Constitutional Law CASE LIST

BASIC CONCEPTS

SOURCES AND NATURE OF THE CONSTITUTION

1. Reference re Secession of Quebec, 1998.
Q of international law applicability to Qu. Under right to “self determination”. Subject to
“alien subjugation, domination, or exploitation” & possibly where people denied any
meaningful right to self determination within the state. (part of colonial empire, no). The
court stated in its opinion that under international law, the right to secede was meant for
peoples under a colonial rule or foreign occupation. Otherwise, so long as a people has the
meaningful exercise of its right to self-determination within an existing nation state, there is
no right to secede unilaterally. (perhaps use this as basis for Aboriginal calls for self-
determination?)
 There is no right of unilateral secession. There is a right to secede provided that
the province has a referendum with a clear question and a clear answer. Once it
has that, it has a duty to negotiate with the other provinces the terms of separation
within the terms of a constitutional amendment (and there is an amending formula
in 1982 Act that would have to be followed).
Four fundamental tenets of the Canadian constitution. Those 4 interrelated and equally
important principles or values are:

1. Federalism – the principle that seeks to “reconcile diversity with unity” by giving
federal authority over only those issues of common interest amongst culturally
diverse and politically independent provinces. The purpose of Canada’s federalism
is not only to create a loose association amongst provinces, but a true national unity.
2. Democracy – the principle that seeks to promote participation in effective
representative self-government, which respects and responds to all voices in a
marketplace of ideas.
3. Constitutionalism and the Rule of Law – the principles that protect citizens from state
actions by forcing governments to act under the rule of law, the constitution of
Canada being the supreme law. The constitution’s entrenched protections of
minorities ensures that the country does not operate simply on majority rule, and
enables a true democracy in which minority voices are fairly considered.
4. Protection of Minorities – the principle that guides the other principles, but one which
is also independent and fundamental because of its uniqueness to Canada relative
to other federal, constitutional democracies.

They held that these pieces cannot be viewed independently but all interact as part of the
Constitutional framework of Canada.
AMENDING PROCEDURES
 Constitution Act 1982 Part V ss38-49
Reference re Secession of Quebec, 1998. The Quebec government of Lucien
Bouchard stated that it was very pleased with the opinion of the Supreme Court. Premier
Bouchard stated publicly that the court had validated the referendum strategy that the
sovereignists had adopted with René Lévesque. Quebec was most satisfied when the court
made it clear that the question of Quebec's political status was above all a political question,
and not a legal one. It also liked the fact that the Supreme Court made it clear that the
government of Canada and that of the other provinces would have to negotiate after a

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winning referendum on secession. This would make a unilateral declaration of independence
unnecessary.
The Canadian government of Jean Chrétien stated that it was pleased with the court's
opinion. The Supreme Court had made it clear that Quebec could not declare independence
unilaterally. Any obligation of Canada to negotiate with Quebec was conditional on the
sovereignists' asking a clear question within the context of a referendum.
FEDERALISM
 Constitution Act 1867 ss91-95

JUDICIAL REVIEW AND PRINCIPLES OF INTERPRETATION

 Constitution Act 1982, s.52
2. R. V Morgentaler, 1993. “matter” is true character, or PITH AND SUBSTANCE
Ct looks beyond the four corners of the Legislation, asks about background, context, and
purpose. Ct can look at extrinsic Evidence, relevant and not inherently unreliable, incl.
related legislation and “mischief” at which Leg is directed. Colourability: The
colourability doctrine is invoked when a statute bears the formal trappings of a matter
within jurisdiction, but in reality is addressed to a matter outside jurisdiction. Applies the
maxim that a legislative body cannot do indirectly what it cannot do directly.

The first step in judicial review is to identify the “matter” of the challenged law in order
to determine whether the law is constitutional or not. Courts have to make a judgment as
to which is the most important feature of the law and to characterize the law by that
feature: that dominant feature is the “pith and substance” of the law; the other feature is
merely incidental, irrelevant for constitutional purposes.
Two Step Process
Step 1: Characterization of the Matter [Morgentaler]
i. What is the matter of the law?
ii. What are the legal and practical effects of the law?
iii. What head of power(s) does the provision fall under?

Step 2: Scope of a Head of Power [Employment Insurance Reference]

i. What is the scope of the head of power?
ii. Does the provision fall within the scope of the head of power?

Purpose
Within the “4 corners” of the statute: (Internal)
 Text of the statute and Looking at legislation as a whole

External to the “4 corners”: (External)

 legislative history, Hansard, gov’t reports, motivating events

Effect
Within the “4 corners”:
 Legal effect– how does the legislation impact the rights and liabilities of those it
regulates
 Specific effect of provision

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External to the “4 corners”: Practical effect– actual or predicted impact of the legislation
in operation

ANCILLARY DOCTRINE

P&S Doctrine enables a law that is classified in relation to a matter within the
competence of the enacting body to have incidental or ancillary effects on matters outside
the competence of the enacting body. That is, when it is not the dominant characteristic.
The Ancillary Doctrine applies when the particular provision, in isolation, appears to be
outside its jurisdiction (fails general P&S test). Here, you must look at how well it fits
with the larger scheme. If the larger scheme is valid, then the provision may be valid if
necessarily incidental to the larger scheme.
Necessity Test [GM Motors]:
i. What is the infringement of the impugned provision, and to what extent?
ii. Determine whether the Act is valid. (P&S)
iii. If Act is valid, then is the provision sufficiently integrated?
 Incidental effects are permissible [GM Motors, Canadian Western
Bank]
 If the infringement level is high, we’ll need to see strict necessity; if
infringement level is low, functional necessity is enough [GM Motors]
 Remedial provisions are deemed less serious [GM Motors]

GENERAL MOTORS OF CANADA V. CITY NATIONAL LEASING (1989) SCC

o GM argued that anti-completive behaviour prohibited in the Federal Combines
Investigation Act was ultra vires, as it creates a civil action
o It encroaches on s.92(13) which is a provincial head of power
o The court must measure the degree of encroachment of a legislative scheme on
the other government’s sphere of power, and then the court must determine how
necessary the impugned provision is to the otherwise valid legislative scheme
o For minor encroachments, the functional necessity is appropriate
o For major encroachments, a stricter test (the truly necessary or essential) is
appropriate
o It is a remedial provision, helps support substantive parts of the act
o It has a limited scope of action, carefully limited by the provisions of the Act
o There is precedence for sustaining federally created civil actions
o So, a strict test is not appropriate, we only need functional necessity
o Court found that it was functionally necessary and that the provision was valid

DOUBLE ASPECT DOCTRINE

 Recognizes that there are a large amount of laws that overlap, despite the fact that
s.91 and s. 92 are supposed to be exclusive
 The double aspect doctrine is applicable when the contrast between the relative
importance of the two features is not so sharp. [Multiple Access]

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  It is an example of judicial restraint
 If legislation at both levels is valid and is of equal importance, then the court may
find them both applicable. [Multiple Access]
 Overlap is permissible so long as there is no conflict. [Multiple Access]
 If there is no conflict then the effects are cumulative and the laws can coexist
 If there is conflict, we would go to the Paramountcy Doctrine

Double Aspect Test: [Multiple Access]

i. Determine validity of each legislation w/o heed to the other.
ii. If both valid, compare importance.
iii. If equal strength, and no conflict, then Double Aspect Doctrine applies.

