POLB57 Midterm notes

Week 01 Lecture Notes – Background

Act of Union (1840) — merged Upper and Lower Canada (UC; LC) into a single entity known as the Province of
Canada, with a single legislative assembly
British North America Act (BNA) of 1867 — united the three territories of Canada, Nova Scotia, and New
Brunswick into what is currently known as Canada, and established a federal system with divided powers between a
central government (Ottawa) and provincial legislatures
Canadian Charter of Rights and Freedoms (1982) — forms part of the Constitution; it guarantees fundamental
individual freedoms
Constitution — refers to a set of fundamental rules that determine how a country or state is governed; it determines
how a government operates and the distribution of powers
Convention — refers to unwritten rules that are part of the country’s constitutional system
Organic Statute — refers to a law that establishes the fundamental rules for a government
Why is Canada’s constitutional development described as evolutionary rather than revolutionary?

It is considered evolutionary rather than revolutionary because Canada’s constitution evolved from
Britain’s political framework
It is also described as evolutionary to reflect Canada’s gradual independence from Britain

Note that Canada still holds strong ties to Britain

What is the British North America Act (BNA) of 1867?

The British North America Act united the three territories of Canada, Nova Scotia, and New
Brunswick into what is currently known as Canada
It also established a federal system with divided powers between a central government (Ottawa) and
provincial legislatures

Why does the BNA address very little of civil liberties, equality, diversity and Indigenous peoples?

Civil liberties, equality, diversity, and Indigenous rights were not explicitly stated/focused on in the
BNA because that was not its primary focus
Therefore, issues regarding human rights were assumed to be protected by British law

It is of note that these issues were not considered a priority either

Recall that the main purpose of the BNA was to unify the Canadas (Upper and Lower Canada) and
establish a functional government system
For example,

BNA established the responsibilities/powers of the federal and provincial governments via
Sections 91 (federal) and 92 (provincial)
It also established the structure of the Parliament of Canada

It is of note that Canada’s parliamentary system is modeled after Britain

BNA: The creation of the Supreme Court

 The BNA gave the Parliament power to create the Supreme Court of Canada
However, the Supreme Court was not immediately established
For example,

The bills that led to the establishment of the Supreme Court were initially introduced in 1869
and 1870

Both times the bill was withdrawn due to potential infringement on provincial rights

Ultimately, the Supreme Court was established in 1875 through the Supreme Court Act

Did the Supreme Court serve as the final court of appeal at the time of establishment?

No, it was not

The Judicial Committee of the Privy Council (JCPC) —a British institution—served as the court of
final appeal in Canada until 1949
This means that the JCPC had the final say on constitutional matters, not the Supreme Court

NOTE: JCPC is to be further discussed in later lectures

What is charter revolution?

Charter revolution refers to the shift in Canadian law after the introduction of the Canadian Charter of
Rights and Freedoms

What are key sections of the charter regarding the revolution?

Section 15

Everyone is equal before and under the law

Section 27

The Charter must be interpreted in a way that respects and promotes the multicultural heritage
of Canadians

Section 28

Guarantees equal access to rights and freedoms of the Charter regardless of sex; gender
equality

Section 35(1)

The rights of Indigenous peoples are legally recognized and guaranteed; any rights promised
in treaties between Indigenous groups and the Crown are protected

What is the Canadian Charter of Rights and Freedoms?

The Canadian Charter of Rights and Freedoms forms part of the Constitution; it guarantees
fundamental individual freedoms
In other words, the Canadian Charter entrenched fundamental freedoms in Canada’s Constitution
It also marked Canada’s shift to multiculturalism (that began in the 1970s)
When was the Canadian Charter created?

1982

What policy is the Canadian Charter said to be modelled after?

The 1971 Multiculturalism Policy

This policy recognized and respected Canada’s diverse populations
The Charter was purposefully created to protect the promotion of cultural diversity

What is a constitution?

A constitution refers to a et of fundamental rules that determine how a country or state is governed; it
determines how a government operates and the distribution of powers

What is the purpose of Canada’s constitution?

Canada’s constitution defines which level of government controls what

For example,

Section 91 defines the issues that are to be dealt with by the federal government

Trade and commerce

Criminal law
Transportation

Section 92 defines the issues that are to be dealt with by the provincial government

Healthcare
Education

Canada’s constitution also establishes laws that all other laws must follow
Therefore, all laws must be consistent with the constitution

This means that these very same laws must be consistent with the Canadian Charter of Rights
and Freedoms as well as the BNA
This is because they are enshrined in the constitution

Why did constitutional changes require British approval?

This is because the British North America Act was a British statute/law
Therefore, any amendment/change had to be made by the British Parliament, not Canada itself
Note that this changed in 1982 when Canada patriated its Constitution, which transferred the country’s
highest law (BNA) to the authority of Canada’s federal and provincial legislatures

Is the constitution modelled after British laws?

Some parts of Canada’s constitution come from British laws

For example,

Arctic Newfoundland Act

What is the Arctic Newfoundland Act?

This act allowed Newfoundland and Labrador to join Canada in 1949

What are organic statutes?

