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Constitution (Non-Charter)

. British Columbia (Attorney General) v. Provincial Court Judges’ Association of British Columbia

In British Columbia (Attorney General) v. Provincial Court Judges’ Association of British Columbia (SCC, 2020) the Supreme Court of Canada set out the major institutional players in Canadian constitutional law:
[65] Canadian constitutional law has long recognized that sovereign power in this country is divided not only between Parliament and the provincial legislatures, but also among the executive, legislative and judicial branches of the state: Fraser v. Public Service Staff Relations Board, 1985 CanLII 14 (SCC), [1985] 2 S.C.R. 455, at pp. 469‑70; New Brunswick Broadcasting Co. v. Nova Scotia (Speaker of the House of Assembly), 1993 CanLII 153 (SCC), [1993] 1 S.C.R. 319, at p. 389; Doucet‑Boudreau v. Nova Scotia (Minister of Education), 2003 SCC 62, [2003] 3 S.C.R. 3, at para. 33. Although there are limited areas of overlap, the branches play fundamentally distinct roles and have accordingly developed different core competencies: Provincial Judges Reference, at para. 139; Ontario v. Criminal Lawyers’ Association of Ontario, 2013 SCC 43, [2013] 3 S.C.R. 3, at para. 29.

[66] As this Court underscored in Criminal Lawyers’ Association, at para. 29, “each branch will be unable to fulfill its role if it is unduly interfered with by the others”. Several doctrines work to prevent undue interference, including the secrecy afforded judicial deliberations (MacKeigan v. Hickman, 1989 CanLII 40 (SCC), [1989] 2 S.C.R. 796), and the recognition of the privileges, powers and immunities enjoyed by the Senate, the House of Commons and the legislative assemblies: Constitution Act, 1867, preamble and s. 18; New Brunswick Broadcasting Co.; Canada (House of Commons) v. Vaid, 2005 SCC 30, [2005] 1 S.C.R. 667; Chagnon v. Syndicat de la fonction publique et parapublique du Québec, 2018 SCC 39, [2018] 2 S.C.R. 687. These doctrines are a corollary to the separation of powers because they help to protect each branch’s ability to perform its constitutionally‑assigned functions.

[67] The executive, too, benefits from a degree of protection against undue interference. Deliberations among ministers of the Crown are protected by the constitutional convention of Cabinet confidentiality. Constitutional conventions do not have direct legal effect: Reference re Resolution to Amend the Constitution, 1981 CanLII 25 (SCC), [1981] 1 S.C.R. 753, at pp. 880‑83; Reference re Secession of Quebec, 1998 CanLII 793 (SCC), [1998] 2 S.C.R. 217, at para. 98. However, as I will explain in greater detail, the common law respects the confidentiality convention and affords the executive public interest immunity over deliberations among ministers of the Crown: see Carey; Babcock v. Canada (Attorney General), 2002 SCC 57, [2002] 3 S.C.R. 3, at paras. 18‑19 and 60.
. Reference re Genetic Non‑Discrimination Act

In Reference re Genetic Non‑Discrimination Act (SCC, 2020) the Supreme Court of Canada considered whether a criminal law that prohibited the collection and use of genetic information was valid under the federal constitutional criminal division of powers. In doing this the court determined the 'pith and substance' of the law by a two-step 'characterization and classification' procedure [at paras 20-103]. The case is interesting for the genetic issue and for it being an example of the division-of-powers analysis.

. Club Resorts Ltd. v. Van Breda

In Club Resorts Ltd. v. Van Breda (SCC, 2012) the Supreme Court of Canada commented on little-discussed constitutional law between provinces:
(3) Constitutional Underpinnings of Private International Law

[21] Conflicts rules must fit within Canada’s constitutional structure. Given the nature of private international law, its application inevitably raises constitutional issues. This branch of the law is concerned with the jurisdiction of courts of the Canadian provinces, with whether that jurisdiction should be exercised, with what law should apply to a dispute, and with whether a court should recognize and enforce a judgment rendered by a court of another province or country. The rules of private international law can be found, in the common law provinces, in the common law and in statute law and, in Quebec, in the Civil Code of Québec, S.Q. 1991, c. 64, which contains a well-developed set of rules and principles in this area (see Civil Code of Québec, Book Ten, arts. 3076 to 3168). The interplay between provincial jurisdiction and external legal situations takes place within a constitutional framework which limits the external reach of provincial laws and of a province’s courts. The Constitution assigns powers to the provinces. But these powers are subject to the restriction that they be exercised within the province in question (see P. W. Hogg, Constitutional Law of Canada (5th ed. 2007), vol. 1, at pp. 364-65 and 376-77; H. Brun, G. Tremblay and E. Brouillet, Droit constitutionnel (5th ed. 2008), at p. 569; British Columbia v. Imperial Tobacco Canada Ltd., 2005 SCC 49, [2005] 2 S.C.R. 473, at paras. 26-28, per Major J.), and they must be exercised in a manner consistent with the territorial restrictions created by the Constitution (see Castillo v. Castillo, 2005 SCC 83, [2005] 3 S.C.R. 870, at para. 5, per Major J.; Unifund Assurance Co. v. Insurance Corp. of British Columbia, 2003 SCC 40, [2003] 2 S.C.R. 63, at para. 51, per Binnie J.).
. R. v. Comeau

In R. v. Comeau (SCC, 2018) the Supreme Court of Canada considered the constitutional provision that holds that "All Articles of the Growth, Produce, or Manufacture of any one of the Provinces shall, from and after the Union, be admitted free into each of the other Provinces." [s.121, Constitution Act, 1867] at paras 44-116.

. 3510395 Canada Inc. v. Canada (Attorney General)

In 3510395 Canada Inc. v. Canada (Attorney General) (Fed CA, 2020) the Federal Court of Appeal considered an appeal of CRTC orders under Canada's Anti-Spam Legislation dealing with email spam, with one of the issues relating to the constitutional division-of-powers trade and commerce allocation [paras 77-129].


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