Treaty Rights

‘Treaty rights’ are the rights that Aboriginal peoples have as a result of agreements they entered into with the French, British and Canadian governments, both prior to and after Confederation. These agreements include both the historic treaties, the last of which were entered into in the 1920s, and modern land claims treaties, dating from the mid-1970s. In Canadian law, these treaties are unique: they are not international agreements, nor are they mere contracts.

Since 17 April 1982, the rights of the Aboriginal peoples contained in these treaties have been constitutionally protected in the same way as existing Aboriginal rights. Specific treaty rights depend on the actual terms of each treaty, including any oral terms that were agreed upon but were not included in the written document. Examples of treaty rights of the Aboriginal peoples are rights to hunt and fish, and to receive reserve lands, agricultural implements, annuity payments, education, and other benefits. In exchange, the European and Canadian governments who signed the treaties generally obtained peace and friendship with the Aboriginal parties, and in some cases the right to open up some lands for European settlement.

The Supreme Court of Canada has established the following principles for interpreting the historic treaties (see R. v. Simon, [1985] 2 S.C.R. 387; R. v. Badger, [1996] 1 S.C.R. 771; and R. v. Marshall, [1999] 3 S.C.R. 456). The treaties have to be interpreted in a liberal and generous manner, taking into account the historical and cultural context. They also have to be interpreted as the Aboriginal parties would have understood them, and any ambiguities are to be resolved in their favour. Finally, the honour of the Crown is at stake, so any appearance of sharp dealing has to be avoided in interpreting the treaties. Trade and Commerce

One of the heads of power allocated to the federal government in the Constitution Act, 1867, s. 91(2). Comparable to the federal power in the United States Constitution to “regulate commerce with Foreign nations, and among the several States,” the power to regulate trade and commerce was considered one of the broadest powers available to the federal government to regulate economic activity. It was out of concern that the federal power over trade and commerce would render meaningless provincial authority over property and civil rights, that Courts narrowed the scope of this federal power. In an early decision of theJudicial Committee of the Privy Council (1881), the federal power was limited to the regulation of foreign trade, interprovincial trade and, perhaps, the “general regulation of trade affecting the whole dominion.” But federal power did not extend to the regulation of the contracts of a particular business or trade as such regulation fell exclusively under provincial control. In subsequent decisions, courts would not recognize the federal power to regulate trade generally. The modern Supreme Court of Canada has sanctioned use of this branch of the federal power. The Court upheld a federal law which provides a civil cause of action for breach of the federal Combines Investigation Act. It has been argued by at least one scholar in Quebec that such an interpretation of the federal power by the Supreme Court amounts to a radical reinterpretation and expansion of federal power.

See Smith (1963); Swinton (1990).

Sources:

McGilp. Ian (1992) The Distinct Society Clause and the Charter of Rights and Freedoms (North York: York University Centre for Public Law and Policy). Smith, Alexander (1963) The Commerce Power in Canada and the United States (Toronto: Butterworths). Smith, Lynn (1989) “Could the Meech Lake Accord Affect the Protection of Equality Rights for Women and Minorities in Canada?” Constitutional Forum 1(2): 12, 17-20. Swinton, Katherine (1990) The Supreme Court and Canadian Federalism: The Laskin-Dickson Years(Toronto: Carswell). Trudeau, Pierre Elliot (1988), “Say Goodbye to the Dream of One Canada” in Roger Gibbins, Howard Palmer, Brian Rusted and David Taras, eds., Meech Lake and Canada: Perspectives From the West (Edmonton: Academic Printing and Publishing).

Double Aspect

The Double Aspect doctrine is a tool of constitutional interpretation used when both levels of government have an equally valid constitutional right to legislate on a specific issue or matter. Double Aspect represents the modern notion of co-operative federalism, which abandons the out-dated idea that every subject matter falls under the exclusive control of either the federal or provincial government.

Double Aspect fosters respect for the decisions of the elected legislatures of both levels of government. As the name indicates, the double aspect doctrine acknowledges that both Parliament and the provincial legislatures can pass valid legislation relating to the same subject depending on the aspect from which the subject is being approached. The best example of this doctrine at work is inMultiple Access v McCutcheon, a 1982 case that dealt with insider trading in Ontario. Both levels of government passed legislation to combat insider trading: the Federal government passed legislation dealing with federally regulated corporations, while Ontario’s legislation focussed on the actual acts of insider trading. The Provinces could claim the power to do this through their constitutional powers over property and civil rights, which includes securities trading such as what was occurring in this case. The Federal government had an equally strong jurisdictional claim through its ability to regulate for the peace, order and good government of Canada. The Supreme Court ruled that both pieces of legislation were valid because they dealt with different aspects of the same problem that fell within the constitutional powers of the enacting legislature.

