Pacquette (1990)]] and [[R. v. Mercure (1988)]]
(AKA Quebec Veto Reference)\n\nF: After Trudeau and the other nine provinces went ahead with the [[Resolution to Amend the Constitution|Re Resolution to Amend the Constitution (1981 SCC)]], Quebec appealed to the Court of Appeal asking whether Quebec could veto the Resolution.\n\nQ: Does Quebec have a conventional power or veto and does a conventional rule of unanimity exist?\n\nD: NO (held from Court of Appeal). Quebec has no conventional veto power because such a power lacks recognition, which is essential to distinguishing between a political expediency and a constitutional convention. The conventional rule of unanimity was dismissed in [[Re Resolution to Amend the Constitution (1981 SCC)]]\n\nR: \nUnanimity\n-repetition of discussion on how a constitutional convention is formed from Repatriation Reference : “The main purpose of constitutional convention is to ensure that the legal framework of the constitution will be operated in accordance with generally accepted principles…In being asked to answer the question whether the convention did or did not exist, we are called upon to say whether or not the objective requirements for establishing a convention had been met…”\n-(from notes) purpose of constitutional conventions is to ensure that the juridical sphere of the Constitution functions in accordance with the principles and values at the time of formation of the Constitution; conventions are not enforced by courts but the courts can use the conventions for interpretative purposes.\n-the new procedure of amendment in the Constitution (1982) replaced the old amending formula as well as the conventional aspects, so even if Quebec has a veto, it was no longer valid.\n-in finding for a convention a unanimity, there was a need that acceptance of an existing convention be recognized by all actors, which was not the case as seen in the Repatriation Reference\n\nVeto\n-Quebec held that the principle of duality, as a historic precedent, was the underlying reason that Quebec had veto powers. The idea of duality was crucial to the formation of the federalism within Canada\n-Quebec failed, according to the Court, to prove that this historical precedent was accepted and recognized by the actors in the precedent. The recognition of this principle by other provinces was needed to prove that Quebec had had a historic veto and no such evidence was produced. The fact that Manitoba, PEI and Alberta pleaded specifically for unanimity in the Repatriation Reference rather than any special veto power to Quebec (and Ontario) denies to Quebec this idea of a special veto.\n-“Recognition by the actors in the precedents is not only an essential element of conventions. In our opinion, it is the most important element since it is the normative one, the formal one which enables us unmistakably to distinguish a constitutional rule from a rule of convenience or from political expediency.”\n\nThe Court applied the Jennings test. For a convention to exist:\n1) a precedent must exist;\n2) the actors must feel bound by this rule; and\n3) there must be a “raison d’être” for the rule.
(AKA Patriation Reference)\n\nWhen PM Trudeau proposed the amendments which ultimately became the Canada Act and the Constitution Act, 1982, he asserted that if provincial consent could not be obtained, the fed gov’t would proceed unilaterally to request the amendments by the UK Parliament. This triggered three provinces (QC, Manitoba, and Newfoundland) to direct references to their courts of appeal on two issues:\n(1) whether there was a requirement of law that provincial consents be obtained\n(2) whether there was a requirement of convention that prov. consents be obtained\n\nThe Resolution to Amend the Constitution, i.e. the Patriation Reference:\nThe majority of the SCC, ruling on appeal from the three C.A. decisions, held that the consent of the provinces to the proposed amendments was not required as a matter of law, but that a “substantial degree” of consent was required as a matter of constitutional convention (thus affirming the existence of an unwritten dimension to the constitution).\n\nConventional Obligation Maj - Obliged Min - Not Obliged\n\nJuridical Obligation Min - Obliged Maj - Not Obliged\n\nMartland J. and Richie J. (as the minority on the juridical question), held that the convention had crystallized into droit constitutionnel non-ecrit. \n\n\nAfter the SCC decision, the PM plus 9/10 provincial Premiers (Quebec dissenting) agreed on a version of the amendments, raising the question whether Quebec was a necessary part of the conventional rule of a “substantial degree” of provincial consent.\n\nSee [[Re Opposition to Resolution to Amend the Constitution (1982 SCC)]]\nThe Quebec Court of Appeal and the SCC held that Quebec’s consent was not required to satisfy the conventional rule of a “substantial degree” of provincial consent established in the Patriation Reference. \n\nConsequently, the agreed-upon version of the amendments was passed by both Houses of the Federal Parliament, sent to London, and was enacted by the UK Parliament as the Canada Act 1982, which included as Schedule B the Constitution Act, 1982.\n\nPart V of the Constitution Act, 1982, which defines the roles of the federal and provincial governments in the amendment process, now supplants the vague rules laid down by the SCC in the Patriation Reference.
F: Following the 1995 referendum, the federal government asks the court to rule on the legality of a unilateral secession by Quebec.\n\nQ: Can Quebec unilaterally separate from Canada (1) according to the Constitution; (2) according to international law?\n\nD: NO. Quebec has the right to separate only if with a clear majority giving a clear answer and if it discharges its obligation to negotiate with Canada in good faith.\n\nR: The Court moves away from the formalism of its decision in Re: Resolution to amend the Constitution (1981) and reasons based on underlying principles of the Constitution.\n• federalism\n• democracy\n• constitutionalism and rule of law\n• respect of minorities\n\nThese principles must be considered together: the principle of democracy cannot prevent or exclude the principles of constitutionalism or of rule of law.\n\nModifying the Constitution requires consensus precisely because modification aims at putting certain principles out of the reach of the simple majority. We must find a way of accommodating the principle of democracy with the principle of constitutionalism.\n\nThe obligation to negotiate:\nA secession vote gives rise to an obligation to negociate in the parties forming the Confederation to respond to the expressed democratic will (the court doesn’t say what would happen should these negotiations reach an impasse.) Failing to negotiate – on the part of either part – would undermine the legitimacy of its actions and would have repercussions on the international scene.\n
F: NL and CFL Co made agreement to manage the resources and installations at Churchill Falls, under which NL was forced to export electricity. To avoid it, NL passes a law that, in practice, is an expropriation of the rights of the company, leaving it as a //coquille vide// (empty shell).\n\nQ: (1) Did the expropriation go so far as to touch the heart of a federally-chartered company (beyond provincial authority - and therefore protected by [[interjurisdictional immunity]])?\n(2) Was the NL law ultra vires because of extra-territoriality?\n\nD/R:\n(1) NO. Although the expropriation took away the rights, it left the (empty) shell of the company. Here, the SCC interprets the protection accorded to a federally constituted company in a very restrictive way. Essentially the only thing provincial legislation could not do is fire the administration.\n\n(2) YES. To determine extra-territoriality, must determine legislative objective and apply the pith and substance doctrine (Here, the Court allows going outside the text of the law to look at exterior elements, within limits [CP146 2e col]: the Court will refuse public and political comments made outside of Parliament; govt publications are acceptable).\n\nAccording to pith and substance, a provincial law can have accessory effects on laws that are federal, or of another province. However, a law that by its pith and substance (caractère véritable) has the aim of infringing on an area of another province’s competence (“colourable attempt”) is unconstitutional.\n\nIn this case, it was clear the statute had the goal of eliminating the contractual rights of a the company, which according to the contract were situated in Qc. The NL law therefore aimed to eliminate rights that resided in Qc and was thus ultra vires.\n\nC:\nGelinas: this reasoning is not very convincing, but works here to force NL to respect its obligations. Commercially, Hydro Qc did well, but bore all the financial risk of the project.\n
F: This reference seeks to determine the powers of Parliament to unilaterally reform or eliminate the Senate.\n\nQ: Is it within the legislative competence of the Parliament to modify or eliminate the Senate?\n\nD: NO.\n\nR: The Parliament unilaterally modified the Constitution on numerous occasions where the modification concerned internal federal questions. However, none of these substantially modified the structure or principles upon which Parliament rests. The Senate was created to represent minority interests – specifically regional ones – against the ‘tyranny of the majority’ of the HOC.\nFurther, reference is made to Parliament as “the Queen, the House of Commons, and the Senate” in both ss. 17 and 91, CA 1867.\nThe power of modifying the “constitution of Canada” conferred in 91(1) (added 1949) was restricted to the general legislative powers of Parliament.\nFinally, the judge responded to the argument that s.91 confers similar powers to s.92 (by which every province abolished its upper house) with the argument that s.92 makes reference only to a “legislature” and not the organs specifically (a little formalist).\n\nRatio: The Parliament of Canada cannot unilaterally modify elements that are part of the fundamental characteristics of the Senate to ensure regional and provincial respresentation within the federal system [CP 89].\n\nNote: This was replaced by S. 44 of the Constitution Act, 1982. S. 44, 41 and 42.1(b) expressly included “the powers of the Senate” among the topics that can only be altered through the general (seven-fifty) amending procedure (S. 38.1).\n
As concerns the Reception of English Law, [[Blackstone|Blackstone, Commentaries on the Laws of England (1765)]] distinguished two types of colonies: "desert and uncultivated" areas were deemed [[settled colonies]]; they are distinguished from [[conquered colonies]], areas acquired by conquest or treaty.\n\n• All statutes from England are imported up until the date of reception. Colonies have right to repeal statutes that do not apply to colony. Only imperial statutes after this point are applied to the colony. \n• Cut off date is when there is an official assembly. This date is 1792 in Ontario / Quebec\n• Cut-off date can be by imperial statute (ex; Alberta).\n• Any local piece of legislation that is inconsistent with imperial law → declared to be invalid by the courts.\n• The applicability of whether a particular rule of English law which one may argue has been imported into the colony (statute or common law) is adapted to the situation to the colony where it has been received → the general principle of reception is that the laws of England is imported but actually the courts will look at every rule of English law to determine whether that rule was adapted to the circumstances of the colony.\n\nStatute Law: \nReception Date: All received except for those that do not apply to the colony.\nCut-off Date: Westminister law (parliament) is not applicable to the colony after the cutoff date.\nExcept: imperial statutes (which apply to all colonies). \n\nCommon Law:\nReception Date: Court decisions are all considered applicable.\nCut-off Date: None - The law is received except if it was not relevant to the colony
Airport regulation forbidding solicitation was attacked under freedom of expression by a group that wanted to distribute political materials.\n\nThe Court ruled that the regulation should be 'read down' to allow political materials, because the government should only be allowed to forbid expression insofar as is necessary for the use of a property (freedom of political expression does not apply, for example, in a military base).
