Separation of Powers

Step 1: Validity: Are the Federal and Provincial Legislation both valid? Under what powers? (Pith & Substance)
Federal Legislation:
 POGG
o 1. Emergency powers doctrine (per Emergencies Act)
 a. Temporary situation
 b. Not an ‘ordinary’ situation (seriously endangers life/health/safety)
 c. Not an ‘ambiguous’ situation
 d. Clear signal from parliament that this is emergency (Emergencies Act provisions, Reference re: Anti-
Inflation Act)
o 2. National concerns doctrine: look at purpose and effect. Five (non-exhaustive) factors:
 a. Newness: did problem exist at confederation in 1867? (If yes, may simply be aggregate of existing
powers not requiring new POGG power.)
 b. Not a ‘temporary’ issue (to distinguish from ‘emergency’ branch; added by Borrows)
 c. Unity/singleness/indivisibility: concern must be specific, not vague/diffuse (Crown Zellerbach)
 d. Provincial inability: any one prov acting alone could not solve problem.
 e. Scale: Federal power in question must not ‘sweep away’ provincial powers.
 Trade and Commerce
o 1. Interprovincial & International trade regulation:
 Where regulation aims at extraprovincial trade, some necessarily incidental effect on provincial trade is ok,
so long as it wasn’t being aimed at.
o 2. ‘General’ trade & commerce power: five (non-exhaustive, non-absolute) factors (to see if upsets prov/fed
balance):
 a. Scheme of public supervision
 b. Overseen by public authority
 c. Concerns trade as a whole, not a specific industry
 d. Provincial inability to enact similar legislation
 e. Failure to include one or more provs would jeopardize scheme as a whole.
 Criminal Law: three requirements:
o 1. Public purpose/scope (gets at ‘public evil’)
o 2. Prohibition
o 3. Punishment
Provincial Legislation:
 POGG: province can compete using:
o S. 92(16): matters of a local/private nature
o S. 92(13): Property & civil rights
 Trade and Commerce: province can compete using:
o S. 92(13): Property & civil rights. Dominant tide is to support more prov leg under this power.
o Economic regulation powers:
 1. Pith & substance: (Carnation)
 Does it relate to matters of a provincial nature?
 A large ancillary effect on intraprovincial trade is ok, as long as it isn’t aimed at.
 2. Natural resources:
 a. S. 92(a): Prov can control conservation/management/etc of forests/energy/non-renewable rsrcs.
 b. S. 92(a)(2): Prov can leg wrt export of primary rsrcs, so long as not discrim among other provs.
 Criminal law: Province can compete using:
o Regulatory powers
o ‘Morality’ powers relating to another s. 92 head.
Colourability:
 Are there any colourability issues wrt the foregoing characterizations? (e.g. Morgenthaler)
Incidental Effects:
 1. What are incidental effects of leg on other jurisdiction?
 2. Are they sufficiently related to main leg to be supportable? (GM Leasing)
o a. How seriously does provision encroach?
o b. Is the act as a whole valid?
o c. How well integrated/important to act is provision? (Less integration ok if encroachment in a. was less severe.)
Spending Powers:
 Are there any spending powers issues?
 Authorized uses of spending powers:
 o 1. Direct federal aid: feds can give $ directly to citizens, e.g. via social assistance programs, as long as it doesn’t
constitute direct regulation of a provincial concern.
o 2. Cost-share programs: feds can broker deals to partially fund programs. (But can also back out if they choose –
Reference Re: Canada Assistance Plan)
o 3. Equalization Grants: feds can take $ from rich provs and give to poor provs. Ok under Constitution Act s. 36
Adjudicature:
 If board or tribunal is established, are there any issues with stripping powers from provincial courts?
o 1. Historical analogy: is tribunal’s power analogous to a power given to s. 96 courts at confederation?
 Construe narrowly (i.e. favour idea that s. 96 courts did have jurisdiction over area in question) (Sobeys)
 Don’t look just at province in question, but at all provincial courts in 1867, w/ UK as tiebreaker. (Sobeys)
 If no historical analogy, then no problem. If yes, proceed to step 2.
o 2. Judicial function: is tribunal acting in ‘judicial’ manner, or more of a policy-setting body?
 If the latter, provinces have jurisdiction to create the tribunal.
o 3. Institutional setting: if there is judicial function, is it essential or merely incidental?
 If leg fails all three steps, it is invalid.
o 3b. ‘Core’ superior court powers: is tribunal exercising a ‘core’ constitutionally granted power? (MacMillan
Bloedel)
 E.g. ‘contempt’ is a core power which YOA cannot strip away (Macmillan Bloedel)
 If yes, leg is invalid.
Policy Issues:
 Even where leg is clearly valid, will policy issues underlying federalism be flagged? (E.g. ‘sweeping away’ prov powers)
Step 2: Applicability: Does interjurisdicitonal immunity render the provincial legislation inapplicable?
 Analysis: (Canadian Western Bank)
1. Note that the courts don’t like invoking this anymore.
2. Does the provincial legislation trench on a ‘core’ federal power (narrow – ‘basic minimum and unassailable content’) to
the point of ‘sterilizing/entirely quashing’ it?