An organic statute refers to a law that establishes the fundamental rules for a government
Note that they are not entrenched in the constitution of Canada, and are thus considered non-
entrenched constitutional laws
For example,

Supreme Court Act (1875)

Established the Supreme Court of Canada as the country’s highest court

This act was later amended in 1949 to make the Supreme Court the final court of
appeal for Canada

Bill of Rights (1960)

Was Canada’s first attempt at establishing a federal law to protect human rights and
freedoms

Its creation predates the Canadian Charter

Is considered to be quasi-constitutional
It “failed to succeed” due to how limited it was in scope

It only applied to federal laws and not provincial laws

Note that most power abuse at the time of creation was occurring at the
provincial level

What are conventions?

Conventions refer to unwritten rules that are part of the country’s constitutional system
But they are not laws, and are thus NOT enforced by the courts
They are instead enforced through the political process
Therefore, they are politically binding and political actors are expected to follow them
Note that conventions are an unwritten practice inherited from Britain

What is the purpose of conventions?

Conventions limit the power of the government

It ensures that the government uses its power justly
It also strengthens the constitution by ensuring that its principles are upheld

It essentially fills the holes in the written constitution

When is a constitutional convention?

A convention is considered constitutional when it has been followed consistently in the past (despite
not being formally written in the constitution)
And also when political leaders believe that it should be followed
 To determine if a rule, law, convention, etc. is constitutional, ask yourself if Canada would be able to properly
function should it not exist
Examples of pre-confederation documents

Royal Proclamation (1763)/Treaty of Niagara (1764)

Quebec Act (1774)
Constitution Act (1791)
Act of Union (1840)

What is the significance of the Royal Proclamation of 1763?

It created the boundaries for British territories (Canada and USA) in North America

It established the province of Quebec

Established most western land of the colonies as “Indian territories”

Notably, while the proclamation didn’t create the United States, it did lay out the boundaries for
The proclamation also established principles for the alienation of the Indigenous peoples

The proclamation stated that their land could only be sold to the British Crown, therefore
ensuring that settlers from encroaching on Indigenous territories without the Crown’s
involvement

Under what section is the Royal Proclamation mentioned in the Canadian Charter?

Section 25
It is referenced as protecting Indigenous rights
This is to ensure that the Charter cannot diminish Indigenous peoples’ rights, including those
stemming from treaties or the Proclamation itself

Why is the Treaty of Niagara closely tied to the Royal Proclamation?

It is seen as the Indigenous counterpart of the Royal Proclamation

Why is the Treaty of Niagara controversial?

It is seen as controversial because while Britain claimed it helped settle land agreements, the
Indigenous peoples deny that they surrendered their land
Presently, Canada does not formally recognize the Treaty of Niagara

What is the significance of the Quebec Act of 1774?

The Quebec Act restored French civil law, which ultimately led to modern bijuralism (the coexistence
of English common law and French civil law traditions)
It grants Quebec an appointed assembly

Note that changes were made to the oath of office to allow for French-Canadian participation
in governance

It expands the territorial boundaries of Quebec

What key changes did the Constitutional Act of 1791 introduce?

 It divided Quebec into Upper (now known as Ontario) and Lower (now known as Quebec) Canada

This was to better manage the distinct cultural groups

th
The constitutional act reserved of public lands and assigned them to the clergy → similar to a
priest
Established colonial administrations that allowed (the colonies) the power to levy/exact taxes

Governor General = represented the British Crown

Lieutenant Governor = acted as the governor of the colonies; had power over individual
provinces
Executive Council = similar to the Cabinet; controlled policy and expenditure, appointed by
the Lieutenant Governor
Executive Assembly = appointed by the Lieutenant Governor; more administrative than the
Executive Council
Legislative Assembly = is elected by the people, but has limited power. It has the ability to
block budgets and it is largely ignored in terms of policymaking

Why was the Act of Union (1840) created?

The Act of Union is a response to the violent rebellions that occurred in Upper and Lower Canadas
between 1837 and 1838
It was created largely due to the recommendation of Lord Durham, who believed uniting the two
Canadas would ease political tension and unrest as a result of lack of political reform

Note at the time that both colonies were dominated by small elite groups who controlled the
government and denied the wider populace access to democracy

What impacts did the Act of Union have on the Canadas?

It merged the debts of both provinces

This was detrimental to Lower Canada as they had less debt than Upper Canada

The boundaries for elections changed

This change granted more power for Upper Canada in the new legislature
This disadvantaged Lower Canada

The act banned the use of French in government institutions

This particularly disadvantaged Lower Canada as most of its populace were French-speaking
and it completely sidelined their French culture

Did the Act of Union introduce a responsible government?

No
The British-appointed governor general still held authority over the colony
However, it did set up the conditions for it

When was a responsible government first achieved in the Canadas?

 It began in Nova Scotia in 1848, followed by New Brunswick
The Province of Canada (UC and LC) were granted responsible government in 1848

What is the Rebellion Losses Bill of 1849?

The Rebellion Losses Bill is a law that proposed to compensate individuals for property losses asa
result of the 1837-38 rebellions that occurred in UC and LC

This was seen as controversial because it treated rebel-supporters equally with those who did
not

This bill was proposed and led by Robert Baldwin (English-speaking reformer) and Hippolyte
LaFontaine(French-speaking reformer)

What is the significance of the Rebellion Losses Bill of 1849?

The Rebellion Losses Bill of 1849 is a key moment in Canada’s transition toward responsible
government
This is because the bill the passed by both the Assembly and Governor General (despite the GG
disagreeing with the bill)
This therefore serves as a critical step toward self-governance

What event led to the passage of the BNA Act in 1867?