F: Provincial law regulating nudity in bars within the framework of regulating alcohol sales is challenged on the basis its goal is moral, and therefore it is //ultra vires// of the province.\n\nChief Justice Dickson, writing for Mcintyre, Wilson, and Le Dain, held that the law was valid. Dickson characterized the law as regulating entertainment as a means to boost alcohol sales. Presumptively this matter is both of a local nature and relating to property and civil rights. Though there are provisions within the Criminal Code dealing with nudity, they do not conflict with the provincial law.\n\nFurthermore, the law did not possess any penal consequences required for all valid criminal law.\n\nThis case is distinguished from [[R. v. Westendorp (1983)]]: while in that case the laws prohibiting prostitution were colourable, in this case the rules on nudity are only part of a broader rule.
Roncarelli v. Duplessis (1959) SCC \n\nF: Premier Duplessis of Quebec ordered that Roncarelli’s liquor license be cancelled because Roncarelli was a Jehovah’s Witness who had acted as a bondsman for JWs arrested for distributing their literature in breach of municipal bylaws.\n\nQ: Was Duplessis justified in cancelling the license?\n\nD: NO (Kerwin, Martland, Locke, Abbott JJ.; Taschereau, Cartwright & Fauteux JJ. dissenting). Damages to Roncarelli. \n\nR: Authority to cancel liquor licence could only be conferred by statute, and was in fact conferred to another official. Neither Duplessis’ high office, nor his judgment as to the demands of the public interest could justify his act: public adminstration must be conducted with complete impartiality and integrity.\n(Dissent: Roncarelli did not issue a writ of notice as required under Art. 88 C.P. when suing a public official, and thus no judgment can be issued against Duplessis.)\n\nC: This case was a reaffirmation of the principle of validity – that every official act must be justified by law. A corollary of this is case is that the PM, a Minister or any other government representative, has no power to temporarily suspend the operation of a law or dispense with a law in favour of a particular person(s).
S: Decided the federal (Criminal Code) provisions regulating driver licensing do not make the provincial regulations inoperative: under 'dual compliance', it is possible to follow both, and fed Parl did not intend to 'occupy the field' and legislate exhaustively on this subject.\n\nThis case touches a problem already resolved in Egan, but the federal law in question was modified in the meantime to give more discretion to the judge in deciding punishment (for example, to allow the use of a vehicle in certain situations). Here, again, the question is whether the automatic suspension prescribed by the provincial law is compatible or not.\n\nThe Court reaffirms the possibility of respecting both laws. The provincial law can remain operant notwithstanding the discretion of the judge.\n\nIs this decision logical? The preponderance of proof doesn’t mean much anymore if provinces could change the standard adopted in federal laws. Would it be possible for federal Parliament to exclude the application of a provincial standard? If the standard was positively formulated, it might be possible – but would it still be federal criminal law? Always the question of formulation.\n\nThe conflict of laws criteria used in Ross is that of Smith v. The Queen (1960): the dual compliance test (no conflict unless obeying one causes disobeying the other. In Australia this criteria is basically the same – the preponderant legislation must have expressed an explicit intention. This is Hogg’s occupying the field test.\n\nApplying the occupying the field test, federal Parliament did not intent completely to “occupy the field” and exclude all provincial laws (the question of whether this would be possible doesn’t come up). It is possible that the application of preponderance does not use the intention of federal Parliament: an unwritten constitutional rule possibly prohibits federal Parliament from fully occupying the field. This is a fundamental question: does the conflict test depend on an interpretation of federal legislative intention or is it contained in an unwritten Constitutional rule?\n
• Was an exercise of the King’s prerogative power. \n• Borders were redefined\n• Governors and counsel were appointed for each colony\n• Promise to create a legislative assembly ""so soon as the state and circumstances of the said Colonies admit" with the power to make laws "for the Public Peace, Welfare, and Good Government"\n• allowed for the possibility of appeal to Privy Council (to protect English colonists)\n• States that Law of England shall apply (until General Assembly), despite the recommendation of the colonial office that the Law of France remain applicable due to language.\n• Provides basis for reserving land for Aboriginals in those territories not ceded
\nThis case is an extremely ambiguous interpretation of the general powers ([[POGG]]) of the federal government under CA 1867 s.91.\n\nF: Federal Parliament passed a law permitting local authorities to decide the question of prohibition.\n\n//Direct Delegation//\nThe first problem is that of direct delegation. This case establishes the possibility of conditional legislation where the mise en vigeur is delegated to a conditional exterior force (ie. local authorities).\n\nThere is also the question of uniformity of laws. Confirmed that fed leg did not have to apply uniformly throughout Canada (this has always been the case since fed laws are applied by local authorities taking into account the particular situation). For example, in practice, Crim Code is applied differently in each province.\n\n//General powers of federal government//\nThe pith and substance doctrine is used here (¶20) to determine that the legislation in question does not fall under 92(13) (property and civil rights) because it relates primarily to public order and safety (“the true nature and character of the legislation in the particular instance under discussion must always be determined, in order to ascertain the class of subject to which it really belongs.”) Laws, for example, which forbid someone to burn his house, or that restrict exposure of diseased cattle are of a nature to protect the public order and subject contravenors to criminal punishment, and belong to the subject of public wrongs (POGG) rather than civil rights.\n\nThe matter does not fall within any enumerated provincial areas of competence, so the Court classifies is among the general powers of the federal government, now known as [[POGG]].\n\nThis decision was revisited in [[Ontario v. Canada Temperance Federation (1946)]].
1.1 Centralized Administrative Structures\nThe Counsel of Ministers or Cabinet and its Committees and Services \nThe Ministers\nSee [[Note and the Canadian Parliament and the Legislative Process]]\n\n1.2 Decentralized Administrative Structures\nFunctional Decentralization\nConsultative Organizations\nAdjudicative Organizations\nRegulatory Organizations\nGovernment Management Organizations\nCommercial Management Organizations or for the Provision of Services\n\nTerritorial Decentralization\nMunicipal Administrations\nEducational Administrations\nFederal Territories
1.1 English Constitutional Evolution\nMagna Carta (1215)\nDr. Bonham’s Case (1610)\nPetition of Rights (1628)\nHabeas Corpus Act (1679)\n[[Bill of Rights]] (1689)\nAct of Settlement (1700-1701)\nRecent Developments: Scotland Act (1998); The Government of Wales Act (1998); Human Rights Act (1998); Constitutional Reform Act (2005)\n\n1.2 Canadian Provisions for Deconstitutionalization\n a. Federal Deconstitutionalization\nUnder CA 1867 s. 91(1), repealed: \n[[Re Upper House (1980)]]\nUnder CA 1982 s. 44: \nCampbell v. A.-G. Canada (1988) 49 D.L.R. (4th) 321 (B.C.C.A.), in relation to the representation aux communes (CA 1982 s. 42(1)) \nRef. re Appointment of Senators, (1991) 78 D.L.R. (4th) 245 (B.C.C.A.)\nRe Leblanc, (1991) 80 D.L.R. (4th) 641 (Ont. C.A.), in relation to CA 1867 s. 22, 26 and 51a \n\nb. Provincial Deconstitutionalization\nUnder CA 1867 s. 92(1), repealed:\n[[A.-G. Que. v. Blaikie 1979]]\nA.-G. Manitoba v. Forest, [1979] 2 R.C.S. 1032\n[[OPSEU v. Ontario (1987)]]\nUnder CA 1982 s. 45:\nDixon v. A.G.B.C., [1987] 1 W.W.R. 313 (S.C.B.C.) \nRe Provincial Electoral Districts (Sask.), [1991] 2 S.C.R. 158, on the constraints on provincial laws enacted thereafter as part of the Canadian Charter\n\nc. The Deconstitutionalization of s.33 of the Canadian Charter of Rights and Freedoms\n[[Ford v. P.G. Québec (1988)]] (at pp. 733-745 of the case)\n\n
a) Substantial Constitution: United Kingdom\nb) Formal Constitution: United States\nc) [[Canada’s Constitution]]
• John Locke and his Treatise on Civil Government, 1690.\n• Montesquieu (On) The Spirit of the Laws, 1748.\n- The United States reception of the doctrine of the separation of powers : the presidential regime\n- Can we speak of the separation of powers in the Canadian parliamentary regime?
• The American Example : [[Marbury v. Madison (US 1803)]]\n• Before 1931: art. 2 [[Colonial Laws Validity Act, 1865]]\n• Between 1931 and 1982 : art. 7 of the [[Statute of Westminster, 1931]]\n• Since 1982 : art. 52 of the [[Constitution Act, 1982]].