3. Does the provincial legislation affect a ‘vital part’ of a federal interest or undertaking? (first seen in Bell #1)
 Cases:
Step 3: Operability: Does Federal Paramountcy render the provincial legislation inoperative?
 “Better for federalism” than ‘applicability’ (Canadian Western Bank)
 Two-step test: (Spraytech)
o 1. Conflict in operation: is dual compliance possible? (e.g. Magnat)
o 2. Conflict in purpose: does prov leg frustrate parliament’s purpose? (e.g. Bank of Montreal v. Hall)
 May hinge on whether federal act is meant to be ‘complete code’ (aka ‘occupy the field’) or just cover a
part of it. (Spraytech)
Aboriginal Rights
Aboriginal Title
 Sui generis because of source (pre-sovereignty possession), inalienability, and communal nature. Not restricted to traditional
activities. (Delgamuuqw)
 Four-Step Analysis:
o 1. Proof of right
 Onus on abs
 Must show three elements: (Delgamuuqw)
 a. Pre-sovereignty occupation
 b. ‘Substantial’ continuity of occupation between then and present
 c. Exclusivity (could include shared exclusivity)
 Acceptable forms of ‘evidence’ must take account of aboriginal perspectives, though it must not go so far
as to ‘strain the Canadian constitutional and legal structure’. (Delgamuuqw)
o 2. Has right been extinguished?
 On us on crown
 Must show ‘clear and plain intent’ (Calder)
o 3. Has right been infringed?
 Onus is on aboriginal group, but need only establish prima facie case.
 Factors to consider: (Sparrow)
 a. Is limitation unreasonable?
 b. Does limitation impose undue hardship?
 c. Does limitation deny group their preferred mean of exercising the right?
o 4. Is infringement justified?
 a. Valid legislative objective. (E.g. resource development, economic development, environmental
protection, infrastructure, etc.)
  b. Has honour of crown been upheld?
 i. Exclusive (allocation process reflects prior ab interest, participation in development, conferral of
fee simple/leases/licenses, removal of economic barriers)
 ii. Right to choose (aboriginal priority, ‘spectrum’ of consultation based on circs)
 iii. Economic component (compensation).
 Cases:
o Delgamuuqw: land claim dismissed on technicality (houses  general territory claim shift).
o Marshall:
o Bernard:
Resource Rights
 Four-Step Analysis:
o 1. Proof of right
 Onus on ab group
 Must show activity was integral to distinctive culture of group pre-contact. (Van der Peet)
o 2. Has right been extinguished (pre-1982)?
 Onus on crown
 Must show ‘clear and plain intent’. Mere regulation not sufficient. (Sparrow)
 Right can exist in contemporary form – ‘frozen rights’ approach rejected. (Sparrow)
o 3. Has right been infringed?
 Onus on ab group, but need only establish a prima facie case.
 Factors to consider: (Sparrow)
 a. Is limitation unreasonable?
 b. Does limitation impose undue hardship?
 c. Does limitation deny group their preferred mean of exercising the right?
o 4. Is infringement justified?
 Is legislative objective pressing/substantial?
 Honour of crown: was there accommodation, consultation, compensation, etc?
 Cases:
o Van der Peet:
o Guerin v. The Queen: gov’t leases ab land to golf club on terms less favourable than agreed on w/ abs. Discusses
‘fiduciary duty’ of crown (rephrased in later cases as ‘honour of the crown’).
o Sparrow: dealt with aboriginal right to fish for sustenance and ceremonial purposes.
Treaty Rights
 S. 35 turns the ‘protective hedge’ of treaty rights into ‘sterner stuff’ (Marshall I)
 Four-Step Analysis:
o 1. Proof of treaty right
 Onus is on aboriginal group to establish right.
 The treaty document is only one piece of evidence as to what the treaty was. Can look at historical/cultural
context, oral representations, native oral history, etc. (Marshall I)
 “Rules of construction should not be confused with vague, after the fact largesse” – i.e., don’t add in things
that weren’t actually in the treaty. Rather, court’s role is to choose result that best reconciles crown + ab
interests. (Marshall I)
 Can apply ‘officious bystander’ test to ascertain what terms of the treaty mean. (Marshall I)
 Can ‘modernize’ right, e.g. using jacklights instead of torches to hunt. (R. v. Morris and Olsen)
 But, don’t get the right unless it was contemplated that you could exercise it at time of treaty. (R v.
Marshall; R v. Bernard)
 Ambiguities resolved in favour of aboriginals. (Marshall I)
o 2. Has the right been extinguished?
 Onus on crown to establish extinguishment.
 Must demonstrate ‘clear and plain intent’.
o 3. Has the right been infringed?
 Onus is on aboriginal group, but need only establish prima facie case.
 Factors to consider: (Sparrow, via Marshall I)
 a. Is limitation unreasonable?
 b. Does limitation impose undue hardship?
 c. Does limitation deny group their preferred mean of exercising the right?
o 4. Is the infringement justified?
 Can be infringed on the same grounds as aboriginal rights. (Badger)
 Is legislative objective pressing/substantial?