Prominent Double Aspect Cases:

Multiple Access v McCutcheon

Taxation Power

Canada’s constitution divides the power to tax between Parliament and the provincial legislatures. Parliament has power to tax “by any Mode or System of Taxation.” This power includes ‘indirect taxation’. The legislatures, by contrast, are limited to “Direct Taxation within the Province”(Constitution Act, 1867, s. 91(3), 92(2)).

Indirect taxes are imposed in one area of the economy with the expectation that the taxpayer will pass it on to another sector. For example, taxes imposed on manufacturing are the classic instance of indirect taxes. The legislature expects that the manufacturer will pass the tax on to the consumer by building it into the cost of the good sold. Direct taxation is expected to be paid by the taxpayer on whom it is first imposed; it is not expected to be passed on. Accordingly, direct taxation is thought to be more visible to the ultimate taxpayer and, politically, harder to get enacted. This was the nineteenth century economic theory behind the division of taxing powers (J.S. Mill, Principles of Political Economy, Bk. V, 3).

The Constitution requires that Bills imposing taxes must originate in the House of Commons and be preceded by a royal recommendation. This is a means of insuring that the elected chamber and a Cabinet Minister will take primary responsibility for taxation. The Constitution also prohibits Parliament and the legislatures from using their powers to tax lands or property belonging to each other (Constitution Act, 1867, secs. 53(4), 125).

Parliament and the legislatures may also raise money by charging fees for their services, and by imposing costs incidental to regulation, such as licencing fees. These charges are not taxation. So they are not restrained by the constitutional requirements to originate in the House of Commons, be preceded by a royal recommendation, and, in the case of the provincial legislatures, be “direct”. To be considered non-tax service charges or regulatory measures, levies must pursue a proper regulatory purpose that is anchored in some grant of constitutional power to the enacting legislative body, other than the taxing powers. The difference between taxes and these other charges is that taxes may be pure revenue raising measures. Regulatory charges, by contrast, usually are imposed to defray the expenses of the regulatory scheme, as, for example, a marketing board imposing the costs of its operation on the regulated producers or a municipality charging for snow removal. Unlike taxes, regulatory charges that are not taxes may originate in the Senate, do not require a royal recommendation, and, if imposed by a provincial legislature, may be indirect.

Tax Points

‘Tax points’ came to prominence with the Federal-Provincial Fiscal Arrangements Act of 1961 (see the currentFederal- Provincial Fiscal Arrangements Act, R.S.C. 1985, c. F-8.) when the federal and provincial governments converted from the tax rental arrangements (which originated during World War II) to separate federal and provincial personal and corporate income taxes (PIT and CIT). The federal government reduced its personal and corporate incomes taxes to make room for the newly established provincial taxes. The federal PIT abatement started at sixteen percent of the Basic Federal Tax (BFT) payable. PIT tax points are measured as a percentage of BFT and as of 2001, provincial personal income tax rates have been expressed as a percentage of the BFT. The federal CIT abatement was initially 9 percent of corporate taxable income (not tax payable, as with the PIT). With the federal abatement, the provinces introduced their own taxes at offsetting or higher rates.

‘Tax points’ took on a renewed relevance with the Federal- Provincial Fiscal Arrangements of 1977, when the federal transfer programs in support of health-care and post-secondary education were converted from cost sharing to a block transfer under the new Established Program Financing (EPF) transfer. EPF funding to the provinces was a combination of cash transfers and tax point transfers that would provide each province the same per capita support for health care and post secondary education. The value of the tax abatement, which made room for increased provincial taxes, varied by province and the cash payment made up the difference to the uniform per capita amount. Although the provinces raised the additional taxes from the federal abatement to support the EPF programs themselves, the federal government counted that revenue as part of the federal transfer. That practice continued with the conversion of the EPF and the federal Canada Assistance Plan (CAP) into the new Canada Health and Social Transfer (CHST) in 1996. That is, the cash transfer to each province under the CHST is affected by the provincial revenue generated from the federal tax abatement originating with the EPF transfers.