Examples: Securities Regulations (Smith v the Queen). Some kinds of laws have BOTH a
fed and Prov “matter” and are therefore competent to both the Dominion and the
provinces. Insolvency, Interest Rates, temperance, gaming, entertainment in taverns
(Hogg 15-12)

o CANADIAN WESTERN BANK V ALBERTA, 2007. Issue: whether Alberta’s

Insurance Act could constitutionally apply to the banks

The (Alberta) Insurance Act and its associated regulations apply to the banks' promotion
of insurance. The fact that Parliament allows a bank to enter into a provincially regulated
line of business such as insurance cannot, by federal statute, unilaterally broaden the
scope of an exclusive federal legislative power granted by the Constitution Act, 1867.
Held: The Insurance Act is a valid exercise of provincial powers under §92(13),
interjurisdictional immunity also fails because insurance is not "at the core
competency" of banking, and federal paramountcy does not apply because there is no
operational conflict between fed and prov law. all constitutional legal challenges to
legislation should follow the same approach:

the pith and substance of the provincial law and the federal law should be examined to
ensure that they are both validly enacted laws and to determine the nature of the overlap, if
any, between them.

Applicability of the provincial law to the federal undertaking or matter in question must be
resolved with reference to the doctrine of interjurisdictional immunity. While in theory, a
consideration of interjurisdictional immunity is apt for consideration after the pith and
substance analysis, in practice, the absence of prior case law favouring its application to the
subject matter at hand will generally justify a court proceeding directly to the consideration of
federal paramountcy

only if both the provincial law and the federal law have been found to be valid pieces of
legislation, and only if the provincial law is found to be applicable to the federal matter in
question, then both statutes must be compared to determine whether the overlap between
them constitutes a conflict sufficient to trigger the application of the doctrine of federal
paramountcy. Dominant Purpose v Merely Incidental.

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 o Court held that the vital part of an undertaking should be limited to functions that
were essential or indispensable or necessary to the federal character of the
undertaking; and that the promotion of insurance by banks was too far removed
from the core of banking to qualify as a vital part of the banking undertaking

INTERJURISDICTIONAL IMMUNITY ( MORE PARAMOUNTCY)

QUEBEC V CANADIAN OWNERS AND PILOTS ASSN. (COPA), 2010. Aviation= Fed.
The interjurisdictional immunity analysis presumes the validity of a law and focuses
exclusively on the law’s effects on the core of a federal power.
The first step is to determine whether the provincial law ... trenches on the protected
“core” of a federal competence.
If it does, the second step is to determine whether the provincial law’s effect on the
exercise of the protected federal power is sufficiently serious to invoke the doctrine of
interjurisdictional immunity. Legislation found to be inapplicable via IJI (Deschamps &
LeBel – paramountcy not applied). Cited in Canada v PHS
DISTRIBUTION OF POWERS

PARAMOUNTCY
3. ROTHMANS, BENSON & HEDGES V SASKATCHEWAN, 2005.
Paramountcy may flow either from the impossibility of complying with both federal and
provincial laws or from the frustration of a federal purpose. Advertising of tobacco
products restricted under Fed law. Federal tobacco legislation allowing retailers to
display tobacco and tobacco-related products, and signs indicating availability and price
of tobacco products — Provincial tobacco control legislation banning all advertising,
display and promotion of tobacco or tobacco- related products in any premises in which
persons under 18 years of age are permitted — Whether provincial legislation
inoperative pursuant to doctrine of federal legislative paramountcy — First, a retailer can
easily comply with both provisions in one of two ways: by admitting no one under
18 years of age on to the premises, or by not displaying tobacco or tobacco-related
products. The provincial legislation simply prohibits what Parliament has opted not to
prohibit in its own legislation and regulations. Second, s. 6 does not frustrate the
legislative purpose underlying. Both the general purpose of the Tobacco Act (to address a
national public health problem) and the specific purpose of s. 30 (to circumscribe
the Tobacco Act ’s general prohibition on promotion of tobacco products set out in s. 19 )
remain fulfilled.

Federal paramountcy: where there are inconsistent (or conflicting) federal and
provincial laws, it is the federal law which prevails. It creates legal certainty.
FP applies where there is a federal law and a provincial law which are each valid and
inconsistent. When this occurs the provincial law is inoperative to the extent of the
inconsistencies.

Inconsistency:

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  A wide definition of inconsistency will result in the defeat of provincial laws in
‘fields’ which are covered by the federal law (judicial activism)
 A narrow definition will allow provincial laws to survive so long as they do not
expressly contradict federal law (judicial restraint)

Test for determining if paramountcy: [Rothman’s]

i. Can a person comply with both pieces of legislation simultaneously? [Ross]
 Is it possible for one to say yes while the other says no? [Multiple Access]
 SCC indicates that “covering the field” is no longer the preferred approach
[Ross]
 Dual-compliance not possible if the Fed. provision gives an
entitlement/right and Prov. provision inhibits/restricts that
entitlement/right. [Hall]
 Further restriction of a restriction/prohibition will be allowed. [Ross]
[Rothman’s]
 “Express contradictions” are forbidden [M&D Farm Ltd. v. Manitoba
Agricultural Credit]

ii. Does the Provincial Act frustrate the purpose of the Federal Act?[Hall]
a. Provincial Acts won’t be struck for mere overlap (double-aspect allowed);
significant overlap required. [Multiple Access] [Canadian Western Bank]
b. Repugnancy of the Provincial Act will attract paramountcy. [Hall]

Potential Remedies:
1) Provincial may be read down insofar as it encroaches on the Federal legislation or
entity.
2) A temporal remedy may be instituted whereby if the Federal legislation is repealed, the
Provincial legislation comes back into force.