 Honour of the crown: was there accommodation, consultation, compensation, etc? (Marshall I)
 Don’t look to CL or international treaties; these can be interpretive aids, but ab treaties sui generis (Simon)
  Cases:
o Marshall I: fishing for eels w/o license; claimed treaty right to fish. Court looks at context of ‘truck house’ treaty –
crown was desperate to keep abs trading with them & not French, so it was clearly a general trade agreement, not
just an agreement to have the ‘truck houses’. (Honour of crown invoked.) Terms of treaty: fishing not mentioned,
but fishing was considered ‘limitless’ at the time.
o Marshall II: there are limited implications which you can draw from a treaty.
o R. v. Marshall/R v. Bernard: Freezes treaty rights at time of negotiation – if it wasn’t contemplated abs could harvest
logs, it wasn’t a right granted them. Also stands for principle that should interpret treaty rights as ab rights.
o R. v. Sundown: Abs using park cabin as base for hunting. R says cabin in park against regs, but court says right to
build shelter is incidental to treaty right to hunt, so included.
Aboriginal Law and Federalism
 There are two ways for a provincial law to apply to Indians:
o 1. Notwithstanding s. 91(24), provincial laws of ‘general application’ can still apply to Indians/Indian lands proprio
vigore unless they a. target Indians, or b. go to core of Indianness. (Delgamuuqw)
o 2. Laws that fail step 1 can still apply via s. 88 of Indian Act: prov laws of gen application apply to Indians unless
inconsistent w/ Indian Act or affect an area already provided for under it.
 ‘General application’: intent and effect re: Indians both relevant. (Dick)
 Self-governance and the duty to consult:
o Crown must consult when it knows ab group has good prima facie case (Haida)
o Obligations on crown: may vary depending on a. strength of right claimed (spectrum from ‘proven’, to ‘unproven
but strong’, to ‘unproven and tenuous’), or b. potential impact of decision on right. (Haida)
o Obligations on ab group: a. act in good faith, b. don’t frustrate crown’s reasonable good faith attempts, c. don’t take
unreasonable positions to thwart gov’t from acting (potential requirement for ‘consent’ does not equal a veto), d. if
rights unproven, should define claim and concerns as clearly as possible. (Haida)
o Elements of consultation: a. put forward proposals which are not finalized; b. inform of all relevant information; c.
don’t promote an outcome; d. willingness to change plans; e. make every ‘reasonable effort’; f. include participation
in decision-making process; g. reasonable timelines; h. financial assistance; i. ‘hard bargaining’ is OK. (Haida)
o Accomodation:
 If proven right: find new status quo via compensation/recognition/allocation/etc.
 If unproven right: find interim accommodation pending final resolution; balance ab concerns reasonably
with other societal interests. (Haida)
 Cases:
o Dick v. The Queen: Provincial Wildlife Act held not to apply to abs proprio vigore, because hunting is at core of
Indianness, but gets in through Indian Act s. 88 – intent was not to target Indians, so general application.
o R. v. Pamajewon: Ojibway claim right to high-stakes gambling. Court says no, they did gamble but not on that
scale.
o Haida Nation: Held prov had duty to consult Haida re: tree farm licenses, because Haida had good prima facie title
claim, and prov knew aboriginal rights were at issue in affected areas.
Charter Rights
Framework for Charter Interpretation
 1. Characterize challenged law (purpose/effect)
 2. Determine meaning of asserted right (charter interpretation)
o Charter to be interpreted purposively (Hunter v. Southam)
o Don’t read in internal limits – s. 1 is the correct place for that. (Big M Drug Mart)
o Can consider evidence from:
 Character/larger objects of charter, language chosen to articulate right, historical origins of right. (Big M
Drug Mart)
 Interpretive provisions of charter (ss. 27-28) (Keegstra)
 Parliamentary and committee debates, though drafter’s intent not determinative; no ‘frozen rights’. (Ref.
Re: Motor Vehicles Act)
 Canadian & pre-charter jurisprudence (e.g. framers did not appear to adopt court’s rejection of Canadian
Bill of Rights, so it technically still applies – Therens)
 International sources (e.g. charter incorporated many policies & prescriptions from international human
rights instruments – Ref. Re: Public Service Employee Relations Act)
o
 3. Does challenged law limit an asserted right? (Burden on challenging party.)
 4. Is limit justified under s. 1?
S. 1
 ‘Vagueness’ doctrine: a law will fail for vagueness only if there is no intelligible standard and legislature has in effect given
plenary discretion to do whatever seems best in a wide variety of situations. (Irwin toy) Concerns: fair notice to citizens, and
 checks on official power. Can be raised under s. 7 or s. 1; once ‘minimal threshold’ met, any further discussion should go
under ‘minimal impairment’. (R v. NS Pharmaceutical Society)
 1. Prescribed by law? (i.e. is law too vague? Context important!) Oakes test:
o a. Pressing/substantial objective
 ‘Shifting purposes’ not allowed, though shift in emphasis ok.