Regulatory Powers\nVerdun v. Sun Oil Company Ltd. [1952] 1 R.C.S. 222\nVic Restaurant Inc. v. Ville de Montréal [1959] R.C.S. 58\nPhaneuf v. Village de St-Hugues (1936) 61 B.R. 82\nAdministrative Power\nJudicial and Quasi-Judicial Powers\nMinisterial Powers\nThe Power to Contract
2.1 The English Context\n• The Parliament Acts of 1911 and 1949\n• The European Communities Act (1972)\n• [[Factortame v. Secretary of State for Transport (1991)]]\n \n2.2 The Canadian Context: the « manner and form requirement »\n• Article 2 of the Canadian [[Bill of Rights]]\n- [[R. v. Drybones (1969)]]\n- [[Lavell v. A.G., (1973)]]\n- [[Singh v. Minister of Employment and Immigration (1985)]]\n• Article 52 of the [[Quebec Charter of Human Rights and Liberties]] \n• [[Ford v. P.G. Québec (1988)]]\n• The “manner and form requirement,” an exceptional requirement \n- [[Canada Assistance Plan Reference (1991)]] (at pp. 561-564 of the case)\n- [[R. v. Mercure (1988)]]\n- [[R. v. Paquette (1990)]]
2.1 The Judicial Perspective : parliamentary delegation of power to the executive\n• [[Chemicals Reference (1943)]] R.C.S. 1\n• [[Law of 1968-69 Reference]] modifying criminal law \n(Canada) art. 16, [1970] R.C.S. 777.\n• Emergency Measures Act, L.R.C. 1985, ch. 22 (4e suppl.) abrogating and replacing the War Measures Act\n\n2.2 The Political Perspective: ministerial responsibility
2.1 France in America and Franco- British conflicts\n[[Treaty of Paris, 1763]]\n\n2.2 The colonial regime and the reception of English law\na. [[Royal Proclamation, 1763]]\nb. Principles of the [[reception of English law|Reception of European Law]]\n[[Blackstone, Commentaries on the Laws of England (1765)]]\n[[Mabo v. Queensland (1992)]]\n[[Campbell v. Hall (1774)]]\n[[Uniacke v. Dickson (1848)]]\n[[Fleming v. Atkinson (1959)]]\nc. [[Quebec Act, 1774]]\n\n2.3 Upper and Lower Canada\na. [[Constitution Act, 1791]]\nd. [[Act of Union, 1840]]\n\n2.4 Responsible Government\n[[Grey's Correspondence]]\n\n2.5 Towards [[Confederation]]
3.1 Political Control (or Parliamentary) and Administrative Control (hierarchical or by specialization)\nLe Protecteur du citoyen (Québec ombudsman)\nAuditor General v. Minister E.M.R., [1989] 2 R.C.S. 49\n\n3.2 Initial Objections to Judicial Control of Administrative Legality\nIncompetence\nLegal Flaw\nAlliance des Professeurs Catholiques de Montréal v. Québec, (1953) (Employment Relations Board), [1953] 2 R.C.S. 140 – Chief Justice Rinfret’s notes \nMisuse of Power\nRoncarelli v. Duplessis (1959) R.C.S. 121\nError of Right\n[[Alliance des Professeurs Catholiques de Montréal v. Québec, (1953)]] (Employment Relations Board),– Justice Rand’s Notes\n \n3.3 Protected Nature of Judicial Control of Administrative legality : the inoperative nature of privative clauses by jurisdiction\nLogical Argument: [[Alliance des Professeurs Catholiques de Montréal v. Québec, (1953)]]\nConstitutional Argument: CA 1867 s. 96\nCrevier v. Québec (P.G.) [1981] 2 R.C.S. 220.\n[[Woodward v. B.C. Minister of Finance (1972 SCC)]]\n\n3.4 Disputes Regarding Cancellation and Responsibility\nDisputes regarding cancellation (supra à 3.2)\nDisputes regarding responsibility\nContractual\nDelictual\n\n3.5 Unconstitutionality, Retroactivity and Legality\n[[Re Manitoba Language Rights (1985)]] \n[[Bilodeau c. P.-G. Manitoba (1986)]] 1 R.C.S. 449\n[[R. v. Mercure (1988)]]\nR. c. Paquette [1990] 2 R.C.S. 1103\nR. c. Sinclair [1992] 1 R.C.S. 579\n\nConclusion of Chapter II: Traditional and Modern Conceptions of the Rule of Law
[[Re Initiative and Referendum Act (1919)]]\n[[R. v. Nat Bell Liquors, Ltd. (1922)]]\n[[Outdoor Neon Displays Ltd. v City of Toronto (1959)]]
3.1 The Independence of the Magistrature\n\n3.2 The Connection between the Law and Judgements\n• [[Liyanage v. the Queen (1967)]] 1 A.C. 259\n•[[Gagnon and Vallières v. The Queen (1971 CA Qc)]]\n\n3.3 Deference to Legislative Power\n• [[Vriend v. Alberta (1998)]] 1 R.C.S. 493\n• Chaouilli c. Québec (P.G.)
3.1 1. Imperial Statutes: A Six-Step Evolution\na. Canada's first constitutions: [[Royal Proclamation, 1763]], [[Quebec Act, 1774]], [[Constitution Act, 1791]], [[Act of Union, 1840]]\nb. [[Colonial Laws Validity Act, 1865]]\nc. [[Constitution Act, 1867]] (before 1982 : British North America Act) and its many amendments.\nd. [[Statute of Westminster, 1931]] The Imperial Conference and the [[Balfour Declaration (1926)]]\ne. [[Constitution Act, 1982]] (annex B) including in particular:\n[[The Canadian Charter of Rights and Liberties|Charter]] (art. 1-34),\nThe [[Amendment Formula]]s (art. 38-49).\nf. Admission of New Provinces and Territories ([[CA 1867|Constitution Act, 1867]] s. 146)\n• 1871: British Columbia\n• 1873: Prince Edward Island\n• 1870 et 1880: Rupert's Land, Northwest Territories and other British Territories\n\n3.2 Federal Legislation : 3 Examples\na. The Creation of New Provinces\n• [[Manitoba Act, 1870]]\n• [[Constitution Act, 1871]]\n• Alberta Act, 1905\n• Saskatchewan Act, 1905\nb. [[The Supreme Court Act, 1875]] s.101 of the [[CA 1867|Constitution Act, 1867]].\nc. "Deconstitutionalized" Provisions \n• [[Specific Provisions]]: s. 35, 40, 41, 47, 105, 130, 131 CA 1867.\n• [[General Provisions]] : s. 44 [[CA 1982|Constitution Act, 1982]] (replacing s. 91(1) CA 1867, repealed).\n\n3.3 Provincial Legislation : 2 Examples\na. "Deconstitutionalized" Provisions\n• [[Specific Provisions]]: s. 68, 78, 83, 134, 135, 136 L.c. de 1867.\n• [[General Provisions]]: s. 45 CA 1982 (replacing s. 92(1) CA 1867, repealed).\nb. [[Quebec Charter of Human Rights and Liberties]] (CcQ annex).\n\n3.4 Constitutional Conventions\n• Idea\n• Examples\n• Force and Use\n• [[Re Opposition to Resolution to Amend the Constitution (1982 SCC)]]\n• [[Re Resolution to Amend the Constitution (1981 SCC)]]\n\n3.5 The Common Law and Royal Prerogative\n• [[“The King can do no wrong”]]\n• The Monarch's Residual Powers\n• [[Liquidators of the Maritime Bank v. Receiver General of New Brunswick (1892)]]\n\n\n3.6 Other Sources\n• Federal-provincial Arrangements. See : [[Canada Assistance Plan Reference (1991)]]\n• Jurisprudence and doctrine:\n- [[Re Secession of Quebec (1998)]]
Sandra M. Lovelace Nicholas (surname “Lovelace Nicholas”), CM (born April 15, 1948) is a Canadian senator representing New Brunswick. In 1977, she petitioned the United Nations over the treatment by the Canadian government of aboriginal women and children in Canada. In 1985, she successfully had a section of the Indian Act removed which revoked an aboriginal woman’s Indian status if she married a non-aboriginal man. In 1990, she was made a Member of the Order of Canada and, in 1992, she received the Governor General’s Award in Commemoration of the Persons Case.
SCC held a provision of the Federal Unemployment Insurance Act offended the guarantee of equality s.15 of the Charter of Rights, because the provision allowed more generous child care benefits to adoptive parents than to natural parents (“statute under-inclusive or natural parents”). Can’t strike down the statute cause then even adoptive parents would lose their rights. Instead (Lamer) “the logical remedy is to strike down but suspend the decleration of invalidity to allow the government to determine whether to cancel or extend benefits” and parliament had already equalized the benefits. \n Here an unconstitutional statute was upheld and the courts interfered with the legislative process by forcing the matter into the legislative agenda. Thus Lamer said it was better to modify by severance or reading in unless the legislation posed a danger to the public ([[R. v. Swain (1991)]]); threatened the rule of law ([[Re Manitoba Language Rights (1985)]]) or deprived the rights of deserving persons (Schacter). \nWhen part of a statute is held to be invalid and the rest can survive, it is severed. Reading in implies adding new language if necessary to remedy a constitutional conflict. Appropriate only in the clearest cases (infringes on legislative power) and not in Schacter: reading in natural parents was not clearly the legislative objective and would drastically changed the scope and cost of the child care benefits.
Q: (1) Are the provisions of the SK Human Rights Act on illegal imprisonment //ultra vires// of the province because they are properly classified as criminal law?\n(2) Are the provisions inapplicable insofar as they conflict with the similar provisions in the Criminal Code?\n\nD/R:\n(1) The //Margarine Reference// defined criminal law as one that prohibits an act and and enforces it by punishment. As well, the prohibition must be in the public interest. The pith and substance of the provisions in question is criminal.\n\nTherefore, the provisions in question are inapplicable where they pertain to imprisonment arising from a federal law (they may still be applicable to imprisonment arising from provincial laws).\n\n(2) Need not be addressed.
The "seven-fifty" formula is the general [[Amendment Formula]] for the Constitution. It refers to the fact that it requires two-thirds of the provinces (or seven provinces) totalling fifty per cent of the total population of all the provinces.\n\nEffectively, at this point, this means that amendments require at least one of Ontario and Quebec, at least one of the four Western provinces, and at least one of the Atlantic provinces.\n\nOpt out: Any province can opt out of any amendment passed by this method that derogates from its powers, rights or privileges and, in the case where it transfers power over education or other cultural matters to the National Parliament,Parliamentmust pay the province “reasonable compensation”.