PROPERTY AND CIVIL RIGHTS

 Constitution Act 1867, s 92(13)

CITIZENS INSURANCE COMPANY V PARSONS, 1881. Insurance = contractual dispute

falling under s. 92(13) P&CR. Dissent said it should be under Trade and Commerce.
PROV JXN
1) Limitation on s. 91(2): s. 91(2), dealing with trade and commerce is limited to the
following areas: 1) International Trade; 2) Interprovincial Trade; 3) Regulation of Trade
affecting whole Dominion. Section 91(2) should not be read to include the power to
regulate by legislation the contracts of a particular business or trade, such as the business
of fire insurance in a single province.
2) Provinces Can Regulate Contracts: Provincial legislatures have the jurisdiction to
regulate contracts of a particular business or trade as long as it is within the province.
CHATTERJEE V ONTARIO, 2009. Prov forfeiture law not inoperative under
interjurisdictional immunity (which was done away with by Canadian Western Bank).
CRA “in relation to” property and civil rights, and only “incidentally affects” crim law.

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No frustration of Fed purpose (for paramountcy). No operational conflict. Here, dual
compliance (as long as not charged in Criminal Code forfeiture as well).  Double
Aspect doctrine.

REFERENCE RE SECURITIES ACT, 2011. SA chiefly concerned with regulating all

aspects of contracts for securities, public protection and professional competencies (Prov
P&CR). While preservation of capital markets to fuel Canada’s economy, “goes beyond a
specific industry and engages trade as a whole” this legislation ultra vires PARL.

TRADE AND COMMERCE

 Constitution Act 1867, s 91(2)

GENERAL MOTORS OF CANADA V CITY NATIONAL LEASING, 1989. Valid FED LEG
under T&C.
1) part of general regulatory scheme;
2) scheme cont. oversight of regulatory agency;
3) LEG has to be concerned with trade as a whole not just a part. Industry;
4) LEG such that provinces could not enact it;
5) failure to incl 1 or more provinces would jeopardize successful operation in rest of
country. Analysis Const. of T&C:
1) leg intrudes on PROV power and if so to what extent?
2) whether Act is valid, and if so, if it is
3) sufficiently integrated with the scheme. Consider seriousness of encroachment on
PROV powers. Regulation of Competition (anti price-fixing/anticompetitive action leg).

REFERENCE RE SECURITIES ACT, 2011.

“Does not address a matter of genuine national importance and scope going to trade as a
whole in a way that is distinct and different from provincial concerns.” Gen regulation of
trade under s91(2) is only to things of crucial importance to national economy
(Competition Law/Trade Marks/Mgmt of systemic risk and data collection). TEST- GM
test.

PEACE, ORDER AND GOOD GOVERNMENT (POGG)

 Constitution Act 1867, s. 91 *(opening words)
REFERENCE RE ANTI-INFLATION ACT. 1976,
Q Const. of Act. Saved under Emergency Power of POGG. Inflation not a national
concern. National concern/emergency. Must be of temporary character. Here, Crown
contracted with all but 2 PROV, but not binding as PROV executive had no authority to
impose by mere agreement legal obligations upon the province (needs LEGs).
Emergency (Temporary)

As we can see, POGG can have a general application, but it also has been found to apply
to specific things already.
Three Branches of POGG, up to Reference re Anti-Inflation
1. Gap
 Where subject not mentioned in s.91 or s.92

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  Any matter not within a prov. head of power must be within the power of
the fed. gov’t
 Limited application, i.e. Ref. re Radio – treaty implementation

2. Emergency
 In Board of Commerce (1922), PC ignores national concern approach and
appears to only accept Emergency Branch
 Temporary Jurisdiction
 Can be general sweeping power
 Test for Emergency Power in Ref. re Anti-Inflation

3. National Concern
 Seen in early cases, i.e. Russell (1882), Ref re Local Prohibition (1896)
 Then we see a move to Emergency Branch
 Canada Temperance Federation (1946) resurrects this branch
 Also seen in Aeronautics (1952)
 Permanent Jurisdiction
 A power over a specific area
 Test for National Concern in Crown Zellerbach

Two Ways of Looking at POGG, after Ref. re Anti-Inflation

1. Laskin: Centralized Gov’t
 General power  the other heads of power are illustrative
 Broad reading, gives more power to fed. gov’t
 Courts should recognize evolutionary potential of heads of powers
2. Beetz: Classical Federalism (Conceptual)
 Residual Power  look first to see if under s.91 or s.92
 Narrow reading, protects provincial autonomy
 More accepted theory
Focus is on conceptual analysis rather than functional approach

R V CROWN ZELLERBACH CANADA 1988 –

finding that all matters related to polluting the ocean are within the exclusive jurisdiction
of the federal government owing to the national concern branch of the "peace, order, and
good government" clause in the British North America Act, 1867 (now known as the
Constitution Act, 1867). National Dimension: Aeronautics, radio, national capital
commission, atomic energy (anti inflation). National Dimension applies to new matters or
matters that existed at Confederation but which have grown to become national concern
w/o being an emergency. National Concern – Permanents Acts of Parl and acts as if in
addition to S. 91 powers. TEST: Must have all three: 1) Singleness, distinctiveness,
indivisibility; 2) clearly distinguished from matters of PRov concern; 3) scale of impact
on Prov Jxn is reconcilably with fundamental power balance of Const. Div Pwrs. ! Apply

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“provincial inability test” to determine if all three steps met, consider effect on extra-
provincial interests if a province were to fail to deal with matter appropriately.

CRIMINAL LAW
 Constitution Act 1867, s 91(27), s 92(15)
MARGARINE REFERENCE, 1949 Importation of goods intra vires (legislation in relation
to foreign trade), BUT prohibition on manufacture, offer, sale or possession for sale ultra
vires Parl. A crime is an act which the law, with appropriate penal sanctions, forbids; but
as prohibitions are not enacted in a vacuum, we can properly look for some evil or
injurious or undesirable effect upon the public against which the law is directed. That
effect may be in relation to social, economic or political interests; and the legislature has
had in mind to suppress the evil or the safeguard the interest threatened.
Two requirements must be met for a law to be criminal in nature:
 the law must be a prohibition with a penal sanction.
 the law must be directed towards a public purpose.

REFERENCE RE FIREARMS ACT (CAN), 2000 legislating FA for all owners to obtain
licenses and register guns. Intra Vires, under CrimLaw. Must have a valid public purpose
(order health moral security peace), a prohibition, backed by a penalty (more than
monetary compensation).

REFERENCE RE ASSISTED HUMAN REPRODUCTION ACT, 2010. based on Baird

Commission, Parl tried to establish national standards for assisted human reproduction. It
did not 1) suppress an evil; 2) establish a prohibition; 3) accompany it with a penalty.
NOT criminal law, but JXN of PROV under hospitals. Overflow of exercise of Fed
Crimlaw power. Pith and substance, PROF hospitals, property and civil rights and matters
of a merely local nature. Can’t find anciallary power validly exercised unless
relationship of necessity with the rest of the Statute. Ct separates sections that prohibit
negative practices (sale of foetuses), and invalids some, keeps some.

