Constitutional Law
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ANNUAL SURVEY OF CANADIAN LAW CONSTITUTIONAL LAW W.H. McConnell* I. INTRODUCTION ............................................................. 504 II. INSTITUTIONS .............................................................. 504 A. The Constitutional Validity of Language Legislation .......... 504 B. The Reform of the Senate ............................................ 509 C. The "Patriation" Controversy .................................... 514 1. The September 1980 Conference ............................. 515 2. The Aftermath of the Conference ............................. 517 3. The Polarizationof Opinion .................................. 520 4. The Response of the Dissenting Provinces ................. 522 5. The Kershaw Report ............................................ 523 6. The ProvincialReferences .................................... 528 (a) Newfoundland .............................................. 528 (b) M anitoba .................................................... 530 (c)Q uebec ....................................................... 533 7. The Supreme Court'sReference Opinion ................... 535 8. The Impact of the Ultimate Decision ........................ 543 * Faculty of Law, University of Saskatchewan. 502 1982] ConstitutionalLaw 503 9. The Governor General's Unexpected Candour ............ 548 10. The Reception of the Resolution in Britain ................. 551 11. E nvoi .............................................................. 554 D. ConstitutionalDevelopment in the Northwest Territories .... 561 III. THE DIVISION OF LEGISLATIVE POWER ............................... 567 A. The General Power . ................................................ 567 1. The Residuary Power ........................................... 568 2. The Emergency Power. ......................................... 570 B. Trade and Commerce ............................................... 571 C. CriminalJustice ..................................................... 576 D. Communication and Transportation:Labour Relations ..... 583 E. Courts and the Judiciary. .......................................... 586 1. G enerally. ......................................................... 586 2. The BergerAffair ................................................ 590 F. Indians and Indian Lands .......................................... 599 G . Taxation ............................................................... 603 IV. CIVIL LIBERTIES .......................................................... 605 V. CONCLUSION .............................................................. 612 Ottawa Law Review [Vol. 14:502 I. INTRODUCTION Few periods in Canadian constitutional history could have produced such dramatic changes in public law as have occurred in Canada over the last three or four years. Since these changes have related essentially to a new institutional framework for the country, Part II of the survey is devoted to institutional matters, such as language laws, the patriation of the constitution and the proposed reform of the Upper House, while Part III considers significant decisions in the division of powers and human rights areas which have usually had priority in past surveys. 1 The centrepiece of the new constitutional reforms is of course the Canadian Charter of Rights and Freedoms, many provisions of which are similar to those of the U.S. Bill of Rights. Yet to come at future federal-provincial conferences are decisions on the division of powers, the Senate, the Crown and the Supreme Court of Canada. Whether the entrenched guarantees of the Charter will bring Canada closer to what Alexis de Tocqueville observed of the legal culture of the South in 1835 in his Democracy in America is conjectural: "Scarcely any political question arises in the United States," said he, "that is not resolved, sooner or later, into a judicial question." 2 The conservatism of the Canadian judiciary makes this doubtful. II. INSTITUTIONS A. The ConstitutionalValidity of Language Legislation In heterogeneous federations such as Canada, Switzerland or Yugoslavia, language rights are of great importance but they are not fundamental rights.' They would not rank, in an entrenched declaration of rights, with the freedoms of opinion, expression, religion or association. Yet on their existence may depend the very survival of vulnerable cultural groups. Fundamental freedoms, legal rights (or due process) and equality rights relate to man in a universal sense. They seek to define the rights attributed to all persons. Language rights are narrower in scope; they are often sectorial (in Canada applying only in Quebec, Manitoba, New Brunswick and in certain federal jurisdictions) and protect the cultural rights of groups. If the groups lack cohesiveness or shared community values, they will eventually be assimilated and the language rights will become insignificant. Other rights (e.g., fundamen- tal freedoms) are of a more transcendental character in that it is difficult I Lysyk, 3 OTTAWA L. REV. 520 (1969); Lysyk, 5 OTTAWA L. REV. 124 (1971); MacKenzie, 7 OTTAWA L. REV. 138 (1975); MacKenzie, 10 OTTAWA L. REV. 313 (1978). 