Cons Law Sum Fin

Canadian Constitutional Law
CONSTITUTIONAL LAW SUMMARY
Difference btwn Public and Const Law:
Public law
Relationship btwn state actors and others
Constitutional law: Body of laws that are supreme and entrenched
Entrenched: Cannot be changed by a simple legislative majority – can only b altered through an
amending process – hard to alter
Functions: creates and constitutes organs of the state, sets limits on powers of the state
Four Constitutional Principles

• Protection of Minorities (Canada does not have a great record of this, but it should still be a
goal.)
• Democracy (Voting, dignity, Oaks, identity. Process of discussion, expression, opinion.
Marketplace of ideas. Moral Values.)
• Federalism (Elliott: provincial diversity + integrity of state.)
• Rule of Law- constitution (P23 Why is a constitution entrenched? Safeguard fundamental
rights, ensure minority resources, federalism)
Other constitutional principles

• Independence of judiciary
o Financial security
o Security of tenure
o Institutional independence
• Role of Superior Courts
o s.96 of CA.
o Core jurisdiction that comprises powers and rule of law.
• Powers
o To determine whether a lower court acted within jurisdiction.
o To pronounce on constitutionality of provincial legislation.
o To punish contempt.
Section 38: 7/50 rule – min 2/3 of provinces and 50% of population
 GENERAL AMENDING FORMULA
Conventions: Unwritten rules
Constitution Act
s.35  Not part of the Charter – Relationship btwn Aboriginals and Govt is separate from Charter
www.legalandlit.ca/.../first/constitutional/const_haigh_w05_2.doc 10/04/2011 3:31 PM

ss.1-34 of Constitution Act  Charter
Legitimacy of Judicial Review: Debate flows from 4 factors

1. Nature of Text
 Language is broad, vague, open-ended ∴ allows for interpretation
 Text is short, not detailed – built to last/endure
 Serves as basic architecture (bones)
 Judiciary must put meat on bones  give constitution a large and liberal interpretation
 In the abstract things seem clear, in application it is more difficult
2. Nature of Issues arising in constitutional law
 Usually issues are close to heart of Canadians (significant, momentus)
 Constitution is supposed to be about who we are (embodiment of ideals, aspirations)
 Results have large ramifications for all Canadians
3. Nature of Constitutional Law vs. other areas of law
 Judiciaries rulings are binding and we are stuck with them unless we amend the
constitution
 The legislature cannot change the law on its own
4. Nature of Judiciary
 Unelected, unaccountable, appointed for life
 Not a good representation of Canadian public as a whole
Functions of Judicial Review

• Keeping the legislature in check
• Advising on constitutional intention.
Philip Bobbett's Judiciary Functions

(Robin Elliot borrows his material)
• Checking function
• Legitimating function
• Cueing function (to government, to other courts, to the legal community, to the population.)
• Expressive function (telling us who Canada is)
The Override only applies to s.2 and ss.7-15 of Charter – Charter is so entrenched that the override is
hard to use
Standing, Notice and Interveners

 Anyone having the law applied to them can raise a constitutional argument
 Govt can Refer questions to the SCC (Reference Use)
 Independent legal actions can be brought – must be raised by a person with significant stake in issue

o Limited standing in this case

o Must show significant stake and no other way for this to get to crts
o A person without direct interest in issue must be given Public Interest Standing
o If notice requirements (?) not met, issue cannot be decided by the crt
 Interveners
Priority between federal and Charter grounds

• When a law is challenged on both grounds which has priority? Question has little practical
significance since either way the law will be “of no force or effect”.
• However, provisions distributing powers are logically prior to the Charter. Charter assumes
existence of legislative powers. In reviewing the validity of a law, the first question is whether
the law is within the law-making power of the enacting body, and the second question is
Charter consistency.
• Also s. 32(2) Charter – it applies to all matters within the authority of the various legislatures –
so does not apply to a law which is ultra vires on federal grounds. Thus where there is a
distribution of powers argument and a Charter argument, the arguments cannot both be
successful. Should be phrased in alternative, although not necessary for court to dispose of
federal issue first.
• No similar s. 33 saving provision for breach of federal distribution of powers.
Amending Formula
Power over amendment is ultimate power over constitution  FINAL AUTHORITY
Capacity to change law is in power to amend
Pre-1982
 Amendment through act of British Parliament (stipulated in BNA Act)
 Act of British Parliament gave it imperial status (became constitutional, not merely legislation)
 Imperial statutes prevailed over Canadian statutes
 Colonial Laws Validity Act  imperial statute prevails when leg is inconsistent w/ imperial law
Statute of Westminister - 1931

 Repealed Doctrine of Repugnancy
 Gave colonies power to make own laws and British would not pass laws dealing with colony
without consent
 CLVA remained in force regarding const text b/c we couldn’t agree on an amending formula
 Issue: Amount of consent needed from Fed and Prov govts

 There were conventional requirements but they were not legally binding
Constitution Act, 1982

 Canada Act created amending formula
 Finished what Statute of Westminster tried to do
 Five amending rules found in Part V of Constitution Act
1. General Amending Formula  s.38(1)
 Requires consent of Fed govt (both houses of parliament), min 2/3 of provs having min 50%
of pop
 Applies to most const amendments – Residual Formula – if does not fall in any of 4 others,
amendment falls here
 Only procedure subject to time limits  amendment cannot be proclaimed until 1 year after
the initiation of amendment process unless every prov has indicated assent or dissent
(s.39(1))
 Amendment dies if has not received necessary support within 3 years (s.39(2))
 A province can opt out (s.38(3)) when it would reduce the prov powers, propriety rights or
other rights and privileges – would not be an amendment with respect to that province
 If amendment would transfer leg powers from provs in relation to education or cultural
matters, prov opting out can get reasonable compensation (s.40) - need compensation b/c
otherwise too expensive for prov – would have to maintain own system and pay taxes to
fund federal system
 Focus on edu and culture comes from rel btwn French and English
 Cannot opt out of s.42 amendments
 Quebec’s insistence on veto right led to compromise – if every prov had veto then formula
would need unanimity ⇒ too rigid, impossible to change constitution
2. Unanimity Procedure  s.41
 Need consent of Fed and all Prov govts
 Applies to 5 matters:
i) Office of the queen and her representatives
ii) Minimum number of seats that provs have in House of Commons
iii) Use of French and English languages
iv) The composition of the SCC (strange b/c SCC is not entrenched, not even in const)
1. Changes to the amending procedures themselves
3. Bilateral Procedure  s.43 (some but not all provinces)
 Deals with provisions of constitution only affecting some provinces
 Only need consent of affected provs and Fed govt
 10 have been passed
o 1 pursuant to s.38
o 7 pursuant to s.43

 easier to use s.43 but must more limited in scope

 Could be used to afford a prov with special treatment
o Clash btwn doctrine of equality btwn provs and desire to be treated differently
4. Federal Unilateral Procedure  s.44

 In this case, ordinary legislation can change the const
 Only with respect to parts of const that deals with fed govt (i.e. composition of fed leg body
that does not affect powers of Fed govt or method of selection that is protected in other
parts of amending formulae)
 Ex. When Nunavut became a territory, there was a seat given to them
5. Provincial Unilateral Procedure  s.45

 Permits provs to amend its const as long as it does not affect matters governed by other
parts of amending formulae
 Ordinary leg can change const
Note on Evolving Conceptions of Democracy:

Power of amendment was given to the legislature (executive), not the people
 the Charter was a significant augmentation in individual rights
Quebec Secession Reference

 Constitution is silent about removal of a province from the country
 Case is important for what it says about constitution as a whole
 Foundational principles were used to fashion rules to bind govt
o Controversial departure of SCC
o Provincial Judges Reference and Quebec Secession Reference impose new free-standing
obligations on govt
5 Foundational Principles
1. Judicial Independence
2. Democracy
3. Federalism
4. Constitution and the Rule of Law
5. Minority Rights
⇒ These are not written into the const, they have been used to create new, binding obligations
⇒ Creation of the Duty to Negotiate
SCC Said:
 Issue does not only affect Quebec, Quebecers must realizes hat
 Cannot break up a country without a const amendment

 Referendum is meaningless but cannot be ignored
- Lalonde 2001 OntCA Montfort

- Francophone teaching hospital - re: closing the hospital.
- It was not a violation... but it was successfully argued that the closing down of that hospital
was a violation of the unwritten principles of the constitution that protected minority rights.
The Regional Veto Act (page 456)

 After 1995 referendum, the fed govt enacted the Constitutional Amendment Act, 1996
 Just legislation, not part of constitution
 Act says that provinces already have a veto under s.41 and s.43 and can opt out through s.38(3)
 Provides a regional veto in the form of a govt promise not to propose any const amendment without
agreement of the 5 regions (Ont, QC, BC, 2 or more Prairies, 2 or more Atlantics)
 Changes 7-50 to 7-92 b/c not possible to be in agreement given current pop distribution otherwise
 Although just regular legislation, won’t be easy to repeal
 Applies to:
o Amendments that would increase prov powers (transfer of fed powers to provs)
o Charter changes (i.e. to repeal s.33 – would be hard to do this b/c QC probably likes the power)
Canadian Federalism (pages 77-87)
1791: Creation of legislative assemblies (Bicameral: Composed of or based on two legislative

chambers or branches: elected house and appointed counsel who were not accountable to
elected house)
1840: Union of Upper and Lower Canada (legislative union)
- Achievement of responsible government
- Colonies so imperial power still had control
- Power of disallowance
- Chronic conflict btwn Upper and Lower Canada
1865: Decided on federal union – adopted by Upper Canada, Lower Canada, NS, NB
- Nflt and PEI opted out of federation (concerned about being a minority in larger entity)
- NB tried to get out afterwards
- All concerned about protecting their interests (did not think federation would)
- Forces in favor of union were defence (fear of US) and economic growth
- Fear of US ∴ needed larger entity for protection
- Merchants saw federation as an opportunity
1867: Compromise btwn unitary state (UK) and federalism (division into 2 or more levels of
government, constitutionally connected, each level coordinates but is autonomous, do not

overrule one another, both have on spheres)

- Quasi-federal
- Provinces are not coordinate
- Provinces are not fully autonomous (Federal govt is supreme)
- Fed govt has power of disallowance and reservation (hierarchical relationship
and no limits on power of disallowance and reservation)  powers have not been
used since 1940’s, 60’s respectively – considered counter to democracy and
federalism  constitutional convention against using them
- Federal principles entrenched in 1867 Constitution
- Jurisdiction (division of powers can only be changed through 7-50)
- When issue of where power lies btwn s.91 or 92, must interpret language of
sections  Crts job
- In reality, huge areas of overlap
Morgentaler (1989)
- SCC strikes down s.251 of Criminal Code
- Morgentaler takes advantage of this and opens freestanding abortion clinic
- Medical Services Act – purpose of Act is to prohibit privatization of certain medical services
- Regulates hospitals, healthcare, has offence provision
- Looks like criminal law
- It contains issues that could fall under s.91 and 92
- Crts look to pith & substance of legislation to determine where it falls
- Purpose of statute was said the be a sham
- Actual purpose was to prevent Morgentaler from opening clinic (trying to reinstate s.251 of Code)
- Sopinka J claimed was not relying on colourability doctrine (true meaning is different from formal
trappings)
- Used to be Criminal Code section ∴ under federal jurisdiction
- Privatization concerns did not exist before ∴ crt did not think it was a primary concern in
enacting the statute
- Lack of apparent connection btwn privatization issue and abortion issue
- Only look to Charter issues after determining if statute is intra vires (within power of enacting
body) – if found ultra vires then legislation is already invalid
- Under Medical Services Act only regulated 9 services and no evidence that those were riskier
than other procedures not covered in Act
- Pith & Substance: punishment of abortion on moral grounds (b/c of prohibition & consequences)
⇒ Criminal Law! (∴ had to be enacted by federal govt, not provincial)
(procedure for division of powers cases)
Reasoning of judicial review

• Ss. 91 and 92 Constitution Act, 1867 set out the distribution of legislative power. Use
distinctive terminology, giving legislative authority in relation to “matters” coming within
“classes of subjects”. Therefore two steps involved in the process of judicial review: (1)
characterization: identify the “matter” (or pith and substance) of the challenged law; (2)
interpretation of the power distributing provisions of the constitution: assign the matter to one
of the “classes of subjects” (or heads of legislative power).
Characterization of laws
• Matter – Laskin: “a distillation of the ‘constitutional value’ represented by the challenged

legislation”; Abel: “an abstract of the statute’s content”; Lederman: “the true meaning of the
challenged law”; Mundell: the answer to “what in fact does the law do, and why?”; Beetz J (Re
Anti-Inflation Act (1976)): “a name” for “the content or subject matter” of the law; Union
Colliery Co. v. Bryden (1899): the “pith and substance” of the law.
• General idea: it is necessary to identify the dominant or most important characteristic of the
challenged law. The identification of the “matter” will often effectively settle its validity.
• Difficulty – may have more than one feature. Look at which is the most important/dominant
feature.
 1) determine the pith and substance of the legislation-look at both purpose and effect in establishing
pith and substance
 2) determine whether the 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
Pith and Substance Doctrine:

 Acknowledges that legislations deals with lots of subject matters that will traverse s.91 and 92
 Intersections
 Leg will be classified based on its dominant characteristic
 Sources:
o Legislative history (what did leg seek to change, mischief attempting to deal with)
o Policy papers
o Purpose of statute – natural and probably consequences of statute
o Text
o Effects: how does it change the legal rights and obligations of people it affects?
 Can enact laws that have incidental effects on other level of govt
Division of Powers Doctrines