RIGHTS AND FREEDOMS

LANGUAGE RIGHTS
 Constitution Act 1867 s 133
 Manitoba Act 1870 s 23 (Hogg ch56 note 40)
 Language of Statutes. Const,. 1867 s 133 Quebec statues in Fr/Eng, and FED
Parliament. Manitoba Act 1870 s. 23 incorporated into Constitution Act 1982
through s. 52(2)(b) (acts and orders referred to in the schedule), Item 2 of
Schedule; NB, Constitution Act 1982 s. 18(2). Hence, Quebec, Manitoba and
NB all have entrench bi-lingual publications of acts/laws.

 Constitution Act 1982, ss 16-23

ABORIGINAL AND TREATY RIGHTS

 Constitution Act 1867 s 91(24)
 Constitution Act 1982 s. 25, 35
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R. V VAN DER PEET, 1996
Integral to a distinctive culture test: The test outlines ten criteria that must be met in order
for a practice to be affirmed and protected as an Aboriginal right pursuant to Section 35.
These ten criteria are as follows:
1. Courts must take into account the perspective of Aboriginal peoples themselves;
2. Courts must identify precisely the nature of the claim being made in determining
whether an Aboriginal claimant has demonstrated the existence of an Aboriginal
right;
3. In order to be integral a practice, custom or tradition must be of central
significance to the Aboriginal society in question;
4. The practices, customs and traditions which constitute Aboriginal rights are those
which have continuity with the practices, customs and traditions that existed prior
to contact;
5. Courts must approach the rules of evidence in light of the evidentiary difficulties
inherent in adjudicating Aboriginal claims;
6. Claims to Aboriginal rights must be adjudicated on a specific rather than general
basis;
7. For a practice, custom or tradition to constitute an Aboriginal right it must be of
independent significance to the Aboriginal culture in which it exists;
8. The integral to a distinctive culture test requires that a practice, custom or
tradition be distinctive; it does not require that that practice, custom or tradition
be distinct;
9. The influence of European culture will only be relevant to the inquiry if it is
demonstrated that the practice, custom or tradition is only integral because of that
influence;
10. Courts must take into account both the relationship of Aboriginal peoples to the
land and the distinctive societies and cultures of Aboriginal peoples. 1

R. V MARSHALL, 1999
Donald Marshall Jr. was convicted of offences under the federal Fisheries Act,
the Maritime Provinces Fishery Regulations, and the Fishery (General) Regulations after
catching and selling eels without a license, with a prohibited net, and during close times.
Mr. Marshall alleged that under treaties signed between the Mi'kmaq and the Crown in
1760-61, he had a treaty right to fish that exempted him from compliance with the
regulations. The Supreme Court of Nova Scotia and the Nova Scotia Court of Appeal
rejected his argument, but the Supreme Court of Canada held that Mr. Marshall should be
acquitted.
The Supreme Court analyzed the treaties of 1760-61 and held that not only did they give
the historical Mi'kmaq positive rights to bring fish and wildlife to trading truckhouses
established by the Crown, but they also created a continuing treaty right "to continue to
obtain necessaries through hunting and fishing by trading the products of [...] traditional
activities" such as hunting and fishing. The Court held that Mr. Marshall had been fishing
to "obtain necessaries," and had therefore been exercising an existing treaty right that
exempted him from compliance with the regulations.

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HAIDA NATION V BC (Min forests), 2004. DUTY TO CONSULT, even as to
unproven/potential AB right.

The Crown and the crown alone has the duty to consult when it has real/constructive
knowledge of Ab right/title. Both sides must act in good faith. No duty to agree. When
consultation suggest amending Crown policy, Crown must accommodate, including steps
to avoid irreparable harm and to ameliorate effects of infringement. PPL cannot reject
reasonable suggestions by Crown and Crown cannot ignore aboriginal requests.
Extent of duty varies with strength of claim, and duty depends on how intrusive proposed
act is.

TSILHQOT’IN NATION V BC 2014: infringements that would substantially deprive future

generations of the benefit of the land cannot be justified: Power to infringe both Fed and
Prov. Crowns.
Aboriginal Test of Title (Characteristics of Occupancy):
Sufficiency:
What to consider: group’s size, manner of life, material resources, technological abilities,
character of the lands claimed
Title can be established in a number of way: construction of dwellings, cultivation,
enclosures of fields, regular use of land
Continuity:
Question of fact: continuity between present and pre sovereignty occupation
Present occupancy must be rooted in pre-sovereignty times. Must make a link back to
pre-sovereignty times. Can’t just now go into occupation of land.
Does not require evidence of unbroken chain of continuity between claimant group
current practices, customs, and traditions and those that existed prior to contact. Don’t
have to show you were continuously in specific territory (sometimes chain was broken by
others and not claimants). But you do have to show continuity between current practices
and customs and those before European contact.
Exclusivity:
Question of fact: approached from common law and Aboriginal perspective
Claimant must show that it historically acted in a way that would communicate to third
parties that it held land for its’ own purposes
Occupation cannot be purely subjective or internal (must be some evidence)
 How to establish: Show you hand intention to exclude, others were excluded,
others were allowed access to the land but only with permission of claimant,
permission was requested and granted or refused by claimant, evidence of treaties
that were made

INTERPRETING THE CHARTER OF RIGHTS AND FREEDOMS

APPLICATION OF CHARTER RIGHTS AND FREEDOMS

 Constitution Act 1982 s 32

ELDRIDGE V BC (AG), 1997

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Hospitals deny funding for interpreters for the deaf. Hospital Insurance ActLegislative
provision extends funding to any medically required purpose. The power is delegated to hospitals
to decide what a medically required purpose is.
 Hospitals were not considered governmental in Stoffman, because the matter was about
internal hospital management
Issues:
1) Does the allegation arise from the impugned legislation itself, or from the entity exercising
decision making authority (pursuant the that legislation)