Sources:

P.A.R. Hobson & F. St-Hilaire, “The Evolution of Federal-Provincial Fiscal Arrangements: Putting Humpty Together Again” in H. Lazar, ed., Towards a New Mission Statement for Canadian Fiscal Federalism(Kingston: Institute of Intergovernmental Relations, Queen’s University, 2000) 159. D.B. Perry, Financing the Canadian Federation, 1987 to 1995: Setting the Stage for Change (Toronto: Canadian Tax Foundation, 1997). J.H. Perry, A Fiscal History of Canada — The Postwar Years (Toronto: Canadian Tax Foundation, 1989). J.C. Strick, The Public Sector in Canada (Toronto: Thompson Educational Publishing, 1999).

Doctrine of Paramountcy

In any country where there are state or provincial governments as well as a central government, there are bound to be occasions where conflicting or contradictory laws are passed by a state or provincial government, on the one hand, and the central government on the other. Each country (or federation) must find a way to resolve or reconcile these contradictory enactments. In Canada, as a result of decisions made by our courts over the years, we have adopted the notion of federal paramountcy to resolve these conflicts. That is, when federal and provincial laws cover the same or similar subject matters, and there is a conflict between those laws, the central law is operative and the provincial law (to the extent of the conflict) is rendered inoperative. In other words, the provincial law remains valid but cannot operate so long as the central or federal law occupies the field.

The issue of paramountcy, however, is dependent upon a preliminary determination that both the federal and provincial laws are constitutionally valid under the respective jurisdictions of Parliament and the legislatures under the Constitution Act, 1867.

Over the years, different theories have emerged as to when the ‘doctrine of paramountcy’ arises. Some courts and some writers have theorized that paramountcy arises when similar federal and provincial laws merely co-exist. Others have felt that an actual conflict is necessary between federal and provincial laws where obedience to one law requires disobedience to the other before paramountcy arises. Some courts and some writers have made distinctions among three scenarios: first, there is the situation where provincial laws have merely supplemented federal laws; second, there is the case of provincial laws that are duplicative of federal laws; and finally, there are provincial laws that actually conflict with federal laws. However, the Supreme Court of Canada has resolved the matter by concluding that there must be an operational incompatibility or operational inconsistency between the federal and provincial laws before paramountcy arises (see Smith v. The Queen, [1960] S.C.R. 776). That is, the courts now say that there must be an actual conflict between federal and provincial laws before the ‘doctrine of paramountcy’ is triggered, and then, the provincial law will be held to be inoperative only to the extent of the conflict or operational incompatibility or operational inconsistency.

In addition to the foregoing, there are two instances in the Constitution Act, 1867 where paramountcy is explicitly recognized. The first is section 94A, which is concerned with old age pensions and supplementary benefits. Both Parliament and the legislatures are given concurrent jurisdiction over those matters but no federal law “shall affect the operation” of any provincial law dealing with those matters – in effect, a recognition of provincial paramountcy in respect of laws providing for old age pensions and supplementary benefits. The second instance is section 95 where Parliament and the provincial legislatures are given concurrent jurisdiction over agriculture and immigration. However, section 95 provides that a provincial law dealing with agriculture or immigration shall only have effect “as long and as far only as it is not repugnant “ to a federal law dealing with those matters. Notwithstanding the particular references to paramountcy in sections 94A and 95, the general rule, set out by the courts, is that of federal paramountcy as described above.

Suspended Declaration

When a court declares a law to be unconstitutional it is ‘struck down’ and thus, is no longer enforceable. As that law no longer exists, an intolerable gap in the law can sometimes be created. This occurred in 2015 when the Supreme Court found the laws prohibiting physician-assisted death to be unconstitutional.

To prevent this ‘intolerable gap’, the courts may suspend a declaration for a short period of time: typically six months to a year.[1] This allows the law to remain in force while the government works to create a constitutionally valid replacement.

Re Manitoba Language Rights was the first case in which the Supreme Court suspended a declaration.[2]In that case, the Court held that the Manitoba Act of 1870 required all Manitoba laws to be translated into French.[3] Since few of the province’s laws had actually been translated, the Court declared most of Manitoba’s laws to be invalid, but suspended the declaration, as an emergency measure, so that the government would have time to translate them.

