Public Law I: Nov. 405 Criminal Law, Cooperative

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Public Law I Nov. 4/05Criminal Law,
Cooperative Executive Federalism

• November 17 Mr. Justice Peter Cory will speak
  on the Innocence Project in 140 McLaughlin, 12
  noon.
• November 10 Ray Aldred, an Aboriginal leader,
  will speak on the Aboriginal contribution to
  justice in Canada (noon, 140 McL)
• Glendon webct discussion issues
• Final exam Friday December 9, 9 12, Stedman A
  or B, or Glendon 144.
• R. v. Hydro Quebec (1997) Ref re Firearms Act
  (2000)
• Bedard v. Dawson Westendorp v. The Queen
• Nova Scotia Interdelegation Case PEI Potato
  Marketing Board Case
• Aeronautics Case Radio Case
• Labour Conventions Case Stevenson article on
  federalism (Kit, 124)

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R. v. Hydro-Quebec (1997)

• Impugned Canadian Environmental Protection Act,
  SC 1988, ss 34-35, and regulations issued by L.
  Bouchard in 1989.
• Hydro Quebec charged in 1990 with releasing PCBs
  contrary to regs. HQ claimed Act and regs ultra
  vires. Claim dont fall under any heads in s.
  91. Won at trial and Q Ap Ct. Granted leave to
  appeal to SCC in 1995.

• 5-4 decision leg and regs intra vires.
• Majority
• La Forest, LHeureux-Dube, Gonthier, Cory,
  McLachlin.
• Environment is not a distinct subject-matter
  that falls under ss. 91 or 92. If pith and
  substance of leg falls under s. 91 or 92,
  legislation is valid. (Do you see double
  aspect doctrine here?)

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Hydro Quebec (2)

• Does leg fall under 91(27) crim law?
• Feds can decide what evils they want to
  supress, with penal sanction.
• Fed criminal power subject to fundamental
  justice safeguards in Charter higher level of
  mens rea required for true (serious) crimes.

• Criminal power may not be employed colourably
  (used as an excuse to invade provincial powers.)
  Test does a legitimate public purpose
  underlie the prohibition?
• Protection of environment is a legitimate public
  purpose for criminal law.
• Prot of Environ is an international problem,
  requiring action by all govts.
• Provinces are not precluded from acting as well.

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Hydro Quebec (3)

• Hydro Quebec argued that the legislation is
  regulatory, not criminal. Crim. Leg. simply
  prohibits.
• Majority the prohibition is limited and
  targeted and avoids resort to unnecessarily
  broad prohibitions.
• Impugned sections of Act do not deal with prot of
  environment generally, but control of toxic
  substances. This requires precision because of
  complexity of subject.

• Act targets only subjects dangerous to the
  environment.
• Therefore, individual assessment of dangers is
  needed.
• Regulations are appropriate because of
  complexity, and need for ongoing assessment and
  fine-tuning.
• Because intra vires under 91(27), not necessary
  to consider POGG argument.

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Quebec Hydro (4) Dissent

• Lamer, Sopinka, Iacobucci, Major
• Criminal power argument prot of environment is
  a legit public purpose under crim law under prot
  of human health, but this leg goes well beyond
  the goal of protecting health.
• Regs are not really intended merely to protect
  health, but to regulate environmental pollution.

• A valid criminal law must establish a
  prohibition. Ss 34-35 dont they regulate.
• Ministers of Health Envirnoment can, through
  reg (OC), place specific substances on a list,
  and regulate their use.
• Its an odd crime where a Minister has
  discretion to prohibit certain conduct from time
  to time.

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Hydro Quebec (5)

• Provinces can be exempted from leg if they have
  the same regulations. Prov. Legislation cannot
  be criminal.
• Giving feds the power to define toxic and thus
  regulate allows feds to invade prov jurisdiction
  unfairly.

• POGG national concern?
• Must be a new matter with singleness,
  distinctiveness and indivisibility. Dn of
  toxic substance is too broad to meet this test.
• POGG National Concern? The dn includes substances
  that cross prov boundaries, but also includes
  substances that dont. Provincial control is
  possible. Therefore, Prov inability test (Cr
  Zellerbach) not met.
• TC no.