2) Does the Charter apply to the decision not to provide sign language interpreters as part of a
publicly funded scheme for the provision of medical care?
1. What is delegating? The statute or the hospital? The hospital is arguing that they are not
“government” and therefore their decisions are not subject to Charter review.
If the entity itself can be characterized as “government”: all activities are subject to the
Charter
If the entity attracts Charter scrutiny with respect to a particular activity that can be
ascribed to government: 1) investigate both the nature of the entity and the activity
2) if the activity is truly governmental: only that activity will be subject to Charter review

if the action of the entity is accused of violating the charter rather than the legislation, then it must
be established that the entity is performing a governmental function (fits within s.32)
Legislation that confers discretion should be interpreted as being in accordance with the Charter
by the courts, because legislation is certainly subject to the charter.
It will be a governmental function if there is a “direct and precisely defined connection” between
a specific governmental policy and the entity’s conduct.
Is it an expression of governmental policy? Even if the entity, in other respects, is
autonomous
BC Hospital Services Act: confers a lot of discretion, therefore the hospital’s decision needs to
be scrutinized.
 Distinguishes Stoffman: here the hospitals are providing governmental objectives by
providing medically necessary services (government decided the content and service
to be delivered)
 It provides for the delivery of a comprehensive social program, “Hospitals are merely the
vehicles the legislature has chosen to deliver its program”
 The failure to provide interpretation is intimately connected to the system instituted by
legislation: it is an expression of governmental policy.
Hogg: doesn’t like Eldridge: because he is against the functional test which was rejected by
the court in McKinney

GREATER VANCOUVER TRANSPORTATION AUTHORITY V CANADIAN FED OF

STUDENTS, 2009. Blanket ban of all political advertising in public area open for
expression was not minimal impairment of freedom of expression. Infringement failed
Oakes test. not rationally connected to the aim of providing a ‘safe, welcoming public
transport system. “prescribed by law” Ct said policies could be considered ‘law’
where they establish a general norm that has been enacted by a Govt entity pursuant
to a rule making authority.

OVERRIDE OF RIGHTS
 Constitution Act 1982, s 33

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FORD V QUEBEC 1988 :
 1.When invoking S. 33 (Notwithstanding Clause), it is not necessary to specify
which right or freedom is being infringed
 a.S. 33 can infringe on all of the allowed rights or freedoms (2, 7-15)
 2.S. 33 allows prospective (future) application only (not retroactive)
 3.It is OK to implement Omnibus legislation to implement S. 33
 4.The court cannot strike down a use of s. 33 on the basis that it is unreasonable

LIMITATION OF RIGHTS
Constitution Act 1982, s. 1. The Canadian Charter of Rights and Freedoms guarantees
the rights and freedoms set out in it subject only to such reasonable limits prescribed by
law as can be demonstrably justified in a free and democratic society.

R v Oakes 1986 TEST

Sufficiently important objective

i. Identification of objective
ii. Importance of objective. (Objective of infringing measure is what is
important – RJR McDonald)
iii. Quebec’s distinct society
iv. Inadmissible objectives. Incompatible with Ch. Values (Lord’s Day Act)
v. Shifting objectives. (Polygamy Reference) where objective of law has
shifted over time. What was articulated in 1892 not the same as today.
vi. Cost. Should Cost EVER be used to justify infringement of rights and
freedoms in a s. 1 analysis? Newfoundland (Treasury Board) v NAPE,
2004. Binnie, J used severe financial poverty of NF to justify
discrimination.
Proportionality test
1.Rational Connection.
vii. Definition. Govt must show causal connection betwn infringement and
benefit sought on the basis of reason or logic – that it serves the intended
purpose, demonstrated on the balance of probabilities (RJR paraphrased)
viii. Causation
2.Least Drastic Means
ix. Minimum impairment or “least drastic means”: law must impair right no
more than is necessary to accomplish the objective. (RJR) “law must be
carefully tailored”. If the law falls “within the range of reasonable
alternatives”…Margin of appreciation

2. Proportionate effect (Oakes w Dagenais). Law must not have a

disproportionately severe effect on the person to whom it applies. There must be
proportionality btwn the deleterious effects of the measure and the objective – the
salutary effects of the measures. Balancing positive and negative effects, is there
overall proportionality? Certain legislation will impose some burdens of
monetary cost and inconvenience, but “a limit on a right that exacts a cost but
nevertheless leaves the adherent with a meaningful choice” is acceptable.

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ALBERTA V HUTTERIAN BRETHREN OF WILSON COUNTY 2009 . Limitation of Rights
under s.1. Rational connection between Provincial Act and purpose; minimal impairment
(Ct says anything less would defeat purpose); proportionate (just take taxi). Here, Photo
ID for Driver’s license refused by Wilson Hutterians. Alberta to implement database for
ID photos. Dissent Abella note! (250/700,000 and Hutterians’ nonphoto compromise
suggestion( not for ID purposes). The Alberta government conceded that this was a
violation of the Hutterites' religious freedom protected under section 2 of the Canadian
Charter of Rights and Freedoms, but argued this violation was allowable under section
1's "reasonable limits" on Charter rights. The Hutterites maintained that this was an
unreasonable limit.
Chief Justice McLachlin, writing for the majority, found the law constitutional. She found
that the government's need to fight fraud was pressing, and that driving was not a right,
so the government was entitled to attach legitimate conditions to it.
Three justices dissented and would have not required the Hutterites to be photographed to
be licensed. In three separate opinions, Justices Abella, LeBel and Fish found that this
policy was not minimally impairing, since it would not significantly enable identity theft
to allow the exceptions, and it would have a large detrimental effect on the Hutterites'
way of life, since they would have to employ outsiders to perform all their necessary
driving.

FREEDOM OF CONSCIENCE AND RELIGION

 Constitution Act 1982, s 2(a)

SYNDICAT NORTHCREST V AMSELEM 2004

Iacobbui, J: He decided that religion is a thorough set of beliefs regarding a higher power,
tied with a person's view of him or herself and his/her needs to realize spiritual completeness
Iacobucci went on to note that in past freedom of religion cases, such as Freedom of
religion is a personal right so the court does not inquire about the genuineness of the
belief. Evidence from lay person or bring an expert, in this case rabbi.
Test for Infringement of Religion:
Must show: 1) he or she has practice or belief having nexus with religion which calls for
a particular line of conduct; and 2) he or she in sincere in his or her belief.
If that is established, then inquire whether the state action is infringing on this religious
belief, and whether it can be justified.

The court looked at the sincerity of the appellant’s beliefs and agreed that they had them.
It didn’t matter how important or mandatory the beliefs are, just that they are sincere.

The court doesn’t get into a hierarchy of beliefs.

The justification for the restriction (property values, aesthetics) were not sufficient to
justify restriction on a 9 day event.