Since Re Manitoba Language Rights, the Supreme Court has provided guidelines for suspending a declaration in cases where having it take effect immediately would:

1. Pose a danger to the public

2. Threaten the rule of law, or

3. Result in the deprivation of benefits from deserving persons.[4]

The courts however have not closely followed these guidelines in subsequent cases.[5] The general trend is for courts to respect the legislative role of government, by suspending their declarations when there is a range of policy options that the government needs to consider in order to draft a replacement law.[6] For example, the Supreme Court suspended a declaration striking down existing anti-prostitution laws as “immediate invalidity would leave prostitution totally unregulated while Parliament grapples with the complex and sensitive problem of how to deal with it.”[7] Courts prefer to suspend a declaration and allow Parliament to come up with its own solution when there are significant taxpayer funds at stake.[8] This means, however that courts frequently suspend declarations where a declaration taking effect immediately would not harm the rule of law.[9] This is controversial. By suspending a declaration, a court declares that even though a law violates the supreme law of Canada – the Constitution – it will nevertheless allow it to be enforced for a period of time. It is unclear what gives the courts legal authority to do this.[10]

[1] Peter W Hogg, Patrick J Monahan & Wake K Wright, Liability of the Crown, 4th ed (Toronto: Thomson Reuters, 2011) at 43.

[2] Reference re Language Rights Under s. 23 of Manitoba Act, 1870 and s. 133 of Constitution Act, 1867, [1985] 1 SCR 721, 19 DLR (4th) 1 [Re Manitoba Language Rights].

[3] Re Manitoba Language Rights, supra note 2 at para 156.

[4] Schachter v Canada, [1992] 2 SCR 679 at 719, 93 DLR (4th) 1.

[5] Hogg, Monahan & Wright, supra note 1 at 43.

[6] Kent Roach, Constitutional Remedies in Canada (Toronto: Canada Law Book, 2015) (loose-leaf revision 26) at 14-85.

[7] Canada (Attorney General) v Bedford, 2013 SCC 72 at para 167.

[8] Newfoundland (Treasury Board) v NAPE, 2004 SCC 66 at para 114, 3 SCR 381.

[9] Kent Roach, “Remedial Consensus and Dialogue Under the Charter: General Declarations and Delayed Declarations of Invalidity” 35 UBC L Rev 211, 219.

[10] Re Manitoba Language Rights, supra note 2 at paras 97-107.

Division of Powers

The term ‘division of powers’ refers to the distribution of legislative jurisdiction under the Canadian Constitution. More particularly, the distribution is set out in various sections of the Constitution Act, 1867. The key provisions are contained in sections 91 and 92 of the Act, although there are other relevant sections as well.

After the Act establishes the Parliament of Canada and the legislatures of the provinces, it then assigns particular enumerated powers to Parliament and the provincial legislatures. Under a doctrine of exclusivity, each level or order of government (through Parliament and the legislatures) is granted exclusive powers with the implication that the other order or level of government is excluded from enacting legislation relating to those powers.

Generally, the federal list of enumerated powers in section 91 is concerned with national matters while the provincial list in section 92 is concerned with local matters. For example, the federal list includes such matters as the power to pass laws for the peace, order and good government of Canada, the regulation of trade and commerce, criminal law and procedure, direct and indirect taxation, banking, currency, defence, navigation and shipping patents, copyrights, etc. The provincial list includes such matters as direct taxation, municipal institutions, local works and undertakings, the administration of justice, property and civil rights and matters of a merely local and private nature in the province.

Some matters under section 92 are actually federal powers. By operation of section 91(29), any exceptions within section 92 are within federal jurisdiction. In particular, section 92(10) lists such exceptions thus providing federal jurisdiction over inter-provincial transportation and over communications. As mentioned earlier, sections 91 and 92 are not exhaustive in the sense that there are other sections assigning legislative jurisdiction as well. For example, jurisdiction over education is assigned to the provinces under section 93; concurrent jurisdiction (see concurrency) over agriculture and immigration is assigned to both Parliament and the provincial legislatures under section 95; as is jurisdiction over old-age pensions and supplementary benefits under section 94A. The authority to create a final court of appeal as well as any additional court is assigned to Parliament under section 101.

When one looks at the particular enumerations assigned to each level or order of government, one might reach the conclusion that the more important enumerations are in fact assigned to the federal Parliament. At the very least, one could say that the more important economic enumerations are assigned to Parliament, with the further observation that the federal economic enumerations, when taken as a whole, give Parliament authority over the national economy.