The erosion of the Act of Union

In other words, it just became ineffective due to political divisions and economic pressures
In response to this, the BNA Act was created to replace the Act of Union

Why did the Act of Union fail?

Due to Canada’s progression toward self-governance, British powers no longer wanted to be

responsible for the country

This was further highlighted by the conclusion of the American Civil War

It also failed because America had cancelled its free trade agreement in Canada, which worsened
Canada’s economy

This agreement was known as the Reciprocity Treaty (1854)

Canada was also experiencing defence issues

At this time, the Fenian Brotherhood (a group of Irish-American nationalists) was raiding
Canada throughout the 1860s
These attacks exposed how vulnerable Canada was

Furthermore, Canada’s political system was very unstable

For example,

The capital city moved six times before finally setting in Ottawa in 1857
The capital was burned down
Recall: What is the British North America (BNA) Act of 1867?

The British North America Act united the three territories of Canada, Nova Scotia, and New
Brunswick into what is currently known as Canada
It also established a federal system with divided powers between a central government (Ottawa) and
provincial legislatures

In other words, it outlined the responsibility of each level of government

This strengthened both Canada’s defence and improved its economic state without relying heavily on
Britain
Notably the BNA Act maintained many elements from the British system

When did Canada become independent?

There are many potential dates from when the country gained independence
It depends on what you define as independence

Politically independent? Fundamentally independent?

For example,

1848? When responsible government came to the colonies?

1867? When Confederation happened?

1926-31? When Canada gained the ability to represent itself internationally?

1982? When sovereignty came to Canada?

Week 2

The Branches of Government in Canada

The “Entrenchment” of the BNA Act

● Other acts must be consistent with the BNA Act .

● Section 52 lists the BNA Act as part of the Constitution .
● The BNA Act and other "entrenched" acts, like the Charter, cannot be changed by ordinary legislation .

“Similar in Principle” to the UK Const.

● The Canadian constitution is not identical to the UK constitution .

 ● The Canadian constitution is partially unwritten, with elements like federalism and Aboriginal rights
integrated into it .

The Executive

Executive Power – Queen

● The King is the head of state, but not the head of government .
● Sections 9 and 10 of the BNA Act are the operative provisions .
● Appointments to the Senate and SCC are made by the PM advising the GG .

King of Canada - Not UK, Since 1982

● The Crown is legally distinct from the UK monarchy .

● The King reigns, but does not rule, in Canada .
● The King is not acting in his British capacity in Canada .

Executive Power – Governor General

● The Governor General is the King's Representative, not the head of state or government .
● Since 1947, letters patent establish that the GG can exercise all the powers of the Crown .
● The King appoints the Governor General on the advice of the PM .

Executive Power – PM and GG

● The GG appoints the PM based on who has the confidence of the House .
● The GG must follow the directions of the PM/Cabinet .
● The GG acts without advice only when appointing the PM .

Appointing PM – “Wrinkles” Re: “Confidence”

● Technically, the PM only has to be the one best able to command the confidence of the House .
● Usually, the majority party leader is appointed, but there are exceptions .
● Examples include minority governments and coalitions .

Confidence Convention Cont.’

● The confidence convention is much stronger in Canada due to rigid party discipline .
● It is not unprecedented to debatably lose confidence, or lose it by accident .
● Examples include Martin in 2005 and Pearson .

GGs and PMs Who Don’t Go Quietly – The King- Byng Affair

● In 1925, King got 101 seats, Meighen 116, but the Progressives (28) agreed to support King .
● In 1926, headed for defeat, King asks Byng to dissolve parliament, but Byng refuses .
● Meighen can’t put it together and loses confidence, election sets precedent for GG given King returns .

GGs and PMs Who Won’t Go Quietly – The Prorogation Crisis

● Harper wins minority; Liberals and NDP announce a coalition supported by the BQ .
● Harper asks for Prorogation for 6 weeks for new budget and gets it .
● The Coalition collapses .

Lieutenant Governors
 ● The Crown has a role in the provinces .
● Lieutenant Governors are appointed by the federal Cabinet .
● They follow the provincial government’s advice .

Executive Power – Privy Council Office

● The Privy Council Office is based on the medieval council to advise the monarch .
● It is the historical and constitutional basis for the Cabinet and the PM .
● The Cabinet is a committee of this more ceremonial body .

Executive Power – PCO

● The PCO is the apex body of the civil service .

● The Clerk of the Privy Council/Secretary to the Cabinet is the head of the Civil Service .
● The PCO is non-partisan, which matters during elections .

Caretaker Convention

● When the House dissolves, the Government is still in charge .

● The PCO must distance itself from the Government of the day when there is no House .
● Major contracts or policies should not be introduced, but routine governing can continue .

Executive Power – Prime Minister

● The PM has the most power in the executive branch .

● The PM selects the Cabinet, who must be from Parliament, usually the H of C .
● If the PM is defeated in his own seat, he/she gets another from the ranks of the party .

Other Conventions Re Executive

● There are conventions surrounding the role of the military and the executive in constitutional democracies .
● It would be inappropriate for a uniformed officer to assume elected office in the Cabinet .
● It would also be inappropriate for the military to challenge the cabinet .

What About the ABC?

● It is more difficult to find a true convention in areas that are organizationally distinct from the government .
● Examples include the CBC and Bank of Canada .

The Legislature

Legislative Power in Canada

● The Parliament of Canada includes the Queen, the House of Commons, and the Senate .

Parliamentary Supremacy

● It is the supreme lawmaker in the country on all subjects .