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Turning back to this case, the Supreme Court observed Syndicat Northcrest had argued
freedom of religion was limited here by rights to enjoy property and to personal security.
However, the Court found the rights of the Orthodox Jews had been severely infringed, while
Syndicat Northcrest's rights were not significantly affected. Thus, freedom of religion would
prevail. The trial judge had found at least one of the Orthodox Jews sincerely believed he
needed a sukkah, while the others seemed not to because they did not have sukkahs in the
past. The Supreme Court rejected the latter finding, because it relied on a study of past
practice. The Supreme Court also noted the Jews might have wanted sukkahs for religious
reasons, regardless of whether they were necessary; this also undermined the view that past
practices should be studied. The Court then decided the violation of religious freedom was
serious because the right to an individual sukkah was not limited but denied completely.
Note: that in this case the private actors were susceptible to charter scrutiny. an individual must 
prove he or she has a practice or belief with a nexus of religion, that he or she is sincere in that 
belief. Is there enough of an interference with the right so as to constitute an infringement of 
freedom of religion under the charter? (non­trivial)
Inquiry then shifts (here) to whether these are reasonable limits under the Quebec 
Charter. Under the federal Charter, it would shift to a s. 1 analysis
Courts cannot judge the sincerity of a belief. The impairment of the appellants’ religious
freedom is serious while the intrusion on the respondents’ rights is minimal.
 the freedom encompasses objective as well as personal notions of religious belief, both 
obligatory and voluntary expressions of faith should be protected
While there was no government action responsible for violating a right, the Quebec
Charter is of relevance to personal disputes. As Justice Michel Bastarache wrote, "the
first paragraph of s. 9.1 [of the Quebec Charter], insofar as it does not require that the
infringement of a right or freedom result from the application of the law, applies only to
private law relationships, that is, to infringements of the rights and freedoms of private
individuals by other private individuals." Bastarache noted this is what occurred in a
previous case, Aubry v Éditions Vice-Versa Inc (1998).

 Respect for minority rights must also coexist alongside societal values that are central to
the make-up and functioning of a free and democratic society.

REFERENCE RE SAME SEX MARRIAGE2004

1. Marriage, for civil purposes, is the lawful union of two persons to the exclusion of all
others. Intra Vires P
2. Nothing in this Act affects the freedom of officials of religious groups to refuse to
perform marriages that are not in accordance with their religious beliefs. Ultra Vires P
Freedom of religion implicated: CONFLICT between Charter Freedoms. Balancing and
delineation of rights. Freedom of religion “broadly and jealously guarded in Chapter
jurisprudence”. Allows that religious official can chose not to officiate at same sex
marriages. Any impermissible conflict occurs, then provision will fail justification test
under s.1 of the Charter and be of no force and effect.

R. v NS, 2012 “The key question for the judges was: Can religious ritual and observance
trump the right of defendants to a fair trial. This case activates a variety of tensions and I
will focus on three key issues: religious freedom, sexual assault, and the significance of
demeanour evidence as a component of the accused’s right to a fair trial.

15
TEST: 1. INTERFERENCE WITH BELIEF The majority recognizes that the sincerity of
a belief is not precluded merely because a witness has “lapsed” in her beliefs at
certain times or because there are certain exceptions to the practice. Chief
Justice McLachlin states (para 13):
“Departures from the practice in the past should also be viewed in context; a witness
should not be denied the right to raise s.2(a) merely because she has made what seemed
to be a compromise in the past in order to participate in some facet of society.
SINCERITY OF BELIEF TEST, NOT STRENGTH OF BELIEF (AS TRIAL JUDGE DID). SENT BACK
TO LOWER CT.
Serious risk to Trial Fairness: Effective cross examination and assessment of credibility at
issue.
Parties must place evidence before the judge outlining possible options for
accommodation—a compromise that respects both the witness’s freedom of religion and
the accused’s right to a fair trial
Salutary Effects Versus Deleterious Effects. mimics the proportionality analysis used
under section 1 of the Oakes Test. Under this question, a court must determine whether
the salutary effects of requiring the witness to remove the niqab outweigh the deleterious
effects of allowing her to wear it. While a judge must only focus on “sincerity” of belief
rather than “strength of belief” in answering the first question, in the final stage, however,
NS’s strength of belief becomes relevant.

FREEDOM OF EXPRESSION

Constitution Act 1982, s. 2(b)

MONTREAL (CITY) V 2952-1366 QUEBEC, INC. 2005. In 1996, the owner of a Montreal
strip club on Ste-Catherine Street was charged for violating a Montreal by-law which
prohibited "noise produced by sound equipment". The owner challenged the charge on
the grounds that the municipal law was a violation of his freedom of expression under
section 2(b) of the Charter. Both the Quebec Superior Court and the Quebec Court of
Appeal agreed that the law violated the freedom of expression and could not be saved
under section 1 of the Charter. The following issues were put to the Supreme Court:

1. Does the municipality have the power to enact the law?

2. Does the by-law Infringe Section 2(b) of the Canadian Charter?

In a six to one decision the Court found that the by-law was valid, that it violated the
freedom of expression, but was saved under section 1. purpose of controlling noise
pollution was a sufficiently important purpose and the means available were reasonable.
Passed Oakes test.

SASKATCHEWAN (HRC) V WHATCOTT 2013 HATE SPEECH.

Flyers against homosexuality. HR Tribunal found violation of s. 14, which prohibits
"publication or display of any representation that exposes or tends to expose to hatred,
ridicules, belittles or otherwise affronts the dignity of any person or class of persons on
the basis of a prohibited ground.” Trial judge affirmed. Ct. of Appeals overturned. SCC

16
found trial judge erred in reading only parts of flyers and that they were not prohibited
hate publication. Rothstein, J. found that standard of reasonablness (deference) to HRT in
selecting from flyers ok. "even one phrase or sentence... found to bring the publication, as
a whole, in contravention of the Code... precludes publication of the flyer in its current
form", determination of two flyers objectively depicted them as "inferior [and]
untrustworthy". "[vilified] those of same-sex orientation by portraying them as them as
child abusers or predators",[33] and called for discrimination against the portrayed group.
BUT that HRT tribunal’s determination of two OTHER flyers (F and G was
UNREASONABLE, since a reasonable person would not have found them to subject
homosexuals to "detestation" and vilification". Bible passage, "it would only be unusual
circumstances and context that could transform a simple reading or publication of a
religion’s holy text into what could objectively be viewed as hate speech".

