Not standing with Canadian Charter Notwithstanding

Politics & Elections
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I have a few questions, raised by @UltraVires and @Northern_Piper’s comments on abortion, that I’m sure that I could easily look up but could lead to interesting discussion. Criminal law in the US is mostly left to the states, while in Canada it’s entirely federal. My understanding is that unlike civil law which was left to the provinces because Quebec/Lower Canada kept its French-derived civil law while Ontario/Upper Canada devised its own based on English common law, both of these provinces adopted criminal law based on English law, in such a way that it could be left to the federal after 1867. So my questions are:

  1. The fact that it could be left to the federal state doesn’t mean it was a given that it would be. Was there debate among the devisers of the 1867 constitution on whether criminal law should be federal or provincial? And has there been legal argument since then that it should be provincial?
  2. Did New Brunswick and Nova Scotia have their own criminal law prior to 1867, or did they rely entirely on unwritten English common law? We could ask the same question of Prince Edward Island, British Columbia and Newfoundland prior to joining Canada.
  3. I guess, the same question but about Upper Canada and Lower Canada between 1791 and 1840.

Essentially, I’m asking about the development of criminal law in Canada, and why it ended up being left to the federal state even though the obvious model would have been the US where the states kept this power even after joining the federation.

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It wasn’t quite that simple. After the Conquest, the Royal Proclamation said that the law of England would be substituted for all purposes in the old Province of Quebec. That only lasted for a decade, because it was completely impractical for civil matters. All the law of obligation and biens in Quebec was based on the coutoume de Paris, as were all family contracts. English common law couldn’t just be subbed in, especially for contracts and ownership relating to immeubles.

English criminal and public law, however, could be subbed in that way, because it didn’t have the effect of overturning all those private law commitments. Plus, the principles of English and French criminal law weren’t that different (aside from the presumption of innocence, which at that time was a marked difference).

So the Quebec Act, 1774 restored the French civil law for matters of private law, but maintained the English common law and British public law for matters of public law in the colony, such as the criminal law and the principles of government.

That was the basis, eventually, for the division of powers in the BNA Act, 1867 on this point: the provinces had jurisdiction over “property and civil rights” (s. 92(13)), which preserved Quebec’s ability to rely on French civil law, but the feds got criminal law and criminal procedure (s. 91(27)).

Ontario was a bit of weird case: up until 1791, the territory that makes up southern Ontario around the Great Lakes was part of the Province of Quebec, under the 1774 Act, and so was under French civil law, just the same as the rest of Quebec. When Upper Canada was created in 1791, the very first act of the Legislature was to adopt the common law of England as the basis for all private laws. Ontario’s common law thus ultimately is based on a statute.

With respect to your questions:

  1. There was no debate that criminal law should be federal. The criminal law in all three provinces was based on the English common law, and it was felt that it was best to unify the criminal law throughout the new country, so that the criminal law would be exactly the same anywhere in Canada. Macdonald makes that point in the Confederation Debates. It was considered an important unification principle for the new country. That allocation is so well-entrenched and has worked well that there’s not been any proposal to change it in the past 150 years.

  2. New Brunswick and Nova Scotia had their own criminal law, based on the English common law, but modified by local statutes. Same for PEI and Newfoundland, and BC. One of the things the first Parliament did was to start enacting laws to unify the criminal law, both substantive law and procedural, and repealing criminal laws from the Province of Canada, NS and NB as the new laws came into force for the entire country. The unification project came to fruition in 1892, when Parliament finally enacted the Criminal Code, completely replacing the common law and any criminal statutes in the provinces.

  3. The old Province of Quebec (1763 to 1791), and then its two successors, the Province of Lower Canada and the Province of Upper Canada (1791 to 1841), relied on the English criminal law, but also passed their own criminal laws to modify the criminal law of England to meet local conditions. Those laws were then carried forward by the Province of Canada (1841 to 1867). After Confederation, those laws were gradually repealed, along with the criminal laws from NS, NB, BC and PEI, as they were replaced by uniform federal laws, and eventually the Criminal Code.

