Constitutional Notes

Two main areas in the constitutional law context:

1. Division of powers

2. Charter

Division of Powers

• Section 91: federal powers

• Section 92: provincial powers

• Courts are granted with the task of delineating the precise boundaries of federal and
provincial powers

• Intra vires: within the scope of the jurisdiction of the government who passed the law

• Ultra vires: outside the scope of jurisdiction of the government who passed the law

Procedure for division of power cases:

1. Establish the pith and substance of the legislation – look to both purpose and effect in
establishing pith and substance

2. Determine whether pith and substance falls within the jurisdiction of the government that
passed the law

Possible Outcomes

1. If the law’s subject matter falls outside the powers granted to the level of government
who passed the law then the is ultra vires and thus invalid

2. If the law is within the jurisdiction of the government who passed it and does not
infringe the other level of government’s jurisdiction then it is intra vires and stands as
it is

3. The law plausibly may be assigned to two different powers corresponding to the two
levels of government. If this is the case then the courts will allow each level of
government to legislate on the same subject matter as long as each does so in a
manner that is relevant to its own powers. If this cannot be done then the federal law
prevails pursuant to the federal supremacy doctrine

If both levels of government pass laws that ostensibly deal with the same subject matter then it is
necessary to apply the Rothman’s test:
 1. Can a person comply with both the federal and provincial statutes?

2. Does the purpose of the provincial statute frustrate the purpose of the federal statute?

If the answer to either of the above is yes then the federal statute stands

If the answer to both is no, then both laws can stand pursuant to the double aspect doctrine

Remedies

1. Severing

2. Reading down

3. Striking down

Trade and Commerce (91(2))

91(2) includes:

1. Extra-provincial and international trade

2. General regulation of trade

General regulation of trade:

a) regulatory scheme?

b) oversight of regulatory agency ?

c) concerned with regulation of trade as a whole; must not be concerned with a particular
industry or collection of industries? (as in Parsons; Labatt)

d) legislation is beyond provincial jurisdiction?

e) national scheme necessary to avoid potential negative consequences that one province’s
approach could have elsewhere in the country?

Peace Order and Good Government

• POGG power emanates from the preamble to 91

POGG consists of:

1. Emergency doctrine
 2. National Concern

Test for emergency:

1. Crisis of serious national concern?

2. Is there a rational basis to conclude that an emergency exists?

3. Is the measure temporary?

4. Is the law rationally connected to the emergency?

National Concern:

1) The national concern doctrine is separate and distinct from

the national emergency doctrine of POGG. The emergency branch is a temporary power
and the national concern branch is permanent.
2) National concern doctrine applies to both new matters
which did not exist at confederation and to matters which, although originally matters of
a local nature, have since, in the absence of national emergency become matters of
national concern.
3) National concern requires singleness, distinctiveness and
indivisibility that clearly distinguishes it from matters of provincial concern and it makes
sense to deal with it on a federal level.
4) To determine if a matter has attained the required degree of
singleness, distinctiveness and indivisibility that clearly distinguishes it from matters of
provincial concern consider the provincial inability test: what would be the effect on
extra provincial (national) interests of a provincial failure to deal effectively with the
control or regulation of the intra-provincial aspects of the matter?

Criminal Power – 91(27)

Purpose and Form Test:

Purpose (the Substantive element): every criminal law provision must have a public purpose
dealing with public peace, order, security, and health (pursuing to eliminate a serious anti-social
behavior).

Form (the formal element): it will be in the form of penal consequences which are enforced by
the courts.

Charter
4 stages of Charter analysis

1) Does the Charter apply to the facts?

2) Does the challenged government action interfere in purpose or effect with the exercise of a
Charter right or freedom? (ss.2-23)

3) If so, is the interference with the exercise of rights and freedoms a “reasonable limit”,
“prescribed by law”, that can be “demonstrably justified in a free and democratic society”? (s.1)
– shift of onus on the government <OAKES TEST>

4) If not, what is the appropriate remedy? (ss.24 and 52) – courts are given discretion over what
the appropriate remedy is for a Charter infringement

Does the Charter Apply

• The Charter applies to government action

• The common law rules governing relations between individuals lie outside the reach of
the charter

• Laws passed the governments are subject to the Charter

• An indirect government act is subject to the charter if the act can be ascribed to the
government

• Acts of non-government entities that are implementing a specific government program

are subject to the charter

• The charter can apply to government inaction

S.2 – Freedom of Expression

• protects freedom of thought, belief, opinion and expression, and freedom of the press
• protection afforded by s.2(b) is content-neutral; all communicative activity is protected
provided it is not violent
• the “real debate” in most s.2(b) challenges to laws takes place in the s.1 proportionality
analysis
Establishing a Violation of s.2(b)

