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Political Science
POLS 3135
Ray Bazowski

Rules of Constitutional Interpretation (Division of Powers) Courts try to confine themselves to a fundamental jurisdictional question in division-of-power cases: is the impugned law (or state action) intra (within) or ultra (outside of the) vires (jurisdiction) of that level of government that is being challenged in court. A ruling of ultra vires means of course that the government is acting outside of its constitutional powers, hence is acting unconstitutionally. The court’s decision on this question, as indeed its decision on any question of law, revolves around a principle reason (or sometimes reasons) which constitute what is known as the ratio decidendi of the case. The ratio decidendi is the rationale the court uses to reach its decision— the point in a case which determines the judgment. Keep in mind that when judges write their judgments, they do not use the term ratio decidendi to mark off the principal reason they rely upon to reach their decision. That is why, unfortunately, the ratio decidendi is not always self- evident—lawyers and other judges often disagree on what exactly constitutes the ratio of a previous case. But ratios are important because they form the precedents that lower courts are expected to follow under the strict rule of stare decisis (stand by the decisions). When confronted with a division-of-powers question, the court will typically make the following inquiries: What is the pith and substance of the impugned law? In other words, what is the principal subject matter with which the law is concerned? What is its main point? Determining the pith and substance of an impugned law is supposed to help settle the question of constitutionality because once the subject matter is determined, supposedly the court will then be able to connect that subject matter to one of the powers explicitly assigned to the federal or provincial governments in Secs. 91, 92, 93, 94 or 95 of the Constitution Act (1867). Courts have tended to work with a “cubby-hole” doctrine wherein it is assumed that a legislative subject- matter can almost always be slotted into one or another constitutional power. But of course it is not always easy to state unambiguously what the pith and substance of a law is, or to put it more precisely, it is not always easy to decide upon the essential subject matter of a law in such a way as to clearly fit that subject matter into the enumerated powers of secs 91-95. For example, the federal legislation that introduced new stringent controls on the ownership of firearms passed in the early 1990s was ostensibly about regulating the possession of guns. But there is nothing in the division of powers in 91-95 that explicitly states that the regulation of firearms is a power of government, let alone a power assigned to one or the other level. So when asking the question of pith and substance, the court will try to frame the answer in sufficiently general terms so that the subject matter can be seen to belong to one or another power, and hence one or another government. The court can, for example, say that the law is about regulating firearms for the purpose of protecting public safety. This latter phase is deemed an expression of the purpose of the federal criminal law power, and, presto, there is now a match between the pith and substance of the law and an enumerated power in the constitution. Alternatively, the court can decide that the law is about the regulation of the ownership of a piece of property, and, because this subject matter falls under the general enumerated power of “property and civil rights”, the law must be deemed ultra vires to the authority of the federal government. In instances where courts have to strain to decide upon the pith and substance of an impugned law, they make use of several interpretative aids (in addition to those outlined above) such as: Asking whether a complex law has a dominant aspect that might distinguish its pith and substance. This is an important question especially for those laws whose subject matter seems to straddle several heads of power, some of which are not in the jurisdiction of the government that enacted the law. Asking what the purpose of the impugned law might be. That is, rather than attending to the mere words of the legislation and its ostensible subject matter, the court might broaden its inquiry and try to figure out what the overall political purpose of the legislation could conceivably be. So, for example, in considering a provincial law ostensibly about licensing taverns (which involves a power explicitly assigned to the provinces) a court might conclude after looking at the overall context of the legislation, that it is really designed to allow the province to shut down those taverns that allow prostitutes to mingle with customers, and for this reason amounts to a law about regulating morals. Since the latter subject matter (regulating morals) is normally thought to belong to the federal criminal law power, the court could readily decide that that the law is ultra vires the provincial government’s constitutional authority. In a similar vein, the court might ask about the effect of an impugned law in order to help determine its principal subject matter and hence its pith and substance. By effect what is meant is simply what happens in the law’s application. How does the law change people’s rights and obligations. To use the hypothetical licensing of taverns example again, if it can be shown that the effect of the legislation is primarily to regulate prostitution, then again the same conclusion might be drawn. In attending to purpose and effect, the court is supposed to be trying to prevent governments from poaching on a jurisdiction they have no authority through surreptitious legislative means— through legislation that is colourable in the language of the court. But there are times when a court might decide that the subject matter of a piece of legislation can with equal plausibility be assigned to two different powers corresponding to the two levels of government. In such instances the court might declare that there is a dual aspect to that subject matter and that both levels of government are entitled to legislate on the subject in a way that is relevant to their own enumerated powers. This dual aspect or double aspect doctrine can be seen in such things as various provincial highway traffic offences such as “driving without due care and attention” or “failing to remain at the scene of an accident” which are matched by virtually identical criminal offences enacted by the federal government. Courts have in the past upheld the constitutional validity of both types of offences under the double aspect doctrine, ruling that provinces are justified in passing traffic