Canada

Not your average court case

ROBERT LEWIS June 14 1976
Canada

Not your average court case

ROBERT LEWIS June 14 1976

Not your average court case

Does double-digit inflation constitute a national emergency of a magnitude equal to war, an outbreak of plague, or of famine? And if it does, was the government of Ontario right in allowing Ottawa to impose its prescribed cure in the province? These were among the questions before the Supreme Court of Canada when it held hearings this month on a constitutional challenge to Ottawa’s six-month-old AntiInflation Act. In deciding the issue, the court would be making history: if it upholds the law—as it is expected to do—the court would establish a broad, new inter-

pretation of centrist powers in peacetime. If, on the other hand, the challenge to controls is sustained, it could throw the federal anti-inflation controls program into chaos.

Central to the issue was Section 91 of the British North America Act which allows the federal government to override provincial powers in order to “make laws for the Peace, Order and Good Government.” In the past, federal power in that broad area has been defined in generally narrow terms. But the challenge to Ottawa’s wageprice controls, brought on by Renfrew, Ontario, schoolteachers whose pay increase was rolled back by the federal AntiInflation Board, left little room for juridical waffling.

The federal case, carried by one of Canada’s foremost advocates, J. J. Robinette of Toronto, likened inflation to a looming “holocaust” that was “no less an emergency than war.” Robinette argued that Ontario’s minority Conservative government had the constitutional right to enter the federal inflation program—and impose Ottawa’s controls on the province’s public service workers—without approval from the legislature. Siding with Ottawa was Ontario’s Attorney General Roy McMurtry (see page 52). Fie submitted that economic conditions last fall were “sufficiently abnormal so as to give parliament authority to deal with them.” That view received qualified support from Quebec, Saskatchewan and British Columbia—though counsel for also felt there

was insufficient evidence before the court to justify Ottawa’s emergency intervention. Toronto lawyer Ian Scott argued for the Canadian Union of Public Employees that sweeping federal powers to regulate the economy posed “grave risks for our confederation.”

In an attempt to disprove the existence of a crisis at the time Ottawa introduced controls, the Canadian Labor Congress submitted evidence aimed at showing that the economy was in better shape then than even CLC President Joe Morris has allowed. Lawyer Maurice Wright argued for the CLC that the real purpose of Ottawa’s controls program was to “interfere with labor relations” in the provinces on the pretext that an economic crisis existed.

Just how the court would divide on the issue was the burning question among the 27 lawyers engaged in the case. In their spare time, lawyers shuffled match books on tables to illustrate their hunches on the leanings of the nine Supreme Court justices. On balance, the judges who chose to comment appeared skeptical of the challenge to Ottawa’s powers. Chief Justice Bora Laskin, for example, suggested impatiently that the CLC economic argument was like a “yo-yo,” and Justice Wishart Spence wondered if “we have to carry our money in wheelbarrows” to establish a clear emergency. One possible outcome would be for the court to uphold the federal law while rejecting the way in which Ontario entered the program. This could force the Davis government to get legislative approval to participate in the federal controls program. Justice Ronald Martland, for one, seemed dubious about the lack of legislative endorsement. When McMurtry hinted at the political considerations that went into Ontario’s decision, Laskin cut him off abruptly. “We are here,” he observed, “to speak to the law.”

Presumably, since the inflation reference raises such important constitutional issues, Laskin will try for as much agreement as possible in his court before judgment is rendered, conceivably later this month. A clue to the direction he may take is contained in a paper Laskin wrote in 1947 when he was a lecturer at Osgoode Hall in Toronto: “An assumption in favor of constitutionality offers a court a way of reconciling its enormous power of judicial review with the great responsibilities that rest upon Canada’s democratically elected legislature to satisfy the social wants of a free people.” Popular support for controls, in short, could be a factor if the court deems it to exist. ROBERT LEWIS