The Constitution and Administrative Law

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The Constitution and Administrative Law

• October 15, 2008

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What is a constitution?

• Set the major rules of how political decisions
  are made
• Can be written or unwritten (constitutional
  conventions)
• Difficult to change these rules are expected to
  last for decades or centuries, but must also be
  able to adapt to new developments

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What rules does a constitution set?

• Relationship among the three branches of
  government legislature, executive and judiciary
  who does what
• Division of powers between the national (federal)
  and sub-national (provincial) governments who
  does what
• Relationship between the state and the people
  rights and obligations what can be expected
  now mostly in the, which is part of the Charter
  of Rights and Freedoms Constitution Act of 1982)

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Components of Canadas constitution

• Entrenched laws (statutes) constitutional
  documents (Constitution Acts of 1876 and 1982)
  and various amendments
• Non-entrenched laws ordinary laws that apply to
  entrenched laws (The Supreme Court Act of 1875)
  - some of these were initially passed by the
  British government in London

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Components of Canadas constitution

• Case laws (judicial decisions) rulings and
  interpretations of Constitution Acts (by the
  Supreme Court, and until 1949 by the Judicial
  Committee of the Privy Council in London,
  England)
• Constitutional conventions (unwritten)
  unwritten rules such as the role and powers of
  the Prime Minister

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Constitution Act, 1867

• Sought to establish a centralized form of
  government
• Section 91 outlines the power of the federal
  Parliament, while Section 92 that of the
  provincial legislatures

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Federal powers

• Economic
• regulation of trade and commerce
• taxation
• banks and currency
• National Security
• military and defence
• Aboriginals
• criminal law
• treaties and international relations
• Essentially the power of a 19th century 'night
  watchman' state

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Provincial Powers

• Modest Fiscal Powers
• only limited types of taxation
• natural resources
• Cultural/Linguistic/Religious matters
• hospitals, asylums, charities and related
• property and civil rights
• education (Sec. 93)
• Local Matters
• municipalities (are creatures of the provinces)
• local works
• matters of a local and private nature' (18)
• These were not important public responsibilities
  in the 19th century

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Example Division of Power and Labour Market
Policy
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What rules does a constitution set?

• Relationship among the three branches of
  government legislature, executive and judiciary
  who does what
• Division of powers between the national (federal)
  and sub-national (provincial) governments who
  does what
• Relationship between the state and the people
  rights and obligations what can be expected
  now mostly in the Charter of Rights and
  Freedoms, which is part of the Constitution Act
  of 1982)

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Relationship between state and people

• Minimal relationship in 1867 (state primarily
  concerned with trade, international relations and
  military affairs)
• Most other matters in private hands (family,
  church and volunteer groups)
• But today

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Law and employment

• Important aspects of paid work are regulated by
  the state
• Employment standards (minimum wages, maximum
  hours of work, vacation pay, statutory holidays)
• Health and safety rules, including workers
  compensation for those injured in the workplace
• Other aspects unemployment insurance,
  employment equity, pay equity, etc.
• Human rights discrimination and harassment at
  work

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Prior to about 1870
Little, if any, government involvement
The average work week was 64 hours in
manufacturing and related jobs in Canada Young
children were routinely employed including
dangerous jobs in mines, factories and other
workplaces From about 1870-1930 laws were passed
that required children to attend school and
provided for minimum wages for children and women
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The Depression and World War Two
Very high rates of unemployment in the 1930s (25
or more) Increasing danger of worker unrest
(strikes, protests, etc.) Beginning in 1940
various laws were passed to allow unions to
organize workers growth of the welfare state In
the 1940s for, the first time, workers were given
- by law -annual vacation with pay Also, in the
1940s Unemployment Insurance was introduced to
help those who were laid off
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Only in the 1960s were employers required by law
to provide paid statutory holidays In the 1950s
and 1960s human rights laws began to be passed
that prohibited discrimination (based on gender,
religion, etc.) in the workplace Only in the
1970s did the government provide 15 weeks of paid
maternity leave (using Unemployment Insurance
monies) for female workers Since about 1980 there
have been fewer laws passed that improve working
conditions - some increases in maternity leave,
but little else
16
What makes the Charter special?

• Before the Charter came into effect, other
  Canadian laws protected many of the rights and
  freedoms that are now brought together in it. The
  Canadian Bill of Rights, which Parliament passed
  in 1960 and provincial human rights codes
• The Charter differs from these laws by being part
  of the Constitution of Canada entrenched all
  laws must be consistent with it courts able to
  invalidate laws

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Charter

• Fundamental change to the Constitution
• Moved Canada towards the U.S. style of a written
  statement of rights, and appeal to the courts
• Judicial review of all laws

18
Before the Charter

• Before the adoption of the Canadian Charter of
  Rights and Freedoms in 1982, judges typically
  interpreted laws in the relatively narrow light
  of the actual words found in the text. After
  1982, judicial initiatives have made the courts
  important cogs in the machinery of Canadian
  government

19
Constitution Acts of 1867 and 1982

• http//laws.justice.gc.ca/en/Const/index.html

20
Since the introduction of the Charter of Rights
and Freedoms, more and more Supreme Court cases,
and public policy debates, deal with the Charter
rights However, note that Section 32 of the
Charter states that This Charter applies to the
Parliament and government of Canada and the
legislature and government of each
province Thus, the Supreme Court has not
generally applied the Charter to common law that
involves private parties (in other words,
activities of private individuals and groups are
not subject to the Charter)
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Important sections of the Canadian Charter of
Rights and Freedoms Section 1. Guarantees the
rights and freedoms subject only to such
reasonable limitsas can be demonstrably
justified in a free and democratic
society Section 2. Fundamental freedoms (a)
conscience and religion (b) thought, opinion,
etc. (c) peaceful assembly (d) association
22
Charter

• Section 15 (1) Every individual is equal before
  and under the law and has the right to the equal
  protection and equal benefit of the law without
  discrimination and, in particular, without
  discrimination based on race, national or ethnic
  origin, colour, religion, sex, age or mental or
  physical disability.  