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Important cases

• Reference re Firearms Act (2000)
• Bedard v. Dawson (1923)
• Westendorp v. The Queen (1983)

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Reference re Firearms Act (2000)

• Early 1990s an increase in firearms-related
  killings, especially men killing former spouses.
  Each year, there were about 1000 deaths from
  firearms.
• Federal response Firearms Act of 1995, which
  required registration of all firearms.
• A great deal of opposition from gun owners in
  Western and Northern Canada (farmers, hunters),
  eg. Ted Morton (who hunts for recreation).
• Alberta government sent reference question to
  Alberta Court of Appeal is Firearms Act intra
  vires federal jurisdiction?
• Albertas argument the regulation of firearms
  falls under 92(13), property and civil rights,
  and the Act is therefore ultra vires.
• Alberta CA upheld the law in a 3-2 decision.

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Ref re Firearms Act (contd)

• Supreme Court all 9 judges heard the case
  decision was by The Court.
• Supreme Court The law in ?pith and substance?
  is directed to enhancing public safety by
  controlling access to firearms through
  prohibitions and penalties. This brings it under
  the federal criminal law power s. 91(27). While
  the law has regulatory aspects, they are
  secondary to its primary criminal law purpose.
  The intrusion of the law into the provincial
  jurisdiction over property and civil rights is
  not so excessive as to upset the balance of
  federalism.
• legislation may be classified as criminal law if
  it possesses three prerequisites a valid
  criminal law purpose backed by a prohibition and
  a penalty
• The gun control law has a valid criminal purpose
  (promote public safety)
• The law creates a criminal prohibition (cant
  possess a gun unless its registered) backed by
  penalties (summary conviction criminal code
  offence).
• Double aspect doctrine also applies provinces
  can also regulate property such as guns.

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Bedard v. Dawson (1923)

• In early 1900s, Quebec govt passed legislation
  prohibiting any property (home, apartment, or
  other building) from being used for disorderly
  purposes. A conviction for prostitution or
  gambling under the criminal code, if the
  prostitution or gambling occurred in that
  building, was proof that the building was being
  used for disorderly purposes. If the prohibited
  use continued, then any person could apply for an
  injunction to stop the building from being so
  used, and if it continued to be so used, the
  building could be locked up by the authorities.

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Bedard vs. Dawson (contd)

• Bedard objected to an injunction claimed that
  the Quebec legislation was really criminal
  legislation under 91(27)
• Dawson the Quebec legislation is valid under
  92(13).
• Supreme Court of Canada 5-0 seriatim decision
  the Quebec legislation is valid as a regulation
  of property and civil rights. The mischief is
  having a disorderly house in ones neighbourhood.
  The remedy is to prohibit such establishments.
  The feds cant regulate property in this way.

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Westendorp v. The Queen (1983)

• In 1974, the City of Calgary passed a by-law to
  control use of streets and sidewalks (vendors,
  walking on sidewalks, clearing streets, parades,
  etc.) It had the authority to enact this
  secondary legislation because of the primary
  legislation The Municipal Government Act
  Alberta.
• In 1981, Calgary amended the by-law to add s.
  6.1, which prohibited anyone from approaching
  anyone on a city street or sidewalk for the
  purpose of prostitution.
• Lenore Westendorp was charged under the by-law,
  and pleaded not guilty on the grounds that the
  by-law was ultra vires provincial powers.

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Westendorp (continued)

• Westendorp was acquitted at trial in the
  Provincial Court judge found s. 6.1 of the
  by-law ultra vires.
• Crown appealed AB Ct of Appeal found the by-law
  intra vires.
• AB Ct Ap decision by Roger Kerans pith and
  substance of by-law is to control a nuisance, not
  to prohibit prostitution. Prostitutes can still
  operate elsewhere, off the streets.
• Appeal by Westendorp to Supreme Court of Canada.

• 9 judge panel decision written by Chief Justice
  Laskin.
• Laskin Kerans is wrong. The by-law regulates
  public morality, so it is a crimininal law. It
  is colourable, because it is dressed up to look
  like a simple regulation of the use of streets.
  Kerans reasoning is baffling.
• Charter issue not relevant because the by-law
  is ultra vires the province and therefore the
  City.

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Delegation

• Legislation can be primary (created by a
  sovereign legislature) or subordinate
• Subordinate powers can be delegated to cabinets,
  reg. agencies, municipalities in same
  jurisdiction
• Delegation outside judisdiction (eg. To another
  sovereign legislative body) called
  interdelegation
• Judicial rule avoid overbroad delegation
• Manitoba initiative and referendum Act, 1916

• Alberta initiative referendum act, 1913 (tested
  in 1916)
• Remember anti-inflation reference (1976) ON OC
  invalid no primary legislation
• Senate reference 1979
• Parliament cant create a new legislative body
  and delegate primary powers
• Depression all govts wanted old-age pensions
• Rowell-Sirois Report 1939 recommendated
  interdelegation
• Nova Scotia first prov to pass necessary
  interdelegation legislation. Referred to SCC.