 Fiscal considerations acceptable; court may be sceptical, but crisis will warrant it. (NAPE)
o b. Proportionality:
 i. Rational connection
 ii. Minimal impairment (Internal safeguards? Is there another approach that would be less impairing?)
 iii. Balance (deleterious effects vs. salutary effects + legal objective) (Dagenais)
 2. How deferential should court be? (Irwin Toy)
o a. state vs individual: less deferential
o b. competing groups within society: more deferential.
 Cases:
o Hunter v. Southam: Combines Investigation raids newspaper offices; statute did not require judicial authorization.
o R. v. Nova Scotia Pharmaceutical Society: charged under Combines Investigation Act for conspiring to lessen
competition. Claimed s. 7 violation on grounds of vagueness.
o Oakes: law says possession of narcotic  infer intention to traffic. Court says reverse onus violates s. 11(d), but
upheld under s. 1.
o Edmonton Journal v. Alberta: paper challenged limitation on publishing info from court proceedings in matrimonial
disputes, under s. 2(b). Majority said not justified under s. 1.
o Thomson Newspapers v. Canada: fed ban on publishing voter polls right before elections violates 2(b), not saved by
s. 1.
o Newfoundland Treasury Board v. NAPE: Nfld cancels program that would have equalized pay btwn female/male
health care workers. Leg upheld under s. 1 due to severe fiscal crisis.
S. 2: Freedom of Expression
 S. 2(b) guarantees to everyone freedom of thought, belief, opinion and expression, including freedom of the press and other
forms of communication.
 ‘Expression’ tends to be read broadly, so most challenges hinge on the s. 1 analysis.
o Underlying values: i. emergence of truth, ii. ‘marketplace of ideas’, iii. individualism. (Keegstra)
o Three-step test for violation: (Irwin Toy)
 a. Is the activity in question intended to convey meaning?
 If yes, = expression, regardless of content. Exception: violence/rape. (Irwin Toy, RJR
MacDonald)
 b. Is the purpose or effect of the gov’t action to restrict freedom of expression?
 Purpose: restriction on expression is ok if ‘incidental’, e.g. banning leaflets to control litter.
 Effect: to make an effects-based argument, plaintiff must show that their form of expression
promotes an ‘underlying value’ of 2(b): i. search for truth; ii. political expression; or iii. individual
self-fulfillment.
 c. S. 1 analysis.
o ‘Content’ exception: expression through violence/rape not protected. (Irwin Toy, RJR MacDonald)
 Cases:
o Keegstra: Alta teacher promotes anti-semitism. Discussion of values underlying 2(b). (See above.)
o Dolphin Delivery: Challenge to injunction against secondary picketing. Court says picketing is expression, but
purpose here is inducing another company to breach contract - constitutes tort, so no protection.
o Ford v. Quebec: Qc tries to uphold French-only sign laws. Court says freedom to use own language is protected.
o Irwin Toy v. Quebec: Ban on children’s advertising upheld under s. 1. Objective: protecting children = pressing &
substantial; proportionality: more deference to gov’t for regulatory actions than state vs. individual actions.
o RJR MacDonald Inc. v. Canada: Tobacco companies challenge ad bans + mandatory warning labels. Court agrees,
annoyed that gov’t won’t release report on alternate measures, so fails minimal impairment. Court also says
‘expression’ very broad, but doesn’t extend to violence/rape.
 Hate Speech:
o It is illegal to promote hatred under CC s. 319(2). However, defences are available where statements are a. true; b.
made in good faith; c. argument/opinion on religious subject; d. in public interest; or e. for purpose of removing hate
speech from society.
 These provisions were drafted based on recommendations of committee formed after Canada’s entry into
international “Declaration of Human Rights”
o ‘Hate Speech’ should be construed narrowly to capture only ‘extreme and intentional’ forms. (Keegstra)
o Keegstra: Alta teacher promotes anti-semitism; HS leg upheld under s. 1
 Obscenity:
 o CC s. 163: ‘obscene’ includes ‘undue exploitation of sex’ and ‘sex in conjunction with criminal acts’.
o Three kinds of pornography: (Butler)
 1. Explicit Sex + Violence: almost always caught by CC
 2. Explicit Sex + Dehumanization/Degradation: use three-step test for obscenity:
 i. Community standards: does it go beyond what national community will tolerate? (NOT based
on what individual considers ‘tasteful’.)
 ii. Dehumanizing/Degrading: does it socialize/normalize values that are contrary to community
values, such as mistreatment/humiliation of women? If yes, exploitation of sex is ‘undue’ and
caught by CC.
 iii. Artistic defence: exploitation not ‘undue’ if required for serious treatment of artistic theme.
 3. Explicit Sex w/o Violence or Dehumanization/Degradation: not caught by CC
o R. v. Butler: sex shop raided. Court upholds s. 163 under s. 1, but sends case back for retrial based on new criteria
they articulated.
 Political Expression:
o Harper: challenge to third-party election spending caps. Majority: allowing unlimited third-party spending would
corrupt political process by allowing $$ to control national debate, which would in turn undermine public
confidence in the system. It’s ok to restrict freedom in order to protect democracy. McL Dissent: ‘freedom to speak’
includes ‘freedom to hear’, so by limiting information, spending caps violate everyone’s free speech rights, not just
candidates’. No evidence that the consequences majority fears would ensue, and w/o evidence it’s impossible for
parliament to craft minimally impairing leg.