The Court employed the same technique as in [[Re Manitoba Language Rights (1985)]] to maintain in force the by-laws of an invalidly incorporated QC municipality that had been functioning for 6 years. \n
The SCC held that refugee claimants had the right to an oral hearing notwithstanding contrary provisions of the Immigration Act. Beetz drafted the opinion of the three justices that decided the bill was “inoperative” on the basis of s. 2(e) of the [[Bill of Rights]] as opposed to the remaining justices who found the Act “of no force and effect” by virtue of [[S. 7]] of the Charter. He argued that the express preservation, in S. 26 of the Charter, of “any other rights or freedoms that exist in Canada” of these “constitutional or quasi-constitutional instruments” was “susceptible of producing cumulative effects for the better protection of rights and freedoms” and so should not be allowed to “fall into neglect.” Justice Bertha Wilson wrote the decision based on section 7 rights to security of person and fundamental justice. She also found the government's claim that giving hearing to refugees would be burdensome was too much of an administrative concern to justify infringing a Charter right.\n\nCites: [[Outdoor Neon Displays Ltd. v City of Toronto (1959)]]\n\n3-3 C.J. decides.
a flexible non-linear course summary
Canadian Constitutional Law
S: On the right to freedom of expression under section 2(b) of the Charter. Also on Charter limits discretion of government boards or officials. \nThe Court upheld an order given by the Labour Relations Board that required an employer to give an employee a letter of recommendation containing information such as sales quotas, but could not divulge any further information regarding the employee's performance. \nF: Ron Davidson, employed at Slaight Communications’ radio station as a “radio time salesman,” was dismissed on the grounds that his performance was inadequate. He filed a complaint under the Canada Labour Code. An adjudicator concluded that Slaight had failed to show unsatisfactory performance on the part of Davidson and, as such, that Davidson was dismissed without just cause. The adjudicator ordered Slaight to give Davidson a letter of recommendation. The letter was to certify three things: (1) the dates of Davidson’s employment with the radio station, (2) Davidson’s sales quotas and actual sales (as specified by the adjudicator himself), and (3) that Davidson was unjustly dismissed. Second, the adjudicator barred Slaight from responding to any inquiries concerning Davidson’s employment in any other form.\nQ: 1. Whether s. 61.5(9)(c) of the Code authorizes an adjudicator to make such orders.\n 2. Whether the adjudicator’s orders violated freedom of expression under s. 2(b) of the Charter.\n 3. If so, whether such a violation is justified under s. 1 of the Charter.\nD: 1. Yes. 2. Yes but 3. Justified.\nR: Lamer made a distinction between two types of statutory conferrals of discretion: statutes that authorize a decision that would infringe a Charter right and statutes that conferred discretion broad enough to encompass, but not expressly authorizing, infringements. In the latter case (the situation here) the language should be read down to not authorize Charter infringements (so each decision had to be justifiable) while in the former the statute itself had to be justifiable under s. 1.\nFor Dickson, the order to answer any inquiries concerning Davidson’s employment with the specified letter of recommendation necessarily deprived Slaight of its right to freedom of expression. The concept of “unreasonableness” in administrative law should not impose a higher standard upon government than a Charter review would. Hence, because the adjudicator’s second order is justifiable under s. 1 of the Charter, it must also be found to be “reasonable” and within the jurisdiction of the adjudicator. \nLamer, dissenting in part, thought that the adjudicator was not authorized to make his second order under s. 61.5(9)(c) of the Code. Beetz, dissenting concluded the adjudicator’s violation was not justifiable under s. 1 of the Charter.\nC: Unique arbitrator in the sense that all of his powers derive from the Labour Relations legislation.\nLeaves open the possibility of the state forcing individuals or companies to sign letters stating whatever the government wishes.\n
Even after [[CA 1867|Constitution Act, 1867]], in terms of foreign policy, Canada was still a colony dependent on GB. The imperial law still had priority.\n\nCanada had progressively gained independence with respect to the Empire: in WWI, Canada had signed the Treaty of Versailles 1919 and became a member of the League of Nations. On the international stage, the dominions became more and more independent between 1910 and 1930. The King-Byng affair of 1926, concerning the royal prerogative of the GG only heightened the tensions.\n\nThe ruling in Nadan v. The King, about a 1888 federal law abolishing appeals to the London Privy Counsel in criminal law, decided that the law was invalid (1) because it contravened an imperial law and (2) because it had an extraterritorial scope, and Canada had only internal competene. This and other events provoked the Balfour Declaration of 1926 recognizing an equal status between the Dominions and UK, and that the GG should no longer automatically serve as diplomatic links to UK.\n\nUnder the Statue of Westminster:\n• laws would no longer be made void because they disagree with UK law (art.2, repeals [[Colonial Laws Validity Act, 1865]])\n• dominions have the authority to make extra-territorial laws (art.3, partial result of Nadan)\n• UK law no longer affects Dominion unless “expressly declared” that the Dominion “requested, and consented to” the law (art. 4: note that the request itself is not required, only that it is declared the dominion requested. Emphasis on form, not substance.)\n• does not change BNA Acts 1867-1930 (art. 7(1); this has the effect of entrenching these laws)\n\nFor Canada, the Imperial Parliament would keep the power to repeal all laws, including the BNA Act. However, as this act serves as constituion, it must stay supra-legislative (art.7): the BNA Act can be neither repealed nor amended locally.\n\nConclusion\nStatus quo remains: we still need a British statute to change a British statute. The only difference is a political declaration (with the status of a convention) declaring the Dominion’s equality to the UK.
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F: Switzman tries to take over a lease to a Park Avenue (and plans to turn it into a Communist hub). The landlord tries to prevent the transfer because she fears the province will appropriate the property under the padlock law. Switzman challenged the padlock law as a violation of freedom of speech and as a law ultra vires the power of the provincial government. At trial and on appeal, the courts found in favour of Elbling.\n\nQ/D: Ultra vires? YES, padlock law is unconstitutional.\n\nR:\nKerwin CJ, Fauteux: the [[pith and substance]] is criminal, so ultra vires of the province.\nAbbott: the true motive is to suppress communism, against freedom of speech.\n\nTaschereau (dissent): the law is //intra vires// the province, as it falls within the province's power to control property (even in relation to criminal law); the freedom of speech does not extend to socially destructive ideas.
F: Orthodox Jews in Montreal erected succahs on their balconies despite the Syndicat Northcrest having denied their building requests, claiming the succahs violated by-laws they had signed forbidding structures to be built on the balconies.\n\nD: Succahs may be built if connected to the sincere religious beliefs of individuals; conflicting property and security rights were marginally impaired and thus do not outweigh freedom of religion under the Quebec Charter of Human Rights and Freedoms.\n\nR: Iacobucci: In past freedom of religion cases (ex. [[R. v. Big M Drug Mart Ltd. (1985)]]), the Supreme Court advocated giving freedom of religion a large and liberal definition emphasizing individual rights. Following [[R. v. Edwards Books and Art Ltd. (1986)]], it was enough to demonstrate an individual religious belief. Secular governments and courts should not judge which religious practices are needed and which are not. To determine whether an individual belief is sincere, the Court noted US case law, which advocated a minimally intrusive evaluation of whether a belief is not feigned and religious claims are made in good faith. The individual must sincerely feel the belief/ practice is connected to religion, regardless of whether the practice is required by a religious authority.\n\nWhile freedom of religion was limited here by rights to enjoy property and to personal security, the rights of the Orthodox Jews had been severely infringed, while Syndicat Northcrest's rights were not significantly affected. It was still not certain whether constitutional rights can be waived. If they could, the waiver should have been more explicit and done under complete free will. \n\nBastarache (Dissent): Freedom of religion protects religious beliefs and practices that result from those beliefs. Beliefs can be discovered through religious rules and are not held individually but are shared and objective. The Jewish religion required eating in a succah but not necessarily an individual succah. The right to an individual succah need be balanced against "proper regard for democratic values, public order and the general well-being of the citizens of Québec", as required by the Quebec Charter.
@@font-weight:bold;font-size:1.3em;color:#444; \nPaul is operant!\n\n//If you're reading and appreciating this wiki, please contribute. Contact Jake HA or Paul K. Thanks!//   @@\n\nContributors: Nicole : Daniel : Elliot\n\n
• England gets Quebec\n\nBetween the [[Capitulation of Montreal, 1760]] and the Treaty of Paris, 1763, there was a period of time during which the applicable system of law is not clear.\n\nThe Treaty of Paris gave the colonists :\n• Continue to allow Catholic religion\n• French have right to leave if they so choose (after selling their possessions to the Crown)\n• French can still fish in NFLD as long as proper distance from English shores.\n• New France is ceded to Britain \n\nImmediately following the Treaty, the Colonial Office (Lord Commissioners for Trade and Plantations) recommended the Secretary of State for American Affairs (Lord Halifax) treat each colony separately : Florida, Louisiana, Grenada, Québec. Halifax ignore this recommendation and wrote one constitution for all colonies : the [[Royal Proclamation, 1763]] (effective 1764). In a sense, this is the first constitution of Canada.
Uniacke v. Dickson (1848) established that English law was received in Nova Scotia when the first legislative assembly was held in 1758 as if it were one of the [[settled colonies]] despite it actually having been conquered from France.\n\nDistinction is made between statute and common law: \no Acceptance of common law = the rule\no Acceptance of Statute law = an exception. As they may not necessarily apply in the colony.