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Nova Scotia Interdelegation Case (1951)

• 7 judges wrote separate opinions. Decisions of
  Rinfret and Taschereau presented in course kit
• Rinfret we have a right not to be subjected to
  laws unless passed by appropriate legislature.
  (Also, specificity rule interdelegation not
  specifically mentioned in BNA Act.)

• Lord Atkin in Labour Conventions shop of
  statewatertight compartments.
• Taschereau if interdelegation were possible,
  everything might get interdelegated. This would
  turn confederation on its head.
• A constitutional amendment gave feds the right to
  enact old age pension legislation concurrently
  with provinces, with provincial paramountcy.

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PEI Potato Marketing Bd v Willis (1952)

• Fed Ag Products Marketing Act (1949)
• Feds could delegate power to reg interprov
  marketing to a prov bd
• OC in 1950 delegated interprov power to reg PEI
  pots to PEI PMB
• PEI refd Q of validity to PEI Sup Ct in banco.
  Conclusion ultra vires, following NS InterDel.

• In SCC NS InterDel disginguished. 9 js, 6
  decs.
• Rinfret Act clearly in fed juris (TC
  interprov, Ag)
• NS Case just applies to del to legislatures.
• Feds can choose own board or agency (precedents)
• Praises fed-prov cooperation

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PEI Potato Marketing Bd contd

• Rand would be valid if Feds created a separate
  interprov marketing bd, and appointed same people
  to it as on PEI Bd.
• Twin phantoms of this nature must, for practical
  purposes, give way to realistic necessities.

• Last JCPC decision Winner (1954) declared that
  only feds can license vehicles for
  interprovincial purposes. Feds delegated
  interprov transport regs to prov. transport
  boards.
• Couglin (1968) Fed transport del upheld.
• No need for const ament re interdelegation

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Treaty-Making Cases

• Treaty-signing power, and treaty-implementation
  power, are two different powers. The feds had
  them both until 1926, under S. 132 of the BNA
  Act. In 1926, Canada became equal to Great
  Britain in handling foreign affairs (Balfour
  Declaration, later confirmed by Statute of
  Westminster, 1931), and so S. 132 became
  obsolete.
• Aeronautics Case (1932) Canada was implementing a
  British Empire Treaty, but federal gov't has the
  power to implement a treaty on aeronautics under
  several heads of S. 91, such as defence, post
  office.

• Radio Case (1932) Section 132 is now obsolete.
  Therefore, the treaty-making and
  treaty-implementation powers are new, and fall
  under POGG.

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Labour Conventions Case (1937)

• Lord Atkin - wrote decision
• Distinguished Aeronautics and Radio cases. He
  said that the Radio case decided that power to
  regulate radio transmissions is new, and
  therefore falls under POGG. (Is that what you
  think was decided?) The treaty-signing power
  falls to the feds under POGG, but the
  treaty-implementation power depends on the
  subject-matter of the treaty. Matters that fall
  under S. 92 can only be implemented by the
  provinces.

• Extraterritoriality
• Federal
• Provincial
• Treaty-making powers
• Head of states
• Intergovernmental
• Exchange of notes

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Garth StevensonFedism IntGov Rels

• Is decentralization only a result of JCPC?
• Since 1949, SCC balanced
• Prov revenues
• 5.9 of GNP (1960)
• 17.1 GNP (1995)
• Feds 16.5 19.1

• Causes of decentralization
• Institutions
• Geography
• Cultural diversity
• Quebec nationalism
• Party system
• Jurisdictional conflict
• Immigration, pensions, fisheries, ab land claims,
  prosecutions, training programs

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Stevenson continued

• Fiscal conflict
• Free trade, tax collection, cond grants, energy,
  trans payments
• Intergovernmental mechanisms for dispute
  resolution
• Judicial review
• Cooperative federalism (WWII 1960)

• Executive federalism (1960 present)
• Central agencies
• Intergovernmental affairs departments
• First Ministers Conferences
• Why is Canada the most decentralized country in
  the industrialized world?