 Religion (s. 2(a)):
o Freedom of religion interpreted generously, in light of charter value to preserve multicultural heritage, to protect
belief, practice and freedom from coercion. (Big M) Protected values are personal choice, autonomy, equality and
not being coerced. (Amselem)
o Religion defined as “a comprehensive system of belief involving a belief in a divine superpower.” Viewed from
personal/subj perspective; needs to be sincere, but doesn’t have to accord w/ mainstream religious views. (Amselem)
o Big M Drug Mart: Lord’s Day Act struck down as blatantly coercive; rejects ‘shifting purposes’ argument.
o Edwards Books: Provincial ‘day of rest’ legislation upheld under s. 1.
o Amselem: Jewish family wants to build succot; conflicts with building bylaws. Infringes FoR, s. 1 fails
proportionality b/c violation serious, accommodation trivial.
S. 7: Life, Liberty and Security of the Person
 “Everyone has the right to life, liberty and security of the person, and the right not to be deprived thereof except in
accordance with principles of fundamental justice.”
 Step 1: Is there a violation?
o Usually invoked wrt criminal law, but can move beyond it in where a state action directly engages the justice system
and its administration. (Blenco)
o Not positive rights; you only have right ‘not to be deprived thereof’. (Gosselin)
o Court can review gov’t policy decisions if they violate charter. (Chaoulli)
o ‘Liberty’: fundamental importantce of being free from state interference. (Blenco) Must invoke justice system (i.e.
the state/coercive power); other forms of ‘liberty’ are not applicable here. (B.R. v. Children’s Aid.)
o ‘Security’: has both physical and psychological aspects. Psych is only engaged where interference is a. state
imposed, and b. there is a serious qualitative divergence from the normal securities we would expect when dealing
with the state. (Blenco) The psych stress caused must also go beyond the ‘stresses and challenges of ordinary life’.
(New Brunswick (Minister of Health and Community Services) v. G.(J.))
o ‘Everyone’ covers non-citizens as well. (Suresh)
o ‘Dignity’ may inform analysis of other rights, but is not a free-standing right in and of itself. (Blenco)
 Step 2: Is the violation in accordance with PoFJs?
o Look at consensus, common law, legislative history, history itself, and the rationales behind the case-law principles.
(Rodriguez)
o Can bring in charter, criminal code and international law as evidence. (Suresh)
o ‘Balance in context’ the various concerns and look at ‘proportionality’ of consequences (Suresh)
o Requires ‘fair procedure’ (New Brunswick (Minister of Health and Community Services) v. G.(J.))
o Not a PoFJ that laws affecting children be in their best interests. (Canadian Foundation for Children v. Canada)
 Step 3: S. 1 analysis.
 Cases:
o Re: Motor Vehicles Act: CC absolute liability for driving w/o license. Stands for principle that court can use s. 7 for
substantive as well as procedural review.
o R v. Morgenthaler: CC abortion ban violates security b/c of autonomy violation and phys/psych stress.
o Rodriguez: Assisted suicide ban violates security, but saved by PoFJs ‘respect for life’ and ‘protecting the
vulnerable’.
 o Lockner: Court tries to regulate work hours. Court says you can’t interfere with freedom of contract. Reinforces
principle that s. 7 can be used for both substantive and procedural review.
o Suresh: Court nixes deportation to torture; against PoFJs, and ‘everyone’ includes non-citizens.
o B.R. v. Children’s Aid Society: JW parents refuse treatment for kid; taking kid away not infringing liberty, b/c
‘liberty’ interest tied to notion of state power.
o New Brunswick (Minister of Health and Community Services) v. G.(J.):mom can’t get legal aid for custody hearing.
Court says psych harm can violate s. 7 where beyond the ‘stresses and challenges of ordinary life’, taking kid away
fits, not providing council inconsistent w/ PoFJs, not saved by s.1.
o Blenco: BC minister accused of sex assault; long delay, gets depressed. No violation b/c circs caused depression,
not state, and no qualitative divergence b/c state was not interfering w/ freedom to make essential life choices.
o Gosselin: Qc welfare scheme mandates training programs for youth; not a violation b/c s.7 rights are not positive
rights.
o Canadian Foundation for Children v. Canada: CC spanking provisions allowing ‘reasonable force’ do not violate
child’s s. 7 rights.
o Chaoulli v. Quebec: Denying private health-care to those who can afford it violates s. 7.
S. 15: Equality
 S. 15(1) three-step test for violation: (Law)
o 1. A formal distinction/differential treatment
 In purpose or effect (Eldridge)
 Comparator group:
 Appropriate group is the one that is identical in all respects except for the ground on which the
claim is based. (Look at leg purpose/effects to determine this.) (Hodge)
 Subjective/objective: Start with claimant’s subj view, but court can ask “what would a reasonable
person in this position feel was the appropriate comparator group? (Hodge)
 Contextual assessment; under-inclusiveness will affect different groups differently. (Vriend)
 Distinction must be based on a benefit provided by law. Core services are legally required, but non-core
services are discretionary. (Auton)
o 2. Based on enumerated or analogous grounds
 Must be ‘immutable’ characteristics (Corbiere)
o 3. That is discriminatory in substantive sense.