• Pith and Substance: Laws upheld even if they have an incidental effect outside jurisdiction.
(ex: Carnation)
• Necessary incidental/ancillary effects.
• Double aspect: It is possible for fed and provincial laws to coexist even if they seem similar, if
they are roughly equivalent in importance. (Lederman)
• Inter-jurisdictional Immunity: Exception to incidental effect, limits application of provincial
legislation, even when no federal legislation exists.
Necessarily Incidental Doctrine

 Allows leg to include provision that seem ultra vires as long as related closely enough to valid

central scheme
 Incidental aspects are irrelevant to validity
General Motors Inc. v. City National Leasing (1989):

- Competition Act regulates anti-competitive behavior
- Public mechanism of enforcement – can punish people violating the Act
- GM claims whole Act is invalid butt if not, then s.31 of Act is ultra vires
- If provision considered problematic, remedy is to server
- Doctrine of Severance: If only part of legislation is invalid and rest of legislation is still
intelligible (or if crt is convinced that leg would have still be enacted if remainder was all that
would have been enacted in first place) can strike only provision
- Crt Held  Act was VALID, infringement was necessarily incidental
- Important precedent for s.91(2) – trade and commerce
- Key features of the test for the division of powers:

 With regards to particular provision:
1. what is the pith and substance? Is it within jurisdiction?
2. If in isolation it is considered within other govt’s jurisdiction – consider necessarily
incidental doctrine
3. How much of an intrusion is it and how closely related to valid regulation is it? (is it a
necessary intrusion?)
Double Aspect Doctrine

Multiple Access Ltd. v. McCutcheon (1982):
- Exclusivity of ss.91, 92 does not mean other level of govt cannot encroach on other’s sphere
- Activities often overlap and intersect
- Exclusivity means exclusive ability to enact laws in pith & substance in relation to subject
matter covered by that level of govt
- Some subject matters have dual aspects to them, some fall under each level of govt
- Provinces have power of regulation over incorporation of companies with provincial objects (92(11))
- Focuses on where transactions are being concluded (locally or interprovincially)
- The court decides that both statutes are valid.
- The federal and provincial interests are of roughly equal importance.
Interjurisdictional Immunity Doctrine

Commission de la Sante et de la Securite du Travail v. Bell Canada (Bell #2), [1988]
- A woman who wants to take advantage of the better rights in the Quebec legislation.
- Stronger protection from being exposed to unsafe workplace and safety issues.
- She was pregnant.

- Bell argues that they do not want to have to comply with the provincial statute because they
are federally regulated.
- They are trying to argue that only the federal law applies.
- Bell # 1: minimum wage law passed by QC - no federal minimum wage law at the time
- Bell tried to argue they did not have to comply with provincial minimum wage law
- The courts said that employments relations is a vital aspect
- Provincial laws, even if they are valid, cannot apply to matters at the heart of federal
jurisdiction - federally regulated undertakings.
- Immunity given to matters at the heart of the federal powers
- The management is a vital part of federal jurisdiction, therefore only the feds can pass a law
in such a matter and provincial laws cannot even enter that zone.
- Such provincial laws are restricted in their application - they are read down. They are
not invalid.
- Result: II doctrine invoked, statute was read down
- Beetz: Justified use of II Doctrine
- Criticisms of II: Not a particularly compelling doctrine for 2 reasons
1. Runs against normal approach of Pith & Substance Doctrine
- P & S allows of increasing amount of overlap and interplay
2. Doctrine is unnecessary b/c fed govt has paramountcy doctrine to protect itself from
prov govt if it doesn’t like what they are doing
- Justified by:
1. Constitution says powers are exclusive
2. II Doctrine should be reciprocal but it doesn’t operate that way
- Beetz doesn’t like concurrency, overlapping jurisdiction b/c when there is overlap, provs are
sub-ordinate and he is a provincialist – he wants as little concurrency as possible (does not
like double aspect doctrine)
- Dickson liked concurrency and double aspect doctrine – not II doctrine
- Interjurisdictional Immunity Doctrine - sterilization test that applies to federally incorporated
companies and the Vital Parts Test that applies to the undertakings of federally incorporated
companies.
Vital Parts Test: in the case of federally regulated undertakings, provincial laws that apply
directly to most undertakings, will be read down so as not to touch upon “vital or essential” parts
of their management  ∴ federally regulated undertakings enjoy a vital part immunity from
prov laws that apply directly
3 kinds of constitutional arguments for challenging provincial statutes:

1. Validity
- Validity of the statute - the legislation has to be intra vires. Consider the Pith and
Substance Doctrine or dominant characteristic of the legislation was beyond the
jurisdiction of the level of government. If it is found to be ultra vires, then it is
retroactive, it is a clean slate, a nullity from the beginning.

- Validity of the specific provision - Look to the specific provision of the statute and
ask whether in isolation that provision is ultra vires.
- In pith and substance within the statute.
- Consider whether it is Necessarily Incidental.
- Is the problematic provision closely tied or necessarily incidental to the entire
statute which is found to be valid? If it is closely tied to the broader valid
scheme, then it will be considered valid.
- If it is found to be invalid, then it can be severed.
- If it cannot be severed without destroying the remainder of the statute, then the
entire statute will be struck down.
2. Applicability
- Interjurisdictional Immunity Doctrine - a question of whether the statute can apply.
Does the statute have to be read down or restricted?
- Bell Canada No. 1 and No. 2 (No. 2 is more important).
- To prevent provincial govt from intruding into heart of fed govt’s jurisdiction.
- Read down and restricted in its application
3. Operability
- Relies on the Paramountcy Doctrine - fedl govt is paramount where there are two
valid statutes applying to the same facts where there is an inconsistency.
- Fed law is supreme over prov law – Effect: prov law rendered inoperative
(suspended so long as conflict exists, if fed statute is repealed or amended and no longer
conflict then prov statute becomes operative again)
3 kinds of constitutional arguments for challenging a federal statute:

1. Validity - this applies in the same way as above.
- Pith and substance - statute as a whole and provisions of the statute.
2. Applicability - this is not applicable in the same way based on precedent.
- Interjurisdictional Immunity Doctrine – favors feds
3. Operability - this only works with respect to the federal government (exception for Old Age
Pensions)
 Used to fill gaps in the division of powers

 Prov power to incorporate companies on prov basis
 Fed incorporation power ascribed by POGG power (relates to internal architecture of corp – cannot
regulate their activities – depends on kind of corp)
 Could provinces assert control over corps by making them get prov licences, etc...
 Provs cannot pass leg that impairs status and capacity of fed incorporated companies
 Sterilization test – making it impossible for companies to operate ∴ company must operate under
any provincial statutes except those that sterilize the company
 II Doctrine extended to Vital Parts Test – prov laws cannot affect parts of companies undertakings

Irwin Toy
 Dealt with Quebec leg that prevented advertising to children b/c they are vulnerable
 Validity argument failed
 II doctrine: advertising is part of broadcasting (fed undertaking)
- The Vital Parts Test is not going to apply where there is only an indirect effect on the federal
undertaking.
- If there is only an indirect impact, the immunity is narrower - it must satisfy the Sterilization
Test.
- Response to criticisms of the Interjurisdictional Immunity Doctrine.
- Not comfortable restricting the Quebec statute. Hence there is now a way to get
around the Interjurisdictional Immunity Doctrine - Quebec merely has to frame their
statutes in a way that the effect is merely indirect - this would force the use of the
Sterilization test.
Sterilization Test: Prov laws that have an indirect impact on federal undertakings, on the other
hand, will only be read down if they have the much more serious effect of impairing, paralyzing
or sterilizing the viability of the undertaking.
Paramountcy Doctrine
 Use after using P & S and II Doctrines

Multiple Access Case - insider trading case.

 Both statutes are valid, applicable
 Double Aspect matter
 Virtually identical statutes on insider trading
 Issue: Is there a conflict?
 Held: Duplication is not conflict, it is harmony
 Dickson suggests different test for Paramountcy: Express Conflict Test/Impossibility of Dual
Compliance
 Paramountcy is only invoked if there is an impossibility of dual compliance (to
abide by both statutes)
o Argument against: citizen is held to highest standard
o Statute with lower std is being trumped by one with higher std
o In a way allows fed jurisdiction to be trumped by prov
 In favor of using Paramountcy
o Inconvenient not to b/c then we have to deal with 2 statutes
o Confusion as to who is the enforcer
o May be duplicate enforcement mechanism – inefficient!
o Blurs lines of democratic accountability

 Dickson says that value of provincial autonomy trumps arguments of efficiency
Why should federal laws prevail?

• Structure of constitution, federal system.
• Broad democratic representation
• Gaps in coverage, P.O.G.G.
BMO v. Hall
 Bank Act – want to implement national security interest to make it easy to seize property
 Rationale: making banks more comfortable with providing credit by providing mechanism for
enforcement
 Prov govt wanted to make it harder to seize farmer’s property
 Hall defaults on loan
 BMO seizes property without following Sask. law
 Both fed and prov statutes are valid
 Held: no impossibility of dual compliance – following prov procedures doesn’t mean can’t follow
fed
 La Forest (Dissent) said incompatibility of purpose: Feds wanted uniformity in code – Provs
wanted to make it harder for bank to seize property which subverts fed purpose  incompatibility
of purpose test
Two Approaches:
1. Multiple Access – Leading Prcedent
2. BMO – incompatibility of purpose
 Constitution is a living Tree (Persons case)  Constitution should not be frozen in time
 Constitution is dynamic, it can change
 Meant to endure over generations ∴ need large and liberal interpretation
 Principle of Dynamic Interpretation – leg couldn’t have though of everything when const was
created
 Large and Liberal Interpretation – cannot be used with division of powers b/c 2 are usually
mutually exclusive – large and liberal interpretation will give prob powers a narrow interpretation
and feds lots
 Mutual Modification: read fed and prov powers together and modify them in light of both of them
 allow them to work together, read in qualifiers
 Multiple Access Test: When provincial law undercuts purpose of federal law
 Federal law used when there are strong reasons to have national, single, unified regime  ged govt

has capacity to enact uniform and national laws but it doesn’t have to
- Example: fisheries - not such a big deal for land locked provinces, and yet
highly important for provinces such as Newfoundland.
POGG
 POGG embraces areas not in enumerated powers (preamble of 91)
STEP 1: Consider whether power is included under one of enumerated heads of power – look to
dominant characteristic
STEP 2: If it doesn’t fit – look to POGG
 POGG describes all federal power – enumerated powers are illustrations of powers that fall under
POGG
 All powers not given to provs
3 Branches of POGG
1. GAP
 Role almost exhausted
 Least significant branch
 Purpose: Fill in gaps where subject matter doesn’t fit into s..91, 92
 Multiple Access - there was no head of power for dealing with incorporated companies on a
national basis.
2. Emergency
 In times of emergency (i.e. war), govt must be able to work quickly and comprehensively
 Div of powers is suspended and feds can enact laws on any matter
 Temporary power – laws are only varied temporarily
 Crts show great deference to fed govts in times like this
o Leg can only be challenged if claimant can show through very clear evidence that Parliament
lacked basis to ground their claim and that it was an emergency  very high threshold
 Prov powers suspended insofar that they are subject to overlapping fed leg
 If conflict, fed prevails b/c of paramountcy
 Prov powers are same (not diminished), only fed’s change (extended)
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?
3. National Concern
 Feds can uphold leg that is temporary or permanent
 History: first considered in 1880's in Russell v. the Queen - the issue was the validity of the Canada Temperance Act -
the Privy Council decided that this didn’t fall within any specific power in section 92 and therefore had to go under the
general power of the federal government. 15 years later, the Privy Council had the opportunity to look at a similar act -
local prohibition of liquor trade and consumption - it upheld this precedent - provincial - what do they do with the
precedent of Russell where they allowed the power to the feds. There was a dicta suggesting that there was such a
doctrine called the national concern/dimension of POGG. It was then essentially ignored for 50 years (until after
WWII). There was considered to be no such this as a national concern branch of POGG. POGG was considered to be
only an emergency branch and a gap branch. So is the consumption of alcohol an emergency? You would have to
explain Russell as being an emergency of drunkenness if there is to be no national concern branch.
 If a matter goes beyond local concern or interest and concerns whole nation, must fall under fed leg
 1936 – SCC upheld fed regulation of aeronautics (air traffic)
 Crt weary of power here b/c of potential scope and breadth
 Concerned would not be able to control it
 No idea how to cap it until Beetz dissent in Monroe
National Concern: (class notes)

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?
Monroe: Anti-Inflation Reference “Inflation not national concern”

 Issue: Was the Anti-Inflation Act controversial? Could it be upheld under POGG?
 Not under enumerated areas b/c so broad
o Focused on wage increases and trying to limit them in public sectors
o Feds to not have power to cap prov regulated business ∴ possible intrusion of prov powers
 Can only enact this if can squeeze it into POGG

o Doesn’t fit Gap Branch

 Can it be upheld under Emergency Branch?
 Can it be upheld as a matter of the National Concern branch?
 3 decisions:
o Laskin (for 4 members)
 Emergency? Yes
 National Concern? Undecided – tone leads to yes but not necessary to decide on this
o Ritchie (for 3 members)
 Emergency? Yes
 National Concern? No
o Beetz (for 2 members)  His judgment became the law
 Emergency? No
 National Concern? No
 Held: 7:2  can be upheld under Emergency Branch
 Act was too broad and diffuse to be upheld under National Concern Branch
Beetz: On National Concern Branch

 Requirement 1: Subject matter must be small, discrete, single and defined, cannot be large, broad
and diffuse
 Focuses on concern for maintaining balance btwn fed and prov powers
 Requirement 2: Subject matter has to have national dimensions
 Environmental and inflation matters are too broad to be allocated to fed govt through national
concern branch
 POGG not used too often b/c when a new matter arises, it is ascribed in accordance with existing
heads of power by analogy
Crown Zellerbach “Small aggregates can be single matters of national concern”

 Challenge to Ocean Dumping Control Act
 Issue: Does fed govt have jurisdiction to pass leg prohibiting dumping in salt water w/out a permit?
 La Forest and Le Dain talk about ways that feds can address concerns about environmental
degradation
 Case concerns dumping in prov waters
 Validity of statute determined by reference to its P & S
 Boundaries of fed and prov waters: prov is to low tide mark plus bays and actuaries - feds have
territorial sea
 Gap Branch: Where constitution is silent, if the prov territory is defined, and the feds have
jurisdiction over the territorial sea, then it would fall under a federal power.
 Not plausible characterization of P & S to claim it falls with respect to navigation
 Also doesn’t fall under the fishery power.