LIFE, LIBERTY & SECURITY OF THE PERSON

1. Constitution Act 1982, s. 7

CANADA V PHS COMMUNITY SERVICES SOCIETY 2011

The court found that s 4(1) of the CDSA engaged s 7 of the Charter but operated in
accordance with the principles of fundamental justice. Although that provision touched
upon Insite users' life, liberty and security of the person by prohibiting drug possession at
Insite, the s 56 exemption prevents s 4(1) of the CDSA from acting arbitrarily,
overbroadly or grossly disproportionately upon Insite users.
However, the court found that the Minister's failure to grant the exemption limited
Insite users' s 7 Charter rights and breached the principles of fundamental justice. The
failure to exempt Insite was arbitrary because it undermined the CDSA's purpose; namely,
the "maintenance and promotion of public health and safety".[13] The failure was also
grossly disproportionate in that it denied Insite's services, which had not had any
"discernable negative impact on the public safety and health objectives of Canada during
its eight years of operation".[14]
While the court did not consider whether the Minister's failure to grant an exemption
could be saved by s 1 of the Charter, they found that there would have been no rational
connection between the Minister's failure to grant the exemption and the CDSA's stated
purpose.
The court exercised its s 24(1) Charter power and ordered via mandamus the Minister
to grant Insite the exemption.The court noted that the Minister ought to grant future
exemption requests when the injection facility would "decrease the risk of death and
disease, and there is little or no evidence that it will have a negative impact on public
safety"
o Federal legislation (CDSA) applied to make safe injection facility in BC illegal.
Insite challenged the applicability of the CDSA (amongst other grounds)
o Federal leg is valid. Question was applicability of the CDSA to activities under
the provincial health power. A preliminary question was also discussed – whether
it is appropriate to apply IJI to provincial health power.

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 o Applicability of the federal legislation upheld. It is not appropriate to apply IJI to
provincial health power.
o (However, the Court ordered an exemption for Insite under s. 7 of the Charter).

CANADA (AG) V BEDFORD 2013 Bedford extended s.7 significantly in the relatively new
principles of arbitrariness, overbreadth, and gross disproportionality

Arbitrariness asks whether there is a direct connection between the purpose of the law
and the impugned effect on the individual, in the sense that the effect on the individual
bears some relation to the law’s purpose.[50]

Overbreadth deals with a law that is so broad in scope that it includes some conduct that
bears no relation to its purpose. In this sense, the law is arbitrary in part.[51]

Arbitrariness and overbreadth, previously explored in Chaoulli v. Quebec (Attorney

General)[52] have been clarified to declare that the effect of a law may be inconsistent
with the objective, but the evidence must ultimately show that there is no connection
between the effect and purpose of the law, causing the law to violate basic norms.[53]

Gross disproportionality asks whether the law’s effects on life, liberty or security of the
person are so grossly disproportionate to its purposes that they cannot rationally be
supported. Under s. 7 of the Charter, it does not consider the beneficial effects of the law
for society — it balances the negative effect on the individual against the purpose of the
law, not against societal benefit that might flow from the law

CARTER V CANADA 2015 (assisted suicide) , In order to comply with section 7 of

the Charter, a deprivation of life, liberty or security of the person must accord with the
principles of fundamental justice. The principles at issue in Carter were those against
arbitrariness, overbreadth and gross disproportionality. An arbitrary law is one that
“exacts a constitutional price in terms of rights, without furthering the public good that is
said to be the object of the law.” An overbroad law is one that may be rational in general
but denies the rights of some individuals in a way that bears no relation to the legislative
purpose. A grossly disproportionate law is one that, while it may further the legislative
objective, has negative effects on life, liberty or security of the person that are so extreme
as to be “totally out of sync” with the object of the law.
The Court held that the prohibition on assistance in dying is not arbitrary because it
“clearly helps achieve” the legislative objective of protecting vulnerable persons from
being induced to die by suicide at a moment of weakness. However, the prohibition was
found to be overbroad because it applies to individuals who are not vulnerable, thereby
denying the rights of some people in a way that bears no relation to the purpose of the
law. The Court found it unnecessary to decide the issue of gross disproportionality in
view of its conclusion that the prohibition is overbroad.
They interfere with liberty by constraining the ability of such individuals to make
decisions concerning their bodily integrity and medical care, and with security of the
person by leaving such individuals to endure intolerable suffering. The Court also held

18
that the laws deprive some people of life by forcing them to take their own lives
prematurely for fear that they would be incapable of doing so when they reached a point
where their suffering was intolerable
Judges may reconsider the decisions of higher courts if there is a new legal issue at
bar, and if circumstances or evidence have "fundamentally shift[ed] the parameters of
the debate"

S.7 TEST
 Has there been a violation of life, liberty or security of the person?
1. If so was this violation done in accordance with the principles of fundamental
justice?
2. To be a basic tenet of the legal system, 3 criteria must be met.
3. Is there a social consensus that the principle is vital or fundamental?
4. Is the tenet at issue not to broad as to be a mere generalization about what our
society considers ethical or moral?
5. Is something is manifestily unfair, it will also not be a principle of
fundamental justice.
Then proceed to s. 1

EQUALITY RIGHTS
2. Constitution Act 1982 s. 15

S.15 Test after Withler:

 overarching considerations
1. substantive quality is the guiding principle
2. pay due attention to the purpose of the quality guarantee- in particular freedom from
discrimination
3. avoid formalistic approach to comparison, must instead focus on if the law
contravenes notions of substantive quality
4. take account of the full context of the claimant’s group situation, including the actual
impact the law on the group (is the law ameliorative in effect, like KAPP?)
5. subjective/objective factors must both be looked at, most of all must take flexible
approach to analysis.
2 step test:
1. does the law create a distinction based on a listed or analogous ground, is the
claimant singled out based on some kind of personal characteristic?
2. does the distinction create a disadvantage by perpetuating prejudice or
stereotyping/ (i.e.. focus on substantive quality)
3. prejudice: does the law treat a historically disadvantaged group in a way that
exacerbates the situation of the group?
4. stereotyping. Does the disadvantage imposed by the law correspond to the
actual circumstances and characteristics of the claimaint or claimaint group?
The particular contextual factors relevant to the substantive equality enquiry at the second
step (of the Andrews Test) will vary with the nature of the case. A rigid template risks
consideration of irrelevant matters on the one hand, or overlooking relevant
considerations on the other (KAPP) (Withler)

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ANDREWS V LAW SOCIETY OF BC 1989 - CITZENSHIP added analogous grounds
claims under section 15 would be assessed based on: 1. Actual differential treatment,
2. Based on one of the enumerated prohibited grounds in s 15 or one that is analogous to
those grounds, 3. Which is discriminatory because of an imposed burden or denied
benefit. (Vulnerable non citizens)
The court stated that the section is not a general guarantee of equality, rather it is only
concerned with equal application of the law. It was further stated that it should be
recognized that not all differences in treatment will result in inequality and that identical
treatment may result in inequality. In the early section 15 case Andrews v Law Society of
British Columbia (1989), half of the justices declared that the Oakes test should not and
cannot be the section 1 test used for all sections of the Charter. For Justice William
McIntyre, the Oakes test was too high a standard for equality rights, which was a complex
issue since governments must distinguish between many groups in society, to create
"sound social and economic legislation". He thus drew up the following two-step test:
1. The government action must have been made to achieve a "desirable social objective".
2. The equality right infringed in the process of pursuing that objective is examined, with
its "importance" to those whose rights were limited evaluated; this evaluation is then
balanced against a judgment as to whether the limit achieves the objective.