\n| 22/4/2007 15:12:1 | PaulKlip | [[index.html|]] | [[store.cgi|]] | . | index.html | . |\n| 22/4/2007 15:15:5 | JakeHirschAllen | [[/|]] | [[store.cgi|]] | . | index.html | . |\n| 22/4/2007 17:36:37 | PaulKlip | [[index.html|]] | [[store.cgi|]] | . | index.html | . | Ok |\n| 22/4/2007 18:31:19 | PaulKlip | [[index.html|]] | [[store.cgi|]] | . | index.html | . | Ok |\n| 22/4/2007 18:51:19 | PaulKlip | [[index.html|]] | [[store.cgi|]] | . | index.html | . | Ok |\n| 22/4/2007 18:52:49 | PaulKlip | [[index.html|]] | [[store.cgi|]] | . | index.html | . | Ok |\n| 22/4/2007 21:28:48 | PaulKlip | [[index.html|]] | [[store.cgi|]] | . | index.html | . |\n| 22/4/2007 21:42:17 | PaulKlip | [[index.html|]] | [[store.cgi|]] | . | index.html | . |
/***\n|''Name:''|UploadPlugin|\n|''Description:''|Save to web a TiddlyWiki|\n|''Version:''|3.4.4|\n|''Date:''|Sep 30, 2006|\n|''Source:''||\n|''Documentation:''||\n|''Author:''|BidiX (BidiX (at) bidix (dot) info)|\n|''License:''|[[BSD open source license| ]]|\n|''~CoreVersion:''|2.0.0|\n|''Browser:''|Firefox 1.5; InternetExplorer 6.0; Safari|\n|''Include:''|config.lib.file; config.lib.log; config.lib.options; PasswordTweak|\n|''Require:''|[[UploadService|]]|\n***/\n//{{{\nversion.extensions.UploadPlugin = {\n major: 3, minor: 4, revision: 4, \n date: new Date(2006,8,30),\n source: '',\n documentation: '',\n author: 'BidiX (BidiX (at) bidix (dot) info',\n license: '[[BSD open source license|]]',\n coreVersion: '2.0.0',\n browser: 'Firefox 1.5; InternetExplorer 6.0; Safari'\n};\n//}}}\n\n////+++!![config.lib.file]\n\n//{{{\nif (!config.lib) config.lib = {};\nif (!config.lib.file) config.lib.file= {\n author: 'BidiX',\n version: {major: 0, minor: 1, revision: 0}, \n date: new Date(2006,3,9)\n};\nconfig.lib.file.dirname = function (filePath) {\n var lastpos;\n if ((lastpos = filePath.lastIndexOf("/")) != -1) {\n return filePath.substring(0, lastpos);\n } else {\n return filePath.substring(0, filePath.lastIndexOf("\s\s"));\n }\n};\nconfig.lib.file.basename = function (filePath) {\n var lastpos;\n if ((lastpos = filePath.lastIndexOf("#")) != -1) \n filePath = filePath.substring(0, lastpos);\n if ((lastpos = filePath.lastIndexOf("/")) != -1) {\n return filePath.substring(lastpos + 1);\n } else\n return filePath.substring(filePath.lastIndexOf("\s\s")+1);\n};\nwindow.basename = function() {return "@@deprecated@@";};\n//}}}\n////===\n\n////+++!![config.lib.log]\n\n//{{{\nif (!config.lib) config.lib = {};\nif (!config.lib.log) config.lib.log= {\n author: 'BidiX',\n version: {major: 0, minor: 1, revision: 1}, \n date: new Date(2006,8,19)\n};\nconfig.lib.Log = function(tiddlerTitle, logHeader) {\n if (version.major < 2)\n this.tiddler = store.tiddlers[tiddlerTitle];\n else\n this.tiddler = store.getTiddler(tiddlerTitle);\n if (!this.tiddler) {\n this.tiddler = new Tiddler();\n this.tiddler.title = tiddlerTitle;\n this.tiddler.text = "| !date | !user | !location |" + logHeader;\n this.tiddler.created = new Date();\n this.tiddler.modifier = config.options.txtUserName;\n this.tiddler.modified = new Date();\n if (version.major < 2)\n store.tiddlers[tiddlerTitle] = this.tiddler;\n else\n store.addTiddler(this.tiddler);\n }\n return this;\n};\n\nconfig.lib.Log.prototype.newLine = function (line) {\n var now = new Date();\n var newText = "| ";\n newText += now.getDate()+"/"+(now.getMonth()+1)+"/"+now.getFullYear() + " ";\n newText += now.getHours()+":"+now.getMinutes()+":"+now.getSeconds()+" | ";\n newText += config.options.txtUserName + " | ";\n var location = document.location.toString();\n var filename = config.lib.file.basename(location);\n if (!filename) filename = '/';\n newText += "[["+filename+"|"+location + "]] |";\n this.tiddler.text = this.tiddler.text + "\sn" + newText;\n this.addToLine(line);\n};\n\nconfig.lib.Log.prototype.addToLine = function (text) {\n this.tiddler.text = this.tiddler.text + text;\n this.tiddler.modifier = config.options.txtUserName;\n this.tiddler.modified = new Date();\n if (version.major < 2)\n store.tiddlers[this.tiddler.tittle] = this.tiddler;\n else {\n store.addTiddler(this.tiddler);\n story.refreshTiddler(this.tiddler.title);\n store.notify(this.tiddler.title, true);\n }\n if (version.major < 2)\n store.notifyAll(); \n};\n//}}}\n////===\n\n////+++!![config.lib.options]\n\n//{{{\nif (!config.lib) config.lib = {};\nif (!config.lib.options) config.lib.options = {\n author: 'BidiX',\n version: {major: 0, minor: 1, revision: 0}, \n date: new Date(2006,3,9)\n};\n\nconfig.lib.options.init = function (name, defaultValue) {\n if (!config.options[name]) {\n config.options[name] = defaultValue;\n saveOptionCookie(name);\n }\n};\n//}}}\n////===\n\n////+++!![PasswordTweak]\n\n//{{{\nversion.extensions.PasswordTweak = {\n major: 1, minor: 0, revision: 3, date: new Date(2006,8,30),\n type: 'tweak',\n source: ''\n};\n//}}}\n/***\n!!config.macros.option\n***/\n//{{{\nconfig.macros.option.passwordCheckboxLabel = "Save this password on this computer";\nconfig.macros.option.passwordType = "password"; // password | text\n\nconfig.macros.option.onChangeOption = function(e)\n{\n var opt = this.getAttribute("option");\n var elementType,valueField;\n if(opt) {\n switch(opt.substr(0,3)) {\n case "txt":\n elementType = "input";\n valueField = "value";\n break;\n case "pas":\n elementType = "input";\n valueField = "value";\n break;\n case "chk":\n elementType = "input";\n valueField = "checked";\n break;\n }\n config.options[opt] = this[valueField];\n saveOptionCookie(opt);\n var nodes = document.getElementsByTagName(elementType);\n for(var t=0; t<nodes.length; t++) \n {\n var optNode = nodes[t].getAttribute("option");\n if (opt == optNode) \n nodes[t][valueField] = this[valueField];\n }\n }\n return(true);\n};\n\nconfig.macros.option.handler = function(place,macroName,params)\n{\n var opt = params[0];\n if(config.options[opt] === undefined) {\n return;}\n var c;\n switch(opt.substr(0,3)) {\n case "txt":\n c = document.createElement("input");\n c.onkeyup = this.onChangeOption;\n c.setAttribute ("option",opt);\n c.className = "txtOptionInput "+opt;\n place.appendChild(c);\n c.value = config.options[opt];\n break;\n case "pas":\n // input password\n c = document.createElement ("input");\n c.setAttribute("type",config.macros.option.passwordType);\n c.onkeyup = this.onChangeOption;\n c.setAttribute("option",opt);\n c.className = "pasOptionInput "+opt;\n place.appendChild(c);\n c.value = config.options[opt];\n // checkbox link with this password "save this password on this computer"\n c = document.createElement("input");\n c.setAttribute("type","checkbox");\n c.onclick = this.onChangeOption;\n c.setAttribute("option","chk"+opt);\n c.className = "chkOptionInput "+opt;\n place.appendChild(c);\n c.checked = config.options["chk"+opt];\n // text savePasswordCheckboxLabel\n place.appendChild(document.createTextNode(config.macros.option.passwordCheckboxLabel));\n break;\n case "chk":\n c = document.createElement("input");\n c.setAttribute("type","checkbox");\n c.onclick = this.onChangeOption;\n c.setAttribute("option",opt);\n c.className = "chkOptionInput "+opt;\n place.appendChild(c);\n c.checked = config.options[opt];\n break;\n }\n};\n//}}}\n/***\n!! Option cookie stuff\n***/\n//{{{\nwindow.loadOptionsCookie_orig_PasswordTweak = window.loadOptionsCookie;\nwindow.loadOptionsCookie = function()\n{\n var cookies = document.cookie.split(";");\n for(var c=0; c<cookies.length; c++) {\n var p = cookies[c].indexOf("=");\n if(p != -1) {\n var name = cookies[c].substr(0,p).trim();\n var value = cookies[c].substr(p+1).trim();\n switch(name.substr(0,3)) {\n case "txt":\n config.options[name] = unescape(value);\n break;\n case "pas":\n config.options[name] = unescape(value);\n break;\n case "chk":\n config.options[name] = value == "true";\n break;\n }\n }\n }\n};\n\nwindow.saveOptionCookie_orig_PasswordTweak = window.saveOptionCookie;\nwindow.saveOptionCookie = function(name)\n{\n var c = name + "=";\n switch(name.substr(0,3)) {\n case "txt":\n c += escape(config.options[name].toString());\n break;\n case "chk":\n c += config.options[name] ? "true" : "false";\n // is there an option link with this chk ?