S. 2(b) Analysis – breakdown from Irwin Toy 1989 SCC at 908

does the activity at issue convey a meaning in a non-violent form? if so,
is the purpose or effect of the impugned government action to control expression by reference to
its content? if so, violation established;

section 1: contextual analysis

Oakes test that accounts for contextual factors, it considers:

1. whether the expression at issue is closely related to the purposes of s.2(b) (“core” or
“peripheral” expression?);

- 3 purposes (truth, democracy or self realization) – if it can fit under these types of
expression then there is much more consideration for its protection

2. the socioeconomic position of those negatively and positively affected by the law;

whether the group “protected” by a law is truly “vulnerable” to manipulation, discrimination or

violence ex children in Irwin Toy

3. if the group is vulnerable then there is a much more deference to the gov’t protecting the
group

4. whether the restricted form or content of expression is particularly important to a vulnerable or

disadvantaged group

Section 7

“Everyone has the right to life, liberty and security of the person and the right not to be
deprived thereof except in accordance with the principles of fundamental justice.”

Establishing a Violation of a Life, Liberty or Security of the Person

two-step process:

1) claimant must demonstrate an interference, in purpose or effect, with one of the three interests
protected in s.7; and

2) the claimant must demonstrate that the interference is not in accordance with the principles of
fundamental justice

-If the claimant gets past step 2, then the burden shifts to the government and the Oakes
test is applied
Principles of Fundamental Justice have been found to include:

-procedural fairness

-no punishment of innocent (mens rea requirement)

-intelligible standards (no vagueness)

-lack of arbitrariness (a rational connection must exist)

-least restrictive means (over breadth-has the government selected the least restrictive means?)

-proportionality(between the negative and positive effects of the government action)

-protection from extreme violations of human dignity (deportation to torture)

-protection from self-incrimination

-right to a fair trial, including right to make full answer and defence

principles of fundamental justice

Equality Rights – s. 15

(1) Every individual is equal before and under the law and has the right to the equal protection
and equal benefit of the law without discrimination and, in particular, without discrimination
based on race, national or ethnic origin, colour, religion, sex, age, or mental or physical
disability.

(2) Subsection (1) does not preclude any law, program or activity that has as its object the
amelioration of conditions of disadvantaged individuals or groups including those that are
disadvantaged because of race, national or ethnic origin, colour, religion, sex, age or mental or
physical disability.

To infringe s.15, the law must:

o Directly, or by indirect effect differentiate among individuals or groups,
o On a enumerated ground (ground that is listed),
o In a manner that “discriminates”
Contextual Factors:

(a) Pre-existing disadvantage, prejudice, or vulnerability experienced by the individual or group

in question;
(b) Whether the distinction corresponds with differences based on actual needs, (in)capacities or
circumstances of the claimant class

(c) Whether the purpose of the impugned law is ameliorating historic or existing disadvantage

(d) Where the law restricts access to a fundamental social institution (medicare, family law
mechanisms, family or spousal recognition) or affects some basic aspect of personhood (human
rights code protections), it will infringe

Oaks Test: Justifying the Infringement

1) Is the constitutional infringement prescribed by law? (Set out in a legal rule, publicly
accessible, not too vague – as per NS Pharmaceutical).

2.) Is the legislative objective significant (pressing and substantial in a free and democratic
society) enough to warrant overriding a constitutional right?

3) Are the means chosen to achieve this objective reasonable, demonstrably justified and
PROPORTIONATE?

a) Rational Connection - The measures adopted must be carefully designed to achieve the
objective in question; must not be arbitrary, unfair or irrationally based.

b) Minimal Impairment - Even if rationally connected to the objective, the means should
impair “as little as possible” the right or freedom in question.

c) Proportionality – Must be proportionality between the negative effects of the law and the
legislative objective.

Remedies
 1. a law may be declared invalid in its entirety
o partial invalidity via severance, reading down
2. reading in (for under-inclusive legislation)
3. a temporary suspension of a declaration of invalidity – allows Parliament or provincial
legislature to “fill the void” (problematic since it allows unconstitutional legislation to
temporarily persist)

Aboriginal Rights

Sparrow and Van der Peet test:

Is it an Aboriginal right?

1. Practice must be pre-existing and central – Aboriginals’ burden

2. Not extinguished – Aboriginals’ burden

Was the right infringed?

3. Must be infringed by government act – Aboriginals’ burden (from Sparrow)

Is the Infringement justified?

4. Government must show adequate justification - Government’s burden

5. Go beyond Crown’s reasonable discretion as fiduciary to show Aboriginal community has

“priority” in enjoyment of resources traditionally utilized – Government’s burden