● No parliament can bind a successor parliament .
● This is the case in Canada, considering federalism, the Charter, and Aboriginal Rights .

Senate

● The Senate is the House of “Sober Second Thought” .

● It is based on the H of L but was really about trying to offer a regional basis of representation .
 ● It has lost almost all legitimacy but has come back to try to reassert itself .

House of Commons

● The House of Commons is elected, rep by pop, and has 338 seats .
● It holds the government to account and is responsible for supply (money bills) .
● It is the most important of the Chambers .

Legislative Process

● Each House is theoretically co-equal .

● There are three readings x 2 (House/Senate) .
● Major bills bring down the government on confidence .

Parliamentary Privilege

● It is the preservation of the rights of parliament to do their work without interference from other branches
of government .
● You cannot sue for liable or defamation for something said in Parliament .
● Whatever is needed to ensure that the work continues .

Fusion of the Branches

● The branches are not separated; they are not truly separate .
● This is different in the United States – “invitation to struggle” .
● Here they are reinforcing .

The Judiciary

Constitutional Foundations

● The constitutional foundations are the BNA Act, Charter section 11(d), case law, conventions and statutes .
● BNA Act includes the preamble and Sections 92(14), 96-101 [i.e. Part VII Judicature], 129 .

The Court System

● [R35]

The Court System

● [R36]

The Court System

● [R37]

Jurisdiction

● Unlike the United States, the superior courts in Canada have a unified jurisdiction over subject matter .
● The inferior courts are given specific jurisdiction over an area/subject matter, e.g., Small claims court,
traffic court, family courts .
● In the United States, there is more of an emphasis on federalism .

The JCPC
 ● The JCPC was originally the court of highest appeal in Canada .
● It is a committee of the PC, somewhat analogous to the basis for the Cabinet .
● Appeals effectively stopped in 1949, but there was a long run-up to it .

The Supreme Court of Canada

● The Supreme Court of Canada was not part of the original BNA Act .
● It was created in 1875 by Ottawa as a “general court of appeal for Canada” .
● It is primarily interested in appeals that are national in scope .

Appointments to the SCC

● There are 9 judges on the court .

● 3 come from Quebec as specified in the SCA, by convention 3 Ontario, 2 West, and 1 from Atlantic
Canada .
● The appointment process has varied and is often criticized as opaque .

The Supreme Court of Canada

● You can get to the SCC "As of right", "by leave", and "by reference" .
● The mostly way this works now is "by leave" .
● Section 53 of the SCA specifies that the supreme court can be reached by reference .

Division of the Courts – Section 96

● The judicial system came to Canada during the colonial era, and predates the unification of the colonies in
1867 .
● Section 96 courts have two levels, the superior courts of unlimited jurisdiction and the provincial courts .
● The former are appointed by Ottawa .

The Inferior Courts

● Inferior Courts (92(14)) are appointed by the provinces and are more limited .
● They tend to deal with criminal jurisdiction, but also family and the “provincial offenses” .
● They have been through a period of reorganization over the years .

Section 101 Courts

● Section 101 courts are federally constituted courts, including the Federal Court, Federal Court of Appeal,
Tax Courts, and Courts martial .
● The FC and FCA are the most important .
● They are limited to federal jurisdiction only .

Administrative Tribunals

● Justice is not always the province of the courts; there are other adjudicative fora .
● Some are just administrative decision makers .
● Some are more adjudicative .

Governed by Principles of Proc. Fairness

● Governed by principles of procedural fairness including notice, Nemo judex in sua causa, and Audi
Alteram Partem .
● These principles also include independence and bias .
Judicial Independence

● Judicial independence means security of tenure .

● It also implies financial security .
● Further, administrative independence is also required .

Rule of Law

● The government is run according to the laws .

● Those laws are themselves consistent with the constitution .
● Judicial review is largely aimed at ensuring that the rule of law is followed in Canada .

Judicial Review

● There has been no shortage of times in which the government has sought to limit or oust the jurisdiction of
the courts .
● The state is much more complicated than it once was and there is a need for specialized expertise .
● The courts have not always been the most sympathetic to the policy aims of some jurisdictions .

Privative Clauses

● A “Privative Clause” is a clause that is aimed at insulating a tribunal from the courts .
● This is not possible to do entirely .

Reference Re Remuneration of Judges

● The preamble is key on independence, inherited from the UK .

● The constitution has evolved to protect judicial independence in a way that was not initially contemplated
by resting on unwritten principles .
● Judicial independence encompasses tenure, financial independence, administrative independence, AND
immunity of judges while working in the course of their job .

Reference Re Remuneration of Judges

● This was a leading case on the “constitutionalization” of judicial independence .

● There were really two issues: This was directed at the lower courts, not the superior courts; concerned the
financial security of the judges .
● This was not really covered in BNA Act/Charter section 11 .

The Nadon Reference

● Key decision on the question of the constitutional status of the Supreme Court Act, sections 5 and 6 .
● Vital in articulating a constitutional view about the importance of Quebec and of duality at the heart of the
constitution .

That’s It.

● Out .

Trade & Commerce, The Criminal Law, Transportation, and the Treaty Power

● The presentation will cover select federal powers including POGG, criminal law (Section 91(27)), trade
and commerce (Section 92(13)), transportation, and the treaty power .
 ● The presentation aims to discuss the division of powers between the federal and provincial governments, as
defined in Sections 91 and 92 of the BNA Act .