\n if (config.options[name.substr(3)]) {\n saveOptionCookie(name.substr(3));\n }\n break;\n case "pas":\n if (config.options["chk"+name]) {\n c += escape(config.options[name].toString());\n } else {\n c += "";\n }\n break;\n }\n c += "; expires=Fri, 1 Jan 2038 12:00:00 UTC; path=/";\n document.cookie = c;\n};\n//}}}\n/***\n!! Initializations\n***/\n//{{{\n// define config.options.pasPassword\nif (!config.options.pasPassword) {\n config.options.pasPassword = 'defaultPassword';\n window.saveOptionCookie('pasPassword');\n}\n// since loadCookies is first called befor password definition\n// we need to reload cookies\nwindow.loadOptionsCookie();\n//}}}\n////===\n\n////+++!![config.macros.upload]\n\n//{{{\nconfig.macros.upload = {\n accessKey: "U",\n formName: "UploadPlugin",\n contentType: "text/html;charset=UTF-8",\n defaultStoreScript: "store.php"\n};\n\n// only this two configs need to be translated\nconfig.macros.upload.messages = {\n aboutToUpload: "About to upload TiddlyWiki to %0",\n backupFileStored: "Previous file backuped in %0",\n crossDomain: "Certainly a cross-domain isue: access to an other site isn't allowed",\n errorDownloading: "Error downloading",\n errorUploadingContent: "Error uploading content",\n fileLocked: "Files is locked: You are not allowed to Upload",\n fileNotFound: "file to upload not found",\n fileNotUploaded: "File %0 NOT uploaded",\n mainFileUploaded: "Main TiddlyWiki file uploaded to %0",\n passwordEmpty: "Unable to upload, your password is empty",\n urlParamMissing: "url param missing",\n rssFileNotUploaded: "RssFile %0 NOT uploaded",\n rssFileUploaded: "Rss File uploaded to %0"\n};\n\nconfig.macros.upload.label = {\n promptOption: "Save and Upload this TiddlyWiki with UploadOptions",\n promptParamMacro: "Save and Upload this TiddlyWiki in %0",\n saveLabel: "save to web", \n saveToDisk: "save to disk",\n uploadLabel: "upload" \n};\n\nconfig.macros.upload.handler = function(place,macroName,params){\n // parameters initialization\n var storeUrl = params[0];\n var toFilename = params[1];\n var backupDir = params[2];\n var uploadDir = params[3];\n var username = params[4];\n var password; // for security reason no password as macro parameter\n var label;\n if (document.location.toString().substr(0,4) == "http")\n label = this.label.saveLabel;\n else\n label = this.label.uploadLabel;\n var prompt;\n if (storeUrl) {\n prompt = this.label.promptParamMacro.toString().format([this.toDirUrl(storeUrl, uploadDir, username)]);\n }\n else {\n prompt = this.label.promptOption;\n }\n createTiddlyButton(place, label, prompt, \n function () {\n config.macros.upload.upload(storeUrl, toFilename, uploadDir, backupDir, username, password); \n return false;}, \n null, null, this.accessKey);\n};\nconfig.macros.upload.UploadLog = function() {\n return new config.lib.Log('UploadLog', " !storeUrl | !uploadDir | !toFilename | !backupdir | !origin |" );\n};\nconfig.macros.upload.UploadLog.prototype = config.lib.Log.prototype;\nconfig.macros.upload.UploadLog.prototype.startUpload = function(storeUrl, toFilename, uploadDir, backupDir) {\n var line = " [[" + config.lib.file.basename(storeUrl) + "|" + storeUrl + "]] | ";\n line += uploadDir + " | " + toFilename + " | " + backupDir + " |";\n this.newLine(line);\n};\nconfig.macros.upload.UploadLog.prototype.endUpload = function() {\n this.addToLine(" Ok |");\n};\nconfig.macros.upload.basename = config.lib.file.basename;\nconfig.macros.upload.dirname = config.lib.file.dirname;\nconfig.macros.upload.toRootUrl = function (storeUrl, username)\n{\n return root = (this.dirname(storeUrl)?this.dirname(storeUrl):this.dirname(document.location.toString()));\n}\nconfig.macros.upload.toDirUrl = function (storeUrl, uploadDir, username)\n{\n var root = this.toRootUrl(storeUrl, username);\n if (uploadDir && uploadDir != '.')\n root = root + '/' + uploadDir;\n return root;\n}\nconfig.macros.upload.toFileUrl = function (storeUrl, toFilename, uploadDir, username)\n{\n return this.toDirUrl(storeUrl, uploadDir, username) + '/' + toFilename;\n}\nconfig.macros.upload.upload = function(storeUrl, toFilename, uploadDir, backupDir, username, password)\n{\n // parameters initialization\n storeUrl = (storeUrl ? storeUrl : config.options.txtUploadStoreUrl);\n toFilename = (toFilename ? toFilename : config.options.txtUploadFilename);\n backupDir = (backupDir ? backupDir : config.options.txtUploadBackupDir);\n uploadDir = (uploadDir ? uploadDir : config.options.txtUploadDir);\n username = (username ? username : config.options.txtUploadUserName);\n password = config.options.pasUploadPassword; // for security reason no password as macro parameter\n if (!password || password === '') {\n alert(config.macros.upload.messages.passwordEmpty);\n return;\n }\n if (storeUrl === '') {\n storeUrl = config.macros.upload.defaultStoreScript;\n }\n if (config.lib.file.dirname(storeUrl) === '') {\n storeUrl = config.lib.file.dirname(document.location.toString())+'/'+storeUrl;\n }\n if (toFilename === '') {\n toFilename = config.lib.file.basename(document.location.toString());\n }\n\n clearMessage();\n // only for forcing the message to display\n if (version.major < 2)\n store.notifyAll();\n if (!storeUrl) {\n alert(config.macros.upload.messages.urlParamMissing);\n return;\n }\n // Check that file is not locked\n if (window.BidiX && BidiX.GroupAuthoring && BidiX.GroupAuthoring.lock) {\n if (BidiX.GroupAuthoring.lock.isLocked() && !BidiX.GroupAuthoring.lock.isMyLock()) {\n alert(config.macros.upload.messages.fileLocked);\n return;\n }\n }\n \n var log = new this.UploadLog();\n log.startUpload(storeUrl, toFilename, uploadDir, backupDir);\n if (document.location.toString().substr(0,5) == "file:") {\n saveChanges();\n }\n var toDir = config.macros.upload.toDirUrl(storeUrl, toFilename, uploadDir, username);\n displayMessage(config.macros.upload.messages.aboutToUpload.format([toDir]), toDir);\n this.uploadChanges(storeUrl, toFilename, uploadDir, backupDir, username, password);\n if(config.options.chkGenerateAnRssFeed) {\n //var rssContent = convertUnicodeToUTF8(generateRss());\n var rssContent = generateRss();\n var rssPath = toFilename.substr(0,toFilename.lastIndexOf(".")) + ".xml";\n this.uploadContent(rssContent, storeUrl, rssPath, uploadDir, '', username, password, \n function (responseText) {\n if (responseText.substring(0,1) != '0') {\n displayMessage(config.macros.upload.messages.rssFileNotUploaded.format([rssPath]));\n }\n else {\n var toFileUrl = config.macros.upload.toFileUrl(storeUrl, rssPath, uploadDir, username);\n displayMessage(config.macros.upload.messages.rssFileUploaded.format(\n [toFileUrl]), toFileUrl);\n }\n // for debugging store.php uncomment last line\n //DEBUG alert(responseText);\n });\n }\n return;\n};\n\nconfig.macros.upload.uploadChanges = function(storeUrl, toFilename, uploadDir, backupDir, \n username, password) {\n var original;\n if (document.location.toString().substr(0,4) == "http") {\n original =, toFilename, uploadDir, backupDir, username, password);\n return;\n }\n else {\n // standard way : Local file\n \n original = loadFile(getLocalPath(document.location.toString()));\n if(window.Components) {\n // it's a mozilla browser\n try {\n"UniversalXPConnect");\n var converter = Components.classes[""]\n .createInstance(Components.interfaces.nsIScriptableUnicodeConverter);\n converter.charset = "UTF-8";\n original = converter.ConvertToUnicode(original);\n }\n catch(e) {\n }\n }\n }\n //DEBUG alert(original);\n this.uploadChangesFrom(original, storeUrl, toFilename, uploadDir, backupDir, \n username, password);\n};\n\nconfig.macros.upload.uploadChangesFrom = function(original, storeUrl, toFilename, uploadDir, backupDir, \n username, password) {\n var startSaveArea = '<div id="' + 'storeArea">'; // Split up into two so that indexOf() of this source doesn't find it\n var endSaveArea = '</d' + 'iv>';\n // Locate the storeArea div's\n var posOpeningDiv = original.indexOf(startSaveArea);\n var posClosingDiv = original.lastIndexOf(endSaveArea);\n if((posOpeningDiv == -1) || (posClosingDiv == -1))\n {\n alert(config.messages.invalidFileError.format([document.location.toString()]));\n return;\n }\n var revised = original.substr(0,posOpeningDiv + startSaveArea.length) + \n allTiddlersAsHtml() + "\sn\st\st" +\n original.substr(posClosingDiv);\n var newSiteTitle;\n if(version.major < 2){\n newSiteTitle = (getElementText("siteTitle") + " - " + getElementText("siteSubtitle")).htmlEncode();\n } else {\n newSiteTitle = (wikifyPlain ("SiteTitle") + " - " + wikifyPlain ("SiteSubtitle")).htmlEncode();\n }\n\n revised = revised.replaceChunk("<title"+">","</title"+">"," " + newSiteTitle + " ");\n revised = revised.replaceChunk("<!