 La Forest, is not convinced that P & S is about ocean protection

 Real impact is on prov regulated industries in prov regulated waters
 Ruling: 4-3
 Le Dain for Majority: 4 major conclusions
1. National Concern Doctrine is completely distinction from National
Emergency (which provides const basis for what is necessarily leg of a temporary nature)
2. National Concern Doctrine applies to both new matters or matters not
new but have become of national concern that were provincial
3. To qualify as matter of National Concern, must have a singleness
distinctiveness and indivisibility that distinguishes it from matters of prov concern.
4. Provincial inability test: In determining whether a matter fulfills the
requirement of singleness, distinctiveness and indivisibility that clearly distinguishes it from a
matter of prov concern, consider the effect on extra-provincial interests of a provincial failure
to deal effectively with the control or regulation of the intra-provincial aspects of the matter
- It is not enough to say that the prov is doing a poor job (we allocated matters to provs if it
concerns them)  They have to do a lousy job which has an impact on extra-provincial
matters, it is the extra-provincial consequences that come from the prov failure to deal with
them adequately that will pull it into the federal realm  national concern branch is directed
at the risks
 Big Issue: What is the P & S of the Act? Does the subject matter meet the test for determining the
scope of the national concern branch of POGG?
 Le Dain:
o Relies on scientific evidence
o Evidence establishes that pollution in salt water has its own characteristics and is distinct from
pollution of fresh water – he is concerned about marine pollution  treated as distinct on
international level
o Looks at test from Anti-Inflation Reference – to qualify under National Concern Branch must
have ascertainable and reasonable limits insofar as its impact on prov jurisdiction is concerned –
there is a need for national and uniform law in order to properly regulate it
 La Forest (Dissent)
o Does not meet singleness, distinctiveness requirement
o Cannot be easily distinguished from other environmental matters
o Interconnectedness with prov matters makes him say that feds are powerless under POGG
o Feds have lost of leg power and can regulate it in many ways through existing heads of power
 Consequences:
o Provs cannot pass leg that are in P & S related to marine pollution even if restricted to territory
of the prov – if has incidental effects it will be ok
o Double Aspect Matter: in case of conflict, prov law will be rendered inoperative b/c of
Paramountcy Doctrine
Old Man Rivers Society Case: The environment itself and environmental degradation is not a separate

head of power, instead it should be seen as an overlaid on all heads of power. Under a head of power,
that power is over environmental issues coupled
- Why not upheld under the criminal law power?
- Prohibition coupled with a sanction/penalty. The prohibition was also seeking to punish a
particular activity on moral grounds (Morgentaler).
- There has to be a prohibition, penalty and a public purpose (suppression of social evils).
- There is a prohibition coupled with a penalty, but does the Ocean Dumping Control
Act have the criminal law purpose?
Note: The courts do not want to use POGG national dimensions - they tend to first turn to the existing
heads of power and so on.
Old Man Rivers Society Case:

 Environment is not a distinct head of power
 Environment is not under National Concern Branch of POGG
 POGG only triggered when there is an impact on federal area of jurisdiction
 Here there was an impact on Navigation (b/c was navigable water)
 There was a risk of flooding which would affect Aboriginal Lands
 Potential impact on fisheries
 La Forest thinks that II will only protect fed powers and not prov
 Nuclear Power meets POGG National Concern Test
Trade and Commerce: Economic

 Fed Power in s.91(2) must consider prov power of Property and Civil Rights – s.92(13)
Citizens Insurance Co. v. Parsons (leading case)

 Leading case for broad parameters
 Methodology and Conclusion are important
 Contract btwn P and CI
 P’s store had a fire
 Contract was illegal and CI doesn’t want to pay
 CI says Ont law is ultra vires w/ respect to Trade and Commerce b/c fails to observe div of
powers
 CI challenging constitution so doesn’t have to pay
 Held: Trade and Commerce is a general power, not applicable to specific Ks
 In P & S, leg was concerned with Property and Civil Rights
 Two Branches of Trade and Commerce
1. Extra-provincial trade – international and inter-provincial

2. General Regulation of Trade (GRT) power throughout whole dominion

 Held: Must read s.91. 92 together to keep 2 sphere separate as much as possible
 Provs have jurisdiction over intra-provincial trade
 s.94 gives fed govt right to pass laws rendering the common law of provs uniform
 Held that must read Property and Civil Rights from s.92(13) broadly to include
o Property, personal and real
o Contracts
o Torts
o Employment Standards
o Collective Bargaining
o Building Codes, Fire Safety Codes
o Rules and Estates (succession rules)
o Occupation Health and Safety
o Family Law, Custody, Access, Adoption, Social Assistance, etc...
 Must give necessarily incidental doctrine narrow role – feds and provs must work together
Eastern Terminal Elevator (1925)

 Regulating grain trade
 80% exported
 Feds assert jurisdiction from first branch of Parsons – says in relation to extra-provincial
trade
 Impact on local transactions was incidental
 Feds and provs must cooperate – risky
Classen (1950’s case)

 Feds invoked power – said grain elevators are for general advantage of Canada ∴ regulated
by Feds
 Classen says many transactions are local
Cal Oil:
 Fed law drew line btwm Ontario and Quebec (North to South)
 Said could not sell imported oil west of the line
 Attempt to protect Alberta industry from cheap, imported oil
 Impact on local transactions was considered incidental to the scheme
Second branch of Parsons: General regulation of trade power (GRT power)

GM. v. City National Leasing

 Challenge to civil action provision
 Competition act not restricted to extra-prov trade (prohibits anti-competitive behaviour)
 To be upheld, must be under GRT power
 Criteria to determine scope of GRT
1. Part of General Regulatory Scheme (more likely to be comprehensive)
2. Monitored by continual oversight of a regulatory agency
3. Oriented to trade as a whole rather than a particular industry
4. The provs must be incapable of enacting the leg themselves (i.e. fed undertakings, trade
predominantly extra-provincial)
5. Must be national – cannot leave out 1 or more provs (functional concern – provs cannot do
it)
 Risk: power is similar to challenge to National Concern Branch of POGG – hard to confine
Nothing else has been upheld pursuant to GRT Power (federal securities regulator might)
Summary of Parsons:
First branch: relates to extra-provincial trade (crossing borders)
Second branch: GRT power - adds capacity to regulate both extra and intra-provincial trade so
long at it is not regulating a specific trade, etc (see criteria).
Natural Resources
What are the roles of provinces and parliament?
Rise in oil prices in '73 caused problems. As oil revenues increased, crisis occurred, equalization
programs responded.
CIGOL v. Gov't of Saskatchewan [1978]

• Oil produced on private and crown land in Sask. Natural resources (s.109) are owned by
the province. Royalty surcharge for crown land was calculated the same as Mineral
Income tax, preventing Sask. from undercutting the world price.
o Provincial Mineral Income Tax = 100% Well Head Price (Market price) - Basic
Well Head price (Fixed Pre-OPEC price). Extra charge would be paid by tax on
private land.
• Province can do things as OWNER that it can not do as legislator. (Owners can charge
royalties in contracts.
• Martland J. (majority): The provincial minister cannot set prices for goods in the export
market (trade and commerce). "If the company sold at less than market price, the
minister was empowered to set the well head price." Categorical argument.

• Dickson J. (dissent): Presumption that the provinces are acting constitutionally. The
province has and needs control over natural resources. Transactions were local. There is
no evidence of impact on extra-provincial trade. Consumer price does not change. The
market, not the minister, sets prices and therefore taxes, which are functions of the prices.
Weighing and balancing: Provincial interests outweigh the burden on trade and
commerce.
• Both taxes were struck down. MIT was indirect and unconstitutional. Royal surcharge
contracts already included royalties and could not impose more. Saskatchewan was
ordered to pay back CIGOL from the tax date onward. To recoup the loss, they passed an
income tax on oil revenues earned after that date.
• Consequences
o S.92a had given jurisdiction to provinces of natural resource prices outside the
province, subject to paramountcy. 94a protects provincial laws.
Central Canada Potash v. Sask. [1979] “International price fixing bad”

• 1969 - Sask. set up ABC scheme to regulate potash production, control prices and protect
the industry. 1972 - ABC replaced by FP scheme, upping the percentage. CCP could not
honor a contract under the new scheme. Feds joined CCP as plaintiff, accusing
Saskatchewan of undercutting New Mexico competitors (dumping) and helped strike
down the provincial scheme.
• The legislation was designed to protect and conserve the potash industry (92.13), and that
the impact on trade and commerce was incidental.
• Laskin CJC. agreed with the economic ends, but not the price fixing means. The legal
and practical effect is to regulate export price.
• Is reducing production to meet demand and save the industry a bad thing?
• Ruling had no appreciable impact on economy or potash market.
• Would 92a change this result? Not clear. 92a(1b) allows rationing production and
conservation, but does that include economic conservation? No mention of destination
(export) of products aside from other provinces.
Criminal Law Power: s. 91(27)

 Challenge: very broad subject matter with no apparent limits
 Crts are confused about how to interpret it
 Broadest, most flexible federal power
 Concern: Has crt gone too far in allowing the power
 Trilogy of recent cases: MacDonald, Firearms Regulation, Hydro Quebec...
 S.92(15)  Capacity to include penalty provisions (Prov laws can take form of criminal laws)
o Must be grounded in P & S in relation to some other head of power – ancillary provision to

save prov laws w/ penalty provisions

 S.91(27) is independent and does not have to rely on another head of power
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.
Paramountcy doctrine
- Over time, judges have been friendlier to moral regulation than over economic regulation.
 Case dealing with Competition Act: criminal law is only prohibitions coupled with penalties and that
there is no transcendental notion of what is criminal
 Criminal is prohibition coupled with a penalty – too broad and allows govt to enact any law

Margarine Reference - page 390:

- SCC (Rand) added a third element: There should be a criminal law purpose
 Public Purposes that can support a matter being in relation to criminal law:
o Public Peace
o Order
o Security
o Health
o Morality
 Law had an economic purpose (to protect the dairy industry)
 There once was a public purpose that could ground the prohibition (public health concern - it use to be
thought dangerous to health)
 Rand strikes down provision with the exception of importing (which can be upheld pursuant to fed
power to regulate foreign trade)
 Economic interests deal with civil rights
 Can be argued that the offence is no longer valid criminal law - dangers have dissipated (no longer a
sufficient danger) - knowledge and attitude.
Example: marijuana. This didn’t succeed - they held that it was valid on the criminal law power
unanimously. Crt said there was a valid concern particularly with protecting the vulnerable.
The majority cited a phrase from the Butler case - it is enough if the parliament has a reasonable
apprehension of harm. In pith and substance, it has to be punishing a social evil, but there doesn’t have to
be a lot of evidence for it being a social evil.