Early Years & POGG

● The Fathers of Confederation (FOC) desired a strong central government, but the division of powers has
been a source of controversy .
● The Peace, Order, and Good Government (POGG) clause grants the federal government broad legislative
power over matters not exclusively assigned to the provinces .
● Reservation and Disallowance powers, once tools for federal oversight of provincial legislation, are now
rarely used .

Criminal Law

● Criminal law is technically a federal responsibility under Section 91(27), although provinces can pass
quasi-criminal laws .
● The definition of a criminal law involves a prohibition, a penalty, and a valid criminal law purpose, as
outlined in the Margarine Reference .
● While the Criminal Code consolidates criminal law, other acts like the Controlled Drugs and Substances
Act also contribute .

Trade and Commerce

● Section 91(2) was intended as a main federal power, but the JCPC interpreted it narrowly .
● The Citizen’s Insurance v. Parsons case limited federal trade and commerce power to interprovincial,
international, and trade affecting the whole country .
● The General Motors v. City National Leasing test provides factors to consider when assessing federal
authority under trade and commerce, representing a broadening of power for Ottawa .

Transportation

● Constitutional authority over transportation is divided, with provinces having jurisdiction over local works
and undertakings, and the federal government overseeing interprovincial and national aspects .
● Key questions in transportation cases involve determining the extent of interprovincial activity needed for
federal jurisdiction and the extent to which federal jurisdiction can extend to a mostly local project
connected to an interprovincial one .
● POGG has been useful for the federal government in expanding its powers in the aeronautics field .

Treaty Power

● Canada's ability to enter into international treaties evolved over time, initially as part of the British Empire
and later independently .
● The Balfour Declaration of 1926 recognized the Dominions as autonomous communities, equal in status
within the British Empire .
● Although the federal government can sign treaties, it cannot compel provinces to enact provisions that
implement them, as demonstrated in the Labour Conventions Case .

Week 3

Trade & Commerce, The Criminal Law, Transportation, and the Treaty Power
 ● The presentation will cover select federal powers including POGG, criminal law (Section 91(27)), trade
and commerce (Section 92(13)), transportation, and the treaty power .
● The presentation aims to discuss the division of powers between the federal and provincial governments, as
defined in Sections 91 and 92 of the BNA Act .

Early Years & POGG

● The Fathers of Confederation (FOC) desired a strong central government, but the division of powers has
been a source of controversy .
● The Peace, Order, and Good Government (POGG) clause grants the federal government broad legislative
power over matters not exclusively assigned to the provinces .
● Reservation and Disallowance powers, once tools for federal oversight of provincial legislation, are now
rarely used .

Criminal Law

● Criminal law is technically a federal responsibility under Section 91(27), although provinces can pass
quasi-criminal laws .
● The definition of a criminal law involves a prohibition, a penalty, and a valid criminal law purpose, as
outlined in the Margarine Reference .
● While the Criminal Code consolidates criminal law, other acts like the Controlled Drugs and Substances
Act also contribute .

Trade and Commerce

● Section 91(2) was intended as a main federal power, but the JCPC interpreted it narrowly .
● The Citizen’s Insurance v. Parsons case limited federal trade and commerce power to interprovincial,
international, and trade affecting the whole country .
● The General Motors v. City National Leasing test provides factors to consider when assessing federal
authority under trade and commerce, representing a broadening of power for Ottawa .

Transportation

● Constitutional authority over transportation is divided, with provinces having jurisdiction over local works
and undertakings, and the federal government overseeing interprovincial and national aspects .
● Key questions in transportation cases involve determining the extent of interprovincial activity needed for
federal jurisdiction and the extent to which federal jurisdiction can extend to a mostly local project
connected to an interprovincial one .
● POGG has been useful for the federal government in expanding its powers in the aeronautics field.

Treaty Power

● Canada's ability to enter into international treaties evolved over time, initially as part of the British Empire
and later independently .
● The Balfour Declaration of 1926 recognized the Dominions as autonomous communities, equal in status
within the British Empire .
● Although the federal government can sign treaties, it cannot compel provinces to enact provisions that
implement them, as demonstrated in the Labour Conventions Case .
 Week 4

● Exam related information was shared.

● A note taker is needed.
● Other questions were addressed.

Property and Civil Rights

● Property and Civil Rights under s. 92(13) became one of the most expansively read provisions of the BNA
Act .
● It was used to build up provincial competences and was viewed as a kind of "residual power" for the
provinces .
● More recent jurisprudence has put some limits on it .

Civil Rights Pre-Charter

● Prior to the Charter, civil rights were essentially what the provinces said they were .
● This aligns with the concept of parliamentary supremacy .

How Expansive is P&CR?

● Provinces can set minimum prices for milk but may face restrictions when it comes to export .
● P&CR cannot be used to enact barriers to trade between and among the provinces .
● The distribution of powers is exhaustive, allowing Ottawa and the provinces to regulate the internal
market .

Natural Resources

● 1970s cases restricted the types of business provinces could conduct with natural resources, requiring
examination of the legislation's purpose .
● As part of the 1982 bargain, the West gained more control over natural resources in sections 92(A) .
● The definition of "in the province" has become less restrictive .

“Within the Province.”

● The JCPC was initially restrictive but later became more liberal in interpreting "within the province."
● Courts began using the "pith and substance" doctrine to determine the true intent of provincial actions .