 Four (non-exhaustive) factors to look at: (Law)
 a. Pre-existing disadvantage (though it is not necessary to establish membership in a recognized
group) (Emphasis more on leg purpose than effects – Lovelace)
 b. Situation of correspondence: how does the leg take account of claimant’s actual
circs/characteristics? (Courts can take note of discrimination ‘in effect’, even if leg is facially
neutral – e.g. Eldridge)
 c. Ameliorative purpose: could save otherwise discriminatory law.
 d. Nature of the interest affected (i.e. ‘what are the consequences of the leg’)
 Can look for evidence wrt the above in social science data, judicial notice, etc.
 Subjective/objective test. Start from claimant’s perspective, and ask how a reasonable person of possessed
of similar attributes under similar circs would view claim.
 Interpreted in light of charter purpose of preserving human dignity; can include psych self-worth,
phys/psych security, how a person feels when confronted with the law, etc.
 Kapp de-emphasizes dignity; emphasis now on perpetuation of disadvantage/sterotype.
 Cases:
o Andrews: British subject can’t practice law in BC, due to citizenship requirement. Court says citizenship is
analogous ground; distinction is discriminatory b/c not reasonably limited. Formulates three-step test later refined in
Law.
o Law: Widow couldn’t claim husband’s pension until age 65; claims age discrimination. Court says no, youth not
pre-existing disadvantaged group, law does not suggest young are less worthy/deserving of respect, ameliorative
purpose = yes, nature of interest = loss of income, but she’ll get it later in life.
o Eldridge: Medical services didn’t provide translators for deaf people. Court says this is discrimination in effect,
even though law is facially neutral.
o Vriend: Alta bible college teacher fired for being gay. Sought relief from Alta Human Rights Commission, but they
said no b/c sexual orientation not an enumerated ground in provincial leg. SCC says violation; true that leg doesn’t
protect heterosexuality either, but that’s not a historically disadvantaged group.
o Auton: Parents of autistic children bring suit b/c gov’t not funding treatment which literature suggests could be very
helpful. Court says not a ‘legal’ distinction, b/c no legal obligation to provide non-core services (e.g. those provided
by non-medical professionals, like chiropractic). Also, not discrimination in effect b/c purpose of leg is not to meet
all medical needs.
 o Corbiere: Natives living off-reserve couldn’t vote in band elections. Court: ‘Indian status’ is analogous, immutable
characteristic; treating them different just for being off-reserve suggests less worthy.
o Hodge: Common-law relationship breaks up, then guy dies, woman denied CPP benefits; challenges legislative
definition of ‘spouse’. She chose comparator group of married couples living apart, but court says more appropriate
group is divorced couples, who can’t claim survivor benefits either.
o M. v. H.: same-sex couple breaks up; weaker financial position applies for spousal financial support, denied,
challenges ‘spouse’ definition. Court: discriminatory. a. same-sex = historically disadvantaged; b. correspondence:
fails to consider permanent/conjugal nature of some same-sex relationships; c. ameliorative: yes, but just b/c has
historically helped women, doesn’t mean it should be interpreted so as not to help others; d. interest = financial
need, fundamental, grave consequences.
o Gosselin: Qc social assistance scheme mandated work training for younger applicants. Challenge on age-based
discrimination. Court: discrim = no; age not historically disadvantaged, age-based distinctions are inevitable and
necessary; ameliorative = neutral here; lack of solid evidence of discrimination.
 S. 15(2): s. 15 does not preclude any law, program or activity that has as its objective the amelioration of disadvantaged
groups. (E.g. ‘affirmative action’ programs.)
 Seen as an ‘interpretive aid’ to 15(1) (Lovelace). An ‘enabling provision’ for gov’t while 15(1) is a ‘preventative provision’.
(KAPP)
 If gov’t can establish an ameliorative purpose, the claim fails. Three-step test: (KAPP)
o 1. Targeted provision must have as its objective the amelioration of disadvantage. (Purposive – what did gov’t
intend?)
o 2. Amelioration – law benefits a group (not restrict/punish another group)
o 3. Group being targeted by the program must be disadvantaged.
 Ok to deny benefits to advantaged group so that they flow to disadvantaged group; not ok to provide benefits to advantaged
group if it takes away from disadvantaged group. But court won’t apply this to two disadvantaged groups b/c of ‘race to the
bottom’ concerns. (Lovelace)
 Cases:
o Lovelace: Metis/non-status Indians try to claim share of profits from ‘first nations fund’ from casino op. Court says
there is distinction on enumerated ground, but not discriminatory. Metis/NSI are disadvantaged, even relative to
status Indians, but fund’s purpose was to address economic disadvantage on reserves and was part of larger project
to reconcile bands w/ gov’t. Giving them this benefit doesn’t deny Metis the benefit; they are on ‘different path’ to
recognition.
o KAPP: non-aboriginals caught fishing during period reserved for aboriginal fishers; challenged leg. Court says no;
1. Ameliorates disadvantage of abs, 2. Intent is not to punish non-abs; 3. Abs are disadvantaged.
Remedies
 S. 24(1): courts may grant ‘appropriate and just’ remedies for charter breaches.
o S. 24(2) specifically provides for ‘exclusion of evidence’ remedy.
o Usually used for violations due to gov’t actions, rather than challenges to legislation.