--PRE-HEAD-START--"+">","<!--PRE-HEAD-END--"+">","\sn" + store.getTiddlerText("MarkupPreHead","") + "\sn");\n revised = revised.replaceChunk("<!--POST-HEAD-START--"+">","<!--POST-HEAD-END--"+">","\sn" + store.getTiddlerText("MarkupPostHead","") + "\sn");\n revised = revised.replaceChunk("<!--PRE-BODY-START--"+">","<!--PRE-BODY-END--"+">","\sn" + store.getTiddlerText("MarkupPreBody","") + "\sn");\n revised = revised.replaceChunk("<!--POST-BODY-START--"+">","<!--POST-BODY-END--"+">","\sn" + store.getTiddlerText("MarkupPostBody","") + "\sn");\n\n var response = this.uploadContent(revised, storeUrl, toFilename, uploadDir, backupDir, \n username, password, function (responseText) {\n if (responseText.substring(0,1) != '0') {\n alert(responseText);\n displayMessage(config.macros.upload.messages.fileNotUploaded.format([getLocalPath(document.location.toString())]));\n }\n else {\n if (uploadDir !== '') {\n toFilename = uploadDir + "/" + config.macros.upload.basename(toFilename);\n } else {\n toFilename = config.macros.upload.basename(toFilename);\n }\n var toFileUrl = config.macros.upload.toFileUrl(storeUrl, toFilename, uploadDir, username);\n if (responseText.indexOf("destfile:") > 0) {\n var destfile = responseText.substring(responseText.indexOf("destfile:")+9, \n responseText.indexOf("\sn", responseText.indexOf("destfile:")));\n toFileUrl = config.macros.upload.toRootUrl(storeUrl, username) + '/' + destfile;\n }\n else {\n toFileUrl = config.macros.upload.toFileUrl(storeUrl, toFilename, uploadDir, username);\n }\n displayMessage(config.macros.upload.messages.mainFileUploaded.format(\n [toFileUrl]), toFileUrl);\n if (backupDir && responseText.indexOf("backupfile:") > 0) {\n var backupFile = responseText.substring(responseText.indexOf("backupfile:")+11, \n responseText.indexOf("\sn", responseText.indexOf("backupfile:")));\n toBackupUrl = config.macros.upload.toRootUrl(storeUrl, username) + '/' + backupFile;\n displayMessage(config.macros.upload.messages.backupFileStored.format(\n [toBackupUrl]), toBackupUrl);\n }\n var log = new config.macros.upload.UploadLog();\n log.endUpload();\n store.setDirty(false);\n // erase local lock\n if (window.BidiX && BidiX.GroupAuthoring && BidiX.GroupAuthoring.lock) {\n BidiX.GroupAuthoring.lock.eraseLock();\n // change mtime with new mtime after upload\n var mtime = responseText.substr(responseText.indexOf("mtime:")+6);\n BidiX.GroupAuthoring.lock.mtime = mtime;\n }\n \n \n }\n // for debugging store.php uncomment last line\n //DEBUG alert(responseText);\n }\n );\n};\n\nconfig.macros.upload.uploadContent = function(content, storeUrl, toFilename, uploadDir, backupDir, \n username, password, callbackFn) {\n var boundary = "---------------------------"+"AaB03x"; \n var request;\n try {\n request = new XMLHttpRequest();\n } \n catch (e) { \n request = new ActiveXObject("Msxml2.XMLHTTP"); \n }\n if (window.netscape){\n try {\n if (document.location.toString().substr(0,4) != "http") {\n'UniversalBrowserRead');}\n }\n catch (e) {}\n } \n //DEBUG alert("user["+config.options.txtUploadUserName+"] password[" + config.options.pasUploadPassword + "]");\n // compose headers data\n var sheader = "";\n sheader += "--" + boundary + "\sr\snContent-disposition: form-data; name=\s"";\n sheader += config.macros.upload.formName +"\s"\sr\sn\sr\sn";\n sheader += "backupDir="+backupDir\n +";user=" + username \n +";password=" + password\n +";uploaddir=" + uploadDir;\n // add lock attributes to sheader\n if (window.BidiX && BidiX.GroupAuthoring && BidiX.GroupAuthoring.lock) {\n var l = BidiX.GroupAuthoring.lock.myLock;\n sheader += ";lockuser=" + l.user\n + ";mtime=" + l.mtime\n + ";locktime=" + l.locktime;\n }\n sheader += ";;\sr\sn"; \n sheader += "\sr\sn" + "--" + boundary + "\sr\sn";\n sheader += "Content-disposition: form-data; name=\s"userfile\s"; filename=\s""+toFilename+"\s"\sr\sn";\n sheader += "Content-Type: " + config.macros.upload.contentType + "\sr\sn";\n sheader += "Content-Length: " + content.length + "\sr\sn\sr\sn";\n // compose trailer data\n var strailer = new String();\n strailer = "\sr\sn--" + boundary + "--\sr\sn";\n //strailer = "--" + boundary + "--\sr\sn";\n var data;\n data = sheader + content + strailer;\n //"POST", storeUrl, true, username, password);\n try {\n"POST", storeUrl, true); \n }\n catch(e) {\n alert(config.macros.upload.messages.crossDomain + "\snError:" +e);\n exit;\n }\n request.onreadystatechange = function () {\n if (request.readyState == 4) {\n if (request.status == 200)\n callbackFn(request.responseText);\n else\n alert(config.macros.upload.messages.errorUploadingContent + "\snStatus: "+request.status.statusText);\n }\n };\n request.setRequestHeader("Content-Length",data.length);\n request.setRequestHeader("Content-Type","multipart/form-data; boundary="+boundary);\n request.send(data); \n};\n\n\ = function(uploadUrl, uploadToFilename, uploadDir, uploadBackupDir, \n username, password) {\n var request;\n try {\n request = new XMLHttpRequest();\n } \n catch (e) { \n request = new ActiveXObject("Msxml2.XMLHTTP"); \n }\n try {\n if (uploadUrl.substr(0,4) == "http") {\n"UniversalBrowserRead");\n }\n else {\n"UniversalXPConnect");\n }\n } catch (e) { }\n //"GET", document.location.toString(), true, username, password);\n try {\n"GET", document.location.toString(), true);\n }\n catch(e) {\n alert(config.macros.upload.messages.crossDomain + "\snError:" +e);\n exit;\n }\n \n request.onreadystatechange = function () {\n if (request.readyState == 4) {\n if(request.status == 200) {\n config.macros.upload.uploadChangesFrom(request.responseText, uploadUrl, \n uploadToFilename, uploadDir, uploadBackupDir, username, password);\n }\n else\n alert(config.macros.upload.messages.errorDownloading.format(\n [document.location.toString()]) + "\snStatus: "+request.status.statusText);\n }\n };\n request.send(null);\n};\n\n//}}}\n////===\n\n////+++!![Initializations]\n\n//{{{\nconfig.lib.options.init('txtUploadStoreUrl','store.php');\nconfig.lib.options.init('txtUploadFilename','');\nconfig.lib.options.init('txtUploadDir','');\nconfig.lib.options.init('txtUploadBackupDir','');\nconfig.lib.options.init('txtUploadUserName',config.options.txtUserName);\nconfig.lib.options.init('pasUploadPassword','');\nsetStylesheet(\n ".pasOptionInput {width: 11em;}\sn"+\n ".txtOptionInput.txtUploadStoreUrl {width: 25em;}\sn"+\n ".txtOptionInput.txtUploadFilename {width: 25em;}\sn"+\n ".txtOptionInput.txtUploadDir {width: 25em;}\sn"+\n ".txtOptionInput.txtUploadBackupDir {width: 25em;}\sn"+\n "",\n "UploadOptionsStyles");\nconfig.shadowTiddlers.UploadDoc = "[[Full Documentation| ]]\sn"; \nconfig.options.chkAutoSave = false; saveOptionCookie('chkAutoSave');\n\n//}}}\n////===\n\n////+++!![Core Hijacking]\n\n//{{{\nconfig.macros.saveChanges.label_orig_UploadPlugin = config.macros.saveChanges.label;\nconfig.macros.saveChanges.label = config.macros.upload.label.saveToDisk;\n\nconfig.macros.saveChanges.handler_orig_UploadPlugin = config.macros.saveChanges.handler;\n\nconfig.macros.saveChanges.handler = function(place)\n{\n if ((!readOnly) && (document.location.toString().substr(0,4) != "http"))\n createTiddlyButton(place,this.label,this.prompt,this.onClick,null,null,this.accessKey);\n};\n\n//}}}\n////===\n
S: Determined that a legislative omission can be the subject of a Charter violation. \n\nF: Delwin Vriend was dismissed from King's College because of his sexual orientation. He was prevented from making a complaint under the Alberta Individual Rights Protection Act because the legislation did not include sexual orientation as a prohibited ground of discrimination. Vriend sought a declaration that the omission breached section 15 of the Charter.\n\nQ: 1 Does the decision not to include sexual orientation in the Individual's Rights Protection Act ... infringe or deny the rights guaranteed by s. 15(1) of the Canadian Charter of Rights and Freedoms? \n\n2 If "yes", is the infringement a reasonable limit pursuant to s. 1 of the Canadian Charter of Rights and Freedoms?\n\nD: 1) Yes, 2, No \n\nR: There is no basis in section 32 of the Charter for drawing a distinction between scrutinizing a positive act and an omission. Neutrality can’t be assumed and the Courts have an obligation to see this challenge.