The Rise of Pith and Substance

● Ladore v. Bennett: Provincial actions like amalgamating cities can have incidental effects outside the
province .
● Churchill Falls: The act's primary purpose was to abrogate a contract with Quebec, not expropriate property
.
● Global Securities: BCSC can order records from registrants outside the province if the primary focus is
securities regulation .

P&S Remains the Test for Validity

● Imperial Tobacco: Pith and substance is still the key test for constitutional validity .
● Consider whether legislation concerns tangible or intangible matters .
 ● For intangible matters, assess the relationships between territory, subject matter, and people using the "real
and substantial connection" test .

One Final Section - 121

● R v. Comeau addresses section 121 of the BNA Act regarding the economic union .

R v. Comeau

● Section 121 mandates that goods from any province be admitted freely into other provinces .

Taxation

● Taxation is a fundamental function of the state, historically driving the west toward democracy .
● Only the lower, elected house is permitted to raise money .

Taxes and Civil Rights

● Rights were initially based on limiting government action in the private, especially economic, sphere .
● The phrase "No taxation without representation!" reflects this .

Taxes and Civil Rights – Really Fast Overview

● Disputes over taxation date back to Charles I and the Thirty Years War .
● Charles's "forced loans" led to the Petition of Right in 1628 and the English Civil War .
● The English Bill of Rights in 1689 cemented the principle of no taxation without representation .

No Taxation Without Representation

● All money bills must originate in the lower house due to this principle .
● Money bills are matters of confidence; a government unable to raise and spend money must resign .

Taxes on a Jurisdictional Basis

● Canada's federal system creates the added problem that both orders of government can levy taxes, but not
equally .
● Expensive fields were given to Ottawa while less expensive areas were given to the provinces .

Direct and Indirect Taxes

● The Constitution Act distinguishes between direct and indirect taxes .

● A direct tax is paid by the final user, while an indirect tax is levied further up the value chain .

Why Does Ottawa Collect Both Orders of Government’s Taxes?

● Ottawa collecting taxes is more convenient, though not mandatory .

● Ottawa collects and returns money to provinces, collaborating on tax room sharing .

Federal Tax Powers – Section 91

● Section 91 outlines federal powers including managing public debt and property (1A) .
● It also includes the regulation of trade and commerce (2) .
● Furthermore, it includes raising money through any mode of taxation (3) and borrowing money on public
credit (4) .
Provincial Tax Powers – Section 92

● Section 92 grants provinces the power of direct taxation within the province (2) .
● Provinces can borrow money on their sole credit (3) .
● Provinces also have authority over property and civil rights within the province (13) .

Consolidated Revenue Fund

● Money must go into a single fund before being spent, as per Section 102 of the Constitution Act, 1867 .
● Both federal and provincial governments have such funds .
● This promotes accountability .

Social Union

● The social union is not explicitly in the constitution, but essential to the state .

Most Social Union Jurisdiction is Provincial

● Provinces have a leading role in hospitals and education due to historical allocations .
● This reflects the historically smaller size of the state .

Keep in the Back of Your Mind the Federal Role

● Pensions are concurrent with provincial paramountcy .

● Healthcare is mostly provincial, with federal exceptions such as quarantine, national public health, military
health, and Indigenous health .
● Education is mostly provincial, except for on-reserve Indigenous education which is federal .

Spending Power

● Section 102 provides for a consolidated revenue fund .

● The government has the right to spend on "any matter" .
● Various taxation powers arguably support it - e.g. section 91(3) .

Spending Power

● Courts have generally approved of the spending power, provided funds are not used for programs outside
federal jurisdiction .
● Its constitutionality is supported more by oblique references rather than direct challenges .

Transfer Payments

● Ottawa uses its spending power to send conditional and unconditional grants to provinces .
● Conditional grants include the Canada Health Transfer and the Canada Social Transfer .
● The conditions for these funds are negotiated with the provinces .

Example: Health

● Health is primarily in the provincial sphere under 92(7) .

● 92(7) pertains to the establishment, maintenance, and management of hospitals and charities in the
Province, excluding Marine Hospitals .

Example: Health

● Health care is expensive, making provincial governments dependent on federal funding .

 ● Funding is provided through the Canada Health Act, which attaches conditions to the money .
● Provinces are not obligated to accept the funds, but doing so is essential for maintaining healthcare
programs .

Example: Health

● The Canada Health Act emphasizes portability .

● Universality is another key idea .
● Accessibility is also important .

Example: Pensions

● Pensions were traditionally provincial .

● The federal government gained competence in the 1950s and 1960s after the SCC denied jurisdiction for a
CPP .
● Now, CPP, OAS, and GIS exist federally, concurrent with provincial paramountcy in regulating pensions
under section 94(A) .

Example: Education

● Education is a provincial responsibility under section 93 .

● The Canada Research Chairs initiative, started around 1998, allowed Ottawa to spend significantly in post-
secondary education .
● This was controversial, especially in Quebec, but universities and provinces ultimately accepted the funds .

Equalization (Briefly)

● Section 36 of the Constitution Act, 1982, and the BNA Act provide for provincial subsidies .
● The key concept is "reasonably comparable levels of public services at reasonable comparable levels of
taxation" .
● It is a federal program funded by federal taxes, but is often misunderstood .

Cities

● Cities are provincial matters .

Cities are Provincial

● Section 92 grants provinces exclusive law-making authority over municipal institutions .