2 Vol. 1,280 (P. Bradley ed. 1980). 3 G. BEAUDOIN, LE PARTAGE DES POUVOIRs 223 (1980). 19821 ConstitutionalLaw to imagine any circumstances in which, whether entrenched or not, such rights would not in large part define the quality of political society. The complexities of language legislation in Canada are further complicated by the fact that it is not a subject matter authoritatively allocated to either order of government in the division of powers. As Sheppard says, jurisdiction over language is ancillary to the exercise of other powers, and in complex fact situations the asserted powers may depend for their validity on the legislative functions with which they are associated.' A province might enact that communications within local areas (local businesses, education and provincial companies insofar as they are performing functions under provincial jurisdiction) shall be in the majority language, conceding whatever rights in the minority language or languages, barring entrenchment, that it chooses to concede as a matter of grace. The same would be true, nuitatis inutandis, of Parliament's jurisdiction to legislate language rights. In important recent Quebec' and Manitoba6 cases the constitutional validity of provincial language laws relating, respectively, to the exclusive use of the French or English languages in those provinces was questioned. The Quebec legislation purported to declare French to be the sole official language of the legislature and courts of Quebec. The issue in the Manitoba litigation was the constitutional capacity of the Greenway government, in 1890, to make English the exclusive official language despite the apparent entrenchment of bilingualism in section 23 of the Manitoba Act, 1870.r In both cases the challenged provincial legislation was invalidated. The combined effect of these decisions was to delimit the scope of entrenched language guarantees in the two provinces, excluding legislative intervention in certain areas but permitting it in others. In A.G. Que. v. Blaikie, the validity of sections 7 to 13 of the Charter of the French Language (Bill 101) was contested.' Provisions declaring French to be the exclusive official language of the legislature and courts were held to be in conflict with section 133 of the B.N.A. Act (as it then was). 9 The Court could not reconcile the terms of section 133 with section 9 of the Charter which requires bills to be drafted in French and declares that the French text (an English version was also provided for) be official. The appellants argued that section 133 required only that statutes be "printed and published" in both languages. On closer scrutiny, it was "Acts", however, which were to be printed or I THE LAW OF LANGUAGES IN CANADA 101 (1971). 5 A.G. Que. v. Blaikie, [1979] 2 S.C.R. 1016, 49 C.C.C. (2d) 359, 101 D.L.R. (3d) 394. 6 A.G. Man. v. Forest, [19791 2 S.C.R. 1032.49 C.C.C. (2d) 353, 101 D.L.R. (3d) 385. 7 An Act to amend and continue The Act 32 and 33 Victoria, chapter 3; and to establish and provide for the Government of the Province of Manitoba, S.C. 1870, c. 3 [hereafter cited as Manitoba Act]. 8 Supra note 5, at 1019-20.49 C.C.C. (2d) at 360-62. 101 D.L.R. (3d) at 395-97. 9 Now Constitution Act. 1867 enacted by Canada Act. 1982. U.K. 1982. c. 11. Ottawa Law Review [Vol. 14:502 published, and "Acts" do not become such without enactment by legislatures. 10 Similarly, when sections 11 and 12 compel artificial legal persons to use French exclusively, and make French the mandatory tongue for "procedural documents" in judicial and quasi-judicial proceedings, there is an invalid derogation of the right to use English in Quebec courts under section 133.11 In Jones v. A.G.N.B. it was held that Parliament could enlarge but not subtract from the entrenched guarantees in section 133. 12 Conversely, in Blaikie the issue was whether a statutory "contraction" by the province was permissible. The Court emphasized that section 133 conferred language rights which concerned not only Parliament and the Quebec Legislature but members of those bodies and litigants in the named courts. Moreover, in the case of regulations the Court recognized that delegated legislation had grown enormously in the present century and the requirements of section 133 would be unduly truncated if account were not taken of this: "the greater must include the lesser. '"13 The province argued that it possessed