As for the US model, it was very expressly not the obvious model for the Canadian federation. Remember, in the early 1860s, the US was tearing itself apart in the Civil War. Even as late as the Charlottetown and Quebec conferences, it wasn’t obvious which side would win, although the tide had shifted to the Union. Macdonald and other Fathers of Confederation thought that the fundamental flaw of the US Constitution was to leave too much powers to the states, and were determined not to repeat that in their new constitution. Giving the criminal power to the federal government was one example of that approach.

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Very thorough explanation, thank you @Northern_Piper.

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An interesting discussion for July 1. :slightly_smiling_face:

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Interesting. I thought one of the features of the Canadian government is that provinces do have a very large amount of autonomy. In some cases even more than US States. For example, each province sets its own drinking age.

When I was 19, I could go to Niagara Falls and drink, even though you had to be 21 everywhere in the US due to the federal law which all but forces states to set that as a minimum age. And yes, I was an idiot that smoking cigarettes with a beer back then and they had those giant packs of cigarettes with ridiculously huge warnings saying that basically you will die, die, die from smoking these things. I think Ontario set the smoking age at 19 as well, even though in the US almost all states had an 18 year age for tobacco.

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Well, it’s a bit complicated.

The other huge difference, influenced by the Civil War, is that the provinces have no military role. The military, including militias, are exclusively federal. Macdonald and Co. did not want to give the states the criminal power or any military power, because those are the two strongest powers a government can have. The federal residual clause was another, specific, example of that approach.

But in response to your general comment, yes the provinces have more constitutionally guaranteed autonomy than the states. You’ll note I said earlier that “some other Fathers of Confederation” agreed with Macdonald’s highly centralised vision. Not all of them shared Macdonald’s view. The big exception was his former law partner, Oliver Mowat, who was also a Father of Confederation and became Premier of Ontario. He had a fundamentally different view of the role of the provinces than did Macdonald: Macdonald saw them as glorified municipalities. Mowat saw them as co-sovereigns with the federal government.

In a series of court cases over a 20 year period, Mowat took on the federal government and advanced provincial claims to sovereign authority. He was largely successful, as the Judicial Committee of the Privy Council, the final appellate body for the Empire, took an expansive approach to the provincial powers. Macdonald didn’t like it, but there wasn’t much he could do about it.

The reason Mowat was successful was that the British North America Act, 1867 took a fundamentally different textual approach to setting out the division of powers between the federal and provincial governments than did the US.

As you know, the drafters in the US gave a list of powers to Congress, tacked on the 10th Amendment to preserve state jurisdiction, and thought that would be sufficient, because the federal government was clearly a government of limited powers. In practice, however, when the courts have a detailed list of federal powers, and a vague reservation to the states, it’s easy for those supporting federal jurisdiction to make expansive arguments about the enumerated federal powers, and there’s not much to put up against them in the text except a negative.

That’s not the approach that the Fathers of Confederation took. They set out a list of federal powers, and a list of provincial powers, and said that was an exhaustive distribution of the legislative authority. That makes it easier for those supporting provincial jurisdiction to set up a specific grant of provincial power in opposition to the grant of federal power. The federal and provincial heads of power are “mutually modifying”, and if something clearly fits in provincial jurisdiction, then it can’t be in federal jurisdiction, and vice versa.

Net effect is that in my opinion, the provinces have more authority than do the states, outside of the specific areas of the militia and criminal law. That’s why Canada is considered one of the most decentralised federations in the world.

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Each state sets their own drinking age, too. The reason they’re all 21 is that the federal government has made a drinking age of 21 mandatory to receive federal interstate funding. It was actually a few years before all states changed their drinking age to 21, but they all did eventually. Still, they have the option to go under 21 if they’re willing to give up that cash (they could go OVER, too, if they wanted.)

The Canadian government plays the same game with health care funding. All provinces have their own health insurance systems and any one of them could abandon universal health insurance… but the Canada Health Act dangles a big bag of money in front of them to keep the status quo. So they all do.

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In light of recent legislation in Quebec I am going to resurrect this thread. Recent bills and further events have implications which some might consider undemocratic. I believe Quebec has a right to manage its own affairs. However, this recent column suggests some consequences which are hard to accept. Is it accurate? Too melodramatic?