Crt will hold that a law is not, in P & S, valid in terms of criminal law power when:
Form: prohibition and penalty
Substance: purpose
RJR MacDonald v. Canada:

 Tobacco Products Control Act.
 Valid because has a prohibition coupled w/ a penalty w/ purpose of protecting ppl from certain health
risks.
 Controversial b/c targeted advertising of tobacco products – had not been done before
 Not clear that advertising was sufficiently closely link to health risks
 Took atypical form by making exemptions for foreign media - looked as though those exemptions
undercut the notion that it was criminal law
 Crt dealt with exemptions by saying it did not defeat the dominant characteristic of the legislation as a
whole
 An exemption in an offence provision does not necessarily deprive a law of its status as being a criminal
law. (Also in Morgentaler.)
 Crim laws should be self-executing – i.e. we should be able to read the law and know how to avoid
penalty
R. v. Hydro Quebec:
 Environment itself is not head of power – must be linked to another head of power
 The scope of the definition of “toxic substances” - Part 2 of CEPA - regulates everything from the
creation, use and disposal of toxic waste
 Definition toxic substances imp b/c no issue if tied to matter falling w/in established head of power
 Definition not tied to fed area of jurisdiction ∴ must fall within POGG National Concern or Criminal
Law Power
 National Concern Branch Problem:
o Must be discrete and directed toward something not too diffuse and sweeping  Must meet
discrete, indivisible test  Breadth in this case is too broad
 Criminal Law power  upheld 5:4
 Crt wants certainty in crim law – must have prohibitions and penalties to be crim law
 No prohibitions in statute
 Dissent emphasizes this – imposes power to fed govt to compile a list of toxic substances, can only enact
regulations with regards to those on list
 Saved by criminal law power
 Majority said protection of environment was valid concern
 Dissent did not disagree but was concerned with lack of prohibitions
 Case expanded scope w/ respect to formal and substantial elements of crim law power
 Case gives fed govt broad power as long as law is valid crim offence  Crim law has few substantive
limits

Firearms Reference
 Argument was that Firearms act was not, in P & S, a crim law
 Act had broader scheme than pre-existing prohibitions in crim code
 Act was in P & S to put in place prohibitions coupled with penalties and registering and licensing
scheme was to support the prohibitions
 It is not the crt’s job to question the wisdom or effectiveness of legislative scheme
Limits On Criminal Law Power:

 Formal Requirements: prohibition coupled with penalty
 Dominant characteristic cannot be regulatory
 Substantive Requirement: Criminal Purpose
 Major and Sopinka say must be a major social evil
 Requirement is really less than that  Reasonable Apprehension of Harm (Malmo-Levine)
Limits On Provincial Ability to Enact Laws with Penalties: s.92(15)

 Prov laws can have penalties but this is not a power on it’s own
 Trend: uphold prov leg w/ subject matters that overlap w/ fed jurisdiction over crim law matters
 Counter-Examples of upholding Prov Laws: Morgentaler (P & S doctrine) and Westendorp
 Double Aspect Doctrine – most subject matters are subject to concurrent fed and prov law
 Provinces can pass laws with penalty provisions as long as in P & S, it is grounded in another head
of provincial power  Has formal and substantive characteristics of crim law but is analogous to
prov jurisdiction to regulate
o i.e. Safe Streets Act – panhandling – prohibits soliciting – Challenged with respect to freedom of
expression and crim law power – act was upheld
 McNeil – provincial film and video review board has task of reviewing all films/videos to be distributed
in Ont. – no approval, no release
o Civil liberties must be filtered through div of powers
o Fed crim law puts limits on provs to be able to censor this way – looks like admin regulatory scheme
 Traditionally, crim law power was prohibitions coupled with penalties but Westendorp and
Morgentaler had stronger judgment with respect to div of powers
o Municipal by-laws (creatures of the provinces, ∴ cannot extend beyond powers of prov) ∴ must be
in P & S related to a s.92 power.
o Stuck out like an intruded provision – as if was implanted to deal w/ matter of street prostitution in a
distinct matter (for example, the penalty was higher)
o Leg history was imp here
Features:
1. The matter has long been dealt with by the criminal code
2. The way that the criminal law deals with it is inadequate in some way
3. Contained policy purposes that were in the criminal law (unhappy with leg debates)

4. The municipal by-law has some penalty - particularly severe

5. Provincial law has the features of criminal law.
⇒ If all these factors are fulfilled, then the law will be considered ultra vires.
Criminal Law
Where does federal power end and provincial power begin?
Here criminal law is used only in the narrow definition of those powers granted to one source or another.
Federal
• 91.28 Penitentiaries
Provincial
• 92.15 Punishments for provincial laws
• 92.6 Prisons
• 92.14 Administration of justice in province (courts, police, etc.)
Board of Commerce
• 1922 Haldane struck down anti-hoarding competition law, refused to uphold it under criminal law.
• Scope of criminal law explored.
P.A.T.A
• 1931 Lord Atkin: Is the act punished with penal sanction? If so, it's criminal.
• Scope of crim. law too wide.
Margarine
• Criminal law must be to some purpose (public peace, order, health, security, morality)
• Scope of criminal law
o Prohibited act
o Penalty
o Criminal law purpose
Recent expansions under 91.27

• POGG
• General Trade and Commerce
MacDonald v. Canada “Health is a criminal law purpose”

• Health warnings must be displayed, ban of advertising of domestic cigarettes.
• Preamble hints at POGG - substantial and pressing concern.
• S.1 - to infringe on freedoms concern must be pressing.

Arguments against validity of MacDonald

• This law is about advertising, not tobacco, which is provincial in power. Tobacco is not
criminal. If they were so concerned with health, they would have gone much further and
prohibited tobacco.
• If you can't advertise cigarettes, why not prohibit ads about fast food, or beer?
• If criminal prohibition is so important, why the exception for foreign periodicals? How can this be
taken seriously? 65% of the mags will still have ads in them.
Arguments for validity of MacDonald (Majority)

• Criminal law is not frozen in time, and can include health.
• It's not practical to prohibit cigarettes, and it has been shown effective to limit in the area of
advertising.
• La Forest: Discouragement is a valid move when prohibition not practical. Characterization:
Act is aimed at detrimental health effects caused by tobacco. (therefore criminal)
• Criminal law routinely has exemptions. Foreign periodicals are a small segment (1%)
Advocacy: Find legal and non-legal sources and package an argument comprehensively. Gov't role, prov
role, court role, morality, principles, code, etc.
R. v. Hydro-Québec (P400)
• Canadian Environmental Protection Act provides regulations for toxic substances. (definitions, lists,
consequences)
• Can regulation of PCBs be upheld under criminal legislation, given its form?
• The act is in relation to environment, not under any power. Federal and provincial levels both have
a role to play in the environment. (Crown Zellerbach)
• Both sides agree that protecting the environment is a criminal purpose. The court is divided on
form. (Is it prohibition or regulation?)
• Majority (La Forest J.) uses criminal law language.
o Criminal law is broad, created to protect and promote (P404) our fundamental values. It is
limited when colorable.
o There is less impact on provincial powers under criminal law than if we were to apply it
under POGG. (No double aspect under POGG and national concern doctrine would be
strictly federal, but upheld under criminal law, provinces can still regulate in all kinds of
ways, subject to paramountcy.
o In Crown Zellerbach, La Forest dissented, worried about impact on provincial powers.
Here, as majority (P407) he expressed a concern for the effectiveness of parliament.
Explicit balancing of powers.
o P412 - Jean Leclair
• Good decision, leaving room for provinces to regulate. POGG no good.

• Legitimating of state, expression (creation?) of our national identity. (A purpose of

judicial review)
• Dissent
o This is a regulatory scheme with no broad-based prohibitions. (P408) The law cannot be
self applied. This must be regulatory and not criminal law, since provinces seem to be
exempt from this act if they have similar laws.
o P411 - David Beatty (rule of law)
• Too much potential power to feds
• Criminal scope has been stretched by ignoring how regulatory the Hydro case was.
Should have been POGG. Precedent has been ignored.
Firearms Act
• upheld in criminal interest of public safety, other aspects incidental.
91.27 is growing in scope, must cut back eventually.
Arguing a criminal law legislation

• Fundamentals of social value of the law to the nation as a whole.
• Anchored in a traditional criminal law concern.
• Framework of prohibitions and penalties in the legislation.
• Address explicitly the effect on provincial bounds of power.
Provincial reach to criminal law

• 92.15 Punishment for breach of provincial law. Provinces have right to legislate those matters
within their powers.
• 92.14 Prosecutorial discretion.
• Federal criminal law is sometimes dependent on the opting in or out of provinces. (video poker)
• Double aspect sometimes ends in both provincial and federal laws standing together.
Nova Scotia Board of Censors v. McNeil (P416)

• Nova Scotia law required all films to be submitted to a board of censors which had the power to
require changes to be made or prevent the film from being shown. Was the law criminal in nature
and therefore ultra vires the province?
• The court held that the penalties included in the act are not punitive, but rather are aimed at
ensuring compliance with the regulatory scheme. The law’s pith and substance is the regulation of
local trade, not criminal.
Dupont
• Bylaw banning gatherings (parades, assemblies, political rallies, protests) was upheld under
provincial power to regulate domain.

• Held to be preventative, non-discriminatory and not criminal.
Westendorp v. The Queen (P421)

• Criminal laws had made it difficult to control prostitution so Calgary passed a bylaw prohibiting
prostitution on streets.
• The law was struck down as being criminal in nature, designed to control prostitution and not to
prevent nuisance. Opposite reaction than Dupont because the legislation was too specific. Had it
been broader, it might have passed.
Power to enforce comes from power to legislate

• It was thought that the provinces had exclusive jurisdiction to enforce criminal law through s.
92(14). It is now clear that that is not the case.
• Dickson J.: Power to enforce criminal law is concurrent with power to legislate it. Feds could step
in by legislating differently and invoking paramountcy.
Federalism and Spending Power

• Spending power (P428) allows federal influence over matters such as health care, even though listed
as provincial. Parliament regulates indirectly areas they can't constitutionally regulate directly.
Constitutional status of spending power is unclear. Nothing in text. (S. 91(3), 106?)
Measures taken under spending power

Can attach conditions to money and therefore influence decisions outside jurisdiction.
• Providing benefits directly to citizens.
• Federal shared cost programs (health, education)
• Equalization grants to provinces.
Conditions for health funding

• Accessibility
• Comprehensiveness
• Universality (all residents)
• Portability (temporarily absent)
• Non-profit public administration
Arguments against conditions

• Undermines federal system by removing accountability of local gov't for its decisions.
Quebec Sovereignty
Quebec is bound in law to the constitution, even if they don't agree with it.
• Meech Lake would have to go through amending procedure, get unanimous consent, and it failed to
do so.

• Charlottetown '92 was also defeated.

• 1994 PQ, 1995 Referendum
• PQ assumed that Quebec could separate unilaterally if the people voted that way.
• Quebec Superior Court said that Quebec could not separate unilaterally.
• 50.6%, 49.4% Referendum
Quebec Secession Reference

• Court asked if Quebec has a legal right to secede unilaterally.
• Secession would require many amendments to the constitution. There is no legal right to secede.
• International law does not offer that right.
• In case of conflict between international and Canadian law, in Canada the domestic law would
prevail.
• Constitutionalism and democracy work together, support each other.
• The court could have refused to answer some of these questions, but did not.
• Quebec gov't called it an illegitimate process. Would not sent their lawyer to argue it. Would feds
not talk to Que?
• Where there is a clear majority to a clear question, federalism and democracy would be obliged
to negotiate constitutional change, not subject to judicial decision or sanction.
From history, other systems, doctrine, cases, we find governing principles that help to interpret rules.
• A rule is discrete, a principle is more general and is to be weighed against other principles.
Principles function in symbiosis, not trumping each other, but helping to define each other.
Aboriginal
 Division of Powers is important for Abs  deals with division of legislative authority
 When can provs pass laws that have impact on abs? When can Parliament? Extent to which self-govt in
abs is emerging
 Related to charter but distinct from it
 Ab rights grow out of their history and from treaties (protect them from or compel state activity)
 S. 35 is similar to charter but not part of it
 Ab rights are in s.35 of Constitution Act, 1982
 Certain provisions of Charter do not apply to s.35 – i.e. Reasonable limits and Oakes test do not
apply
 Sparrow case imports s.1-like limits into section 35
Royal Proclamation, 1763: What does it say? Why is it important?

 Embodies colonial practices that are part of the common law and now are in s.35

 Relationships described in it are imp

 Used to help formulate idea that the fed govt has obligation to act in ab’s best interest when dealing
with ab peoples and their lands (Trust-Like Relationship)
 Relationship with British Crown was a nation-to-nation relationship (btwn sovereign nations)
 RP is mixture of that relationship and a patronizing European tone
o Nations living under Brit Crown’s protection
o Allies in military campaigns (rely on abs and need them but they are beneath us)
o Relationship recognizes land rights and rights to be undisturbed in their lands unless they cede them
o Indians have been exploited and tricked
o Settlers cannot buy land from Indians – land must be ceded to Crown through treaty then settlers buy
from Crown
o RP embodies relationships, does not create them
o Texts are not imp to abs, they are misleading
Treaty of Niagara
Treaties:
 Treaty: formal embodiment of an understanding of relationship with Crown
 Treaties show why ab people value so highly their relationship w/ the Crown
 S.91(24) is only provision in BNA Act that mentions Indians
o The word Indians is still used – this is quite embarrassing but it is a product on the misunderstanding
of Christopher Columbus
o Term Indian is used b/c of historical and textual context
o Inuit, Métis and Indians are distinct
 Some ab peoples have treaties and some do not
 Treaty rights are entrenched in 1982 act
 Non-treaty ab people still may have constitutionally protected rights
 Indian Act enacted when fed Indian policy was about assimilation
 There is a difference between status and non-status Indians
The Guerin Case:

 Damages arising from breach of Crown’s fiduciary duties
 Principles of case are used to understand the link btwn old documents, history to Constitution, 1982
 Interpretation of s.35
 Reserves come from treaties and fed statutes
 Lands Reserved for the Indians: reserves and lands not surrendered by abs
 This case is about BC land
 Ab title seen as burden on Crown title (Deglman Case)
 Ab people don’t own the land in the way that non-ab people understand it

Sparrow Case:
 SCC’s first interpretation of s.35
 Sets out parameters for interpretation
 Task of court – interpret meaning of word “aboriginal rights” “existing” “recognized and affirmed” –
s.35(1)
o Existing aboriginal and treaty rights are recognized and affirmed
 Words chosen by drafters to limit scope of ab rights
 “Existing”:
o Not extinguished as of 1982
o To Extinguish:
 Exhibit a clear and plain intention to extinguish rights
 If govt does not explicitly say so, it must be the necessary implication of govt’s course of
action
 Cannot extinguish post-1982
 Cannot say that right has been extensively regulated – does not qualify
 Once a right is not fully extinguished, it exists in its full vigor for the purpose of s. 35
 “aboriginal rights”
o Not all ab activities are going to be automatically immune from govt intervention
o Crt divided unprotected activities from protected activities
o Assumed that taking salmon fell within the scope of ab rights
o Did not describe the extent of the rights
o Found integral to distinctive culture to take salmon for food and cultural purposes
 Attempt to engage in redistribution of access to resource but trying not to create too much conflict
 “recognized and affirmed”
o Includes s.1-like test into s. 35
o Need limits - constitutionally protected but not in an absolute way
o TEST:
 Govt must be pursing a valid objective consistent with Crown’s trust-like responsibilities
 Priority must be given to ab interests over other people who have claim to resource
 Priority means: if conservation issues dictate that it is ok to fish, then abs get first right
The Charter of Rights and Freedoms