legislation because they are responsible for roads while the federal government is justified in passing similar legislation under its criminal law power because the federal government has an interest in promoting public safety. When courts decide that some subject matter has a double aspect to it in order to resolve some sticky issue in constitutional law (remember, courts have invented this doctrine), they also resort to the doctrine of federal supremacy in the event that there is a serious conflict between the two sets of laws. According to that doctrine, federal laws will have precedence over provincial laws in the same field to the extent there is conflict between them. The double aspect doctrine should not be confused with the constitutional provision for concurrent powers to be found in the Constitution Act (1867), specifically in Secs. 92A, 94A and 95 . In these instances the constitution explicitly states which powers can be exercised by both levels of government (e.g. immigration, agriculture, pensions, etc.), but also explicitly states which level of government shall be paramount should conflicts arise (not always the federal government, it should be noted.) So what happens when a court has one of these division-of-powers cases before it, and there are more-or-less equally plausible ways of characterizing the issue at hand as something that falls under the provincial level of government and under the federal level of government, but for various reasons the court does not want to rule that the matter enjoys a double aspect? Courts by the way are generally reluctant to apply the double aspect doctrine because it messes with the constitutional ideal often said to be central to federalism, i.e. that the division of powers is exclusive (that is, the powers assigned to each level of government are exclusive of each other) and exhaustive (that is, the powers assigned to the two levels of government together comprise all possible powers governments might need). So if the double aspect doctrine is not going to be entertained by the court, it must choose between one of the possible interpretations of the subject matter of the impugned law, and, depending on that interpretation, assign the subject matter to one or another enumerated power in the constitution. In principle the courts say that they try to exercise judicial restraint in these division-of-power cases and start with a presumption that the impugned law is constitutional. This presumption of constitutionality supposedly involves an evidentiary rule and three interpretative rules. The evidentiary rule is simple: when a law is challenged in court on division-of-powers grounds, it is up to the challenger to prove a government is acting ultra vires to it authority. In other words, the burden of lies with the challenger not the respondent government. As for the three interpretative rules that are supposed to sustain the presumption of constitutionality: If presented with a choice between two equally plausible characterizations of a law, the court should, absent other overriding reasons, choose that characterization that upholds the validity of the law (that is, upholds the right of the government that is being challenged to enact precisely that law). If it is necessary to infer some “fact” in order to uphold the validity of the law, the finding of that fact need not be proved strictly by the challenged government. In other words, if the government can provide a reasonable argument for the existence of the “fact” that validates its right to enact the contested legislation, normally courts should be prepared to accept such an argument. For example, when the federal government passed its Anti-Inflation Act in 1975 and tried to justify its authority to do so in Court, it argued that a national economic crisis necessitated this course of action. The majority of the Court agreed that this claim of an economic crisis was sufficient to establish the fact (because it was a reasonably stated claim despite evidence to the contrary), and that act in turn supported the federal government’s assertion of its constitutional authority under POGG to enact the impugned legislation. Finally, if the impugned law can be reasonably interpreted in both a narrow and a broad fashion, and if the broad interpretation necessarily involves the government in a jurisdiction outside its constitutional authority, the court should use its discretion to choose the narrow interpretation so as to save the law (and the enacting government.) Now assuming that the court has tried to exercise judicial restraint and followed all these rules yet in the end still concludes that a government has acted ultra vires its jurisdiction, what can it do? It can declare the whole of the law unconstitutional and therefore of no force and effect. This is the most radical remedy because it negates an entire piece of legislation. This has been the most common remedy for division-of-powers cases, though not for Charter cases. Less intrusive is the remedy of severance. If a court can plausibly separate out the unconstitutional portion of a piece of legislation from the rest, then it might do so and sever the invalid part of the legislation. More common as a remedy in Charter cases. Finally, the Court might try to save an impugned piece of legislation by reading it down in such a way as to remove whatever jurisdictional overreach it might contain (as described in (c) above. Criminal Law ♥ Powers overlap. Only federal law authorized in constitution to, provinces can establish their own prohibition. They aren’t considered crimes. ♥ Provincial offences as oppose to crimes o Penalties – fines or jail time ♥ Difference btw pro offence and crime o Eg.) Federal offence under criminal code – dangerous driving o Provincial Highway – careless driving  Penalty for provincial law and federal penalties.  Criminal law – element of intent; (you know its wrong, deliberately doing what your not) • The police can feel sorry for someone and charge them with the lesser offence. It might be easier to prove careless. o The things you do wrong are the same. Where the line is drawn is different. Re Board of Commerce Act ♥ Haldane states – federal law criminal power would apply “where the subject matter is one by which its very nature belongs to the domain of criminal jurisprudence. o He mentions incest or murder o Tries to make a substantive definition of crime- some substance (characteristics) of crime in a person’s act that makes it a crime. o Substantive definition of criminal law (very narrow in Haldane’s case) Bedard v. Dawson 1923 ♥ In early 1900’s Quebec gov - prohibited any property from being used for disorderly purposes. A conviction for prostitution or gambling under the criminal code, if the prostitution or gambling ♥ Law
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