POLS 3135 Lecture 4 2007

POLS 3135 Lecture 4 2007 - Public Law I October 5, 2007 •...

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Unformatted text preview: Public Law I October 5, 2007 • Rules of statutory interpretation • Legal Presumptions in judicial decision­ making • Peace Order and Good Government (I) – Russell v. the Queen – Local Prohibition Case – Board of Commerce – TEC v Snider Rules of Statutory Interpretation (1) n Why are rules needed? n Intent of legislature n “reasonable person” test n 1.Plain meaning rule n 2.“golden rule”: avoid absurdity & inconsistency n 3.What was the mischief & remedy? n n n Specific words help explain general ones nearby Express inclusion of some items implies exclusion of items not mentioned Aids: – Interpretation statutes – Definition sections of statutes Rules of Statutory Interpretation (2) n More Aids: n International conventions & – Context in statute treaties (sometimes) – Other similar statutes – Legislative history n Preamble (but not • Minimal weight. W hy? n Books on rules of interpretation, & legal dictionaries n French & English text marginal notes) Presumptions n n n n n Criminal law: in favour of accused Taxation law: in favour of taxpayer Against alteration of common law Mens rea (guilty mind), unless express absolute liability Against retroactivity n n Against ousting jurisdiction of courts For crown immunity (now mostly replaced by statutes allowing suits against crown) n n n n Every word is deliberate Specific given precedence over general More recent > older Leg. did not intend drafting error (cts can correct) Doctrine of Stare Decisis • Stare decisis: a rigid form of the doctrine of precedent. • Decision of the Court = ratio decidendi which forms the precedent that needs to be followed. • Ways around stare decisis: – Distinguish – Ratio is really obiter – Per incuriam – Emphasize different majority opinion – ignore Stare Decisis continued • Hierarchy of courts determining application of stare decisis • SCC can choose not to follow precedent. Ont CA: policy: follow • What if conflicting precedents? What Does Court Look For in Constitutional Cases Involving Division of Powers? ­Is the challenged law intra or ultra vires the authority of the government which enacted it? ­Can the law unambiguously be assigned to one or other heading in Sections 91, 92, 93, 94 or 95 of the BNA (the so­called cubby­hole doctrine) ­What is the pith and substance of the law? ­purpose? ­effect? ­is it colourable? ­Does it have more than one aspect? If so what is the dominant aspect? ­Can it have a dual aspect? ­Federal supremacy in cases of conflict Presumption of Constitutionality and Remedies • In division of powers case court presumes impugned legislation is constitutional—burden of proof lies with challenger. • Remedies for laws that are ultra vires – Declare whole law unconstitutional and of no force and effect – Severance (more likely in Charter cases) – Reading Down Russell v. The Queen, 1882 • Impugned legislation: Canada Temperance Act, 1878 – ¼ of electors in a “county or city” may petition for a plebiscite on prohibition. • Fredericton went dry • Charles Russell: Fredericton pub • “cubby hole” doctrine – Is subject­matter of impugned legislation in s.92? If so, is it also in 91? – If not in s. 92, it must be in s. 91 • Russell’s lawyer: argued legis. Falls in s. 92: 9, 13 or 16 • “pith and substance” owner, convicted • Previous SCC decision: City of Fr. v. Queen: intra vires under T&C (91­2) • JCPC decision: Sir Montague Smith. • Russell’s lawyer: delegation argument – Parliament can’t delegate its powers. JCPC says no delegation involved • • • • • – Smith: Nearly anything could fall under 92(13); what is p&s? Central subject matter is public order & safety, not T&C Not local because of local option. (analogy: health orders) Therefore, not under s.92. No comment on SCC’s decision in Fredericton re s. 91(2), but seems to emphasize POGG Gap (residual) branch of POGG Citizens Insurance Co v Parsons, 1881 Citizens Insurance Co. v. Parsons, 1881 • Impugned: Ontario Fire Insurance Policy Act. • Fire in Parsons’ warehouse. Parsons wanted insurance payment – Ins Co: you didn’t observe the fine print. – Parsons: the fine print didn’t conform to the Act. – Ins Co: The act is ultra vires Ontario. • Sir Montague Smith discusses how s. 91 & 92 overlap. JCPC will interpret the BNA Act as an ordinary statute. ­Smith Invokes presumption that specific takes precedence over general. “Property & Civil Rights” more specific than “Trade & Commerce”. – “cubby hole” doctrine. S. 92(13)? Yes. Also S. 91(2)­ T&C? No. Feds can incorp. Co’s with national objective, but doesn’t prevent provinces from regulating intraprovincial transactions – Three aspects of T&C: international, interprovincial and general. – He doesn’t define these categories. Left for later cases. Local Prohibition Case, 1896 • Impugned: Ont’s Local Prohibition Act (1890) – Townships, towns, villages (& cities) – Appeal from SCC ref • Lord Watson • Feds (under POGG) can trench on s.92 only if incidental to a legit fed purpose – otherwise, all of s.92 falls in s. 91. – s.94 issue (unify common law in anglophone provs) • Ontario argued that legis. falls under 92(8): (municipalities). Watson: not a convincing argument • Pith & sub: vice of intemperance at local level • 92(16): (local) yes. • 92(13): no; the law prohibits rather than regulates • if conflict: fed. law is paramount • conflict of laws: no conflict if strict test obeyed • “double aspect” doctrine: a • legislative subject­matter can fall under s. 91 for one purpose, and s. 92 for another. National dimension or national concern doctrine hinted at: a subject matter can become a matter of national concern and then feds can regulate under POGG. Board of Commerce & Combines & Fair Practices Acts (1922) • Impugned legislation: fed anti­ profiteering & anti­hoarding legis. after WW I (1919) • Board stated case to SCC re Ottawa clothing stores • Appeal from SCC: Duff (BC) vs. Anglin (judges evenly divided) • Viscount Haldane for JCPC • Pith & substance: combines & hoarding in peace­time • Cubby­hole: 92(13) • S. 91 too?: – Crim power? No – not like incest (important decision for those writing about criminal power in writing assignment) – T&C: no; T&C is supplemental to other federal powers – POGG? Only in “highly exceptional circumstances” [emergency doctrine] (see p. 66) • Ultra vires • 3 aspects of POGG: national concern (obiter in Local Prohibition), emergency (B of C), residual (Russell) TEC vSnider (1925) Toronto Electric Commission v. Snider • Impugned legislation: federal Industrial Disputes Investigation Act • Viscount Haldane wrote for JCPC • Haldane says labour legislation clearly falls under s. 92(13) • In this case, the procedure is applied to a municipal electrical company • Does subject­matter also fall under POGG, fed criminal power, or 91(2) (T&C)? Haldane – no. • POGG can be used as residual, or emergency power. Here, can’t be residual because 92(13) applies. As well, there’s no emergency. • Rule of interpretation: specific takes precedence over general. See Haldane’s discussion of specific words, p. 76. • How can this decision be squared with Russell v. Queen? Haldane: there must have been an emergency in 1878: – “…evil of intemperance [was] one so great” that parliament intervened to “protect the nation from disaster” ...
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This note was uploaded on 02/14/2012 for the course POLS 3136 taught by Professor Bazowski during the Winter '10 term at York University.

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