Relevant Sections:
s.2  Fundamental freedoms, including freedom of expression, religion
s.7-14  Range of legal rights, i.e. fundamental justice, unreasonable search and seizure
s.15  Equality Rights – Mix of Positive and Negative Obligations on Govt

Purposes of Various Sections

s.2 Truth, Democracy, Self-Realization
s.7 Not much guidance on this section according to scholars
s.15 Human Dignity
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
Application of The Charter

 Section 2, 7-10, 12, 17  apply to “everyone” – suggests including individuals, corporations
o BUT s.2(a) (freedom of religion) and s.7 (life, liberty, sotp) are not the sort of rights that a corp can
enjoy
 S.15  “every individual” (note – this does not include a foetus)
 Only when corp has their rights violated under ss. 2(a), 7, 15 can they invoke a s.14 remedy
 S.7 includes “every human being who is physically present in Canada and by virtue of such presence
amenable to Canadian law” (Singh)
 Two ways to bring Charter claim:
o Collateral issue in ongoing crim or civil proceedings (i.e. defence to crim charge or civil liab)

o Independent action (seeking declaratory relief)
Standing:
3 types of claimants have standing:
1. Anyone whose rights have been directly affected (remedy under s.24(1) or s.52)
2. Anyone (corp or indiv) charged w/ unconstitutional offence (remedy under s.52) – Big M, Morgentaler
3. Public Interest Standing – TEST
1) Govt action must raise serious issue of invalidity
2) P must have genuine interest (not a mere busy-body) – Thorson-McNeil-Borowski Trilogy
3) Must be no other reasonable and effective way to bring the issue (hard to establish)
Corporations
 When corps are subject to law they want declared invalid but right is not one corps enjoy  i.e. seek to
argue infringement of someone else’s rights
o Big M says corps have been allowed in context of crim prosecutions, to make s.7 challenges to leg
under which they have been charged
o General Rule: corps cannot claim infringement of own Charter rights have not been allowed ot bring
independent civil action seeking declarations that law is invalid despite fact that they are subject to
regulation under the law in issue and to possible criminal sanctions if they violate it
o BUT in federalism cases – the fact that the corp’s interests are directly affected is enuf for standing
How does a Charter claim work?

1) Must establish infringement
a. Does the Charter apply? (s.1)
 Only applies to govt action (s.32)
 Is the Act ultra vires? Charter only applies to validly enacted leg (not leg that is
inactive, inoperable, inapplicable)
 Is there an override provision in the law? (s.33)
 Applies to govt action or inaction (positive and negative obligations) – diff from US
b. Has there been a breach? (s.2-32)
 Does the challenged action interfere in purpose or effect w/ exercise of Charter
right or freedom? (Big M)
 Onus is on P here
2) Burden of proof shifts to govt to justify infringement (reasonable limit, prescribed by law,
demonstrably justified in a free and democratic society)
a. Can it be upheld under s.1?
3) Are there any remedies available if it cannot be upheld under s.1?
a. S.24  Individual Remedies

b. S.52  General Remedy of invalidity applicable to any law declared invalid or of no force
and effect at least to the extent of inconsistency  fixing the law to bring it into
constitutional compliance
c. Judges have wide discretion in terms of remedies
 Can exclude evidence
 Award Damages (compensatory and punitive)
 Force change in law’s administrative policies – i.e. by mandatory injunction
 Structural Injunction: order set of positive actions to be undertaken by govt
 Has been used re. school language rights
 Reluctant to do this b/c judiciary doesn’t have enforcement abilities
Aids to Interpretation:
1. Interpretative Provisions of Charter
 Certain provisions do not create new rights but affirm/highlight certain values to be taken into
account when interpreting rights or assessing s.1 justification
 Provide guidance
 Ss.25-29: equality, ab treaty rights, etc... don’t confer new rights but discuss how they should be
interpreted
2. Parliamentary and Committee Debates
 Drafting history – debatable how much weight this should have
 Crts do not want to take speeches and declarations into acct – danger of this is that this can cause
rights, freedoms, values to become frozen in time
 BC Motor Vehicle Reference  Lamer: should be admissible but not determinative (give little
weight) b/c of multiplicity of actors and this could ruin the dynamic interpretation
 Multiplicity of Actors: hard to determine whose opinion should matter
 Dynamic Interpretation: don’t want to freeze const over time
 For 1982 Constitution Act, there was a substantial history indicting what drafters intended
particular provisions to mean (i.e. s.7 fundamental justice – chosen to be a procedural thing, not
a substantive guarantee)
 In Reality: crts do give great weight when it suits their purpose
3. Canadian Pre-Charter Jurisprudence
 Bill of Rights – had diff const status than Charter (Federal Statute) ∴ decisions of limited
relevance
o Ordinary statute, applied to feds, not provs – can be repealed (not entrenched)
o Many rights and freedoms overlap with those in Charter
 Generally crts have put interpretations of Bill of Rights aside b/c wanted a clean slate to work
from (Charter gave new commitment to supremacy)
 Bill’s role is attenuated – could be relevant if govt enacted s.33 but did not override Bill
4. International Sources

 Many int’l sources reviewed in drafting (American Bill of Rights)

 Persuasive, not binding
 Some int’l norms are shared but all come from diff histories, cultures
 La Forest: be wary of drawing too ready a parallel btwn consts in diff countries which were
drawn up under diff circs
 Charter conforms to spirit of contemp int’l human rights movement and incorporates many
policies of various int’l documents pertaining to human rights
o Can look to South Africa, Australia, Israel, Int’l Human Rights norms, commitment to
interpreting laws in accordance with conventions
o Universal Declaration of Human Rights Resolution 217A (III), 1948 (UN)
o Not legally bound to interpret Charter in relation to int’l human rights – norms not
automatically part of domestic law
Principles of Interpretation:
The Purposive Approach:
 Charter should be interpreted in light of interests it was meant to protect (Purposive)
 What is the purpose of the provision? (Crt looks at Charter, drafted in vague, open-ended terms, and
asks what purpose is)
 Purposive Interpretation = Generous Interpretation
 What is the purpose and effect of the govt action
 Crts use a Generous, Large/Liberal Interpretation Approach
 Charter is Dynamic, Living Tree, built to last
o Persons Case: Are women persons and could ∴ be appointed to Senate
Hunter v. Southam (1984) SCC: Purposive Approach

 Const drafted with eye to future
 Function: to provide continuing framework for legitimate exercise of govt power
 Provisions cannot be easily repealed or amended ∴ must be capable of growth and development
over time to meet new social, political, historical realities
R. v. Big M
 Lord’s Day Act was valid exercise of fed crim law power
 Act violated freedom of religion under s.2(a) of Charter
 Crts read freedom of religion to include freedom of religious practices and freedom to hold these
beliefs

 Freedom of religion cannot be violated directly (i.e. not holding property in accordance w/
religious practices – Walters) or indirectly (Edwards Books)
Determining Purpose of Charter Right or Freedom (Big M):

1. Consider with reference to characte4r and larger objects of Charter
2. Language used in text to describe right or freedom
3. Historical Origins of concepts
4. Meaning and Purposes of associated rights (generous rather than legalistic interpretation)
 Purposive, generous/large/liberal, dynamic

 Generous  Meant to be new affirmation in Canadian context
 Dynamic  interpretations can change over time
 Goal: achieve balance
 Motor Vehicle Reference – Lamer: Charter is matter of great controversy, text doesn’t give much
guidance, purposive approach helps interpretation
 Issues arise b/c judges are not elected
Who does the Charter Apply to?

 Govt only!
 Positive and negative obligations
 Can be violated by govt action, inaction, failure to deliver positive obligations
When does the Charter Apply?

1. If action is GOVERNMENTAL by its very nature
 S.32  “parliament and govt of Canada & leg and govt of each prov”
o Includes judiciary, leg and exec branches of govt (Cabinet, Ministers, Dept Officials, Police)
 Applies to govt inaction too (Vriend)
 Judiciary:
o Dolphin Delivery: crts not part of govt for purposes of s.32(1)
 This makes no sense ∴ has been ignored
 If did not apply to crts – how enforce right to fair trial w/in reasonable time
o R. v. Rahey: Unreasonable delays was a breach of s.11(b) ∴ judiciary subject to charter
 19 adjoiurnments, 11 months to reach decision
o BC Govt Employees Union v. BC: lawful picketers outside crts, judge wrote injunction telling
them to leave – SCC said motion violated s.2(b) but was saved by s.1 – Charter applied b/c
was not purely private dispute but crt was acting on its own and not at insistence of any
private party
 Common Law:

o Charter applies to common law when relied upon in litigation involving govt party or
proceedings initiated for public purpose
o When CL rule relied upon by Crown in crim proceedings, Charter applies b/c state
prosecution provides requisite element of govt action
o Swain – Lamer: if possible to reformulate CL so that does not conflict with pofj then do so
o Hill: Charter rights do NOT exist in absence of state action otherwise every judicial decision
would be subject to challenges – distinguish btwm charter rights and charter values
o Dolphin Delivery: Charter does not apply to CL if litigants are private parties
 Pepsi Case: secondary picketing lawful unless causing significant harm
o Salituro: CL rule preventing accused’s spouse from testifying against him was contrary to
dignity of witnesses who wished to testify – had to change rule to reflect Charter values
 Override
o Only covers s.2, 7-15
o Escape valve → if judges get it wrong leg can fix it
2. Party is Under Control of Govt
 Control Test: Are the day-to-day operations of the entity under control of govt (not necc
ultimate control but routine control) (McKinney)
 Govt Function Test: Is entity performing a trad govt function or one recognized as resp of
govt?
 Statutory Authority and Public Interest Test: Whether entity is one that acts pursuant to
stat authority specifically granted to it to enable it to further an objective that govt seeks
to promote in the broader public interest
 Stoffman v. Vancouver GH: mandatory retirement policy
o Majority of board appointed by govt but did not control it
o Day-to-day operations were not governmental, provision of public service
 Douglas v. Douglas College: Challenge to Mandatory Retirement Provision
o Govt had great deal of control over BC Colleges day-to-day operations
o Board was appointed by govt
o Govt issued directions, approved by-laws
o Subject to Charter
McKinney v. University of Guelph (1990): Entities controlled by govt

 Faculty members raised issue that uni’s mandatory retirement discriminated on basis of age
(s.15)
 Uni was not govt actor ∴ Charter did NOT apply
 To open all private and public action to review would strangle operation of society and diminish
area of freedom within which individuals can act
 Just b/c entity is creature of statute and has legal attributes of natural person does not make it
subject to Charter
 Not enuf that incorporated and perform public service

 Nature of rel to prov govt was not enuf

 Govt had no legal power to control uni; legal autonomy of uni fully buttressed by trad position in
society
 Wilson in dissent found satisfied all 3 tests from above
3. Party Implementing Specific Governmental Policy or Program

 TEST from Godbout
 Private actors are not bound by Charter unless “implementing specific govt policy or program”
(Eldridge)
 Govts should not be able to avoid Charter by delegating authority to others
 Private litigations can bring Charter challenge to statute even if govt actor not involved in
litigation
 Dagenais v. CBC: challenge to CBC on grounds would prejudice jury selection
o Although charter did not apply to CL, CL must be developed in accordance w/ Charter
values
o CL gave sufficient weight to freedom of expression and had to be reformulated in manner
that reflects principles of Charter
 Adjudicators derive power from statute, may have stat power of compulsion ∴ bound (Slaight)
 HRCs have power of compulsion (Blencoe)
 Municipalities: subject to charter b/c exercising govt functions (i.e. election, tax, making laws)
 Law Societies: Charter applies
o Same as municipalities b/c exercising govt bodies
o Have reg and disciplinary powers – legal powers of compulsion
 Dentists: Right to advertise upheld by Charter ∴ likely that professional reg agencies subject
too when governing formulating rules of professions
 If analagous to municipalities in sense that regulated through prov regulation (wide-ranging
powers to make rules and regulations – i.e. levying fees, disciplinary powers)
Godbout v. Longeuil (1997): Entities exercising govt function

 City of L required all permanent employees to reside in L
 G moved and was fired
 Policy of residence requirement violated policy
 L was essentially govt in nature – Charter not restricted to only those formally part of govt
 Subject b/c of activities they perform
 Municipalities:
o Councils democratically elected, accountable → analogous to parliament
o General Taxing Power → same as parliament
o Empowered to make laws, enforce, administer → same as parliament
o Derive existence and law-making power from provs

Eldridge v. BC (1997): Entities implementing govt programs

 Deal ppl sought declaration that failure to provide public funding for sign language interpreters
when they received medical attention violated s.15
 Hospital was held to Charter b/c acting in governmental capacity
 Govt cannot evade charter by delegating implementation of policies, programs to private entities
 Public function does not necc make subject to charter (McKinney)
 Govt is resp for defining content and services to be delivered by Hospital
 Hospital acts as vehicle for leg
 Direct connection btwn govt policy and hospital conduct (unlike Stoffman)
Vriend v. Alberta (1998): Government Inaction