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Coyne is not given to melodrama. Everything he says here is true. It is literally true that Bill 96 grants the language police the right to conduct searches without warrants.

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The Globe item is paywalled for me, but I understand that Bill 96 will indeed grant the OQLF the power to conduct warrantless searches.

That doesn’t appear in the following from CTV News, but a lot of other stuff does:

Near the end of that item, an interesting turn of events:

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I understand the federal government not wanting to get involved in Quebec affairs. I do not think they routinely should. But I also think the Constitution should be meaningful and the supreme law of the land. Is there any time they should speak up? Is this the time?

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The Notwithstanding clause is the law of the land. There isn’t a lot you can do when a government is really determined to take away your rights.

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Small excerpt from above Globe article:

“Where Bill 101 concerned itself mostly with education… Bill 96 pokes its bureaucratic nose into the furthest corners of the health care system.

A doctor, for example, would not be permitted, even in the privacy of her own office, to speak with her patient in English… or any other language – even if that were the preferred language of both parties. The only exceptions: …those who attended English school in Canada; and immigrants of less than six months’ residency.

…legal niceties as the requirement to obtain a search warrant, Bill 96 expressly relieves them of any such obligation. The documents on your computer, the text messages on your phone, your private medical records, all would have to be produced on demand.

But perhaps the OLF might not know where to look? The bill takes care of that, too, empowering private citizens to tell the authorities of any infraction of the language laws they suspect might have occurred or be about to – to snitch, in other words – without fear of exposure. Speak the wrong language at work, even in private, and risk being informed on by a co-worker. Fun!

And if you were in any doubt of what a monstrous assault on individual and minority rights this adds up to… every line of it, is exempt from either the Canadian Charter of Rights or Quebec’s own Charter of Human Rights and Freedoms, thanks to its invocation of the notwithstanding clause.

There’s more, of course. The bill purports to apply to federally regulated workplaces, which is plainly unlawful. It caps enrolment in the province’s … English-language colleges to prevent francophones from enrolling in them. It threatens municipalities historically defined as bilingual, and therefore entitled to provide services in both languages, with the loss of that status unless they specifically vote to retain it. And much else besides.

It is difficult to see any purpose in this but intimidation and harassment.”

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Thanks for that, @Dr_Paprika . There’s certainly a lot more meat to that piece than was in the CTV one.

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I left out much of the article. I don’t always agree with Coyne, but he is well-informed, thoughtful, direct and a very good journalist. The deleted parts include his opinions on the legislation and politicians, but one might guess those accurately.

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FWIW Trudeau has apparently said ge will challenge this if/when it gets to the Supreme Court.

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Lametti was talking about challenging Bill 21, apparently. The federal government does not seem to have mentioned this recent sh*tshow.

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There are several aspects of law # 96 that I find objectionable, and I disagree with blanket use of the notwithstanding clauses.

However, Coyne’s interpretation above, concerning doctors, is incorrect. Health services will continue to be provided in English to English speakers where possible, law # 96 doesn’t change the rules in that regard. See this transcription around “17 heures”, and the text of the law being referred to here.

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The legislators claim health care will not be affected. But others see this as possible. Does the bill specifically exclude health care? I am not in a position to judge this.

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The thing that I find really frustrating and sad about all of this Quebec’s bill 96 and related philosophies is that it is founded on an outside-Montreal pathetic xenophobia that, IME, isn’t shared in Montreal by Montrealers.

My wife and I lived here in the early '90s for a few years and we loved the place. We moved back in 2013 and if this crap was stirring at the time it wasn’t that obvious at the time. Montreal is incredibly divers and open minded and, because of bill 101, most Montrealers under 40 or thereabouts are fluently bilingual, to the extent that I often see groups of a few people fluently conversing and switching languages mid-sentence such that you can’t really tell who is Anglo or Franco. There’s even a word for it that is often used - Franglais. And in the city (or on the island) almost everyone’s cool with it.

But a small gang of narrow-minded, fearful, xenophobic “nation builders” are doing their utmost to torpedo their province’s economic engine.

Yeah, I’m pissed off and we’re bailing as soon as we can - leaving what could be one of the best cities in the world.