R V KAPP 2008
S.15(2) justified communal fishing license 24 hour period for 3 AB bands. S. 25 in
applicable (it would be complete bar, but s 25 only deals with rights of Const. character
(not fishing rights). Bastarache. S 25 shield against Charter intrusion upon native rights
or freedoms.
KAPP TEST (as modified by Alberta v Cunningham)
2. Overarching considerations:
3. does the law create a distinction based on a listed or analogous ground?
4. is the law ameliorative in purpose (onus shift, KAPP)
i. is it genuinely ameliorative program?
ii. Is it directed at improving the situation of a group in need of
ameliorative assistance in order to advance substantive equality?
iii. Is there a correlation between program and disadvantage suffered
by target group?
iv. Is a rational means used to pursue ameliorate purpose?
If not, does the distinction create a disadvantage by perpetuating prejudice or
stereotyping?

WITHLER V CANADA (AG) 2011. AGE. Two part test for s. 15(1): (1) Does the law
create a distinction that is based on an enumerated or analogous ground? and (2) Does the
distinction create a disadvantage by perpetuating prejudice or stereotyping?
Under both Acts, the amount of the supplementary death benefit is equal to twice the plan
member’s salary at the time of death or termination of employment. Each Act, however,
contains “Reduction Provisions” which take effect when the plan member reaches a
certain age. For civil servants, the value of the supplementary death benefit is reduced by
10 percent for every year by which the plan member exceeds the age of 65 (Public

20
Service Superannuation Act, s. 47(1)). For members of the armed forces, the value of the
benefit is reduced by 10 percent for every year by which the plan member exceeds age 60
(Canadian Forces Superannuation Act, s. 60(1)). It is these Reduction Provisions that are
at issue in this appeal. Court concluded that this system was not discriminatory within the
meaning of Section 15(1), because Charter guarantee of equality is supposed to follow a
contextual approach which “treats like alike,” and such an approach should not interfere
with the allocation of meaningfully targeted pension benefits. It is not necessary to
pinpoint a mirror comparator group. Substantive equality, unlike formal equality, rejects
the mere presence or absence of difference as an answer to differential treatment.
The focus of the inquiry is on the actual impact of the impugned law, taking full account
of social, political, economic and historical factors concerning the group.

REMEDIES

Constitution Act 1982, s 24 (govt acts that violate Charter) and s. 52 (invalidity of laws)

s.24(1): only applies to violations of rights or freedoms guaranteed in the Charter, only
available to those with standing. This is used when you want the government to stop
doing something to you specifically. It is an action based scenario – get the government
to stop doing something or order the government to do something. This applies to both
action and inaction.
• This remedy applies when there is government action apart from legislative
action.
The judges have discretion on which remedies they can provide: damages, injunction/stay
of proceedings, declaration that government action is unconstitutional.

s.52 this applies to the whole constitution, not just the Charter. This applies when
someone is attacking a piece of legislation. There are 5 possible Remedies:
1. Strike Down – strike down the piece of legislation.
2. Sever – strike down pieces of the law without striking down the whole law.
3. Reading in – read in language in order to avoid a constitutional issue. This is an
expansion of the law in question. It is controversial because it may be seen as taking
parliament/legislatures place.
4. Reading Down – excluding something from the statute. This is considered less
intrusive than severing.
5. Constitutional Exemptions – The law will remain in force, but it is declared
inapplicable to individuals or groups whose Charter rights are infringed by its
effects.

Choosing a Remedial Course

1. Define the extent of the inconsistency – the manner in which the law violates the
charter and which it fails to be justified under s. 1.
o Where the first part of the Oakes test is not met the inconsistent portion must
be broadly struck down
o Where a portion fails the rational connection test, it will be struck down
o Other 2 requirements allow more flexibility

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2. Is Severance or Reading In appropriate?
o Precision In severance the inconsistent part can be defined with precision on
the basis of the constitution
For reading in, where the legislature cannot define precisely how much to add, this must
be left to the legislature
Interference with Legislative Objective
When budgets are a consideration the question is to what degree can courts appropriately
make decisions. It is not appropriate to intrude into this sphere in such a way as to change
the nature of the legislative scheme in question.
How long has the legislation been around without being accused of breaching rights.
Long standing legislation may indicate that the legislative objective would be upset by
reading in.
Change in significance in the remaining portion
To be considered when reading in a large group
The Significance of the Remaining Portion
Would the legislature have enacted the remaining portion
Whether to Temporarily Suspend the Declaration of Invalidity?
Appropriate where the striking down poses a potential danger to the public, or
threatens the rule of law – (Manitoba Language Ref – no laws = anarch)

4. VRIEND V ALBERTA 1998 . OMISSION. Alberta Individual Rights Protection

act did not include sexual orientation as a prohibited ground for
discrimination. READING IN REMEDY.
The language of s.32 does not limit the application of the Charter merely to positive
actions encroaching on the rights or the excessive exercise of authority. If an omission
were not subject to the Charter, form rather than substance would determine whether a
law was open to challenge (could just word it to omit) Law that regulates private activity
(as opposed to private activity) IS subject to Charter scrutiny. Omission was not “neutral”
as alleged. By this omission and denying benefits to certain people, they were actively
discriminating --> in contravention of equality guarantees
DISSENT: The arguments that McClung brought could be used to discuss judicial activism:
 The application of the charter to an omission is an encroachment on legislative autonomy
 Constitutional scrutiny: a way to dictate provincial legislation
 A choice by the legislature NOT to legislate should not be open to judicial review

VANCOUVER (CITY) V WARD 2010 Attorney detained and strip searched. Damages for
search and detention, but reward for impounding of car overturned as not necessary to
compensate for wrong. UPHOLDS DAMAGES AS CHARTER REMEDY. S. 9 right
not to be arbitrarily detained violated. For a unanimous court, Supreme Court Chief
Justice McLachlin found that damages are a just and appropriate remedy for
a Charter breach when:
 the plaintiff has established a Charter breach;
 the damages award is necessary to fulfil one or more of the objects of
compensation, the vindication of the Charter right, or the deterrence of
future Charter breaches;

22
 the state has failed to establish any factors which render section 24(1) damages
inappropriate or unjust in the circumstances (for example, that there are
alternative remedies which fit the circumstances); and
 the quantum of damages equals the purposes of the damages award
(compensation, vindication and/or deterrence).

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