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CONSTITUTIONAL LAW II- CML 2313 G

PROFESSOR JOSEPH MAGNET

Spring, 2013

Time: Six Hours

Open book - Take Home Exam

INSTRUCTIONS:
1.

ANSWER ALL QUESTIONS.

2.

QUESTION 1 COUNTS FOR 35%; QUESTION 2 COUNTS FOR 35%;

QUESTION 3 COUNTS FOR 30% (10% for each of the three short questions).

3.

ALL ANSWERS MUST BE IN 12 PT TYPE AND MUST BE DOUBLE SPACED.

4.

ANSWERS TO QUESTIONS 1 AND 2 MUST NOT EXCEED TEN PAGES IN

TOTAL. ANSWERS TO QUESTION 3 MUST NOT EXCEED THREE PAGES IN
TOTAL. THE LENGTH MAXIMUM FOR THE WHOLE EXAM IS THIRTEEN
PAGES.

Good luck! Please accept all my best wishes for your success.
______________________________________________________________________________
QUESTION 1 (35%)
In Reference Re Securities Act, the Supreme Court of Canada described the proposed legislation
under consideration as follows:
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The preamble of the proposed Act states that its immediate purpose is to
create a single Canadian securities regulator. More broadly, s. 9 states that the
underlying purposes of the Act are to provide investor protection, to foster fair,
efficient and competitive capital markets and to contribute to the integrity and
stability of Canada's financial system.
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The Act includes registration requirements for securities dealers, prospectus
filing requirements, disclosure requirements, specific duties for market participants,
and a framework for the regulation of derivatives, civil remedies and regulatory and
criminal offences pertaining to securities. It provides for the comprehensive
regulation of securities in Canada, under the oversight of a single national regulator.
It also provides for a single set of laws and rules designed to permit uniform
regulation and enforcement on a national basis, thus fostering the integrity and
stability of Canada's capital markets at a national level. While various parties
emphasize different facets of the scheme, advancing interesting arguments on the
implication of words such as "national", "capital markets", "securities industry" and
"securities trading", it seems uncontrovertible that what the Act seeks is

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comprehensive national securities regulation, with the aim of fostering fair and
efficient capital markets and contributing to the stability of Canada's financial
system.
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The Act, as proposed, does not seek to unilaterally impose a unified system of
securities regulation for the whole of Canada. Rather, it permits provinces to opt in,
if and when they choose to do so. The hope is that, eventually, all or most provinces
will opt in, creating an effective unified national securities regulation system for
Canada. If this were to occur, it would represent a dramatic realignment in the
manner in which securities have been regulated in this country.

Following the Supreme Court of Canada decision in Reference Re Securities Act Parliament
enacted an amended statute that differed from the legislation considered in the Reference in the
following respects:

The registration requirements for securities dealers are committed to a national Regulator
empowered for this task by provincial legislative authority
Civil remedies for contraventions of the Act are provided for and enforced by the same
Regulator, empowered for this task by federal legislative authority.
The regulation of derivatives is entrusted to the same national Regulator empowered by
federal legislative authority in relation to derivatives issuers that are international in
scope and by provincial legislative authority in relation to derivatives issuers that are
national in scope
Disclosure requirements are stipulated under federal legislative authority. Failure to
comply with these is stated to be an offence punishable by fine and/or imprisonment.

Otherwise, the Act duplicates the proposed Act considered in the Reference Re Securities Act.
The Attorney General of Quebec consults you for constitutional law advice as to whether the
amended statute is constitutionally valid.
Advise the Attorney General of Quebec.
QUESTION 2 (35%)
In Churchill Falls v. A. G. Newfoundland, the Supreme Court of Canada stated:
A finding that the Reversion Act is aimed at the rights of Hydro-Quebec under the Power Contract would
render the Act ultra vires only if the rights so attacked are situate in Quebec beyond the jurisdiction of the
Legislature of Newfoundland. Little argument was advanced on this issue and the case seemed to proceed
on the general assumption that the rights of Hydro-Quebec were situate in Quebec. The fact, of course, is
that Hydro-Quebec has the right under the Power Contract to receive delivery in Quebec of hydro-electric
power and thereafter to dispose of it for use in Quebec or elsewhere as it may choose. If these facts are not

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sufficient for the purpose of the constitutional characterization of the Reversion Act, it may be noted in any
event that ordinarily the rule is that rights under contracts are situate in the province or country where the
action may be brought

Is this a satisfactory basis for deciding the territorial limits on provincial legislative jurisdiction?
If your answer is yes, please explain why, with reference to the cases, principles and doctrines
that support your answer. If your answer is no, please explain why with reference to the cases,
principles and doctrines that support your answer.

QUESTION 3 (30%) Answer all questions. Each question is weighted 10%.

A.

(10%)

What are the similarities and differences between the requirements of order and fairness
(I.C.B.C. v. Unifund, 68), the protection of judicial independence (Reference Re Provincial
Judges 105) and the convention of political neutrality (Osborne v. Canada, in Constitutional
Law of Canada, 9th ed p. 65)?
B.

(10%)

In Reference Re Assisted Human Reproduction Act, both the reasons of Chief Justice McLachlin
and the joint reasons of Justices LeBel and Deschamps described and applied the ancillary
powers doctrine.
Explain any innovations or amendments to the ancillary powers doctrine each set of reasons
proposed; discuss the strengths and weaknesses of each approach to the doctrine; and explain
how the two sets of reasons differed in the application of the ancillary powers doctrine.
C.

(10%)

The Criminal Code is amended to provide:

251.1 (1) Anyone who provides or procures an abortion by any means after the 20 th week of pregnancy is
guilty of an offence punishable by imprisonment not to exceed two years.
(2) Subsection 1 does not apply to abortions which a medical practitioner deems necessary to save
the life or protect the health of a pregnant woman.

The Medical Services Act (Saskatchewan) provides:

1.
Therapeutic abortions may be performed in public hospitals or in free standing clinics licensed for
that purpose by the Minister of Health.

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2.
The Minister shall issue a licence to applicants proposing to operate free standing abortion clinics
where the following requirements are met [5 objective factors relating to medical capability are stated
here].
3.

No person shall provide or procure an abortion by any means after the 20th week of pregnancy.

4.
Anyone who contravenes section 3 is guilty of an offence and subject to a fine not to exceed
$10,000; and in addition to the fine, any medical practitioner who contravenes section 3 shall lose the
privilege of billing the Saskatchewan Health Insurance Plan for any medical procedures performed after
the date of contravention.

Dr. Elena Ricci operates an abortion clinic under the authority of the Saskatchewan Act. She
provided Ethel Egg with an abortion at 21 weeks of Ethels pregnancy. Prior to doing so, Dr.
Ricci certified under a procedure provided for by the Saskatchewan College of Physicians and
Surgeons that the procedure was necessary to save the life or protect the health of Ethel.
Dr. Ricci and Ethel Egg are charged under sections 3 and 4 of the Saskatchewan Medical
Services Act. They consult you for constitutional law advice (not including the Charter of
Rights).
Advise Dr. Ricci and Ms. Egg.