“Creatures of the Province”

● Provinces can create, amalgamate, de-amalgamate, and abolish cities within their boundaries .
● This power extends to changing election methods and mayoral powers .

Is There a Federal Role?

● The feds can give money, but jurisdiction is provincial .

● Provinces ultimately decide what happens at the municipal level .
● Disputes can arise over transit funding responsibilities .

Patriation and the Move to the Charter

● Two myths to confront: The Fathers of Confederation did not understand, and failed to include, an
amending formula for the Constitution in 1867 .
 ● Two myths to confront: Quebec did not sign the constitution in 1982. Therefore, it does not apply to the
province .

When Did Canada Become “Independent”?

● Canadian independence was an evolutionary phenomenon .

● Key milestones include responsible government in 1848, Confederation in 1867, international
representation in 1926-31, and sovereignty in 1982 .

Bottom Line – It Happened Over Time

● By 1982, Canada was practically independent but not quite fully so .

What Did It Mean to Have the Constitution in “Britain?”

● The BNA Act was a British statute that the Canadian Parliament could not directly amend .
● Changes required requesting the UK to act .

Move Towards More Civil Liberties

● The introduction of the Bill of Rights was the first significant move towards constitutional civil liberties in
Canada .
● The Bill of Rights was (and is) quasi-constitutional .

Bill of Rights, 1960

● The Bill of Rights was not as impactful as expected .

● It was only a federal act and did not apply to provinces .
● It was not entrenched, so courts couldn't strike down inconsistent laws .

Rumblings of Constitutional Change

● By the 1960s, there was a move towards constitutional change due to the lack of entrenched civil liberties .
● Also, the rise in Quebec nationalism pushed for constitutional change .

A Rocky Path

● "Getting to yes" was not easy .

● Important court references included Reference re The Upper House, Patriation Reference, and Quebec Veto
Reference .
● Quebec did not sign on, but the constitution applies there .

From the Patriation Reference…

● Constitutional conventions are sometimes more important than laws and violating a convention is
unconstitutional, though without direct legal consequences .
● The equation is constitutional conventions plus constitutional law equals the total constitution of the
country .

Amending Formula – Part V Const. Act, 1982

● There are several amending formulas .

● There is a general amending formula (“7/50” formula) .
● Some things require unanimity (e.g. Queen, SCC composition) .
General Amending Formula

● Most constitutional changes require Parliament and two-thirds of provinces with 50% of the population to
agree .
● This is the "7/50" amending formula .
● It effectively gives Quebec and Ontario more say, transferring consent authority to provincial legislatures .

Unanimous Amending Formula

● Some matters require unanimous agreement from Parliament and all provinces .
● These include the Monarchy, official languages, and SCC composition .
● Here, Quebec has a veto, but so does everyone .

Aftermath of 1982

● The constitution shifted from parliamentary supremacy to constitutional supremacy .

● The Charter began to significantly reshape laws .
● Quebec found itself politically "outside" the Canadian state .

Reference Re Secession of Quebec

● This is among the most important decisions of the SCC .

● Key questions include whether Quebec can separate unilaterally under the constitution .
● The decision also considers whether it can do so under international law .

Reference Re Secession of Quebec

● The court answers "no" to the first two questions .

● However, it finds a duty to negotiate in the event of a clear "Yes" on a clear question .
● It "reads in" four unwritten principles to the constitution.

Reference Re Secession of Quebec

● Democracy is one of the unwritten principles .

● Federalism is another unwritten principle .
● Respect for minorities is also among the unwritten principles .

Reference Re Secession of Quebec

● The decision was calming because it recognized the status quo .

● All parties accepted the decision as binding .

Patriation Achieved

● Patriation was achieved.

Conclusions

● Questions.

Week 5

Indigenous Peoples and the Constitution

 ● Exam next week will be closed book and handwritten .
● The exam will consist of defining 5 of 10 concepts and writing one essay out of three options .

Sources of Indigenous Rights

● Sources of Indigenous rights include the Royal Proclamation of 1763 and Section 91(24) of the
Constitution Act, 1867 .
● Other sources are the Indian Act, Section 25 of the CCRF, Section 35 and 35.1 of the Constitution Act,
1982, treaties, and judicial interpretation .

The Sui Generis Nature of Aboriginal Rights

● Indigenous rights are "sui generis," meaning they are of a different category due to the lack of precedent in
British common law .

Honour of the Crown

● The Honour of the Crown arises from the pre-existing presence of Indigenous peoples in Canada, who were
never conquered .
● It informs all aspects of the state’s duty to Indigenous peoples and has both substantive and procedural
characteristics .

Fiduciary Duty

● The Crown must act as a fiduciary in many aspects where it has discretionary control over an Indigenous
interest .
● This means the Crown must act in the Indigenous groups' best interests, a higher standard than the Honour
of the Crown .

The Royal Proclamation of 1763

● The Royal Proclamation of 1763 is a real departure point in Indigenous rights .

Royal Proclamation of 1763

● The Royal Proclamation of 1763 established that Indigenous lands could only be sold to the Crown .
● It initiated the reserve system and remains in force as part of the Canadian Constitution .

Constitution Act, 1867

● The federal government was given the responsibility for Indigenous peoples in section 91(24) at
Confederation .
● The most important operative legislation is the Indian Act which sets out “status” Indigenous peoples .

The Indian Act

● The Indian Act was created to assimilate Indigenous peoples .