NEEDS WORK (Phrase 'Question')\n\nF: The Crown creates a commission by statute, appoints Wells to a contract ‘for life’. A subsequent statute modifies the previous, and dissolves the commission. Crown argues that their sovereign power gives it the right to breach the contract, or, alternatively, that the contract was rendered inexecutable because of the new law.\n\nD: Held that though the sovereign legislature can modify previous laws, it is nevertheless responsible for compensation for breach of the employment contracts except if compensation is explicitly denied in the statutes (standard in Manitoba Fisheries). The government cannot hide behind the legislature by claiming “external circumstances” forced the breach: the executive and legislative are not really separate. Nevertheless, the legislative essentially retains Sovereignty subject to requirements of form (must be done explicitly).\n\nNote: We will see the limits of this principle in Alliance and [[Roncarelli v. Duplessis (1959) SCC]]
[read this twice - it's complicated]\n\nF: Woodward dies and wills a donation to The Foundation, which is taxed. The executors of Woodward’s testament appeal the tax before the Minister of Finance (acting as an [[Administrative Tribunal]]), as set out in the Succession Duty Act (s.43). The Minister rules against them: the Succession Act also allows for appeals to the Provincial Court (s.44) and the Provincial Superior Court (s.45).\nHowever, in 1970 B.C. Parliament passed //An Act to Amend the Succession Duty Act//, which contained a [[privative clause|Privative Clauses]] modifying the appeal process: in Woodward’s case, this would retroactively make the Minister’s decision final, and eliminate the possibility of appeal.\n \nQ: Does the privative clause retroactively render the Minister’s decision valid and binding?\nD: YES. The minister’s original decision was ratified and confirmed by the law and binds the executors.\n\nR: The Minister delivered his decision in violation of the natural principles of justice (the executors were not given a chance to present their case). This would normally make the ‘decision’ invalid, or a non-decision.\n\nThe writ of //certiorari// allows a superior court to review decision taken by an inferior tribunal in two cases: (1) where the tribunal exceeded its competence; and (2) where there is a manifest error of law in the decision. A privative clause can prevent the superior court from reviewing a tribunal’s decision for error of law (#2, above), but cannot eliminate review where the tribunal surpassed its competence. Thus, even where there is a privative clause, decision taken outside of the sphere of competence by a tribunal can be declared null by superior courts.\n\nHowever, in this case, the legislation expresses the legislator’s intent to ratify the Minister’s decision, even where it would otherwise have been invalid. The intervention of the legislator prevents revision by writ of certiorari: the privative clause, validly adopted, is a matter of policy, and not law.\n\nComment:\nThe problem of the legislator ratifying a decision in advance of its being taken does not come up in Woodward. However, the privative clause did not specify the scope: had the decision been delivered after the law came into effect, it is not clear what the court would have decided.\n
State that no provision of any Quebec law can be declared inapplicable constitutionally, invalid or inoperative or of no force or effect unless the Attorney General has already received notice.\n\nHas not been contested whether this article could apply to federal laws.
Summary : Local laws would remain in effect, except those as regards the sovereign, until changed.\n\nContent of laws : Law of the conquered people continued except people-Sovereign relationship (private law stayed, public law replaced).\nLegislative powers : Legislation could be enacted by Imperial Parliament. \n\nIn Colonies of conquest, King’s prerogative power was general legislative power (it extended beyond provision of government institutions) because it was not limited by parliament. However, it ended once colony granted legislative assembly ([[Campbell v. Hall]]).\n\nSee: [[Royal Proclamation, 1763]]
Privy Council announced in [[Hodge v. The Queen (1883)]] that "subjects which in one aspect and for one purpose fall within s.92, may in another aspect and for another purpose fall within s.91". This doctrine is applied where the difference is not so sharp, making it the option of judicial restraint.\n\nThis doctrine acknowledges that some kinds of laws have both a federal and a provincial matter and thus both federal and provincial legislatures have competence. For example, driving offenses can fall under "property and civil rights" (92.13) but also "criminal law" (91.27). Another is example is securities regulation, which falls into the same two areas, and also the federal power to incorporate companies (91 opening words).\n\nThere is thus the possibility of conflict between laws that are both valid: the doctrine of federal [[paramountcy]] means these are resolved in favour of the federal government.
The emergency branch of POGG allows temporarily adding to the general powers of the federal government to deal with special problems.\n\nIn the [[Anti-Inflation Law Reference (1976 SCC)]] the court held that installing "wage and price controls" was a legitimate use of the doctrine (the court did not actually evaluate whether the measures were necessary, but simply ruled that Parliament had a "rational basis" for finding that emergency exists.
\n\n\n\n"Interjurisdictional immunity" relates to the inapplicability of a provincial law where it purports to apply to matters outside of its jurisdictional authority, initially federally-incorporated companies, but carried over to apply to federally-regulated undertakings.\n\nUntil 1966, the criteria for inapplicability was that the provincial law "sterilize" the activity - this was changed to the broader test that a provincial law that affected a "vital part" of a federally-authorized activity would be inapplicable. This test was affirmed in [[Bell Canada v. Quebec (1988)]].\n\nHowever, in [[Irwin Toy v. Quebec (1989)]], the Court ruled that the vital part test applied only to provincial laws that purported to apply directly to federal undertakings, and where the laws had only indirect effect, the law would be inapplicable only if the law impaired, paralyzed or sterilized the undertaking. Hogg finds this inconsistent - rather, immunity should only be extended where the provincial law would threaten the continuing functioning of the undertakings.\n\nHogg 15.8 c\np. 395
\n\n\n\nA component of the federal powers of "[[Peace, Order and Good Government|POGG]]"\n\nIn [[Russell v. R. (1881-2)]], the local-option statute was ruled to come under federal power because it did not correspond to provincial heads of power. The idea that some local matters go grow in importance to acquire "national dimensions" was articulated for the first time in the [[Local Prohibitions Reference|Local Prohibitions Reference, Ontario v. Canada (1896)]]. This conflicted with the view expressed by Viscount Haldane that POGG was merely an "emergency" power.\n\nThe controversy was revisited in [[Ontario v. Canada Temperance Federation (1946)]], where the courts established there was a "national concern" branch independant of the "[[emergency|emergency powers]]" branch of POGG.\n\n(One case where the "national concern" power was applied was in order to create the national capital region after cooperative efforts between ON and QC were unsuccessful.)\n\nThe doctrine was also applied in [[R. v. Crown Zellerbach (1988)]], where marine pollution was held to be of national concern.\n\nThe criteria for applying the national dimension, according to Hogg, are that the matter must be of concern to all the provinces, they must be unable to deal with it individually, and it must be distinct as a subject (this last criterion was expressed as "singleness, distinctiveness, and indivisibility" in [[R. v. Crown Zellerbach (1988)]], where the majority and dissent over whether 'marine pollution' was distinct enough to be classified as a general power).
The doctrine that where a federal and provincial law are both valid, and conflict, the federal law applies.
Parliamentary Privilege and the Charter\n\nWhat is Parliamentary Privilege?\nPP is a collection of special privileges conferred upon a Parliament and its members, priviliges necessary to carrying out their duties. The source of these privileges is primarily in the common law, although some originate in statutes.\n\nIndividual parliamentary privileges include:\n• Freedom of speech\n• Freedom from arrest in civil action\n• Exemption from jury duty\n• Exemption from appearing as a witness\n• Freedom from obstruction, interference, intimidation and molestation\n\nCollective parliamentary privileges include:\n• Power to discipline\n• Regulation of the House’s internal affairs\n• Management of Employees\n• Authority to maintain the attendance and service of Members\n• Right to institute inquiries and to call witnesses and demand papers\n• Right to administer oaths to witnesses\n• Right to publish papers containing defamatory material
This doctrine arises when a given law has one feature that comes within a provincial head of power and another that comes within federal power.\n\nThe analysis has two parts:\n1) the law at issue is characterized by its most dominant feature ("pith and substance");\n2) the law is assigned to one of the enumerated matters in ss. 91 and 92.\n\nThis doctrine enables governments to pass laws that have effects outside their head of power, provided the law has as its matter something that is within the scope of their powers.
Summary : All applicable English law is applied. The common law, would be applied, except where specifically inconsistent. By contrast, the statute law, would not be received except where specifically applicable.\n\nDate of reception : date of settlement of first colony (in practice, this was difficult to determine : in cases of NL, NS, NB, PEI, which were declared « Settled Colonies » contrary to history, this was later fixed at the establishment of a legislative assembly).\n\nStatute law : imported as of date of reception, "emanates from the wisdom of the legislature of the day," although in reality only a few are judged suitable.\nCommon law : received intemporally as "immutable principles of justice", based on Declaratory Theory that common law is « declared » and not made (so date of reception less important); also, as ‘universal’ law, most of common law was received, exception [[Fleming v. Atkinson (1959)]]).\nLegislative powers : King had prerogative power only to grant the institutions of government to a colony. Beyond this, only Imperial Parliament or the colonial assembly could legislate.\n\nSee: [[Uniacke v. Dickson (1848)]], [[Mabo v. Queensland (1992)]]\n
If an individual is exceptionally prejudiced by a statute, in a way different from the general public (Smith v. A.G. Ont. (1924)), they are entitled to standing to bring a declaratory action to challenge the validity of a statute under s. 52(1). \n\nStanding may also be granted to a private plaintiff seeking to vindicate a public interest. In Minister of Justice of Canada v. Borowksi standing was granted on the basis that a person "need only show that he is affected by it directly or that he has a genuine interest as a citizen in the validity of the legislation and that there is no other reasonable and effective manner in which the issue may be brought before the Court." \n\nIn Finlay v. Minister of Finance of Canada (1986) public interest standing was granted for a non-constitutional challenge to the legality of a federal public expenditure based on the above reasoning and the rule currently stands that public interest standing will be granted where the plaintiff establishes:\n1) that the action raises a serious legal question\n2) that the plaintiff has a genuine interest in the resolution of the question and \n3) that there is no other reasonable and effective manner in which the question may be brought to court.\n\n3) is necessary to ensure wise use of the scarce judicial resources. The claim in [[Canadian Council of Churches v. Canada (Minister of Employment and Immigration) (1992)]] failed on this ground.\n\nThe Charter's "remedy clause" is section 24(1). It provides for the granting of a remedy to enforce the rights or freedoms guaranteed by the Charter to anyone whose rights have been infringed or denied. A corporation cannot gain standing under 24 (1) for the denial of freedom of religion because it cannot hold a belief. Instead it must gain standing under the supremacy clause 52(1) (see R. v. Big M). Similarly, in Min Just v, Borowski, standing was granted to anti-abortionist despite the Criminal Code's abortion provisions not applying to the applicant (he wasn't a doctor or a woman) but not under 24(1). \n\nSee also R. v. Morgentaleer and R. v. Wholesale Travel Group for examples of the granting of standing despite s. 24(1) not applying. In the latter case, a corporation can defend a criminal charge on the ground that its application to an individual would violate s. 7 despite a corporation not being included within the definition of "everyone" in s. 7 because an artificial person cannot possess "life, liberty or security of the person." In contrast, an individual can invoke s. 7 even when appearing as a witness as a representative of a corporation (see Thomson Newspapers v. Can).
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