 Omission of sexual orientation from Alta’s Individual Rights Protection Act (IRPA)
 V dismissed on grounds of sexual orientation and tried to file complaint
 S.32 of Charter permitted consideration of s.15 violation when arises from leg omission
 Threshold Test:
o Only requires that there is some “matter within the authority of the leg” which is the proper
subject of a Charter analysis
o Nothing in s.32 to indicate a positive act is necc
o When underinclusive as result of omission – s.32 applies
Hill v. Church of Scientology (1995): Reliance on Common Law in Private Litigation

 Is common law defamation inconsistent w/ Charter guarantee to freedom of expression
 Private parties owe each other no const duties and cannot found cause of action on Charter right
 In context of litigation involving private parties → Charter only applies to CL to extent
inconsistent w/ Charter
 Not a situation where one has to establish violation and other has to defend
 Party alleging CL is inconsistent w/ Charter has onus of proving failure to comply and that
balancing says CL should be modified
4. Questionable Whether Charter Would Apply

 Ab govts – not clear
o Powers from diff sources (i.e. inherent rights to self-govt, treaty, Indian Act)
o Are bands analogous to municipalities and territories?
o Where band authority shaped by Indian Act – likely to be subject (same as municipalities)
o If based on treaty powers – depends on what treaty says (i.e. Nisga Treaty entrenched in s.35
∴ subject) Nisga’s agreed to exercise compliance with Charter in Treaty

o Const relationship btwn territories and fed govt

o Abs are creatures of statute yet autonomous in exercising conferred powers
o Will not meet control test
 Public Schools
 Private Schools – like universities exercise autonomy ∴ not subject
 Crown Corporations
 CBC: even though Crown Corp whose functions are public in nature, not subject b/c has
programming independence and policy decisions are not subject to govt interference
 Involuntary detention by security guards, bouncers
o Violation of right to counsel, right to freedom from arbitrary search and seizure – not
exercising govt acts or policies
o State should not be able to delegate powers of arrest to anyone ∴ arg is that anyone w/
those powers is performing a govt function
o Most crts say that Charter does not apply to detentions and searches
RWDSU v. Dolphin Delivery (1986): Debate about application of Charter to Private Action
 Does Charter apply to litigation btwn private parties?
 Charter claim that injunction to stop secondary picketing infringed on freedom of expression
 Charter applies to common law, not private parties
 Fundamental Principle: judiciary should develop CL in manner consistent with values in const
and Charter
 Pepsi Case followed – CL must be in line with charter values
Gov’t vs. Private Activity

• Gov't activity attracts the charter, regardless of the actor
o Private actors (Eldridge, Slaight)
• Private Activity attracts the charter only for gov't actors
o (Douglas, Kwantlen)
o But not for private actors (McKinney, Dolphin)
Guelph (P787) “Not subject to Charter: Independent, no coercion”

• Mandatory retirement at 65. Age discrimination protected from 18-65.
• LaForest: Charter not applicable directly, because the university is private. Human rights act does
infringe equality rights, saved under s.1.
• University not subject to the Charter because
o Governance of the university was independent of the gov't.
o Mandatory retirement policy was created by the university, not at instigation of the gov't.
o University lacks coercive power to make laws binding on the public.

• Even though the university did

o Perform an important public service.
o Receive public $.
o Have powers and the attributes of a person.
Community College “Subject to Charter: Gov’t approval req”

• Everything had to be approved by the gov't, and so is subject to charter.
• However, the public chooses to be under this control...
Hospital “Not subject to Charter: Day to day ops. run privately”

• All regulations of hospital had to be approved, but the day to day of the hospital was private and
the retirement policy was not dictated by gov't.
Slaight “Private actor subject to Charter: Power of compulsion”

• Private individual employed as an arbitrator under Canada Labor Code ordered that an
employer who wrongfully dismissed an employee had to write that employee a reference. Clear
violation of freedom of expression.
• Charter does apply to private individual, who had the power of compulsion granted by
statute.
Eldridge “Charter applies to Medicare services?”

• Medical and Health Care Services Act of BC delegated to assess the cost of services decided not to
allow coverage for sign language interpreters.
• The court held that the Charter applied (this had to do with Medicare, Medical Services Act as
part of a gov't program), equality infringed and not justified under s.1. Conflicts w. other hospital
cases?
• Stoffman (mandatory retirement of doctors was allowed) distinguished, the charter applies for
government actors as well as private actors in government programs/policies.
• Hogg things this one is wrong. The real test is: Does the entity have a statutory power of
coercion? (Power to tax, to compel a witness, etc...)
In the case of non-governmental actors

• Wilson (dissenting in McKinney): Broad view of charter, 3 part test.
o Control test (level of control that gov't has.)
o Gov't function test (does the entity perform a traditional gov't function, or take on gov't
responsibility?)
o Statutory Authority/Public Interest test (Does the entity further an objective that the gov't
seeks to promote in the broader public interest?)

When does the gov't's failure to act attract the charter?

Vriend : Alberta Human Rights law
• Charter prohibited discrimination, but did not include sexual orientation, though the courts read in
SO by analogizing it to other characteristics.
• Cory held that the charter applied and the omission of SO from the charter was itself a charter issue.
• Must avoid a situation where the legislation can 'forget' a class of people. To what degree does the
charter impose a positive duty on government or other parties to act, as opposed to a negative duty
to refrain from acting? Language rights are positive (s.23).
In most cases, court have interpreted charter rights in negative obligations, but there are exceptions.
Positive Obligations
• Vriend (Sexual orientation)
• Dunsmore (Gov't obligation to protect right of bargaining)
• Gosselin (Arbour found positive right to welfare)
• Ford (Override carries an obligation only of form)
Who is protected by the charter, aside from human beings?

Depends on the interpretation of the right/freedom, and how the beneficiary is defined.
• S.2 is granted to everyone. Prima facie, this includes corporations.
• S.15 Equality: Every individual. Excludes corporations.
• Is the particular right capable of being enjoyed by a corporation? Yes to freedom of expression
(tobacco ads), but no to religion.
• S.7 EVERYONE has the right...to security of the PERSON... (not capable of being enjoyed by
corporations.)
Sources of remedies and standing

• S.52 Supremacy clause. Any law inconsistent w. constitution (charter) is of no force or effect.
• S.24 Application to court of competent jurisdiction for remedies deemed just and appropriate.
• In defense to a criminal charge, you can raise that the law is unconstitutional, even if you cannot
invoke a personal right to that law (Big M) BUT you cannot bring an action in anticipation of that
law.
• Different than in federalism (division of powers) cases. There, a private individual or corporation
will have standing to go to court if its interests are directly affected by that law, on division of
powers grounds.
• Public interest standing. (P47)
o Affected by it directly.
o No other reasonable and effective manner in which the issue may be brought before the
court.

o Hogg thinks these rules should also apply to the Charter.
Remedies
Section 24:
 Allows a crt to order remedies for violations of the Charter where it is just and appropriate
 Only applies to those whose rights have been violated
 Crt has discretion to determine remedy under s.24(2)
 Remedies Available:
1. Structural Injunctions:
 Mostly in the US
 Cdn crts said they are willing to consider them where Charter imposes clear, positive obligations
on govt
 Criticized for giving judges too broad powers
2. Damages
 Remedy infrequently used
 No developed jurisprudence
 Has been used in case of police misconduct and only where there was an egregious violation
3. Declaration
 Common s.24(1) remedy
 Declaration that claimant’s rights were violated by leg or action
 Results in kind of change that charter litigants are trying to establish
Section 52:
 Supremacy Clause
 Outside of Charter but part of constitution
 Says any law that is inconsistent with the const (including the Charter) is of no force and effect to the
extent of the inconsistency
 S.52(1) has range of remedies
o Schacter: leading case setting out remedy principles
 Appropriate remedy under s.52 is one that best achieves balance btwn goals of respecting
parliament’s law-making resp and fulfilling the exercise of Charter rights and freedoms
 Remedies Available:
1. General Constitutional Remedy: Declaration of Invalidity
 Immediate or Delayed (Temp Suspension of Invalidity)
o Should not be used indiscriminately

o Allows state of affairs that violates charter to persist for a period of time despite violation
o Criteria (Schacter):
 Potential Danger to Public
 Threat to Constitutional Order
 An underinclusive law where striking down would deprive persons of benefits without
providing them to the individual whose rights have been violated
o Ref Re Manitoba Language Rights:
 Man’s failure to meet requirements for bilingual enactment and publications of its statutes
was a violation of s.23
 Most statutes enacted btwn 1890 and 1985 were invalid and of no force and effect
 Chaos if all laws suspended ∴ crts declared leg temporarily valid for min period of time
required to translate and re-enact laws
o Dixon v. BC:
 BCs electoral boundary scheme was invalid b/c it invalidated the right to vote guaranteed
under s.3
 Declaration of invalidity would mean disappearance of electoral districts
 Crt declared leg valid for temp period of time to allow leg to enact an apportionment scheme
that complied w/ Charter
o Appropriate Length for Temp or Suspended Declaration of Invalidity:
 M v. H: 6 months
 Some as long as 18 months
 Man Ref – several years
o Remedy is being used more often now
o Remedial equivalent of s.1  balancing legal regime btwn crts & leg
 Striking Down in Whole or Severing in Part
o Remedy used in federalism cases
o Involves partial invalidation of law
o SCC said severance can be used to fulfill purposes of Charter while preserving those parts of the leg
that do not violate the Charter
2. Reading In (exceptional remedy)

o Crt can read in new language if necc to remedy constitutional defect
o Developed from Schacter Case
o Used in Vriend and Trudel (read in homosexuality as a missing provision)
o Used as result of underinclusiveness
o Vriend: (Iacobucci)  you must look at remedial precision, budgetary implications, effects on the
thrust of the leg and interference with leg objectives
o Rarely used
o Applies when:
 Other potential remedies are inadequate

 Words that need to be read in are known with sufficient precision

 Reading in will not hamper the objectives of the leg
 Will not lead to onerous fiscal responsibilities
 Budgetary implications  grp being read in must be smaller than group already included
 Effects on leg scheme must be modest
o Crt will usually suspend the reading in for a period of time depending on complexity
3. Reading Down
o Also a remedy in federalism cases
o Used when statute bears 2 interpretations – one that would offend the charter and the other would not
o Used to avoid declaring leg to be of no force and effect
o Permits crts to save a law from invalidity that would be unconst if given broadest interp
o Gives the law a narrower interpretation that would eliminate unconst applications
o Not necc remedy for invalidity  functions as technique of interp to avoid invalidity
o Presumes leg intended to act within bounds of const
o Stronger forms of reading down can also be used as a remedy for possible invalidity and can read
limitations into leg
o Hunter v. Southam
 Crt rejected fed request that procedures required by s.8 be read into leg (ref searches and
seizure powers under Combines Investigation Act)
 Crt said it was leg’s respt to enact leg that complies with charter
 Crts should not fill in details to leg to render it const
o R. v. Sharpe
 Certain exemptions read into law to narrow its scope and cure potential overbreadth
o Reading down is understood as interpretive principle
o Can fix problem by reading leg narrowly in manner consistent with Charter and Const
4. Constitutional Exemption (controversial)

o Law valid in most situations but in some cases it infringes – in these circs claimant can get exemption
o Some members of crt have expressed doubts about dealing w/ const of laws on case-by-case basis
o Const exemptions have been granted by lower crts in crim proceedings
o Controversial b/c element of uncertainty that judicial discretion would introduce by allows indicids to
be exempt from app of law
o Rodriguez: not accepted by crt → if had been accepted then remedy would be to give her a const
exemption rather than change the law
o Medical Marijuana: lower crts have granted exemptions
o Latimer: could have been done
o Case-by-case basis
o Law remains in force but inapplicable to those whose rights are infringed by its effects
o Many issues around const exemptions are unsolved

 SCC has yet to rule on whether they are an available remedy

 SCC said it will use it in conjunction with temp suspension of validity (give relief to claimant
until law is fixed)
o Crts may be more willing to grant where individuals are part of easily identifiable grp and
determination does not require highly discretionary case-by-case balancing of facts
Shacter v. Canada (1992):

 S claims for paternity benefits following birth of his child
 Dismissed as not falling within provision of Unemployment Insurance Act
 Challenged the decision as violation of his rights to equality under s.15 → said discriminated btwn
natural and adoptive parents
 Provision struck down, leg suspended
Severance: Inconsistency something improperly included in statute which can be severed or struck down
Reading In: Inconsistency defined as what statute wrongly excludes rather than wrongly includes
Both: Have purpose of being as faithful to requirements of const and scheme enacted by leg
Reading In or Severing?
1) Question not whether crts can make decisions that impact on budgetary policy but to what degree
they can appropriately do so
 Cannot use a remedy which intrudes into this sphere in such a substantial way that changes the
nature of the leg scheme → inappropriate
2) Whether significance of part which would remain is substantially changed when offending part is
struck down
 When group to be added is smaller than group originally benefited, this is indication that
assumption that leg would have enacted benefit in any case
 When group is larger than original group then this could indicate assumption is not safe
3) If remaining portion is very significant or of long standing nature, it strengthens assumption that it
would have been enacted w/out impermissible portion
 striking down immediately would be inappropriate b/c would deprive eligible ppl of a benefit
w/out providing relief to respondent
 should ∴ suspend to give parliament time to bring provision in line with const
 imprudent to read in excluded group
 consideration of budgetary implications
 excluded group seeking to be included likely outnumbers group who already gets benefits
 inclusion would be substantial enough to change nature of scheme as a whole
 appropriate action: declare provision invalid but suspend declaration to allow leg to weigh all
relevant factors in amending the leg to meet const requirements