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Charter

•   Section 15 (2) - Subsection (1) does not
  preclude any law, program or activity that has as
  its object the amelioration of conditions of
  disadvantaged individuals or groups including
  those that are disadvantaged because of race,
  national or ethnic origin, colour, religion, sex,
  age or mental or physical disability.

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Charter
Section 32 - This Charter applies to the
Parliament and government of Canada and the
legislature and government of each province.
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Charter notwithstanding clause

• Section 33 - Parliament or the legislature of
  a province may expressly declare in an Act of
  Parliament or of the legislature, as the case may
  be, that the Act or a provision thereof shall
  operate notwithstanding a provision included in
  section 2 or sections 7 to 15 of this Charter.

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Dilemmas of Constitutions

• Need to be interpreted, which is the role of the
  courts
• Two approaches to interpretation
• Narrow follow the letter of the law
• Broad what was the intent? how would the
  framers of the constitution deal with this case?
• see debate in the U.S.

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Charter

• The courts have held that section 15 also
  protects equality on the basis of other
  characteristics that are not specifically set out
  in it. For example, this section has been held to
  prohibit discrimination on the grounds of sexual
  orientation.

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The Principle of Judicial Deference
The courts must respect the role of the
legislatures to make laws However, the Supreme
Court can over-ride laws and force legislatures
to act in a way that complies with the Charter of
Rights and Freedoms How activist should the
Supreme Court be? Why might legislators, in fact,
prefer the leave controversial issues to the
Supreme Court to decide?
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Charter Cases Decision Elements
1. Does the Charter apply to the case? -
YES/NO 2. What are the Charter rights or freedoms
under consideration? Section 15 - DETAILS 3. Has
the freedom or right been, in fact, infringed?
YES/NO 4. Can the governments violation of the
right or freedom be justified under Section 1?
YES/NO 5. What remedy should be applied? - What
should the government be ordered to do? How
should the law be changed?
30
Vriend case

• Delwin Vriend was a gay chemistry lab instructor
  an Edmonton private Christian liberal arts
  college
• Vriend fired was fired January 28, 1991 from
  position as lab instructor at King's College,
  after refusing to voluntarily resign when his
  homosexuality became known

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Vriend case

• Vriend attempted to file a complaint with the
  Alberta Human Rights Commission on the grounds
  that his employer had discriminated against him
  (fired him) because of his sexual orientation,
  but the Commission advised that he could not make
  a complaint under the provinces human rights
  code, because it did not include sexual
  orientation
• Alberta was one of three provinces in Canada
  which did not include sexual orientation as a
  protected category in its human rights law

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Ontario Human Rights Code

• 5.  (1)  Every person has a right to equal
  treatment with respect to employment without
  discrimination because of race, ancestry, place
  of origin, colour, ethnic origin, citizenship,
  creed, sex, sexual orientation, age, record of
  offences, marital status, same-sex partnership
  status, family status or disability

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Vriend case

• Vriend filed a motion in the Court of Queen's
  Bench (lower court)
• The trial judge found that the omission of
  protection against discrimination on the basis of
  sexual orientation was an unjustified violation
  of s. 15 of the Canadian Charter of Rights and
  Freedoms. She ordered that the words "sexual
  orientation" be read into the Alberta human
  rights code as a prohibited ground of
  discrimination

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Vriend case

• The employer (along with the Alberta government)
  appealed to the Alberta Court of Appeal
• The majority of the Court of Appeal reversed the
  ruling of the trial court, finding that there was
  no violation of the law (since there was no law
  passed by Alberta provincial government to
  prohibit discrimination based on sexual
  orientation)

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Vriend case

• Vriend then appealed to the Supreme Court of
  Canada on the basis that the government of
  Alberta was violating his Section 15 (1) rights
  that were guaranteed under the Charter of Rights

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Charter Cases Decision Elements
1. Does the Charter apply to the case? -
YES/NO 2. What are the Charter rights or freedoms
under consideration? Section 15 - DETAILS 3. Has
the freedom or right been, in fact, infringed?
YES/NO 4. Can the governments violation of the
right or freedom be justified under Section 1?
YES/NO 5. What remedy should be applied? - What
should the government be ordered to do? How
should the law be changed?
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Vriend vs. Alberta
Supreme Court of Canada ruled that the Alberta
human rights laws did not protect homosexuals
from discrimination and was in violation of
Section 15 of the Charter Ordered the Alberta
Legislature to amend the human rights legislation
to prohibit discrimination based on sexual
orientation to make it consistent with the
Charter of Rights note that the case started in
1991 and Supreme Court ruled in 1998
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Implications

• Is such activism by the Supreme Court depriving
  elected legislators of the power to make laws?
• Alberta government could have used Section 33
  (notwithstanding clause), but did not why not?

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The Supreme Court of Canada

• Final court of appeal (decisions cannot be
  further appealed)
• Composed of nine judges (appointed by the Prime
  Minister)
• Decisions made by majority
• Important cases heard by the full court
• Supreme Court decides which cases it will hear
  (other cases then remain as decided by the court
  of appeal)