● It initially restricted status Indigenous peoples' participation in democratic aspects of civil society .
● Reserves and residential schools were regulated under it, and although amended, it remains problematic .

Who is an “Indian?” Who is a “Status Indian?”

● There are different definitions of "Indian" and "Status Indian" .

● Section 91(24) refers to "Indians and Lands Reserved for Indians" .
 ● The Constitution Act, 1982 identifies Aboriginal peoples as "Indian, Inuit and Métis," but the Indian Act
does not apply to the latter two .

…And the Provinces?

● Laws of general application apply to Indigenous peoples and Indigenous land .

● If a provincial law is "in pith and substance" concerning Indigenous peoples, it is ultra vires .

Rights at Common Law

● At Confederation, there was little recognition of Indigenous peoples' rights .

● The St. Catherine's Milling case was the first major statement on these rights at common law .
● The land rights of Aboriginal peoples existed, but they were "personal and usufructory rights" .

The White Paper

● The 1969 White Paper proposed by the Trudeau government aimed to abolish the Indian Act .
● This led to a major backlash by Indigenous peoples, forcing the government to back off .

R. v. Calder (1973)

● The SCC began to take a more liberal view of Indigenous peoples’ rights in the early 1970s .
● Calder established Aboriginal title existing outside the context of the RPO1763 .
● It derived from the pre-existing nature of Aboriginal peoples, setting up the modern process for negotiating
comprehensive land claims agreements .

Guerin v. R. (1984)

● Guerin v. R. expanded on the nature of Aboriginal title, stating that it is communal and inalienable except
to the Crown .
● Surrendering land to the Crown gives rise to a fiduciary obligation .
● Aboriginal title is sui generis from other types of title .

Constitution Act, 1982

● Additional rights were provided after the patriation of the constitution in 1982 .
● Section 35 is the most important, entrenching “existing” Indigenous rights into the constitution .

R v. Sparrow – Arrival of Section 35

● Section 35 took away Parliament's right to extinguish treaty rights .

● R v. Sparrow outlines some limits on section 35 .

R. v. Sparrow

● The Crown must show a “clear and plain” intention to extinguish an Aboriginal right .
● Consistent with the “honour of the Crown,” the government owes a duty to Indigenous peoples that is more
like a trust .

R v. Sparrow

● The claimant must show they were acting pursuant to a right protected by section 35 .
● The right must count as existing and there must be an infringement of the right .
● If there is an infringement, then it must be shown if justified .
R. v. Van der Peet (1996)

● Van der Peet further elaborated the meaning of "Aboriginal right" .

● The Court stressed that the pre-existing nature of Aboriginal society gives rise to the rights, considering the
precise nature of the claim made .
● Integral and distinctive culture test .

Delgamuukw v. B.C. (1997)

● This case set out the nature of title in relation to other rights .
● Indigenous peoples are free to use the land but it cannot be in a way that is culturally inconsistent with past
practice and it’s communally held .

Haida Nation v. BC

● When the Crown assumes discretionary control over a specific Aboriginal interest, and in s. 35 Charter
cases, the duty to consult arises .
● The honour of the Crown governs treaty-making and implementation .
● The honour of the Crown requires the Crown to act in a way that accomplishes the intended purposes of
treaty and statutory grants to Aboriginal peoples .

The Duty to Consult

● There is an obligation to consult with Indigenous peoples before an Indigenous right can be infringed .
● The Crown must know of the right or claim, there must be Crown conduct or a Crown decision, and there
must be evidence that Crown conduct will affect the right .

Treaties

● This area is complicated because of the diversity of the groups involved and their different circumstances
with colonial powers .
● The first treaties were on the east coast and Ontario, followed by the “numbered” treaties .
● Treaty is a broader concept than a written document – the key is on the agreement .

Treaties

● Courts have signaled that treaties must be read liberally and broadly, consistent with the honour of the
Crown .
● Marshall (1) implied a right to fish given the circumstances surrounding the signing .
● Marshall (2) stated that if a treaty is found to exist, each right has to be litigated at a time and Marshall (3)
stated that commercial logging is not included in this treaty .

Self-Government

● There is some ambiguity in the area of self-government .

● There has not been a definitive statement by the Court on the rights of Indigenous peoples to self-
government .
● The Van der Peet and Delgamuukw cases strongly suggest that the communal nature of rights includes the
right to regulate them in some way .

Self-Government and Charlottetown

● The right to self-government would have been entrenched in the Charlottetown Accord .
● The specifics on how that would have happened were not really clear .
● The Accord did not pass .
Constitutional Change

● Section 35.1 contains provisions on the steps to be taken if Indigenous rights are to be changed .
● A conference has to be called with the apex organizations of Indigenous Canadians .
● There is an argument that the duty to consult that exists under section 35 makes this superfluous .

Land Claims

● Land claims cover large sections of the country and are settled into comprehensive and specific land claims
agreements .
● Comprehensive land claims deal with ongoing business and Specific Claims address past wrongs .
● There have been many of these successfully concluded and the honour of the Crown informs this process
and results .

Innovative Solutions? Consider Nunavut

● Nunavut represents an interesting example of reconciling different visions of the state .

● Created in 1999, it was designed to be a homeland for the Inuit population of Canada .

Nunavut Continued…

● Technically, it is a territory that was carved out of the rest of the NWT .
● It is also a comprehensive land claim agreement .
● A public government for all and a number of organizations closely affiliated with the government focused
on the “beneficiaries” of the land claim.