 S. 52: laws inconsistent w/ constitution are of no force/effect to the extent of the inconsistency.
o Used to strike down laws or ‘prune’ inconsistent portions.
o Types of s. 52 remedies:
 1. Strike down legislation: a. immediately, or b. w/ temp suspension of invalidity
 2. Reading in: extend legislation to cover excluded group.
 Most useful in underinclusiveness situations.
 Purposes: respects leg. role (by not simply striking down their laws) and purpose of charter (by not
striking down/severing socially beneficial legislation.)
 3. Reading down/Severance: strike down only the offensive portion.
o Four factors in deciding type to use: (Shachter)
 1. Extent of inconsistency: if gov’t purpose not pressing/substantial, probably best to just strike down the
legislation. (Possibly w/ temp suspension of invalidity, if leg is important.)
 2. Size of excluded group: be cautious of reading in groups larger than the groups initially benefitted. Also
be sensitive to budgetary concerns.
 3. Significance of the remaining portion: be cautious of severing if what remains isn’t something the
legislature would have passed anyway. Also consider how long-standing and of what widespread
importance the law is.
 4. Suspension of invalidity: can use if immediate striking down would ‘pose danger to public’ or ‘threaten
rule of law’. However, this allows an undesirable state of affairs to continue, so reading in/down may be
preferable if available.
 Shachter: father denied paternity benefits; challenged as birth mothers + adoptive parents can get them. Court agrees this is
unconstitutional, but no need to act as gov’t has already corrected leg.
Cases in Detail
Charter Rights
S. 2: Freedom of Expression
 Keegstra: Alta teacher promotes anti-semitism, & bases grades on reproducing his views on tests. Court says a. it is
expression, b. CC purpose is directly to restrict speech, but c. saved under s. 1. (P&S: yes: preventing harm to victims of HS,
protecting society from bad ideas, int’l obligations. Prop: yes: i. rational connection - won’t validate hate speech b/c
emphasizes Cdn disapproval; won’t engender sympathy for accused b/c this hasn’t happened with libel; Nazi Germany shows
HS laws not enough, but isn’t argument against them; ii. minimal impairment – saved by internal safeguards; iii. alternatives:
maybe, but value of stopping HS outweighs value of HS. McL dissent: doesn’t uphold under s. 1; raises the three ‘rational
connection’ objections majority dismissed.
 R. v. Butler: sex shop raided. Court upholds s. 163 under s. 1, but sends case back for retrial based on new criteria they
articulated. (Rat. Conn.: ok to assume in absence of social sci evidence that dehumanizing/degrading materials affect social
values in a way leading to harm. Min imp: internal safeguards like ‘artistic defence’. Balance: salutary outweighs minimal
importance of speech form, esp. b/c of economic motive; ‘abstract’ definition necessary b/c social values change over time.
 Edward Books: Provincial ‘day of rest’ leg violates FoR b/c of disproportionate burden on non-Sunday observers, but upheld
under s. 1: pres/subst obj to provide family time; proportional b/c pressures of retail industry necessitate protection (or else
employees could be coerced, or forced to reveal religion to request day off), and b/c of internal safeguards re: small business
that close on Sat.
S. 7: Life, Liberty and Security of the Person
 Re: Motor Vehicles Act: Challenge to CC provisions creating absolute liability if caught driving w/o license. Court says it
can use s. 7 for procedural as well as substantive review, because ‘future growth will be based on historical roots’ (i.e. natural
justice); also, ss. 8-14 should be viewed as part of s. 7 and as examples of the kinds of things s. 7 is meant to protect.
 R. v. Morgenthaler: CC banned abortions unless you met criteria, which required three docs in accredited hospital to sign off
that mom’s life was endangered, plus a fourth to perform it. Violation: yes, security; forcing woman to carry fetus violates
autonomy and causes psychological stress. Dickson majority: PoFJs: No, arbitrary criteria (no guidelines for granting/not
granting), & not all hospitals will have four qualified docs. S1: no, parliament did not discuss its objective, so fails ‘rational
connection’ and ‘minimal impairment’. Beetz minority: Violation: yes, security; pregnant woman not secure if crim law
prevents her from getting medical treatment, risk of necessitating more dangerous procedure later on, psychological trauma
through stress of delay. Wilson minority: Violation: yes, liberty; right to make fundamental personal decisions w/o state
interference; also security, due to physical/psych effects of not having control of one’s body. McIntyre dissent: No violation:
i. Leg knew about abortion pre-1982, could have included in charter but didn’t; ii. interference with phys/psych security are
part of criminal law, so why treat this different?; iii. social consensus on protecting unborn but not on abortion access, so
shouldn’t interfere unless we know that’s changed.