Twin Guiding Principles:

1) Respect for role of leg
2) Respect for purpose of Charter
Options:
1) Strike down
2) Severance
3) Read in/Read down
4) Strike down/read in/read down with temp suspension
Vriend v. Alberta:
 Remedy of reading in would minimize interference w/ legitimate leg purpose ∴ avoid excessive
intrusion into leg scheme
 Striking down IRPA would deprive all Albertans of human rights protection  unduly interfere w/
scheme
 Budgetary implications not a problem
 Reasonable to assume if leg had to choose btwn no human rights leg or having one that offered
protection on ground of sexual orientation would choose latter  shows that does not alter leg
significantly
 Group to be read in is smaller than one already included
 Leg can pass new statute in response
 Leg can use override
 DISSENT: Major
o Not appropriate to read in
o Should declare offending sections invalid and provide leg w/ opp to fix
M v. H (1999):
 Exclusion of same-sex couples from definition of spouse
 Struck down underinclusive leg subject to 6 month delayed declaration of invalidity
 Reading in wouldn’t work b/c would remedy one const wrong only to create another b/c defin of spouse
found throughout Act
Defining Limitations: Section 1

s.1  guarantees rights and freedoms set out in it subject to reasonable limits prescribed by law as can
be demonstrably justified in a free and democratic society
Oakes Test:
1. Prescribed by Law

2. Pressing and Substantial Objective

3. Proportionality Test
a. Rationally connected to Objective
b. Least Restrictive Means
c. Proportionate Effects (negative effect vs. importance of objective)
Limits Prescribed by Law:

 Law must be adequately accessible
 A norm cannot be regulated as law unless it is formulated w/ sufficient precision to enable the citizen to
regulate his conduct
o He must be able w/ appropriate advice to foresee to a degree that is reasonable in the circs, the
consequences which a given action may entail
 Limit must be set out in legal rule
 Publicly accessible
 Not too vague (NS Pharmaceutical – articulates std that even if a rule is publicly accessible, it can’t be
too vague)
 If limitation is imposed in absence of legal authority then it is not prescribed by law
 Need notice, accountability (for any restriction of a const right)
 Std is balance of probabilities
 Limits can be prescribed by common law, statute or regulation BUT not internal directives
o Re Ontario Film & Video Appreciation Society: censors had unfettered discretion with no statutory
limits despite internal criteria developed by board
 Limits cannot be prescribed by law if too vague
o Irwin Toy: crt held restrictions re. advertising to kids was clear to satisfy prescribed by law and law
was justified restriction on freedom of expression
 Requirement serves “gatekeeper” function  limits instances that infringement will be upheld
 Fair Notice:
o Formal Notice: i.e. acquaintance w/ actual text
o Substantive Notice: understanding that some conduct comes under the law
 Limitation of law enforcement discretion – a law must not be so devoid of precision in its
contents that a conviction will automatically flow from decision to prosecute
 A vague provision does not provide an adequate basis for legal debate (i.e. for reaching a
conclusion as to its meaning by reasoned analysis applying legal criteria)
R. v. Nova Scotia Pharmaceutical Society (1992): Assessing for vagueness

 Pofj that laws must not be too vague
 Factors considered when determining if a law is too vague:
o Need for flexibility and interpretive role of the crts

o Possibility that many varying judicial interpretations may exist and co-exist
 Impossible to achieve absolute certainty, std of intelligibility more appropriate
 Rationales of Vagueness:
o Fair notice to citizen
o Limitation of enforcement discretion
 Unintelligible provision gives insufficient guidance for legal debate ∴ unconstitutionally vague
 Need room for debate to be able to reach a conclusion by reasoned analysis and applying legal criteria
 Does not sufficiently delineate any area of risk and ∴ cannot provide fair notice or limitation of
enforcement discretion
 Offers no grasp to judiciary
Pressing and Substantial Objective  Sufficiently Imp Obj to justify limiting right
 Govts rarely fail at this stage
 Hard to convince a crt that objective offered by govt is not pressing and substantial
 Almost any objective will qualify
 Only objectives that will not meet this stage → those that run counter to the reason for entrenching
rights and freedoms in first place
 Must state reason (i.e. RJR MacDonald: advertising violates s2(b) but was necc “to prevent ppl from
being persuaded by advertising and promotion to use tobacco products”)
 Objective in infringing govt action must be sufficiently important to justify overriding constitutional
rights or freedoms → must be pressing and substantial and directed at the realization of collective goals
of fundamental importance
Proportionality
Rationally Connected  Measures must be designed to meet objectives

 Method chosen by govt must be rationally connected to objective
 Almost always met – low standard – tenuous connection
 Connection btwn means and ends
o RJR MacDonald allows inconclusive evidence of reduced smoking as meeting a means ends test for
rationality
 Internal Rationality: Oakes – it is not rational to conclude that drug trafficking will be reduced by
punishing someone found with small or negligible amount of narcotics – no rational connection btwn
possession of small amount and intent to traffic
Minimal Impairment  Means should impair right no more than necessary

 Most cases turn on this branch – higher standard  Reasonableness Test
 Comparative inquiry

 To what extent is the govts chosen means having impact on Charter

 What are the alternatives that would have less impact on Charter but nearly as effective
 Assess chosen means against hypothetical means → consider alternatives
 Look for guidance to alternatives: social science
 If alternative, less-restrictive means then strike down leg
 Focus on strength of connection btwn means and ends
o Insists on strong connection
o POLICY: Both minimal impairment and rationally connected deal with means and rationality but
different standards
 Can argue that rational connection test is superfluous, redundant → hard to imagine something
that meets minimal impairment and not also rational connection
Proportionate Effect  Proportionality btwn effects and objective

 Effect must be proportionately more beneficial to society than costs associated w/ infringement of
freedom
 Balance btwn negative interference and importance of govt objective (effects versus objective)
Edmonton Journal v. Alberta (1989):

 Wilson: must interpret s.1 in contextual approach
 Recognizes particular right or freedom may have diff value depending on context
 Contextual approach attempts to bring into sharp relief the aspect of the right or freedom which is truly
at stake in case as well as relevant aspects of any values in competition with it
Thompson Newspapers Co. v. Canada (1998):

 Bastarache – interpretation of s.1
 Contextual approach by indicating vulnerability of group leg wishes to protect
 Groups own subjective fears and apprehensions of harm
 Inability to measure scientifically harm in question
 Nature of activity infringed
RJR MacDonald v. Canada (1995):

 McLachlin
 Nothing in jurisprudence suggests contextual approach reduces obligation on state to meet burden of
demonstrating limitation on right imposed by law is reasonable and justified
 Context essential → but cannot be carried to extreme of treating challenged law as unique socio-
economic phenomenon, of which parliament deemed best judge
 Deference accorded to parliament → leg varies w/ social context

Running Through Oakes:

1. Identify precisely what the infringing measure is
2. What is the pressing and substantial objective?
3. Are the means chosen to accomplish objective acceptable?
4. What are the negative effects of the infringement vs. positive effects?
 Apply in contextual, flexible manner
 Judges don’t agree on how to apply it
 Should be done in relation to right and freedom at issue
→ i.e. Keegstra – weigh issue of hate propaganda, not freedom of expression in general
Dagenais Test:
 Crt looks at real effects versus the real harms rather than theoretical benefits
 Lamer added this third part to Oakes Test
 Look not only at objective of law but also at its actual effects
 Crt looks to social science evidence
 Controversial  crt usually said not to assess effectiveness but in this case they look at its effectiveness
Context and Deference

 Context: crt must assess the value or significance of right and its restriction in context rather than in
abstract
 Deference: crt more willing to defer to leg in certain circs for their judgment about need for particular
limit on Charter right
 Crts divided on when deference should be paid to leg, to what degree, what contextual factors should be
taken into acct
 Contextual Analysis Must Consider 3 Factors:
1. Nature of Expression At Issue:
 Restrictions should be closely tied to truth, democracy, self-realization
 Must meet “a searching degree of scrutiny” (Thompson Newspaper – laws regarding opinion
polls have connection to democracy and self-realization)
 When expression strays from core values, a lesser degree of scrutiny is required (i.e. obscenity,
hate propaganda, comm for purposes of prostitution, advertising dangerous prods)
2. Socio-Economic Position of Persons Affected By the Law
 If law protects disadvantaged groups, std of justification is reduced → done so Charter does not
roll back laws enacted to further interests of relatively disadvantaged (Irwin Toy)
 Inappropriate when group is not vulnerable – i.e. Canadian Public (Thompson Newspaper)
 When law has negative effect on marginalized grou, govt must meet rigorous std to justify
3. Quality of Leg Debate Preceding Enactment of Law
 Crts will be more impressed if leg makes balanced effort at combating perceived problem (RJR

– McLachlin not impressed by lack of debate and blunt attempt to bad advertising)
Section 33: Override / Notwithstanding Clause

 Can override ss.2, 7-15 and do not have to show reasonable or demonstrable justification
 Express declaration of override is necessary in the statute itself
 Sunset clause – expires after 5 years to encourage regular review by leg
 Override is not inferred
 Must specifically refer to the right to be overridden
 POLICY:
o People don’t like it bc defeats purpose of having Charter
o Other side says: judges are fallible and can make mistakes
o People more comfortable with it now b/c flexible, contextual approach of s.1 means govt
doesn’t need to use it often
 Has only been used twice in Canada
o Sask – back to work legislation
o Alta – marriage btwn man & woman (stupid though b/c fed has jurisdiction over marriage &
divorce)
Ford v. Quebec (1988):

 Challenge to Quenec Charter of French Language – required French only signs and ads
 Was use of override valid?
 Contention that provision did not sufficiently specify guaranteed right or freedom which leg
intended to override
 Requirement: need express declaration
 If intended only to override in part then there would have to be sufficient reference in words to
part to be overridden
 Crt held that omnibus reference to rights was sufficient
o Not reasonable to require reference particular to statute containing declaration b/c a leg body
“might not be in a position to judge with any defree of certainty what provisions of the Charter
might be successfully invoked against various aspects of the act in question”
 Normal presumption against retroactivity should be applied in language of s.33 → should be
construed as permitting only “prospective derogation only”
Freedom of religion: section 2(a)

-Religion (leading case r v Big M drug Mart)
-R v Edwards books- concluded that the charter does not contemplate religion as either a federal or
provincial class of subjects. (depends on the characteristics of the law) p. 42-1. –not exclusive power of

either one)
-subject to section 1 limitation clause
• Religion is not a 'matter' says Dickson, and does not fall exclusively in either provincial or federal.
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
Freedom of Religion
Preamble of charter: Supremacy of god and rule of law.
Fundamental freedoms
• Religion (among the first freedoms)

Division of powers
• Formerly federal criminal power
o Lord's Day Act
o Implied bill of rights
• Religion is not a 'matter' says Dickson, and does not fall exclusively in either provincial or federal.
Big M Drug Mart

• Early charter case about selling goods on Sunday. The Lord’s Day Act prohibited working
commercial activities, games where fees are charged, pleasure transportation where fees charged,
except where provincial (property and civil rights) or municipal law allows. The court noted
groceries and cups were bought at Big M, showing that striking down the law would not be the end
of the world.
• Supreme Court struck down the Lord's Day Act as invalid criminal law. Protect morality by
ensuring that the Sabbath was observed. Even if the purpose of the Act was religious, the effects
are what matter. Does the Act infringe S.2a of the Charter?
• Dickson
o Both purpose and effect are relevant. If the purpose is unconstitutional, effects need not be
looked at. (P824) Where the object is improper, the court has discretion to discourage
litigation. Ensures rights by obviating the plaintiff's need to prove effects.
• Nature of a truly free society P825:
o Absence of coercion (direct or indirect) or constraints.
o Concern for minorities, beliefs, diversity.
o Equality wrt. freedoms, inherent. Complex, controversial, intrusive.
o Respect for dignity, rights of others.
o Ability to hold and profess beliefs.
• Attempts to compel belief of any kind in inappropriate. P827 Democratic political tradition.
Constitutionally incompetent for the Canadian gov't to give preference to one religion over another.
• Communicates that this is not a rejection of religion or the Sunday, Dickson being a religious man.
Prof. Moon: Freedom of religion also means freedom from religion.
Hunter ... Southam: Purposive approach to interpretation.
R. v. Edwards Books and Art (1986) “Retail Business Holiday Act”

• Close business on 'holidays' (xmas, good friday, new years, labor day)
• Close Sunday except:
o Corner stores, pharmacies, municipal law exemptions for tourists
o if closed on previous Saturday
o 7 or fewer employees on Sunday
o 5000sq. ft. max to serve public

• Majority: The EFFECT is coercion, economic pressure to make you abandon religious beliefs.
Saved by s. 1 – (see Applying S. 1: Day of rest.)
• Beetz (dissent): If there was no legislation, observers might not open store on Saturday and suffer
costs because of religion, not the state. The coercion follows from religious beliefs. S.15
(discrimination) not in force.
• Gold: Embedded in a notion of freedom of religion is equality.
Applying S.1: Day of rest

• Sufficiently important
• Retail vs. other industries
• Claiming religious exemption requires that
o A religious principle is at stake
o There is a sincere belief in that principle
o The law conflicts with that principle, in that it is impossible to comply with both and
adhering to the principle is obligatory
o The objection is reasonable.
• Dickson:
o Violates freedom of religion, but saved by s. 1.
o Accomplishes legitimate purpose with minimal infringement on rights. Assumes that
exemptions make sense that way, with no evidence. Balance of probabilities? (Oakes)
o Drawing the line, exemptions allows us to avoid looking too deeply into the religious
preferences and reasons of others. It's a distasteful inquiry.
o Be cautious about rolling back legislation that has the object of improving... Wary of using
the charter as a regressive instrument. (P838)
• La Forest would have upheld the law even without exceptions.
• Wilson would have struck it down.
o Draws distinction between big and small businesses, with no evidence that large businesses
would significantly affect industry if they were allowed to stay open.
• Quebec allows opening on Sunday with less restrictions.
• 3 Years later, Ontario amended the law, permitting any store to open on Sunday if they were closed
on any other day for a religious reason. (Wilson)
The broader freedom of religion is defined the more work S.1 has to do.
Other rights have grown, equality has shrunk and fewer cases get through the equality tests.
Opening municipal council meeting with prayer?