In examining the division of powers, however, it is misleading to rely on the written text of the Constitution Act, 1867. That is so because the written text provides only a basic understanding as to which level or order of government has the power to do what. Rather, a fuller understanding is gained through a study of the case law in which the Judicial Committee of the Privy Council (up to 1949) and the Supreme Court of Canada (since 1949) determine the scope of each enumerated power or head of jurisdiction. For example, the cases tell us that the federal authority to regulate trade and commerce extends to inter-provincial trade and so-called ‘general’ trade while the provinces have jurisdiction over intraprovincial trade. Moreover, the cases also tell us what is meant by ‘interprovincial’ trade, ‘intraprovincial’ trade and ‘general’ trade. This process of interpretation of the meaning of the written text of 1867 by the courts applies to most of the major or important enumerations in sections 91 and 92. Therefore, an awareness of the courts’ interpretations is vital to realistically understand the division of legislative powers in Canada.

Supreme Court of Canada

The ‘Supreme Court of Canada’ is the final court of appeal in constitutional (and other) cases. It also provides advice on constitutional questions when asked to do so by the federal or provincial governments as it did, for example, in 1981 on the question of the constitutionality of the patriation of the Constitution (see Re Resolution to Amend the Constitution, [1981] 1 S.C.R. 753). The Supreme Court was created in 1875 but until 1949 its decisions could be appealed to the Judicial Committee of the Privy Council in Britain. It was also possible until 1949 for litigants to go directly to the Privy Council from the provincial appeal courts. For the first century of its existence, the Court was very conservative and unassertive in its judgements. There was a marked change however in 1973, following the appointment of Bora Laskin as Chief Justice. In 1975 the Supreme Court gained substantial, although not complete, control over what cases it will hear. Since the entrenchment of the Canadian Charter of Rights and Freedoms within the Constitution in 1982, the Court has played the important role of interpreting the fundamental rights of Canadians. As a result, the Court has moved from relative obscurity to centre stage in Canada’s political system. The resignation of a chief justice is now headline news across the country. The Court is composed of nine justices, appointed by the federal government, three of whom must be from Quebec. As a matter of longstanding practice, three justices are chosen from Ontario, one from Atlantic Canada and two from the western provinces. The Supreme Court tries to reach unanimous verdicts but that is not always possible. Dissenting judgements are published along with the majority opinion and are often scrutinized by lawyers for clues about the direction in which the Court may be moving. Supreme Court decisions are binding on all lower courts in Canada. The Court is not bound to follow precedents created by the Judicial Committee of the Privy Council or its own earlier decisions, but it departs from them reluctantly and only with careful explanation of its reasons for doing so.

Sources:

I. Bushnell, The Captive Court: A study of the Supreme Court of Canada (Montreal: McGill-Queen’s University Press, 1992). P. McCormick, Canada’s Courts (Toronto: J. Lorimer, 1994). J.G. Snell & F. Vaughan, The Supreme Court of Canada: History of the Institution (Toronto: Osgoode Society, 1985).

Distinct Society

The 1967 Commission on Bilingualism and Biculturalism described Canada as being constituted of “two great distinct cultures” — English and French — with a “distinct society” residing in Quebec and an “English-speaking society” in the Rest of Canada (ROC). The phrase entered constitutional negotiations as early as 1970, but came to prominence when the recognition of Quebec as a distinct society was included as one of five conditions for Quebec’s participation in constitutional talks in 1985. The 1987Meech Lake Accord proposed a distinct society clause be included in the body the constitution while the 1992 Charlottetown Accord proposed a similar clause in the constitution’s preamble. Both versions would have operated as interpretive clauses. Fears were expressed that the clause would confer special status on Quebec and undermine the Canadian Charter’s equality rights.

As to the first concern, both proposals expressly provided that no additional powers were to be accorded to Quebec under the division of powers by virtue of the clause. Instead, Courts would have been expected to use the distinct society clause as an aid to interpretation in constitutional disputes between the federal and provincial governments. The clause may have helped to tip the balance in favour of provincial jurisdiction, not for the province of Quebec exclusively but for all of the provinces equally. The concern that a distinct society clause would undermine rights guaranteed under the Charter was based on the fear that Quebec wished to limit Charter rights and freedoms without having to resort to the notwithstanding clause. It was believed that a distinct society clause would have made Courts hesitant to find language laws, and other laws designed to promote Quebec’s distinctive language and culture, inconsistent with Charter freedoms. It should be understood, however, that the Supreme Court of Canada took into account Quebec’s distinctiveness, without a distinct society clause, when it ruled in 1989 that Quebec’s commercial sign law was contrary to the Quebec and Canadian Charter guarantees of freedom of expression.