 Rodriguez: Wanted assisted suicide, b/c by time she needed it, would no longer be capable of killing herself. Majority:
violation: yes, security; code is imposing phys/psych stress. PoFJs: yes, ‘great respect for life’ is PoFJ, and allowing assisted
suicide would violate it; ‘protecting the vulnerable’ is also PoFJ, and is the purpose underlying the CC provisions in question.
McLachlin dissent: Violation: yes, same. PoFJs: no, broader social policy should be discussed under s. 1. S1: no, too
arbitrary.
 Lockner: Leg tries to regulate work hours; court says you can’t interfere with freedom of contract.
 Suresh: P is going to be deported to Sri Lanka, where he expects to be tortured. Immigration Act allows this; court says act is
consistent with s. 7, but minister’s exercise of discretion was not – it wasn’t in accord with PoFJs. Looks at Canadian
consensus (torture a ‘shock to conscience’, banned by s. 12 under ‘cruel and unusual punishment’ and CC s. 261, also no
capital punishment in Canada), and international law (not binding, but can be considered as evidence). Court also says
charter applies to Mr. Suresh, even if not a citizen. Court says minister could deport to torture, but would have to do so in
accord w/ PoFJs; must at minimum provide accused with all info they have, provide notice of hearing, and give opportunity
for response and submissions.
 B.R. v. Children’s Aid Society: JW parents wouldn’t consent to life-saving medical treatment for daughter. CAS gets court
order, apprehends daughter. Court says it’s not an infringement of liberty right, as parents don’t have liberty to make such
decisions when child’s life is in danger; or in alternative, that it is justified under PoFJs. Lamer: ‘liberty’ must be the kind of
liberty courts can give or take away, i.e. that relating to the state and coercive laws, which thus has a ‘physical’ element.
LaForest: ‘liberty’ is more than just physical, includes psychological. Children have liberty interest, but only in exceptional
cases; parents can make decisions against child’s wishes so long as they are broadly consistent with public policy.
Iaccobucci: Child’s right to life cannot be subsumed by parent’s liberty to make decisions.
 New Brunswick (Minister of Health and Community Services) v. G. (J.): court grants six-month extension of custody
application. Mother requests full hearing but finds out legal aid not available for custody applications. Issue one: is taking
kids a violation of security? Yes, because of gross intrusion of privacy and the social stigma associated with fitness as parent.
(Other state actions, like arresting child or drafting them for war, don’t affect identity as parent and so wouldn’t be
infringement.) Issue two: is removing kids w/o legal representation a violation of PoFJs? No; PoFJs require fair procedure,
including a chance for parent to present case effectively. Not saved by s. 1: harmful effects far outweigh budget savings of
not providing counsel.
 Blenco: Minister of BC gov’t accused of sex assault by assistant. Commission investigates for three years; D becomes
depressed, asks for injunction based on unreasonable delay; argues, among other things, security and liberty violations. Court
says no to both. Security: D’s depression caused by circs, not the state; state probably didn’t exacerbate the stress, but even if
it did, he would have been under the same stigma anyway. Also no ‘qualitative divergence’: underlying right to dignity is not
engaged, because it is not a free-standing right, but rather something that informs analysis. State has not interfered with D’s
freedom to make essential life choices. (This de-emphasizes dignity relative to prior jurisprudence.)
 Gosselin: Qc social assistance scheme required young people to participate in training programs to get same level of
assistance as older people. Majority: no violation. S. 7 does not normally create positive rights – it might conceivably do so,
but it’s not necessary to deal with that on facts of this case. Dissent: you have the positive right AND the right not to be
deprived thereof. Rationales: other positive rights in charter; language of s. 1 suggests positive obligations on gov’t; nothing
in charter to suggest excluding positive rights. Arbour lays out test which she says is met here: 1. Is claim grounded in
charter right? 2. Is there substantial evidence of state action causing a deprivation of that right? 3. Can the state be
accountable for these actions (in ‘broad’ rather than direct causal sense – seems to be getting at underinclusiveness)?
 Canadian Foundation for Children v. Canada: CC s. 43 allows parents to spank with ‘reasonable force’; does this violate
child’s s. 7 interests? Majority: no: i. adequate procedural safeguards; ii. not a PoFJ that laws affecting children must be in
their best interests; iii. case law clarifies that statute applies specifically to ‘corrective purposes’, so is not overbroad.
Dissent: ‘reasonable force’ is too vague.
 Chaoulli v. Quebec: P wants to seek private medical care; says laws preventing this violate his s. 7 rights. Majority find
violations not in accord with PoFJs. McLachlin: violates Canadian charter; court can review policy decisions that violate
charter. Deschamps: violates Qc Charter of Human Rights. Canadian Health Act allows provinces considerable leeway in
executing their obligations, so it’s okay for courts to review how they exercise that discretion. Accuses dissent of being too
emotional; s. 7 needs generous interpretation. Here, prejudice of the s. 7 rights can lead to death, and it’s not realistic to
expect people to go out of province, so there is infringement; not saved by s. 1 b/c not minimally impairing (other
provinces/countries have successfully implemented less impairing regimes). Binnie + LeBel in dissent: the evidence is not as
clear as the others suggest; policy decision to have a one-tier health system should not be justicialbe.