• S.2a protects Canadians from religious coercion. (Though you don't need to participate in the
prayer.)
• S.27 Multicultural

Sudbury
• Leaving during a school service forces one to make a religious statement and stigmatizes young
people.
History and traditions conflict with freedom of religion.
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
Freedom of Expression: Commercial Speech (Advertising)

S.2(b): thought, belief, opinion, expression, including the press and other mediums.
Irwin Toy
• Law prohibiting advertising directed at persons under the age of 13 valid under consumer
protection legislation.
• Arguing s.7 not valid because a corporation cannot enjoy the right of life, liberty and security
of the person.

• Purpose is important. Studies were weak for the relevant age range, so reasonable judgment was
required. (P912) (Dissent: McIntyre & Beetz not impressed by case.)
• Minimal impairment. There is a reasonable basis for believing that the ban on ads impairs as
little as possible. (weaker standard than Oakes) Less intrusive alternatives to ban (codes of
conduct, etc.) not mandatory.
• McLachlin (dissent): We should treat all speech the same, whether ads or political debate. (P913)
Tobacco Act
• Federal legislation banning certain forms of ads (requiring health warnings, regulating information
on packages) was upheld under the criminal law power,.
• Gov't conceded that the legislation infringed freedom of expression. The tobacco company
conceded that protecting Canadians is pressing and substantial. (Don't argue lost causes and
frustrate the bench. Fight the fights you can win and lead with the best arguments.)
• 5-4 decision turned on whether rights were infringed as little as possible. Gov't commissioned a
study of alternatives to a ban and did not submit the study.
Why is advertising included in freedom of expression?

• truth finding, dialog, reinforcing personal views. Advertising helps us build true views in a very
commercial society, or at least engages us in critical dialog.
• autonomy
• democratic participation
• diversity
US protects speech more for only democratic reasons and not the others.
Included in Freedom of Expression

• A statement or an act intended to communicate or express meaning. (Dolphin Delivery)
• False statements (Zundel)
• Threats of violence, subject to S.1. (Keegstra, contra Dolphin Delivery)
Test for constitutionality

1) Does a law violate constitutional rights?
2) Does the law impose reasonable limits?
Are all forms of speech (ads vs. political debate) worthy of equal protection?

Freedom of Expression: Hate Speech

R. v. Keegstra (1990)
• Keegstra (teacher) was charged under the hate propaganda provisions of the Criminal Code for
making anti-semitic statements to students. Did the law violate Section 2(b)?
• The court held that the restriction was a violation, justified under Section 1.
• Why does willful promotion of hatred fall under protection? Section 2(b) does not allow content-
based restrictions because of the offensive nature of speech. Its ambit could not be narrowed by
reference to other Charter values such as equality and multiculturalism. However, those values
could inform the Section 1 analysis, and help to find the law’s objective to be “pressing and
substantial.”
Options
• Override the charter
• Redefine the kind of speech protected under the charter
Should we be fine-tuning the criminal code or repealing it?
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)
Equality Rights
S.15 came into force 3 years after the rest of the charter by s.32(2), to give gov't a chance to change laws.
Sometimes you need to treat people differently to treat them equally.
Out with narrow Bill of Rights interpretation (P1141)

• S.15 says the narrow bill of rights interpretation is not to continue w. charter. Charter should apply
to the content and application of legislation.
Andrews
• BC law required Canadian citizenship before passing the bar.

• Former Hogg: Any legal distinction violates s.15, subject to s.1. (Could overwhelm the legal
system)
• Other Doctrine: S.1 not applied unless distinction causes disadvantage and is unreasonable
unjustified. (Is there any role left for s.1?)
• McIntyre wants a middle ground. Violation of s.15 causes disadvantage, go to s.1 for
reasonableness.
Law “Survivor’s pension distinction not an equality issue”

• Age based distinction in survivor's pension calculation does not reflect a lack of equal concern or
respect. It has an ameliorative purpose, using age as a proxy for need. Never got to S.1.
• S.15 has been defined very narrowly, such that it is now rare to get to s.1.
• Prevent the violation of essential human dignity or freedom... (P1174)
• Iacobucci 3 Part test on the part of the complainant
o Distinctions that trigger equality review: Does the law draw a distinction based on
PERSONAL characteristics (Andrews: incl. citizenship) or fail to take into account an
already disadvantaged situation (Vriend, Eldridge)...? (or be listed?) Must show actual
disadvantage.
o Enumerated or analogous grounds: Where the constitution permits infringement on
enumerated grounds, those laws are sheltered. (Age of judges, CA1867 91.24 laws for
aboriginals, s.93 religion-based school systems, 16-23 language rights.)
o Analogous to enumerated items:
 Identify the group
 Has the group been historically disadvantaged?
 Immutability (Can the status be changed easily or without great personal/emotional
cost?)
 Is the characteristic relevant for gov't legislative purposes.
 Powerlessness of the group in the political process.
 Look at underlying characteristics of listed grounds that make them listed. P1154
Andrews, La Forest.
• *Workers comp does not fit. We can discriminate between work and non-
work injuries.
• *Something can be analogous but not discriminatory.
• McIntyre in Andrews (P1152)
o A distinction (intentional or not) that fulfills #1 and #2 deserves scrutiny. Nothing added.
Written before Law case.
• Innocent purpose does not save law from its effects. Discriminative purpose will make laws
even more vulnerable. If purpose is hidden behind a made-up reason, the new reason can be
attacked for not being pressing. The strict standard of review in Oakes smokes out the bad reasons.

• Definition of discrimination: That which makes people feel less capable or worthy, less of a human
being, member of society. Concern for respect, consideration. (P1166) HUMAN DIGNITY - self
respect, empowerment. Does the law treat unfairly? (P1173-4)
o Discriminatory if it offends human dignity?
• 4 non-exhaustive factors (P1174)
o Does group suffer pre-existing disadvantage?
o Is the discrimininating factor relevant, correlated?
o Is the law trying to remedy a disadvantaged group? (Lovelace: Allowing only band
members to share in profits from casino was ok because it was trying to ameliorate the
situation of the disadvantaged native americans.)
o Would a reasonable person think that human dignity is being infringed? Characterization.
The more fundamental the right, the more likely is a law to be struck down.
• Substantive inequality (P1172)
Miron v. Trudel
• 5-4 Denial of automobile accident benefits to an unmarried opposite-sex couple held to be
discrimination on basis of marital status, contrary to s. 15. Not justified by s. 1.
Walsh “Marital status distinction not a violation of dignity”

• Marital status (cohabitation without marriage). Presumption of equal division of property for
divorced parties. Walsh had cohabitated for 10 years - application for support.
• Supreme Court found no violation of human dignity.
Goselin “Different welfare payments not a violation of dignity”

• Younger people got less welfare payments unless they had job retraining. S.15 and 7 rejected.
Disadvantage but - No discrimination, no violation of dignity.
S.15 is a very tough test to satisfy.
M v. H “Gay spouse distinction is a violation of dignity”

• Same sex couples. Successfully argued that definition of spouse discriminated.
Taxation Power
• Parliament has plenary taxation power (91.3) raising of $ by any mode.
• Provincial limited power (92.2), reflecting less need to tax. Direct taxation for provincial purposes.
Direct vs. Indirect

• s.121, 125 limit taxation and exempt public lands.
• Provinces getting more power
• John Stuart Mill

o Direct - Demanded from the person who pays is.

o Indirect - Understood that it will be passed on to ultimate consumer.
• SCC
o Look at tax in its general tendency
o Once a tax is decided dir or indirect, that's the last word. Ex: Land, Sales tax is a direct tax.
Customs, Excise (manufacture and distribution of goods) taxes are indirect.
Division of powers issues come before charter issues.
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
Topics
Terms of employment- flight attendants airlines- Toronto Commission and Sneider- Federal- Aeronautics
Pollution- POOG- Zellerback- anti- Federal
Regulation of legal profession- provincial- Craig v Law society of Alberta
Obligations set out in international treaties singed and ratified in Canada- Federal s 132 Const 1867
Promotion and sale of insurance- banks- Provincial- CAD Western Bank
Retail Sales of tobacco products to Minors- Provincial sales- Rothmans- Both Federal and Provincial
Only Manitoba sec 23, New Brunswick sec 16 and Quebec are subject to constitutional requirements to
pass laws in English and French
Eldridge- only subject to charter of implementing a specific policy (hospitals)

Cons Law Sum Fin

Hochgeladen von

Dokumentinformationen

Originalbeschreibung:

Copyright

Verfügbare Formate

Dieses Dokument teilen

Dokument teilen oder einbetten

Freigabeoptionen

Stufen Sie dieses Dokument als nützlich ein?

Sind diese Inhalte unangemessen?

Copyright:

Verfügbare Formate

Cons Law Sum Fin

Hochgeladen von

Copyright:

Verfügbare Formate

Canadian Constitutional Law

CONSTITUTIONAL LAW SUMMARY

Difference btwn Public and Const Law:

Four Constitutional Principles

Other constitutional principles

Conventions: Unwritten rules

www.legalandlit.ca/.../first/constitutional/const_haigh_w05_2.doc 10/04/2011 3:31 PM

ss.1-34 of Constitution Act  Charter

Legitimacy of Judicial Review: Debate flows from 4 factors

Functions of Judicial Review

Philip Bobbett's Judiciary Functions

Standing, Notice and Interveners

www.legalandlit.ca/.../first/constitutional/const_haigh_w05_2.doc 10/04/2011 3:31 PM

o Limited standing in this case

Priority between federal and Charter grounds

Statute of Westminister - 1931

www.legalandlit.ca/.../first/constitutional/const_haigh_w05_2.doc 10/04/2011 3:31 PM

Constitution Act, 1982

www.legalandlit.ca/.../first/constitutional/const_haigh_w05_2.doc 10/04/2011 3:31 PM

 easier to use s.43 but must more limited in scope

4. Federal Unilateral Procedure  s.44

5. Provincial Unilateral Procedure  s.45

Note on Evolving Conceptions of Democracy:

Quebec Secession Reference

www.legalandlit.ca/.../first/constitutional/const_haigh_w05_2.doc 10/04/2011 3:31 PM

 Referendum is meaningless but cannot be ignored

- Lalonde 2001 OntCA Montfort

The Regional Veto Act (page 456)

Canadian Federalism (pages 77-87)

1791: Creation of legislative assemblies (Bicameral: Composed of or based on two legislative

www.legalandlit.ca/.../first/constitutional/const_haigh_w05_2.doc 10/04/2011 3:31 PM

overrule one another, both have on spheres)

(procedure for division of powers cases)

Reasoning of judicial review

www.legalandlit.ca/.../first/constitutional/const_haigh_w05_2.doc 10/04/2011 3:31 PM

• Matter – Laskin: “a distillation of the ‘constitutional value’ represented by the challenged

www.legalandlit.ca/.../first/constitutional/const_haigh_w05_2.doc 10/04/2011 3:31 PM

Pith and Substance Doctrine:

Division of Powers Doctrines

Necessarily Incidental Doctrine

www.legalandlit.ca/.../first/constitutional/const_haigh_w05_2.doc 10/04/2011 3:31 PM

General Motors Inc. v. City National Leasing (1989):

- Key features of the test for the division of powers:

Double Aspect Doctrine

Interjurisdictional Immunity Doctrine

www.legalandlit.ca/.../first/constitutional/const_haigh_w05_2.doc 10/04/2011 3:31 PM

3 kinds of constitutional arguments for challenging provincial statutes:

www.legalandlit.ca/.../first/constitutional/const_haigh_w05_2.doc 10/04/2011 3:31 PM

3 kinds of constitutional arguments for challenging a federal statute:

 Used to fill gaps in the division of powers

www.legalandlit.ca/.../first/constitutional/const_haigh_w05_2.doc 10/04/2011 3:31 PM

Multiple Access Case - insider trading case.

www.legalandlit.ca/.../first/constitutional/const_haigh_w05_2.doc 10/04/2011 3:31 PM

 Dickson says that value of provincial autonomy trumps arguments of efficiency

Why should federal laws prevail?

www.legalandlit.ca/.../first/constitutional/const_haigh_w05_2.doc 10/04/2011 3:31 PM

Test for emergency:

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

www.legalandlit.ca/.../first/constitutional/const_haigh_w05_2.doc 10/04/2011 3:31 PM

3. Is the measure temporary?

National Concern: (class notes)

Monroe: Anti-Inflation Reference “Inflation not national concern”

www.legalandlit.ca/.../first/constitutional/const_haigh_w05_2.doc 10/04/2011 3:31 PM